OPINION No. 39/2006 (TAJIKISTAN) Communication: addressed to the Government on 3 August 2004. Concerning: Mr Mahmadruzi Iskandarov.

The State is a party to the International Covenant on Civil and Political Rights.

1. (Same text as paragraph 1 of Opinion No. 32/2006.)

2. The Working Group conveys its appreciation to the Government for having provided the requested information.

3. (Same text as paragraph 3 of Opinion No. 32/2006.)

4. In the light of the allegations made, the Working Group welcomes the cooperation of the Government. The Working Group transmitted the reply provided by the Government to the source. The Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case, in the context of the allegations made and the response of the Government thereto.

5. The allegation of the source that Mr. Iskandarov was and is being the victim of arbitrary detention can be summarized as follows.

6. Mr. Mahmadruzi Iskandarov, born on 3 May 1954, of Tajik nationality, temporarily living in Moscow, taken away in Korolyov district in Moscow on 15 April 2005 by unidentified forces and brought back to Tajikistan by force, currently detained in the pretrial detention centre of the Ministry of Security of Tajikistan in Dushanbe.

7. It is reported that Mr. Iskandarov is the general director of the State unitary company Tadjikgaz as well as being the Chairman of the Democratic Party of Tajikistan, one of the main opposition parties. Mr. Iskandarov had left Tajikistan and was living in Moscow, where he had applied for refugee status.

8. It is further reported that Mr. Iskandarov was accused by the Tajik authorities of embezzlement in his capacity as the general director of the State company Tadjikgaz, and also of terrorism, illegal use of personal bodyguards as well as illegal possession of firearms and ammunitions.

9. The source mentions that in 2004 the Tajik authorities applied to the Russian Federation to extradite Mr. Iskandarov for the above-mentioned accusations on the basis of an existing arrest order. The Russian police arrested Mr. Iskandarov in December 2004 and requested the Tajik authorities to provide supporting documents in order to decide the issue of extradition. It is alleged that the Russian Prosecutor in charge of this matter concluded that Mr. Iskandarov was not guilty of the accusations presented against him, and in April 2005, he was released.

10. The source reports that on 15 April 2005, Mr. Iskandarov was apprehended in the Korolyov district in Moscow by unknown persons who did not identify themselves nor show him an arrest warrant or any other judicial order. From 15 April to the evening of 16 April, he was kept incommunicado in a bathhouse and later in a forest. He was then brought to Dushanbe, Tajikistan, by plane against his will and without his identity documents since these had been left in Moscow.

11. It is alleged that Mr. Iskandarov’s whereabouts were found when he was located at the pretrial detention centre (investigatory jail) under the authority of the Ministry of Security of Tajikistan. He is being charged for the offences mentioned above and awaiting trial.

12. According to the source, the arrest and detention of the above-mentioned person is arbitrary because of his illegal abduction in a foreign country and forced transfer back to Tajikistan, whereas the Russian authorities had examined the request for extradition presented by the Tajik authorities and concluded that he was not guilty of the accusations, and released him. It is also mentioned that the detention and the charges held against Mr. Iskandarov are related to his political activities as a leader of an opposition party critical to the Tajik Government.

13. In its observations, the Government informs that: in 2003 the prosecution authorities opened and carried out an inspection at Tadjikgaz, an enterprise under the direction of Mr. Iskandarov. The inspection revealed serious irregularities in the financial management giving rise to suspicion that a considerable amount of money has been embezzled. On this ground a criminal investigation was opened. Mr. Iskandarov was heard by the authorities (it is unclear, whether as a witness or a person charged). The hearing went on through several days in August 2004. While the hearing by the investigation authorities was still going on, he informed the authorities that he had to travel to Moscow for an urgent family matter. The authorities consented on condition that he undertakes to come back in September, but he did not return. The Tajik authorities sought his extradition from the Russian Federation. He was first arrested by the Russian authorities pending extradition, but later released. Before a final decision was taken concerning his extradition, he disappeared from his flat in Moscow and some days later showed up in a prison in the Tajik capital Dushanbe. The Government emphasizes that he “(…) was officially handed over to the Tajik side by the law enforcement authorities of the Russian Federation�. Upon his reappearance in Tajikistan he was placed in pretrial detention in April 2005.

14. The investigations into the charges against Mr. Iskandarov have been continuously carried out and were completed in July 2005. The prosecution indicted him and some of his accomplices with serious offences. These were: terrorism, banditry, unlawful acquisition, transfer, supply, storage and transportation of large quantities of firearms, ammunition, explosive substances and devices by a group of persons in prior conspiracy, embezzlement or fraudulent use of especially large amounts of others’ property and illegal engagement in private protection (bodyguardship). Mr. Iskandarov was found guilty and sentenced to 23 years’ imprisonment by the Supreme Court.

15. The Government emphasized that the trial against Mr. Iskandarov was fair; he had the assistance of defence lawyers and all his allegations asserting that he made confession before the investigation authorities under duress were examined in court and declared unfounded. The Government also stressed that Mr. Iskandarov had been given all the means to defend himself.

16. The source, in a letter dated 17 November 2006, informed the Working Group that the lawyers of Mr. Iskandarov have not produced any material to comment on the observations of the Government. Instead, the source submitted a copy of a letter written by the brother of Mr. Iskandarov. The content of this letter however does not clarify the position of the source, as to the reply of the Government.

17. The Working Group considers deprivation of liberty arbitrary, when (a) it manifestly lacks any legal basis, (b) it punishes the peaceful exercise of one’s fundamental freedoms like freedom of expression or opinion, or (c) the establishment of guilt is the result of an unfair trial.

18. In the present case the two first grounds for arbitrary detention are obviously irrelevant. On the one hand, the Government provided the Working Group not only with information concerning the offences for which Mr. Iskandarov was prosecuted against and found guilty but also with the relevant text of the Tajik criminal legislation. On the other hand, however, the source argues that the charges against him were motivated by his being a political opponent to the Government, not even the source contended that Mr. Iskandarov is punished for the peaceful exercise of his fundamental freedoms.

19. The Working Group observed that the principal complaint raised in the communication is Mr. Iskandarov’s alleged abduction from the Russian Federation to Tajikistan. Since the allegations of the source and the Government are completely contradictory in this regard, and the Russian Federation, under whose jurisdiction the alleged abduction was carried out, does not take part in the present proceeding, the Working Group is not in a position to take a stand in the matter of this allegation of the source.

20. The Working Group also noted that the source did not raise the issue of alleged procedural unfairness in the trial against Mr. Iskandarov. This might be explained by the fact that the communication was submitted on 20 May 2005, shortly after he reappeared in Tajikistan, but well before the trial against him began.

21. Yet, the Working Group felt duty-bound to analyse the material at its disposal from the aspect of procedural fairness. In the available material before it, however, it could not identify any such serious lack of observance of the international standards relating to a fair trial as to confer on the deprivation of liberty of Mr. Iskandarov an arbitrary character.

22. The Working Group delivers the following opinion:

On the basis of the material before it, the Working Group could not conclude whether or not the deprivation of liberty of Mahmudruzi Iskandarov is arbitrary.

Adopted on 21 November 2006.