Olimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003
A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, 6 and 7 of the International Covenant on Civil and Political Rights by Uzbekistan. The Committee found that Uzbekistan had breached the ICCPR, finding the son had been arbitrarily deprived of life, subject to torture or cruel, inhumane or degrading treatment and that Uzbekistan had failed to conduct an adequate and impartial investigation of the allegations.
The author of the complaint to the Committee was the father of a son who was arrested and died in custody in Uzbekistan. The author contended that his son was healthy before his arrest and died as a result of his treatment in custody. The author produced to the Committee photographic evidence of trauma to his son’s body, including bruising, scratching and swelling.
Initial investigations by authorities in Uzbekistan determined there would not be criminal proceedings initiated in relation to the case. The author submitted several further petitions to various state bodies including the General Prosecutor requesting further investigations. Further internal investigations were conducted that concluded that the son died of several chronic health issues including hypertension, chronic anaemia, chronic lung infection and kidney infection resulting in brain haemorrhage. X-rays showed seven broken ribs, which were explained to be the result of cardiac massage.
The author contested the findings of the internal investigations, in particular as they were not consistent with the actual injuries as shown in his photographic evidence or his son’s prior medical history as he had never been diagnosed with any of the chronic illnesses documented.
The author submitted to the Committee that Uzbekistan had failed to properly investigate his claims, in particular by failing to exhume and re-examine the body in an open investigation, and in doing so breached his son’s and his own rights to an effective remedy under art 2 of the ICCPR. The author submitted that the treatment of his son in custody breached his son’s rights under art 6 (right to life) and 7 (prohibition against torture and ill-treatment) of the ICCPR, and that at minimum, the continued interrogation of his son while he was gravely unwell constituted torture of itself.
The first key issue for the Committee was whether there was sufficient evidence to determine that there had been a breach of arts 6 or 7 of the ICCPR by Uzbekistan against the son.
The second key issue was whether the investigation into complaints made by the author about the death of his son and alleged breaches of the ICCPR met requirements in art 2 that claims to remedy for breaches under the ICCPR be met with proper inquiry.
The Committee found that there had been a breach of arts 6 and 7 of the ICPCR both alone and when read in conjunction with art 2, with regard to the author’s son.
The Committee also found that author’s own rights under art 2 had been breached as he had been denied an effective remedy for the death of his son.
In respect of art 2, the Committee was of the view that,
the State Party’s investigations into the highly suspicious circumstances of the death of the author’s son in the State party’s custody just nine days after his arrest by officers of the National Security Service, were inadequate, in the light of the State party’s obligation under article 6, paragraph 1, and article 7, read in conjunction with article 2, of the Covenant.
The Committee appears to have drawn adverse inferences against Uzbekistan in light of its failure to complete satisfactory investigation into circumstances of the author’s son’s death:
The Committee considers, therefore, that the State party’s failure to, inter alia, exhume the body and the author’s son and to properly address any of the author’s claims raised at the domestic level and in the context of the present communication about the inconsistencies between injuries on his son’s body and the explanations advanced by the State party’s authorities, warrant the finding that there has been a violation of article 6, paragraph 1 and article 7, of the Covenant, with regards to the author’s son.
The Committee considered that the circumstances illustrated by the author ‘point towards the State party’s direct responsibility for his son’s death by torture’. As a result, such evidence ‘necessitated at the very minimum a separate independent investigation of the potential involvement of the State party’s law enforcement officers in the torture and death of the author’s son.’
The view of the Committee was that ‘the State party is under an obligation to provide the author with an effective remedy in the form, inter alia, of an impartial investigation into the circumstances of his son’s death, prosecution of those responsible and adequate compensation. The State party is also under an obligation to prevent similar violations in the future.’ The Committee further stated that ‘in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, States parties should pursue investigations through an independent commission of inquiry or similar procedure.’
Relevance to the Victorian Charter
The principles applied in this decision can be used as guidance for interpreting the Victorian Charter, which similarly protects the right to life (s 9) and the right to protection from torture and cruel, inhuman and degrading treatment (s 10).
In particular, the decision demonstrates that where an ICCPR right is alleged to have been abused, art 2 in conjunction with the allegedly breached rights operates to require a State to conduct an effective and independent investigation.
The Committee’s view shows a clear position that allegations of human rights abuses must be met by all signatories to the ICCPR with thorough and open investigations. The Committee appeared prepared to draw adverse inferences from the lack of a thorough investigation, such that it considered arts 6 and 7 had been breached, along with procedural breaches of art 2.
The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1225-2003.pdf.
Kate Fazio is a lawyer with Mallesons Stephen Jaques