Khuseynova and Butaeva v Tajikistan, UN Human Rights Committee (2004) (excerpts)

Khuseynova and Butaeva v Tajikistan, UN Human Rights Committee Communication 1263/2004 (excerpts)

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8.4 On the alleged violation of article 14, paragraph 3 (b), in that the authors’ sons were not
informed of their right to be represented by a lawyer upon arrest, that they were assigned a
lawyer only 12 days (Mr. Khuseynov) and 48 days (Mr. Butaev), respectively, after being
detained and that most of the investigative actions, particularly during the time when they were
subjected to beatings and torture, the Committee again regrets the absence of any relevant
explanation by the State party. It recalls that, particularly in cases involving capital punishment,
it is axiomatic that the accused must effectively be assisted by a lawyer at all stages of the
proceedings.19 In the present cases, the authors’ sons were subject to several charges that carried
the death penalty, without any effective legal defence, although a lawyer had been assigned to
them by the investigator and, at a later stage, retained by the family (case of Mr. Khuseynov). It
remains unclear from the material before the Committee whether Mr. Butaev ever requested a
private lawyer, or whether Messrs. Khuseynov and Butaev ever contested the choice of the
publicly assigned lawyer; however, and in the absence of any relevant explanation by the State
party on this particular issue, the Committee reiterates that steps must be taken to ensure that
counsel, once assigned, provides effective representation, in the interests of justice. 20
Accordingly, the Committee is of the view that the facts before it reveal a violation of Messrs.
Khuseynov’s and Butaev’s rights under article 14, paragraph 3 (b), of the Covenant.

8.5 The Committee has noted Mrs. Butaeva’s claim that her son's lawyer motioned the court to
summon and examine in court witnesses against his client, as well as the forensic expert who
made an examination of 13 February 1998, and that the judge denied his motion without
providing reasons. The Committee recalls that, as an application of the principle of equality of
arms, the guarantee of article 14, paragraph 3(e), is important for ensuring an effective defence
by the accused and their counsel and thus guarantees the accused the same legal powers of
compelling the attendance of witnesses and of examining or cross-examining any witnesses as
are available to the prosecution.21 It does not, however, provide an unlimited right to obtain the
attendance of any witness requested by the accused or counsel, but only a right to have witnesses
admitted that are relevant for the defence, and to be given a proper opportunity to question and
challenge witnesses against them at some stage of the proceedings. Within such limits, and
subject to the limitations on the use of statements, confessions and other evidence obtained in
violation of article 7, it is primarily for the domestic legislature of States parties to determine the
admissibility of evidence and how their courts assess such evidence.22 In the present case, the
Committee observes that most of the witnesses and the forensic expert requested in the motion
submitted by Mr. Butaev’s lawyer, which was denied by the court, could have provided
information relevant to Mr. Butaev’s claim of being forced to confess under torture at the pretrial
investigation. This factor leads the Committee to the conclusion that the State party’s courts
did not respect the requirement of equality between prosecution and defence in producing
evidence and that this amounted to a denial of justice. Consequently, the Committee concludes
that Mr. Butaev’s right under article 14, paragraph 3(e), was violated.