View Adopted: 2021.10.29
The author's son (S.P.) was arrested by police officers on 25 April 2004, and on the same day, he was admitted to an emergency ward in a hospital by the police officers. He was examined at the hospital and diagnosed with "head trauma, haematomas on the forehead". The author's son was charged with "causing great bodily harm" under article 103 (1) of the Criminal Code of Kazakhstan after he had submitted a complaint of being tortured after his detention with the police and the prosecutor's office of the Almalinsky district. The counsel of the author filed multiple complaints of ill-treatment and torture following his arrest. His court mandated examination revealed that he suffered from schizophrenia and was ordered for a transfer to a psychiatric ward for mandatory treatment. He died at the premises of the psychiatric ward on 24 September 2007. The author requested the hospital to provide her with her son's medical history prior to his death, as well as the results of the autopsy, but her request was denied. On 31 July 2009, at the author's request, the district court ordered Mr. S.P.' body be exhumed, but his body was exhumed only on 15 January 2013.
The Committee noted that the subsequent examinations of the author's son's remains were unable to provide any new reliable information because of the amount of time that had elapsed since his death. On the basis of the information contained in the file, the Committee is unable, within the specific circumstances of the present case, to conclude that the alleged violations gave rise to a continuing obligation for the State party to investigate after its ratification of the Optional Protocol.
The Committee, therefore, concluded that the alleged violation of articles 14 (1) and (2) and article 26 of the Covenant, concerning the criminal proceedings against the author's son occurred prior to 30 September 2009, when the Optional Protocol entered into force for the State party. It further noted that those domestic proceedings were finalized before the entry into force of the Optional Protocol for the State party, and therefore finds these claims inadmissible ratione temporis under article 1 of the Optional Protocol.
The Committee further noted the author's claims under articles 6 (1), 7, 9 and 10 (1) of the Covenant concerning her son´s ill-treatment following his arrest and the inadequate conditions of detention and medical care in the psychiatric ward, which resulted in his death. The Committee noted the State party's submission that the acts occurred prior to the entry into force of the Optional Protocol for the State party and therefore fall outside the Committee's competence ratione temporis. Accordingly, the Committee considered that the allegations presented by the author are inadmissible ratione temporis under article 1 of the Optional Protocol.
Committee members Arif Bulkan, Marcia V.J. Kran and Hélène Tigroudja had a dissenting opinion. According to them, given all these facts, it is plain that the State party did not fulfil its obligation to carry out an investigation in the present case. Since that obligation persisted (and was acknowledged) after the critical fate, the Committee is not barred ratione temporis and does have jurisdiction to consider this communication. The further stated that the facts as submitted and considered in the light of the Committee's jurisprudence, and in the absence of relevant explanations from the State party, we would therefore find a violation of the author's son's rights under article 6 (1), read alone and in conjunction with article 2 (3).
29 April 2022