Human Rights Committee

Decision adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2849/2016 * , **

Communication submitted by:Z.Y. (not represented by counsel)

Alleged victim:The author

State party:Kazakhstan

Date of communication s :7 July 2016 (initial submissions)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 16 November 2016

Date of adoption of Decision :24 March 2022

Subject matter:Ill-treatment by police officers, lack of effective investigation

Procedural issue: Exhaustion of domestic remedies

Substantive issue s : Ill-treatment; effective remedy

Articles of the Covenant: 2 and 7

Articles of the Optional Protocol:2 and 5 (2) (b)

1.1The author of the communications is Z.Y., a national of Kazakhstan born in 1947. She claims to be a victim of a violation by Kazakhstan of her rights under articles 2 and 7 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 June 2009. The author is not represented by counsel.

1.2On 26 April 2017, the Committee, acting through its Special Rapporteur on new communications, denied a request from the State party to examine the admissibility of the communication separately from the merits.

Factual background

2.1The author submits that in the autumn of 2013 she was elected by the residents of apartment building No. 26, Tselina Street, Amangeldy village, Kostanay Province, where she was residing, to represent them and protect their common interests. On 17 October 2013, the residents of neighbouring apartment building No. 8a made an attempt to install a sewage pipe across the courtyard of the author’s house. When the author tried toprevent unauthorized works on a sewerage installation, four women from the neighbouring building confronted her physically, kicking and pushing her away from the working excavator. The author managed to place herself in the hole dug by the excavator, thus preventing further construction works. The following day, on 18 October 2013, four women filed a complaint claiming that the author had physically assaulted two of them.

2.2On 13 December 2013, at around 10 a.m., the author was apprehended while entering her apartment building by three police officers who dragged her to a police car. While in the car, the police officers held her roughly by her arms, pushed her body against the seat and prevented her from moving. After around half an hour, the police car arrived at the specialized administrative court in Kostanay city. The police officers dragged her to the court room. On the same day, the court found the author guilty of an administrative offence under article 79 (3) (2) of the Administrative Offences Code and fined her 173,000 tenge.

2.3On 14 December 2013, the author underwent a medical examination at the Kostanay city hospital, which revealed bruises on her right shoulder. On 15 December 2013, the author met with the officer of the personal safety department of the district police, where she gave her testimony on police ill-treatment and filed a complaint in that regard. The same day, the interviewing police officer referred the author to a forensic examination. On 18 December 2013, the author was examined by a forensic expert at the Kostanay branch of the Centre for Forensic Examination, which confirmed that she had bruises on her shoulders.

2.4Having received no reply from the personal safety department of the police, the author filed complaints to various State institutions, including the Office of the Prosecutor General, the Administration of the President, the Department for Combating Economic and Corruption Crimes of Kostanay Province of the Agency for Combating Economic and Corruption Crime of Kazakhstan. On 13 May 2014, the author received a response from the Department stating that following its preliminary inquiry, a procedural decision had been taken not to open a criminal investigation into the author’s allegations of ill-treatment by three police officers.

2.5On 22 May 2014, the author appealed the decision of the Department for Combating Economic and Corruption Crimes of Kostanay Province at Kostanay City Court No. 2, claiming that when conducting its preliminary inquiry, the State agency had failed to interview key witnesses and provide her with effective remedies in investigating claims of ill-treatment by police officers. On 2 June 2014, the court noted the lack of certain materials on the file and several procedural inconsistencies, upheld the author’s complaint and ruled that a further enquiry should be conducted. The prosecutor appealed the decision. On 16 June 2014, the Regional Court of Kostanay, acting as appellate court, dismissed the prosecutor’s appeal on the legality of the ruling of the first instance court.

2.6On 25 July 2014, after having examined key witness testimonies and questioned forensic experts, the Department for Combating Economic and Corruption Crimes of Kostanay Province found no criminal elements in the police actions and upheld its earlier decision, namely not to open a criminal investigation into the alleged ill-treatment of the author. The decision of the Department also referred to the fact that the author had failed to attend the court hearing on the administrative charges brought against her, which was scheduled for 9 a.m. on 13 December 2013. The court ordered the police to ensure the participation of the author in the proceedings rescheduled for 11 a.m. The Department further noted that police officers were only implementing the court’s ruling when they apprehended and tried to accompany the author to the courtroom, since she was offering physical resistance to the execution of the ruling. The Department’s preliminary inquiry concluded that the police had not exceeded their authority and had acted lawfully, and thus there were no substantial grounds for opening a criminal investigation.

2.7On 13 September and 3 November 2014, the Office of the Prosecutor of Kostanay Province and the General Prosecutor’s Office, acting upon the author’s appeals, upheldthe decision of the Department for Combating Economic and Corruption Crimes of Kostanay Province.

Complaint

3.1The author claims a violation of article 7, read in conjunction with article 2 of the Covenant, arguing that the police used excessive force and the State party failed to conduct an effective investigation into the allegations of police ill-treatment.

3.2The author requests the Committee to carry out an effective investigation into her ill-treatment by police officers, apply appropriate sanctions to the officers responsible and provide full and adequate reparation for the moral damage inflicted on her, including rehabilitation and compensation.

State party’s observations on admissibility

4.1In a note verbale dated 3 February 2017, the State party submits that the communication should be declared inadmissible under articles 2 and 5 of the Optional Protocol due to non-exhaustion of available domestic remedies, noting that the author has failed to appeal the second refusal to open a criminal investigation.

4.2The State party observes that the author’s complaint of police ill-treatment was received by the Office of the Prosecutor of Kostanay Province on 17 April 2014. On 21 April 2014, the Office of the Prosecutor forwarded the complaint to the Department for Combating Economic and Corruption Crimes of Kostanay Province with an instruction to conduct a pre-investigative inquiry.

4.3On 30 April 2014, based on its pre-investigative inquiry the Department for Combating Economic and Corruption Crimes of Kostanay Province took a procedural decision not to open a criminal investigation against the three police officers due to the absence of criminal behaviour in their actions and informed the author accordingly.

4.4On 2 June 2014, Kostanay City Court No. 2 upheld the author’s appeal and orderedthe Department for Combating Economic and Corruption Crimes of Kostanay Province to re-examine the case and take a new procedural decision. The court found the author’s arguments substantiated, noting that the authorities had failed to conduct a full and comprehensive investigation.

4.5On 25 July 2014, having conducted an additional pre-investigative inquiry, the Department for Combating Economic and Corruption Crimes of Kostanay Province again took a procedural decision not to open a criminal investigation due to the absence of criminal behaviour in the actions of the police officers.

4.6The State party observes that the author failed to appeal the procedural decision of 25 July, as envisaged by article 109 of the Criminal Code of Kazakhstan and therefore argues that the author has failed to exhaust all available domestic remedies, contrary to articles 2 and 5 (b) of the Optional Protocol and rule 96 (f) of the rules of procedure of the Committee.

4.7The State party concludes that the Committee should declare the communication inadmissible.

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

5.1In a response dated 16 March 2016, the author expressed her disagreement with the State party’s arguments about the inadmissibility of her communication. She reiterated that on 2 June 2014, Kostanay City Court No. 2 upheld her complaint and ordered the Department for Combating Economic and Corruption Crimes of Kostanay Province to further examine the case and to take a new procedural decision. On 16 June 2014, the Regional Court of Kostanay dismissed the appeal of the Regional Prosecutor’s Office and maintained the decision of the first instance court. The author submits that while the court ruling was implemented and witnesses were questioned, the Department decided not to open a criminal investigation. Further to that decision not to open a criminal investigation, the author filed complaints with the Office of the Prosecutor of Kostanay Province and the Office of the Prosecutor General. Her complaints were however rejected.

5.2The author contends that she has exhausted all available domestic legal remedies and requests the Committee to consider the communication on its merits.

State party’s additional observations on admissibility

6.1In a note verbale of 2 October 2017, the State party reiterated its arguments, stating that the communication should be declared inadmissible since the author had failed to exhaust all available and effective domestic remedies.

6.2The State party further observes that according to the information received from the Supreme Court of Kazakhstan, the author did not contest, through judicial proceedings, either the decisions of the criminal investigative authorities, dated 25 July 2014, or the replies of the prosecution bodies as envisaged under article 109 of the Criminal Code of Kazakhstan.

6.3The State party observes that the author failed to provide substantiated legal arguments as to why she did not exercise her right to appeal, as envisaged under the Criminal Procedural Code. In that context, the State party draws the attention of the Committee to the fact that earlier the author did use her right to appeal when she contested the decision of the criminal investigative authority of 30 April 2014.

6.4The State party concludes that the author has failed to exhaust all available domestic remedies and therefore the communication should be declared inadmissible under articles 2 and 5 (b) of the Optional Protocol, and in line with rule 96 (f) of the rules of procedure of the Committee.

Author’s comments on the State party’s additional observations on admissibility

7.On 5 April 2018, the author reiterated her arguments stating that she had exhausted all available domestic remedies.

Issues and proceedings before the Committee

Consideration of admissibility

8.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

8.2The 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.

8.3With regard to the requirement set out in article 5, paragraph 2 (b), of the Optional Protocol, the Committee notes the State party’s argument that the author has not exhausted the available domestic remedies as envisaged under article 109 of the Criminal Code of Kazakhstan, which regulates the judicial procedure for consideration of complaints regarding actions (or inactions) and decisions of prosecutors, the investigation authorities and inquiry bodies. The author failed to contest the second decision of 25 July 2014 taken by the criminal investigative authorities not to open a criminal investigation into the author’s allegation of ill-treatment by police officers (see paras. 4.5 and 4.6 above).

8.4The Committee notes in this regard that on 2 June 2014, Kostanay City Court No. 2 upheld the author’s appeal and ordered the Department for Combating Economic and Corruption Crimes of Kostanay Province to re-examine the case and take a new procedural decision (see para. 4.4 above). The Committee further notes that the author acknowledges that this court ruling was implemented and key witnesses were interviewed (see para. 5.1 above) but she disagrees with the later decision of the authorities not to open a criminal investigation. The Committee observes that, other than her complaint to the first instance court, following the first decision taken by the Department on 30 April 2014, the author did not make any other judicial attempt, after the second decision taken by the Department on 25 July 2014, to contest the alleged ineffectiveness of the investigative authorities, apart from filing complaints with the Office of the Prosecutor of Kostanay Province and the Office of the Prosecutor General. The Committee further notes that in the present case the author, while disagreeing with the second procedural decision of the investigative body not to open a criminal case against the police officers allegedly involved in her ill-treatment, did not explore any judicial avenue to contest such a decision. In the present case, the author has not argued that the domestic remedies available to her were ineffective, nor that she was otherwise exempt from availing herself of those remedies. The Committee therefore concludes that the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

9.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That the present decision shall be transmitted to the State party and to the author.