The Human Rights Committee finds Turkmenistan in violation of the right to freedom from inhuman and degrading treatment in connection with its inhuman and degrading treatment and imprisonment of a conscientious objector to compulsory military service. 

Zafar Abdullayev v. Turkmenistan (2218/2012)

Turkmenistan’s imprisonment, ill-treatment and repeated conviction of a conscientious objector to compulsory military service violated the rights to freedom from inhuman and degrading treatment, freedom from conviction twice for the same offence and freedom of conscience

Summary

In March 2015, the Human Rights Committee was asked to consider whether Turkmenistan had violated its obligations under the International Covenant on Civil and Political Rights in connection with its inhuman and degrading treatment and imprisonment of a conscientious objector to compulsory military service.

The communication was submitted by a Turkmen national under the Optional Protocol to the Covenant.

Background

The author, Zafar Abdullayev, was called upon by Turkmenistan’s Military Commissariat to perform his compulsory military service in the autumn of 2005, shortly after he reached 18 years of age. The author is a Jehovah’s witness. His religious beliefs did not permit him to undertake military service. The author’s military service was therefore deferred for an indefinite period of time.

In the spring of 2009, the author was summoned again for military service, which he refused to undertake. The author was charged under article 219(1) of the Criminal Code for refusing to perform military service. 

On 8 April 2009, the author was tried before the Dashoguz City Court. He was convicted and received a 24-month conditional sentence, during which time he was regularly monitored by the local police. The conditional sentence ended in April 2011.

On 26 November 2011, the author was arrested by the police and brought to the Military Commissariat for the call-up for military service. He was charged for a second time under article 219(1) of the Criminal Code.

On 6 March 2012, the author was tried before the Dashoguz City Court. The author reiterated the reasons why his religious beliefs prevented him for undertaking military service. He was convicted for a second time under article 219(1) of the Criminal Code and sentenced to 24 months of imprisonment. He was arrested in the courtroom and placed in detention.

On 27 March 2012, the Dashoguz Regional Court dismissed the author’s appeal. The author appealed to the Supreme Court of Turkmenistan, but his appeal was dismissed on 10 July 2012.

The author was detained at the Dashoguz remand facility and later transferred to the LBK-12 prison, near the town of Seydi. Immediately upon arriving at the prison, the author was placed in quarantine for 10 days, during which time prison guards beat him on the head and on the soles of his feet with batons. The author was subjected to deplorable conditions while in quarantine, with his cell being overcrowded with around 40 inmates, and lacking hygiene facilities and basic amenities.

On 3 September 2012, the author filed a communication with the Committee under the Optional Protocol to the Covenant. The author claimed that his imprisonment on account of his religious beliefs, and the ill-treatment he suffered while imprisoned, constitute a violation of his rights to (i) freedom from inhuman and degrading treatment, (ii) freedom being tried twice for the same offence, and (iii) freedom of conscience and religion (under articles 7, 14(7) and 18(1) of the Covenant respectively). 

The Committee’s decision

On admissibility of the author’s complaint, the Committee noted that Turkmenistan had not invoked article 5(2)(b) of the Optional Protocol to challenge the admissibility of the communication. Accordingly, the Committee concluded that it was not precluded by article 5(2)(b) of the Optional Protocol from examining the communication. The Committee noted that the author had exhausted all effective available remedies. It also considered that although the author did not invoke article 10 of the Covenant specifically, the communication raised issues under that article that it would address. The Committee therefore concluded that the author’s claims raised issues under articles 7, 10 14 (7) and article 18 (1) of the Covenant and were admissible.

On the merits, the Committee noted the author’s allegation that he was subjected to ill-treatment by the prison guards in violation of article 7 of the Covenant. The Committee recalled that Turkmenistan did not contest the author’s version of the facts concerning the manner in which he was ill-treated while in isolation, the identity the prison guards involved in his ill-treatment, and the deplorable conditions of the prison. The Committee also noted the author’s detailed allegations regarding the lack of adequate mechanisms for investigation of torture claims in Turkmenistan.

In the absence of any evidence to the contrary, the Committee considered that due weight should be given to the author’s allegations, and found that, in view of those allegations, Turkmenistan had violated the author’s rights under article 7 of the Covenant.  In making this finding, the Committee recalled that, in accordance with the Standard Minimum Rules for the Treatment of Prisoners, persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of their liberty. The Committee also found that that confining the author in deplorable living conditions constituted a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10(1) of the Covenant.

With respect to the author’s allegations under article 14(7) of the Covenant, the Committee found that Turkmenistan had violated the author’s rights by allowing him to be tried and punished twice for the same offence based on his refusal to perform compulsory military service. The Committee noted the author’s submission that article 18(4) of the Law on Conscription and Military Service permits repeated call-up for military service and stipulates that a person refusing military service is exempt from further call-up only after he has received and served two criminal sentences. It noted that these claims were not refuted by Turkmenistan. Furthermore, the Committee recalled its general comment No. 32 that repeated punishment of conscientious objectors for not obeying a renewed order to serve in the military may amount to punishment for the same crime if a subsequent refusal is based on the same constant resolve grounded in reasons of conscience.

The Committee then noted the author’s claim that the absence of an alternative to compulsory military service in Turkmenistan constituted a violation of his rights under article 18(1) of the Covenant. The Committee noted that the facts as alleged by the author, and not refuted by Turkmenistan, established that the author’s refusal to perform military service on account of his religious conscience led to his criminal prosecution and subsequent imprisonment. The committee noted the Turkmenistan’s submission that the criminal offence committed by author was “determined accurately according to the Criminal Code of Turkmenistan”, and that, pursuant to article 41 of the Constitution, “Protection of Turkmenistan is the sacred duty of every citizen”, with general conscription being compulsory for male citizens. The Committee noted, however, that the right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion, entitling any individual to an exemption from compulsory military service if such service cannot be reconciled with that individual’s religion or beliefs. In view of the above, the Committee was satisfied that the author’s refusal to be drafted for compulsory military service derived from his religious beliefs and that the author’s subsequent convictions and sentences amounted to an infringement of his freedom of conscience, in breach of article 18(1) of the Covenant. The Committee noted that a State may compel a conscientious objector to undertake a civilian alternative to military service that is not punitive in nature.

In accordance with article 2(3) of the Covenant, the Committee observed that Turkmenistan was under an obligation to provide the author with an effective remedy, to include an impartial, effective and thorough investigation of the author’s claims falling under article 7, prosecution of any person(s) found to be responsible for the author’s ill-treatment, expunging of his criminal record, and full reparation, including appropriate compensation. Turkmenistan is under an obligation to avoid similar violations of the Covenant in the future, including the adoption of legislative measures guaranteeing the right to conscientious objection.

Turkmenistan must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Baxter Roberts is an international lawyer, based in Paris.