Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communicationNo. 2710/2015 * , **

C ommunication submitted by:Shukurillo Osmonov (represented by counsel, Tair Asanov)

Alleged victim:The author

State party:Kyrgyzstan

Date of communication:16 October 2015 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 23 December 2015 (not issued in document form)

Date of adoption of Views:10 March 2020

Subject matter:Torture of the author in police custody

Procedural issue s : None

Substantive issues:Torture; prompt and impartial investigation

Articles of the Covenant: 7, read alone and in conjunction with 2 (3) and14 (3) (g)

Article s of the Optional Protocol:None

1.The author of the communication is Shukurillo Osmonov, a Kyrgyz national of Uzbek ethnicity, born in 1985. He claims that Kyrgyzstan has violated his rights under article 7, read alone and in conjunction with articles 2 (3) and 14 (3) (g), of the Covenant. The Covenant and the Optional Protocol entered into force for Kyrgyzstan on 7 January 1995. The author is represented by counsel, the public fund “Golos Svobodi”.

The facts as submitted by the author

2.1On 10 June 2010, the author crossed the Kyrgyz-Uzbek border to visit his wife, who lives in Andijan, Uzbekistan. The next day, he was not allowed to cross the border to go back, due to the mass riots that had started in the city of Osh, Kyrgyzstan. Initially, he stayed at his relatives’ place; subsequently, he was placed in a refugee camp. He was only able to return to Osh on 22 June 2010, together with other refugees. These facts are corroborated by the documents sent by the Prosecutor’s Office of Andijan Region in Uzbekistan, most notably the customs committee’s proof that the author crossed the border on 10 June 2010, the statement by the deputy mayor of Andijan Region that the author was in the refugee camp from 14 to 22 June 2010 which was supported by the list of individuals transferred from the camp to Kyrgyzstan, and the stamp in the author’s passport attesting to his entry into Uzbekistan on 10 June 2010.

2.2On 20 April 2011, at approximately 2 p.m., while he was at his sister’s house, the author received a phone call about meeting to discuss the installation of a satellite antenna. On his way to the meeting, he was approached by two men in civilian clothes, who began hitting him with their fists on his head and neck. They forced him into their car and continued to beat him on the head. The author was taken to a police station in the city of Osh, where he was held in handcuffs. Four police officers subjected him to physical ill-treatment to force him to confess guilt in respect of a number of crimes. They threatened that if he did not confess guilt as requested, he would not leave the police station alive. They then put a plastic bag over his head and began suffocating him. As a result, he lost consciousness. After around four hours of beatings, the author was taken for interrogation to the office of the Osh Regional Prosecutor. During the interrogation, the police officers who had tortured him were present in the room together with an investigator and a counsel. Afraid of being tortured again, the author confessed to having been in the city of Osh in June 2010 and taken part in the mass riots. The investigator prepared the official record on the basis of his confession and put him in pretrial detention.

2.3On 22 April 2011, the author was charged under article 174, part 2 (1) and (2), article 233, parts 1, 2 and 3, and article 339, part 2, of the Criminal Code of Kyrgyzstan, for deliberate destruction of property by arson, organization of and participation in riots, public calls for rioting, and concealment of serious crime. On the same day, he and his counsel filed complaints with the Osh Regional Prosecutor requesting the opening of a criminal investigation against the police officers who had tortured him with the aim of extracting a forced confession. Also on the same day, the author was taken to Osh City Court. He was walking with difficulty, limping, with abrasions and bruises visible on his hands. The court ordered his detention as a restraint measure.

2.4The Osh Regional Prosecutor ordered that verification of the author’s complaint be assigned to the same investigator who was in charge of the criminal investigation against him. On 23 April 2011, the investigator ordered a forensic medical examination to be conducted to verify the author’s physical injuries. On 28 April 2011, the forensic medical examination concluded that the author’s injuries could have been sustained earlier, specifically two to three days before his arrest. In this regard, the author explains that in accordance with the Criminal Procedural Code of Kyrgyzstan, every suspect brought to a police station should undergo a medical examination. He argues, therefore, that if he had sustained injuries before the arrest, this would have appeared in the police’s arrest registration book. The author also notes that the two calls for ambulances on 25 April and 13 May 2011 due to his complaints relating to the injuries sustained (notably headaches, ringing in the ears, impaired vision, palpitations, and sensation of coldness in the limbs) were registered in the police’s arrest registration book.

2.5On 4 May 2011, the author’s sister lodged a complaint with the Prosecutor General’s Office of Kyrgyzstan. On 19 May 2011, the investigator from the Osh Regional Prosecutor’s Office rejected the author’s complaint based on the outcome of the forensic medical examination and on the police officers’ statements denying any ill-treatment. On 7 June 2011, the author’s counsel filed a complaint with the Prosecutor General’s Office of Kyrgyzstan against the refusal of the Osh Regional Prosecutor’s Office to open a criminal investigation into the author’s torture allegations, which was rejected on 28 June 2011.

2.6On 10 October 2011, the author’s counsel challenged the decision of 19 May 2011 of the Osh Regional Prosecutor’s Office investigator, before Osh City Court, which dismissed the complaint on 4 November 2011. On 11 November 2011, the author’s counsel appealed the Osh City Court decision, to Osh Regional Court, stating that there had been no effective investigation into the author’s allegations of torture. On 1 December 2011, Osh Regional Court quashed the investigator’s decision of 19 May 2011 and the Osh City Court ruling of 4 November 2011, ordering the Osh Regional Prosecutor’s Office to conduct an additional preliminary investigation. On 18 December 2011, the same investigator refused to open criminal proceedings against the police officers for lack of corpus delicti.

2.7On 26 December 2011, Osh City Court sentenced the author to eight years of imprisonment. It did not uphold the charges of attempted murder. The author appealed his sentence to Osh Regional Court. On 21 February 2012, Osh Regional Court found the author guilty of committing criminal acts, including finding him guilty of attempted murder, and sentenced him to 16 years of imprisonment. The author submitted an application for supervisory review to the Supreme Court. On 28 June 2012, the Supreme Court upheld the decisions of the lower courts and rejected the author’s application.

The complaint

3.1The author claims a violation of his rights under article 7, read alone and in conjunction with articles 2 (3) and 14 (3) (g), of the Covenant, as he was subjected to torture and threatened with being killed by police officers with a view to obtaining from him a confession of guilt for a number of crimes he had not committed.

3.2The author also claims that his sister and his counsel submitted several complaints against the police officers, attempting, in so doing, to have an investigation initiated into the author’s allegations of torture, yet the authorities disregarded the majority of their complaints. The prosecutor and the courts failed to carry out an effective, unbiased and objective investigation into his allegations of ill-treatment, and rejected his claims as groundless.

3.3The author further claims that he does not have access to an effective remedy: he was deprived of his right to receive rehabilitation and compensation under article 7 read in conjunction with article 2 (3) of the Covenant since the right to compensation for actions of the police can only be claimed once a criminal investigation has been opened and the officials have been found guilty under criminal law.

State party’s observations on admissibility and the merits

4.1The State party submits, in a note verbale dated 21 April 2017, with regard to the investigations into the author’s allegations of use of unlawful investigative techniques against him, that from 10 to 17 June 2010 the author took active part in the mass riots that occurred in the city of Osh and in Osh region. On 13 June 2010, at around 3 p.m., the author conspired with N.A. and other unidentified individuals to kill persons of Kyrgyz nationality, and beat G.M. at the central market. Shouting “Allahu akhbar”, the author stabbed G.M. in the neck, and thinking that the latter had died, escaped in an unknown direction. As a result, G.M. sustained serious and life-threatening harm.

4.2On 12 April 2011, a criminal case was opened. On 20 April 2011, the author was apprehended under article 94 of the Criminal Procedure Code, and was charged with attempted murder, participation in mass riots, and intentional destruction and damage to property. On 15 July 2011, the criminal case was referred to Osh City Court. The State party maintains that the author’s guilt was established by the forensic medical report, and by the testimonies of the victim, G.M., and of eyewitnesses.

4.3On 22 April 2011, the author’s counsel claimed that her client had been tortured by the police officers. On the same day, a preliminary investigation was initiated. On 23 April 2011 a forensic medical examination was carried out, and on 28 April 2011 the examination concluded that the signs of injuries found on the chest and the left hand of the author did not correspond to the time period that he had indicated. The author had also been unable to identify specific individuals and describe the circumstances of the beating. On 18 December 2011, based on the results of the preliminary investigation, an investigator from the Osh Regional Prosecutor’s Office issued a decision not to institute criminal proceedings into the author’s torture allegations. This decision was not appealed to a higher prosecutor’s office or to a court. For this reason, the communication should be considered inadmissible as unsubstantiated.

4.4On 26 December 2011, Osh City Court acquitted the author of the attempted murder charges under article 97, part 2 (6), (9) and (15), read in conjunction with article 28, and under article 233, parts 1 and 3, of the Criminal Code, due to lack of evidence that he had committed the aforementioned crimes. However, the Court found the author guilty of intentional destruction and damage to property and of participation in mass riots. The author was sentenced under article 174, part 2, and article 233, part 2, of the Criminal Code, to four and five years respectively of imprisonment. Consequently, by virtue of article 59 of the Criminal Code, the author was cumulatively sentenced to eight years of imprisonment.

4.5On 21 February 2012, the Appeal Collegium on Criminal Cases, of Osh Regional Court, revoked the Osh City Court judgment in its acquittal part, found the author guilty under article 97, part 2 (6), (9) and (15), read in conjunction with article 28, of the Criminal Code, and sentenced him to 12 years of imprisonment. Thus, ultimately, under article 59 of the Criminal Code, the author was cumulatively sentenced to 16 years of imprisonment.

4.6By virtue of article 4 of the Amnesty Act of 22 July 2011, in connection with the twentieth anniversary of the independence of Kyrgyzstan, the remaining period of his sentence was reduced by one fifth.

4.7On 28 June 2012, the Supreme Court upheld the decision of Osh Regional Court of 21 February 2012.

4.8The State party further submits that in line with the Criminal Procedure Code of Kyrgyzstan, the legality and validity of courts’ judgments are subject to examination by the higher courts. The evidence and materials collected during the investigation and trial of criminal cases are examined and verified in accordance with the criminal procedure legislation. Verification of the lawfulness and validity of the decisions of the courts in the author’s case was conducted through supervisory review proceedings, during which the case materials were given a proper legal assessment. The Supreme Court decision in respect of the supervisory review proceedings is final and not subject to appeal.

Author’s comments on the State party’s observations on admissibility and the merits

5.1On 13 June 2017, the author commented on the State party’s observations.

5.2The author notes that the State party’s generalized information confirms the superficial and perfunctory character of the investigation and the State party’s failure to provide an effective remedy. In the author’s view, the State party focuses its observations on a mere enumeration of the courts’ verdicts finding the author guilty of having committed crimes under article 97 (attempted murder), read in conjunction with article 28; article 233, part 2 (mass riots); and article 174, part 2 (1) and (2) (intentional destruction and damage to property); of the Criminal Code. According to the State party’s version of the facts, the alleged crimes took place from 10 June to 17 June 2010. The author claims that the court sentence was based solely on his confession and on the victim’s testimony.

5.3The author challenges the authorities’ version of the events as being unfounded and groundless, as demonstrated by his travel and customs documents. Notably, the author points out that according to the Prosecutor’s Office of Andijan Region in Uzbekistan and the witness testimony of T.K., it was established that: on 10 June 2010, the author crossed the Uzbek border, due to mass riots beginning in the city of Osh; on 11 June 2010, he went to T.K.’s house, and shared information about his and his relatives’ whereabouts in the Pakhtaoi refugee camp in Uzbekistan, and they all remained in T.K.’s house for four days; after that they returned to the camp and resided there until 22 June 2010, on which date they returned to Osh, in Kyrgyzstan.

5.4The author further explains that several documents corroborate these facts: a letter from the Department of the State Customs Committee of Uzbekistan for Andijan Region certifying that, as a Kyrgyz citizen, he entered Uzbekistan on 10 June 2010 through the Dustlik customs complex in Andijan Region; an Andijan Region local government letter attesting that from 14 June to 22 June 2010 the author was in the Pakhtaoi refugee camp in the village of Yerkishlak in Jalakuduk district; the attendance sheetcompiled on 22 June 2010 by the camp’s commander (an Andijan Region local government representative), which specifically lists the author, under number “10”; and a certificate given to one of the author’s relatives by the local self-government chairperson corroborating the author’s claim that seven Kyrgyz citizens stayed at T.K.’s home for four days, before returning to the refugee camp. In addition, T.K.’s interrogation report and the reply from the customs service confirm the author’s arrival in Uzbekistan on 10 June 2010 and his stay at T.K.’s house. Lastly, the author’s passport stamp attests to the fact that he entered the territory of Uzbekistan on 10 June 2010.

5.5Notwithstanding the foregoing, the Supreme Court in two instances neither examined nor took into account the fact that the author had not been present on the territory of the State party between 10 June and 22 June 2010 and that, consequently, he could not have committed the crimes he was charged with. The Court did not evaluate properly the forensic medical report certifying the author’s injuries, or the credibility of the claims that his confession had been extracted under duress. The forensic medical expert only pointed to a potential discrepancy regarding the time at which the bodily injuries were inflicted, without, however, flatly refuting that they were inflicted at the police station. However, it was this potential discrepancy that was presented as the principal argument for refusing to initiate criminal proceedings into the author’s allegations of torture.

5.6The author also claims that the medical expert’s examination did not meet the criteria of completeness and comprehensiveness, or of validity and substantiation. In particular, the clinical facts from the time of the alleged torture up until the time of the expert examination were not described in detail. The record of the medical expert’s examination only indicated the presence of injuries, without providing a description of their nature, and therefore lacked a proper analysis of the existing injuries. Despite the author having complained of pain in the left side of his lumbar region, no relevant examination was carried out. This resulted in a loss of data on functional disorders, which could have served as evidence of torture. Furthermore, the author and his defence were not given the opportunity to challenge the expert’s opinion and to apply for a comprehensive medical, psychological and psychiatric expert examination involving competent alternative specialists.

5.7The author contests the State party’s affirmation that he had been unable to establish the identity of the individuals and the circumstances of the beating. Although the preliminary investigation established that on 20 April 2011 the author had been apprehended and brought to the Department of Internal Affairs in the city of Osh by the Ministry of the Interior task force for that city, which comprised Mr. M., Mr. K. and Mr. B., none of those security officers was interrogated. In addition, there was no “confrontation” meeting with the author due to the refusal of the Osh Regional Prosecutor’s Office to open a criminal case and conduct a thorough investigation. Nor was the author questioned by the Osh Regional Prosecutor’s Office, following the filing of his complaint regarding the actions of the police officers. Thus, the State party failed to investigate the circumstances surrounding the author’s beatings, and the opportunity to interrogate witnesses and inspect the place of torture in a timely manner was lost.

5.8The author recalls the steps taken with the domestic authorities. On 22 April 2011, he and his lawyer filed complaints with the Osh Regional Prosecutor’s Office against the police officers, who had ill-treated him in order to force him to confess guilt. The same investigator who was in charge of the investigation in the criminal case against the author was also assigned to verify the author’s claims of torture, and he ordered a forensic medical examination for the purpose of identifying the author’s bodily injuries and assessing their gravity. On 19 May 2011, without having interrogated the police officers concerned, and on the basis of the conclusion from the forensic medical examination, the investigator refused to initiate criminal proceedings in relation to the author’s allegations of torture. On 4 May 2011 and 7 June 2011 respectively, the author’s sister and counsel filed complaints with the Prosecutor General against the police officers who had tortured the author. On 28 June 2011, the Prosecutor General’s Office dismissed the complaints, stating that there were no grounds to institute criminal proceedings and upholding the investigator’s decision. On 10 October 2011, the author’s counsel filed a complaint with Osh City Court against the investigator’s decision of 19 May 2011. On 4 November 2011, Osh City Court dismissed the complaint, upholding the investigator’s decision of 19 May 2011.

5.9The author’s counsel appealed the decision of Osh City Court to Osh Regional Court, which on 1 December 2011 overruled the Osh City Court decision of 4 November 2011 and the investigator’s decision of 19 May 2011, sending the case back for additional investigation. In its decision, Osh Regional Court stated that the investigator had not met with the author and his counsel, had not verified their arguments, and had not found out about the circumstances in which the author’s injuries had been inflicted. On 8 December 2011, the Osh Regional Prosecutor’s Office assigned the same investigator who had previously issued a refusal to initiate criminal proceedings, to conduct additional investigations. On 18 December 2011, without having taken any investigative steps, the investigator again issued a decision of refusal to initiate criminal proceedings. The text of the refusal to initiate criminal proceedings of 18 December 2011 was identical to the text of the earlier decision of 19 May 2011.

5.10The author contests the State party’s assertion that the additional investigation established that the decision by the Osh Regional Prosecutor’s Office investigator to refuse to initiate criminal proceedings was well founded. The author claims that no additional investigation was carried out by the investigator, who disregarded the Osh Regional Court decision of 1 December 2011 and simply duplicated his previous refusal to initiate criminal proceedings. As for the non-exhaustion argument of the State party, the author points out that according to the Criminal Procedure Code, the legality and validity of courts’ decisions is examined by higher courts. Given that on 1 December 2011 Osh Regional Court, acting as a cassation court, had already ruled that both the investigator’s decision of 19 May 2011 and the Osh City Court decision of 4 November 2011 were arbitrary and groundless, the author and his lawyer had no ground on which to further appeal the Osh Regional Court decision to the Supreme Court. Therefore, the author claims that he has exhausted all available domestic remedies.

Additional observations by the State party

6.In a note verbale dated 17 January 2018, the State party reiterated its initial observations.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes that the State party claims that the author failed to exhaust all available domestic remedies as the decision of 18 December 2011 of the Osh Regional Prosecutor’s Office investigator not to institute criminal proceedings into the author’s allegations of torture was not appealed to a higher prosecutor’s office or to a court. The Committee also notes the author’s contention that he, his sister and his counsel filed several complaints to the Prosecutor General’s Office, as well as a cassation appeal to Osh Regional Court which reversed the investigator’s decision of 19 May 2011 and the Osh City Court decision of 4 November 2011 and returned the case for additional investigation. The Committee thus takes note of the claim that the author has exhausted all available effective domestic remedies, as on multiple occasions he brought his torture claims to the attention of the authorities who were dealing with the criminal case, which resulted on two occasions in the reopening of investigations. Accordingly, the Committee concludes that in the present case, it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the communication.

7.4The Committee considers that the author has sufficiently substantiated, for the purposes of admissibility, his claims raising issues under article 7, read alone and in conjunction with article 2 (3) (a) and article 14 (3) (g), of the Covenant. Accordingly, it declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claim that he was tortured by the police and was forced to confess guilt for crimes despite not having participated in the mass riots in the city of Osh. In substantiation, the author provides detailed information regarding his torture allegations. He claims that on 20 April 2011 he was taken to a police station in the city of Osh, where he was held in handcuffs. Four police officers subjected him to physical ill-treatment to force him to confess guilt in respect of a number of crimes. For around four hours, he was beaten on the head and the neck. They threatened that if he did not confess guilt as requested, he would not leave the police station alive. They then put a plastic bag over his head and began suffocating him until he lost consciousness. The Osh Regional Prosecutor’s Office ordered a preliminary investigation, yet it was conducted improperly since certain data were lost, the author and his defence were not given the opportunity to challenge the medical expert’s opinion and to apply for a comprehensive medical, psychological and psychiatric expert examination, none of the security officers who had apprehended the author was interrogated, there was no “confrontation” meeting between them and the author, and nor was the author questioned, even though he was able to establish the identity of the individuals and the circumstances of his ill-treatment. Eventually, his complaints were ignored by the prosecution. Furthermore, there is no indication in the materials before the Committee that the evidence that the author was not present in the State party during the riots, which underlies his alibiclaim and which would render his confession a false confession, was seriously examined. In this regard, the Committee recalls that once a complaint of ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. The author’s allegations of torture and forced confession were ultimately rejected as being groundless and treated as having been made up as part of an attempt by the author to avoid criminal responsibility.

8.3The Committee notes that as a result of the author’s complaints, his allegations of torture were investigated by the same investigator who had been in charge of the criminal investigation against him. It also notes that Osh Regional Court returned the case for an additional inquiry and the Osh Regional Prosecutor’s Office again put the same investigator in charge. The Committee further notes the author’s allegation that no additional investigative steps were taken by the investigator and that the wording of the second refusal to initiate criminal proceedings was identical to that of the earlier decision. The Committee therefore notes that the material on file does not allow it to conclude that the investigation into the allegations of torture was carried out effectively and impartially. In the present case, the lack of impartial inquiry is further demonstrated by the fact that although the investigator interviewed the police officers, there is no indication that the investigator took other investigative steps, such as meeting and interviewing the author about his torture allegations, inspecting the place of torture, interviewing witnesses, and clarifying the circumstances under which the bodily injuries were inflicted on the author.

8.4The Committee also notes the author’s claim that at the time of the mass riots in Osh and the crimes he was sentenced for, he was not present on the territory of the State party. Although this claim was supported by documentary evidence, there is no indication on file that it was investigated at any stage of the domestic proceedings. The Committee therefore observes that this essential element was ignored by the prosecution and the courts, and was neither assessed nor contested in the State party’s observations. The Committee also observes the State party merely states that it relied on a forensic medical report, the victim’s testimony and eyewitnesses in establishing the author’s guilt, without providing any explanation or documents in substantiation.

8.5In light of the above considerations, the Committee considers that the State party’s competent authorities have failed to give due and adequate consideration to the author’s complaints of torture made during the domestic criminal proceedings. In these circumstances, the Committee concludes that the facts before it disclose a violation of the author’s rights under article 7, read alone and in conjunction with article 2 (3) (a) and article 14 (3) (g), of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 7, read alone and in conjunction with article 2 (3) (a) and article 14 (3) (g), of the Covenant.

10.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to take appropriate steps to: (a) quash the author’s conviction and, if necessary, conduct a new trial, in accordance with the principles of fair hearings and other procedural safeguards; (b) carry out a prompt, impartial, effective and thorough investigation into the author’s allegations of torture, and initiate criminal proceedings against those responsible; and (c) 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.

11.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the present Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.