ICCPR Case Digest

CCPR/C/127/D/2920/2016

Communication

2920/2016

Submission: 2015.10.23

View Adopted: 2019.10.28

Zinaida Mukhortova v. Kazakhstan

Human rights defender and lawyer forcibly hospitalised in Kazakhstan, subjected to inhuman and degrading treatment

Substantive Issues
  • Arbitrary detention
  • Conditions of detention
  • Freedom of expression
  • Torture / ill-treatment
Relevant Articles
  • Article 14
  • Article 18
  • Article 19
  • Article 7
  • Article 9
Full Text

Facts

The author is a lawyer and human rights defender based in Kazakhstan, who claimed that the state party violated her rights during a series of forced hospitalisations and arrests of an arbitrary nature. 

Following a lawsuit in 2009 in which the author made a claim, in defence of a client, that the other party was being protected by the deputy of the lower chamber of the parliament of Kazakhstan (Yerlan Nigmatulin), the author was charged with “knowing false denunciation” under the domestic criminal code in September 2009. As the result of this charge, the author was subject to a travel ban which was later replaced by an order for the authors arrest. The author was arrested in February 2010 and the President of the Supreme Court refused to hear her appeal.

The author was subject to five separate forced hospitalisations against her will:

  • The first following a court ordering that she undergoes a compulsory psychiatric examination. In April and July 2010 psychiatric experts concluded that the author suffered from “chronic delusional disorder” and later found her “mentally unfit” to stand trial, ordering her to forced hospitalisation and inpatient treatment. The author was kept in a closed psychiatric hospital in Aktas from January to September 2011.
  • The second followed a visit to a psychiatric centre in December 2011 where a medical commission decided to have the author forcible hospitalised. The author was kept in the facility for two weeks before being released. In early January 2012, the author lodged a complaint with domestic authorities against the deputy Chief Medical Officer, claiming that she had been forced to sign a form stating that her hospitalisation was voluntary. 
  • Later in January 2012, the Supreme Court quashed the earlier decisions, finding that the author had not been a threat to others or had committed violent acts, and ordered a review of the case. However, from May to June 2012 the author was subject to another forced hospitalisation for compulsory psychiatric examination. The legality of which was debated on an off for months following her confinement.
  • In August 2013, the author was forcibly taken by two male nurses and two police officers to a clinic where she was subjected to medical treatment. During the ‘arrest’ the author was hit in the leg and head. The author lodged complaints with the Supreme Court that she was subjected to inhuman and degrading treatment, however these were declined. The author was released in early November 2013. The author submitted that following her release, an investigation conducted by a medical oversight board had concluded that she was not in need of forced psychiatric treatment.
  • The author was forcibly taken from her home again by 6 men in July 2014, who acted aggressively towards her and her grandchildren. When her family queried her detention, they were informed that the author had been hospitalised again at a medical facility in Balkhash city. The author was subjected to intensive treatment. Her family lodged another complaint alleging torture and ill-treatment, however the investigation showed no evidence of torture. The author did not appeal the finding due to fear of being hospitalised again.

In totality, the author was hospitalised on five occasions. She notes that in total, six medical opinions were conducted, including two which revealed that she was mentally fit and subject to torture and degrading treatment. These independent reports were ignored and all appeals to courts to consider these complaints were ignored for various reasons.  

Complaint

  • The author claims that the state party has violated her rights under articles 7, 9 and 14, read alone and in conjunction with article 2, and articles 18 and 19, of the Covenant. 
  • She alleges that her forced internment in a psychiatric hospital on five occasions, including preventing her from submitting complaints, humiliating and degrading treatment, constituted a violation of article 7.
  • The author alleges that she could not appeal her arrest, was not informed of the reasons or brought before a judge, in violation of her rights under article 9 of the Covenant. 
  • The author further alleges that her due process guarantees and rights under article 14(1) were violated, in addition to her right to be presumed innocent under article 14(2), as well as proper access to counsel, in violation of article 14(3)(d).  
  • The author further claimed that her rights under article 18 and 19 were violated, owing to her forcible internment in psychiatric facilities in order to silence her and prohibit her from defending her rights and those of other people.

Admissibility

The Committee noted that the authors claim under article 7 of the Covenant, however considered that on the facts provided, these elements were insufficiently substantiated and therefore inadmissible. 

Similarly, the Committee considered that the author had insufficiently substantiated her claim regarding article 9, as it related to the authors arrest, and the impossibility of appealing the decision or the detention.

Further, the Committee considered that for the purposes of the author’s claim under article 14(1), the author had failed to demonstrate that the lack of access to appeal, bias, or equality of arms amounted to the threshold for arbitrariness, or denial of justice, and found this portion of the claim inadmissible. Similarly, the Committee also found that there were insufficient facts advanced to support a claim under article 14(3)(a), and article 14(3)(d), and additionally that the claim that forced hospitalisation does not fall within the scope of a claim under article 14(2). These two claims were also declared inadmissible. 

Additionally, on the authors claims that her rights under articles 18 and 19 were violated in order to silence the author, the Committee noted that the author had insufficiently substantiated these claims, and they were similarly declared inadmissible. 

Finally, however, the Committee did consider that the author had sufficiently substantiated the remaining claims under article 7 and 9, as they relate to her involuntary apprehension, committal to a hospital and forced medical treatment.

Merits

  • The Committee noted that on the evidence provided, the facts show the author was forcibly admitted to a psychiatric hospital several times while she did not pose any real threat to herself or to others, and further after this fact was established by a court decision in July 2012, the author was involuntary committed again.
  • The Committee recalled that even though the right to liberty is not absolute, detention of an individual is such a serious measure that it can only be justified only where other, less severe measures have been considered, implemented, and found to be insufficient to safeguard against public interest. On this basis, the Committee found a violation of article 9 with regards to the author’s involuntary and arbitrary deprivation of liberty. 
  • More specifically, any deprivation of liberty that results in forced hospitalisation, must be necessary, proportionate for the purposes of protecting the individual in question from serious harm or preventing injury to others. (See T.V. and A.G. v. Uzbekistan, para. 7.7).
  • On this, the Committee considered that the author being subjected to involuntary apprehensions and hospitalisations for a total of more than 15 months, as well as medical treatment against their wish, in light of the fact that the author was of no risk of harm to herself or to others, amounted to inhuman and degrading treatment or punishment within the meaning of article 7 of the Covenant. 

Recommendations

The Committee noted that the state party is under an obligation to provide the authors with an effective remedy, including making full reparation to individuals whose Covenant rights have been violated. This includes an obligation to take all necessary steps to ensure that similar violations do not occur in the future.

Implementation

The Committee requested the state party provide a follow up information on measures taken within 180 days (or before 28 April 2020).

Rules of Procedure of the Human Rights Committee

Rules of Procedure of the Human Rights Committee CCPR/C/3/Rev.10

Arabic | Chinese | English | French | Russian | Spanish

CCPR NGO Participation

Documents adopted by the Human Rights Committee (March 2012)

English | French | Spanish | Russian | Handbook

CCPR NHRI Participation

Documents adopted by the Human Rights Committee (November 2012)

English | French | Spanish | Russian | Arabic | Chinese