ICCPR Case Digest

CCPR/C/128/D/2384/2014

Communication

2384/2014

Submission: 2012.09.13

View Adopted: 2020.03.13

Zhanysbek Khalmamatov v. Kyrgyzstan

Police brutality resulting in arbitrary arrest and detention, Committee orders for quashing of conviction and prompt investigation into the torture claims

Substantive Issues
  • Fair trial
  • Lack of proper investigation
  • Torture / ill-treatment
Relevant Articles
  • Article 14.3 (g)
  • Article 7
Full Text

Facts

The author is a national of Kyrgyzstan who claims that the State Party violated his rights under article 7, read alone and in conjuction with article 2 (3) (a), and articles 9 (1), (3), and (4), and 14 (3)(b), (d), and (g) of the Covenant.

On 16 May 2009, a friend of the author dies while in the company of the author in what the author states was a hit-and-run by an unknown car. The author was subsequently arrested as a suspect by the traffic police and brought to the police station. The author submits that during this time at the station he was subjected to repeated beatings by four police officers asking him to confess his crimes. Unable to bear the pain, the author submits that he confessed to the crimes.

On 18 May 2009, the district prosecutor saw the author in the basement of the police station, and the author reported the beatings he had suffered. On the same day, the author was released and ordered to conduct a forensic medical examination. The forensic expert sent the author to the hospital, owing to the pain in his kidneys. Later that day, the author was re-apprehended by the police where he was officially declared a suspect in the traffic accident that had resulted in the death of his friend. While at the police station, his condition deteroriated and he was sent back to the hospital, and ultimately placed in a guarded ward.

On 21 May 2009, the author was formally charged, and his detention was ordered on remand. The author herein submits that the judge failed to examine the lawfulness of his arrest and ordered his detention despite the investigator not being able to present any evidence that the author could abscond or obstruct the investigation.

On 3 June 2009, the prosecutor’s office opened a criminal investigation into the author’s ill-treatment on charges of abuse of power. Two forensic medical examinations were performed, and both determined that the author had sustained various injuries which correspond to his time in detention. After an initial suspension owing to a lack of perpetrators, four police officers named by the author were officially charged with causing injuries, abuse of power, and the unlawful arrest of the author in October. The author submits that due to this considerable delay, the authorities failed to question key witnesses and seize important evidence.

 

On 23 March 2011, while the trial of the police officers was still ongoing, the court found the author guilty of causing the death of his friend and sentenced him to nine years imprisonment. Despite the author claiming that his confession was obtained through torture, the court retained it in evidence and it formed a basis for its verdict and ruled that the author's claim of torture was an attempt to avoid criminal liability. On 4 May 2011, the four police officers were found not guilty of abuse of power by the same prosecutor, owing to a lack of evidence.

On the above factual basis, the author claims that the State failed to effectively investigate the circumstances of his detention and treatment, in violation of article 7. The author also submits that his arrest and detention on remand, as well as the fact that the judge who decided on his detention failed to examine the lawfulness of his arrest, were in violation of article 9(1), (3) and (4).

Admissibility

The Committee takes note of the author’s claims concerning the failure of the State party to provide him with legal assistance. The Committee observes, however, that those claims do not appear to have been raised at any point in the domestic proceedings. That part of the communication, raising issues under article 14 (3) (b) and (d) of the Covenant, is accordingly declared inadmissible for failure to exhaust all domestic remedies.


The Committee also takes note of the author’s claims under article 9 of the Covenant. The Committee considers that the author has failed to sufficiently substantiate those allegations.

In the Committee’s view, the author has sufficiently substantiated his claims under article 7, read alone and in conjunction with article 2 (3) (a), and article 14 (3) (g) of the Covenant, for the purposes of admissibility. It therefore declares those claims admissible and proceeds with its consideration of the merits.

Merits

The Committee recalled that a State party is responsible for the security of any person it holds in detention and that when an individual in detention shows signs of injury, it is incumbent upon the State party to produce evidence showing that it is not responsible. It also recalled that the burden of proof in such cases cannot rest with the author alone, especially considering that frequently only the State party has access to the relevant information. In the present case, and in the absence of any such observations by the State party, the Committee assigned due weight to the author's allegation.

The Committee took note of the author’s claim that owing to the delay in launching the investigation and bringing charges, the authorities failed to seize important evidence, such as checking for traces of his blood in the room. It also observed that at the trial the court ruled that the confession was not coerced before the trial of the four policemen began and that the same prosecutor participated in the two cases. On this basis, the Committee concluded that the facts before it disclose a violation of article 7, read alone and in conjunction with article 2(3).  Owing to the State party’s failure to provide an explanation with regard to the forced confession, the Committee also concluded that there had been a violation of the author's rights under article 14 (3) (g). 

Recommendations

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy.

That requires it to make full reparation to individuals whose Covenant rights have been violated.

In the present case, the State party is under an obligation, inter alia:

  • to quash the author’s conviction;
  • to conduct a thorough and effective investigation into the author’s allegations of torture and, if confirmed, prosecute, try and punish those responsible;
  • to provide the author with adequate compensation.

The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Deadline for follow-up information: 13 October 2020

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