Arbitrary detention and torture of a Kyrgyz man during a terrorist counter-operation

Facts

The author is a national of Kyrgyzstan who was arrested, detained and tortured by the police in the context of a terrorist counter-operation, after which he had to seek medical attention and was diagnosed with severe injuries. However, since the medical expertise could not conclude when these injuries could have been caused and in what time lapse, the prosecutor refused to open a criminal case. The decision was appealed and rejected by domestic courts. The author claims a violation of his rights under article 7 as he was beaten and tortured and the State party did not investigate further,  and article 9 (1) and (2) on the basis that he was detained  without any procedural guarantees. He also claims a violation of article 14 (3) (g) because he was tortured to force him to confess.

Admissibility

The Committee considers that the allegations made under article 14 (3) (g) were not sufficiently substantiated and the claim is therefore inadmissible. The case is admissible for the claims made under articles 7 read alone and in conjunction with article 2 (3), article 9 (1) and (2) of the Covenant.

Merits

The Committee could not conclude that the facts before it disclose a violation of the author’s rights under the articles claimed. This is because of the lapse of time before the author submitted himself to medical attention (35 days after the alleged events), the fact that neither the medical experts, nor the authorities could conclude that the injuries were caused by torture and the witnesses could not testify that they had seen any beatings. The committee concludes that the facts, as presented to it, do not reveal a breach of any provision of the Covenant.

Separate Opinions

Commettee member Furuya Shuichi reiterates the Committee’s jurisprudence that in cases of alleged torture, the burden of proof does not rest with the author of the communication alone. He reminds that the author was in fact injured, which was attested by a medical expert, and no one testified that the injury happened before he was arrested. The burden of proof must therefore rest on the State party to prove that such injuries were not caused by torture. Committee member gives more weight to the author’s allegations because the State party has not provided any relevant information about the arrest, nor did it provide counter arguments and evidence to contradict the author’s allegations. He therefore finds a violation of article 7. He also finds a violation of article 9 (2) because the state party has not provided any argument to counter the author’s claim that he was not informed of the reasons of his arrest and was not registered in any official document.

Committee member Hernàn Quezada did not agree with the majority of the Committee members when they concluded that the facts under examination did not disclose a violation of article 9 (1-2) of the Covenant. The State party did not provide any elements to determine whether the author's detention was carried out on the basis of any cause established by law and in accordance with the procedure laid down therein. In addition, according to the author, he was not informed of the reasons for his deprivation of liberty, a claim which was not refuted by the State party.

Implementation

September 24, 2021