Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2146/2012*, **

Communication submitted by:Zhaslan Suleimenov (represented by counsel, Anara Ibraeva, of the Kazakhstan International Bureau for Human Rights and Rule of Law)

Alleged victim:The author

State party:Kazakhstan

Date of communication:14 January 2011 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 20 April 2012 (not issued in document form)

Date of adoption of Views:21 March 2017

Subject matter:Torture and ill-treatment of the author in detention

Procedural issue: Non-exhaustion of domestic remedies

Substantive issues: Torture — prompt and impartial investigation; freedom of thought, conscience or religion; conditions of detention

Articles of the Covenant: 7, read in conjunction with 2, and 9, 10, 14 and 18

Article of the Optional Protocol:2

1.The author of the communication is Zhaslan Suleimenov, a national of Kazakhstan born in 1976. He claims to be a victim of a violation by Kazakhstan of his rights under article 7, read in conjunction with article 2, and articles 9, 10, 14 and 18 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 2009. The author is represented by counsel.

The facts as submitted by the author

2.1The author submits that he is a person with disabilities using a wheelchair. On 5 January 2009, together with three companions, he travelled to the Russian Federation to undergo medical treatment in the city of Pyatigorsk. On 8 January 2009, they were arrested near Nalchik by special police force officers. They were taken to a local police station, where they were held through the night. On 9 January 2009, they were transferred to the Antiterrorism Centre in Nalchik, where they were questioned about the purpose for their trip. Thereafter, they were placed in a hotel, where they were detained de facto for one month until their deportation to Kazakhstan.

2.2The author was repeatedly taken to the anti-terrorism police unit for interrogation and, two weeks before their deportation, he and his acquaintances were all questioned in the hotel. They were subjected to beatings and other forms of ill-treatment by officers of the Russian intelligence services to make them confess to having constituted a terrorist group. However, no criminal case was initiated against them and the Russian authorities decided to deport them to Kazakhstan for violation of immigration rules.

2.3The author submits that, on 4 February 2009, he and those accompanying him were transported by bus to the Russian-Kazakh border. On 5 February 2009, they were handed over to several masked officers of the National Security Committee for the Atyrau region in Kazakhstan, who immediately started beating them, forcibly twisting their arms behind their back and using handcuffs, insulting them and threatening them with long prison terms. Officers also covered the author and his companions’ faces with their own winter hats, which made breathing difficult, and accused them of being “terrorists”.

2.4The author further submits that the group was subsequently transferred to Astana. It took the authorities from 5 to 7 February 2009 to transfer them from Atyrau to Astana. During this time, the author was put in a car with his back against the car’s cold window and beaten on his paralysed legs. Bags were put over the heads of those in the group and they were deprived of food and not allowed to use toilets. The author further claims that he sustained bruises on his hands because the handcuffs were too tight and that the woolly hat covering his face made breathing difficult, as a result of which he lost consciousness several times.

2.5On 7 February 2009, the author was transferred to the National Security Committee of Astana. He was thrown to the floor, kicked and beaten up and thereafter put in a closed iron box called “the glass”, in which he nearly suffocated. Owing to extremely low temperatures, the author suffered from frostbite. The beatings inflicted on his left leg caused a severe open wound, which had not healed at the time of the author’s submission. Lying on the cold floor resulted in an inflammation of his lungs. He also developed osteomyelitis of the left thigh. His requests for medical assistance were ignored by the medical unit of the pretrial detention facility. He was not allowed to use his wheelchair.

2.6The author claims that, on 7 February 2009, in order to force him to confess that he had constituted a terrorist group, the author was interrogated until midnight in the Investigation Department of the National Security Committee in Astana. He was returned to the pretrial detention facility of the Committee at 2 a.m. on 8 February 2009, where he was unlawfully detained for four days, without his detention being authorized by a court. On 10 February 2009, Court No. 2 of the Almatinsk district of Astana finally approved his detention.

2.7On 21 January 2009, separately from the author, the author’s brother was arrested for possession of explosives and, two months later, was also charged with constituting a terrorist group. On 7 February 2009, a criminal case was opened against the author and his brother under article 233-2, part 1, of the Criminal Code (“constituting or leading a terrorist group and participating in its activities”). On 13 April 2009, new criminal charges were brought against them under article 233-1, part 1, of the Code (“supporting terrorism or calling for commission of an act of terrorism”). It was only on 11 February 2009 that the author was transferred to a pretrial investigation centre in Astana. He spent two and a half months in detention in a dark, bunker-type cell for prisoners convicted to life imprisonment as part of an attempt to obtain a confession from him.

2.8The author was accused of preparing to commit terrorist acts in the Russian Federation. He allegedly formed a jamaat(an illegal religious group), held several meetings at his place of residence with his acquaintances and showed films about executions of Russian military officers, military operations in Caucasus and the alleged abuse of authorities against peaceful population of Chechnya. The authorities also claimed that he had instructed the participants of the meetings in making improvised explosive devices. According to the investigation, a pneumatic weapon and ammunition were purchased on his orders. He became the leader of the group and taught them religion and ideology, military and intelligence skills, as well as how to find literature on religious subjects, including through the Internet. He was also accused of persuading five of his acquaintances to travel to the Russian Federation in order to join the illegal armed groups headed by the so-called “Amir of Caucasian mujahidin”; planned the itinerary, split them into two groups, who travelled to the Russian Federation via different itineraries, bought two SIM-cards in order to avoid telephone tapping and forbade them from calling home.

2.9The author complained of torture at the time of his first interrogation, on 7 February 2009. He claims, however, that nine months passed and, by letter dated 20 November 2009, the Investigation Department of the National Security Committee of Astana informed the author of its refusal to open a criminal case regarding his complaint of torture, the decision being upheld by the prosecutor’s office. During the court proceedings, the author and his aunt petitioned on numerous occasions the prosecutor’s office and the court, claiming that the criminal case was fabricated, that the author was subjected to ill-treatment and that his arrest and detention were unlawful. He also requested on several occasions to be hospitalized in view of his poor health, but none of these requests was granted.

2.10On 30 November 2011, Court No. 2 of the Almatinsk district of Astana sentenced the author and his brother to eight years’ imprisonment. On 11 December 2009, he filed an appeal with the Astana City Court and, on 23 December 2009, supplemented his appeal. On 12 February 2010, the Astana City Court upheld the decision of the first instance court. The author’s aunt submitted a cassation appeal on 24 February 2010, which was rejected on ground that she was not the author’s legal representative. The author himself failed to submit a cassation appeal. His applications for supervisory review were also unsuccessful.

2.11The author claims that he has exhausted all domestic remedies. His failure to submit a cassation appeal is explained by the fact that he did not receive the decision of the Astana Court of 12 February 2010 immediately. According to article 420-1, paragraph 3, of the Criminal Procedure Code, a cassation appeal may be lodged within 15 days of the date of receipt of the decision of the appellate court. However, immediately after the deadline of 15 days expired, he was transferred, on 27 February 2010, to another prison located in a different region of Kazakhstan and could not physically prepare and lodge a cassation appeal. Moreover, in view of his legal ignorance and the absence of adequate legal aid from State-appointed lawyers, he was unable to prepare such an appeal without assistance.

The complaint

3.1The author claims that he was subjected to torture and ill-treatment by law enforcement officers, in violation of article 7 of the Covenant. He claims that he was held incommunicado and not allowed to receive visits from relatives. The author further claims that he is also being subjected to ill-treatment in the prison facility where he is currently detained. A complaint to that effect was submitted by his aunt to the prosecutor’s office on 12 September 2011.

3.2The author further submits that his rights under article 9 have also been violated. The court prolonged his detention repeatedly, ignoring his numerous requests to have the detention changed to house arrest, owing to his disability and poor health, and that he required special assistance. On 2 April 2009, the court extended his detention for a period of three months on the ground that the proceedings could not be completed on time due to the results of forensic examinations being delayed. Although he challenged this decision, the Astana City Court upheld it on 29 April 2009, without deciding on the issue of the lawfulness of his arrest. The pretrial investigation was delayed by the authorities and as a result he spent 11 months in pretrial detention, in violation of his right to be tried without undue delay.

3.3The author also claims a violation of article 10 of the Covenant. He was subjected to ill-treatment and his requests for medical assistance were repeatedly rejected. The detention conditions are not adapted to the special needs of a person with disability and his health has deteriorated further.

3.4He claims that his rights under article 14 have been violated. He submits that the courts failed to respect the principles of impartiality and equality of arms. Moreover, upon his arrest, he was treated by the officers of the Kazakhstan National Security Committee as a criminal, in violation of his right to a presumption of innocence. He was also prevented from adequately defending himself. Owing to the failure of his lawyer to defend him effectively, he refused his services and requested the court to appoint another lawyer.

3.5The author also submits that his rights under article 18 have been violated. He was convicted for constituting a terrorist group on the basis of religious texts and other documents that were found in his possession. He claims that they were planted in his apartment by officers of the National Security Committee. Moreover, during his transfer to Astana, Kazakhstan, officers were drinking alcohol and eating pork, inviting him to join. They used abusive language about him and his religion.

State party’s observations on admissibility and the merits

4.1 On 26 June 2012 and 8 November 2012, the State party provided its observations on admissibility and the merits. The State party challenged the admissibility of the communication for several reasons.

4.2Firstly, the State party contends that the ratione temporis principle should prevent the Committee from examining the case in the first place. The State party’s obligations under the Optional Protocol came into force on 30 September 2009, and the allegations submitted by the author occurred before that date.

4.3The author’s contention that the torture was continuing as of the date of the submission of the complaint and the allegations of torture by several police officers of the National Security Committee for the Atyrau region have been examined by the State party and could not be confirmed. Therefore, this part of the communication should be declared inadmissible.

4.4Secondly, the author has failed to exhaust all domestic remedies. The author was detained on 9 January 2009 in Nalchik in the Russian Federation. He was extradited to Kazakhstan, where he was wanted for committing several crimes, including operating a terrorist organization and committing illegal armed acts. The author was formally charged on 7 February 2009 and placed in pretrial detention. On 2 April 2009, his detention was extended until 7 May 2009. On 13 April 2009, the author was charged with additional crimes, including propaganda of terrorism or public calls to commit terrorist acts. The prosecutor’s office eventually sent his case to court on 30 June 2009. Meanwhile, all charges against the other defendants, C.H., A.B., G.R., B.E. and S.M., were dropped on the basis of article 65, paragraph 2, of the Criminal Code after they cooperated with the investigation.

4.5The author has not been tortured or pressured to confess guilt. C.H., A.B., G.R., B.E. and S.M. provided evidence based on their own free will, in the presence of their lawyers, and the interrogations were videotaped. On 30 November 2009, the author was sentenced to eight years’ imprisonment, to be served in a strict regime prison.

4.6On 23 June, 14 July and 21 October 2009, the author complained to the prosecutor’s office regarding violation of his constitutional rights. His first two complaints did not contain any allegations of mistreatment. In accordance with the law, the prosecutor’s office sent all these complaints to the court. Furthermore, on 12 February 2010, the author’s appeal was rejected by the judicial panel for criminal cases of the Astana Regional Court. The author did not submit an appeal under the supervisory review procedure to the Supreme Court of Kazakhstan.

4.7The State party further submits that the author’s aunt, S.M.M., submitted a complaint to the Prosecutor General’s Office on behalf of the author. On 7 December 2010 and 24 August 2011, the Prosecutor General refused to initiate a supervisory review request with the Supreme Court. The author himself never submitted such a request.

4.8Regarding the author’s allegations of a lack of medical assistance, the State party submits that the author received medical help whenever it was requested. The author uses a wheelchair, but otherwise his health was assessed as “satisfactory”. The State party draws the attention of the Committee to the fact that the author submitted 19 complaints to various government agencies. In these complaints, he disagrees with various aspects of his criminal prosecution and with the court verdict. The author, however, never complained about the conditions of his detention.

4.9Currently, the author is being held in Prison No. 166/4 in Atbasar, where he has been disciplined twice for various violations of prison rules and regulations.

4.10Commenting on the author’s allegations regarding a perceived threat if he submits a complaint to the Committee, the State party submits that such claims are invented by the author purely so that he can obviate the requirement to exhaust domestic remedies that the Committee imposes. The author therefore failed to exhaust all available domestic remedies, and his submission should be declared inadmissible.

4.11On the merits, the State party submits that the prosecutor’s office, as prescribed by law, forwarded the author’s complaints to the court. The court examined these complaints during hearings and considered them to be “unfounded”.

4.12On 28 December 2009, the Supreme Court of Kazakhstan issued instruction No. 7, which obliges courts to task the prosecutor with conducting an examination of claims of “illegal methods of investigation”. This instruction, therefore, is not applicable to the author’s allegations, since the author’s verdict was announced before adoption of this instrument.

4.13As mentioned earlier, the author also complains about a lack of access to medical assistance, which, he claims, was continuing as of the date of the submission of the complaint. On the date of his arrival at the prison on 27 February 2010, the author was registered as a person with a disability. On 27 March 2010, he was brought to Central Clinic No. 162/2 and given necessary medical care. From 17 June 2010 to 9 September 2010, he was sent to National Hospital No. 156/15. The doctors in the hospital raised the question of performing surgery, but it was ultimately decided that such surgery was not needed and would be “ineffective” if performed.

4.14The State party further denies allegations of torture and mistreatment. The Constitution explicitly prohibits torture. The Criminal Code of Kazakhstan also contains article 141-1, which prohibits torture. A person convicted for this crime could be sentenced to 5 to 10 years’ imprisonment. Furthermore, the Prosecutor General’s Office adopted an instruction, dated 2 February 2010, that creates an obligation to investigate allegations of torture. Where such claims are found to be credible, the prosecutor’s office must bring criminal charges. As a result, the number of complaints of torture has increased during recent years.

4.15Furthermore, the authorities work to improve conditions of detention by building new detention centres in accordance with international standards. Accordingly, access to medical care and legal services has also been improving. The author has been provided with the full range of medical services that he needed and was able to have access to his lawyer.

4.16Regarding the author’s claims of ineffective investigation of his claims of torture, the State party informs the Committee that the author did not submit any complaints during the criminal investigation. As for the court hearings, the State party submits that, on 1 October 2009, the court heard the testimony of T.A, an investigator with the National Security Committee. The investigator testified that the author and the witnesses were never subjected to any kind of pressure or mistreatment. As is obvious from the records of the criminal investigation, the author and the witnesses were questioned in the presence of their respective lawyers.

4.17The laws of Kazakhstan further provide for compensation for moral and material damage in the case of unlawful actions of the law enforcement agencies.

4.18Regarding the author’s complaints about the length of his pretrial detention, the State party informs the Committee that the time spent by the author in detention was justified by the need to conduct various forensic examinations. In addition, on 13 April 2009, the author was additionally charged with crimes under article 233-1, paragraph 1, of the Criminal Code.

4.19The State party examined the records of the trial hearings. It confirms that the author has asked for his detention to be changed to house arrest, citing his health issues. Upon inquiry initiated by the court, the administration of the detention centre told the court that the author had been receiving all necessary medical assistance. The court records also show that, on 22 October 2009, the author called an ambulance to the detention centre. The doctors, who arrived upon request, did not find it necessary to transport the author to a hospital.

4.20Additionally, court records show that the head of Medical Unit No. 166/1 testified, when questioned as a witness, that upon arrival at the detention centre, the author was examined by several doctors. In addition to his disability, he was diagnosed with gastritis. Additionally, doctors confirmed that the author was suffering from bedsores, for which a treatment was prescribed.

4.21On 18 February 2011, a special medical commission refused to release the author. The author argued that he could not get proper medical assistance in prison. The medical commission came to conclusion that the author’s condition was stable and that he had been receiving the necessary medical care. In addition, the author was charged and sentenced for having committed a particularly serious crime. Moreover, when serving his sentence, the author was disciplined twice for violating internal rules and regulations.

4.22In accordance with the applicable rules, the author has been granted seven family visits: three long and four short ones. He also received eight parcels containing various goods and items. The State party also submits that the author is able to practise his religion within the limitations of article 12, paragraph 5, of the Criminal Execution Code. The author has never submitted any complaints regarding the prison administration.

4.23Regarding the author’s right to be present during the appeal hearings, in accordance with article 408, paragraphs 2 and 3, of the Criminal Procedure Code, the court has the discretion to request the presence of an appellant or not. An appellant is brought to court if the appeal is filed by the prosecution. The author’s appeal dated 30 November 2009 was heard in the presence of the author’s lawyer.

4.24The State party further submits that, starting from 1 July 2012, appellants also have an opportunity to file a cassation appeal. Regular appeals are brought before the verdict comes into force and cassation appeals can be brought after the verdict comes into force. Both appeals have to be exhausted before the author can submit a supervisory review request to the Supreme Court. Based on all the information mentioned above, the State party contends that there has been no violation of articles of the Covenant in the author’s case.

Additional observations

From the author

5.1On 11 September 2012, 28 March 2013, 20 January, 4 June and 11 September 2014, and 19 February, 20 March, 12 June and 1 December 2015, as well as on 15 January, 1 February, 11 April and 6 January 2016, the author submitted additional information. He argues, inter alia, that the State party’s ratione temporis argument is not relevant in this case, since the violations of the articles of the Covenant continued after 30 September 2009 and to the date of submission.

5.2Regarding the exhaustion of domestic remedies, the author explains that his aunt submitted a supervisory review request to the prosecutor’s office, which was rejected. The author’s brother and his co-defendant, Z.K., submitted a supervisory review request, which was rejected by the Supreme Court of Kazakhstan.

5.3Regarding the State party’s observations on the merits, the author submits that, instead of conducting investigations into his complaints of torture, the authorities forwarded them to the court. The court did not conduct any investigations, but only questioned three law enforcement officers who denied any wrongdoing. Moreover, on 17 September 2009, during one of the court hearings, the court refused to admit one of the author’s letters of complaint. The judge simply stated that the author should address his complaints to the internal security service of the National Security Committee.

5.4The author contends that his first complaint of torture was submitted during his initial interrogation on 7 February 2009, despite the State party’s arguments to the contrary. To this complaint, the Deputy Prosecutor General simply responded that the facts of torture have not been confirmed. The State party’s authorities ignored numerous complaints about beatings, insufficient food and lack of access to medical assistance. On six different occasions, the authorities refused to initiate a criminal investigation regarding his complaints.

5.5The author further submits that he was in de facto detention starting from 9 January 2009, but he was registered with the medical authorities only on 27 February 2010 and was only properly diagnosed on 5 April 2010. This proves that he did not receive appropriate medical care for more than a year. Despite significant medical problems, the author was prescribed analgesics. The author did not complain to doctors in the prison simply because he could not move independently.

5.6Regarding the State party’s contention about the growing number of investigations into crimes of torture, the author notes that the majority of these investigations do not lead to prosecution. For example, in 2012, of 28 cases that were initiated, only five were sent to court.

5.7The author further submits that he was assigned four different lawyers at different stages of the criminal case against him. All four lawyers proved to be useless and did not defend him properly. For example, Z.H., his second lawyer, demanded US$ 1,000 for her services, although she was paid by the Government. During 10 months in the pretrial detention centre, the lawyers visited the author only twice.

5.8The courts failed to consider his release pending trial due to his medical condition. The author brought this petition several times, but the court disregarded these requests. Only once, on 8 September 2009, had the court addressed this issue by saying that the author was receiving all proper medical care at the detention facility.

5.9The State party also failed to conduct an effective and impartial investigation into the author’s claims of torture. On 1 October 2009, the court questioned the senior investigator of the National Security Committee for Astana, T.A. This investigator testified that the author, other defendants and witnesses were never tortured or pressured in any way. As required by international standards, the State party cannot follow a formal approach in investigating claims of torture, but instead, must make every effort to conduct a thorough and effective investigation.

5.10The author was charged on 7 February 2009. Additional charges were brought against him three months later. The initial court decision to detain him pending trial and the subsequent decision to prolong his detention was based only on the gravity of charges. The court failed to consider all other circumstances of the author’s case, including his health.

5.11Several times during imprisonment, the author was placed in solitary confinement as a punishment. The explanation given by the prison administration was that he was prohibited from encountering other prisoners as, if he was allowed to do so, he would disseminate his “terrorist” views. Currently, the author is being held in a solitary confinement unit of the medical unit of Prison No. 166/18.

5.12The author’s religious freedoms were violated by the State party regularly. He was threatened for praying regularly and pressured to denounce his religion. In prison, the author is registered as a prisoner who has committed crimes based on religion. The author, in an addendum to his appeal dated 23 December 2009, complained about violations of his religious freedoms.

5.13The State party further claims that the author failed to exhaust all available domestic remedies, specifically, that he did not file a cassation and appeal and, thereafter, a supervisory appeal request to the Supreme Court. The provisions of the law establishing a cassation appeal came into force on 1 July 2012. The author’s communication to the Committee was submitted on 14 January 2011. The author contends, however, that his aunt did file a cassation appeal on his behalf. He personally could not file a cassation appeal, because he had 15 days to file this appeal, but the appellate court did not provide a copy of its decision dated 27 February 2010. At the same time, the author was being transported to the place of imprisonment and he could not physically prepare his cassation appeal.

5.14Regarding a supervisory appeal procedure, the author contends that his brother and co-defendant, Z.K., did file a supervisory appeal request with the Supreme Court, which was rejected. Overall, the supervisory appeal procedure cannot be deemed as an effective domestic remedy. After the author’s aunt filed supervisory appeals with the prosecutor’s office on behalf of the author, she received two responses dated 7 December 2010 and 24 August 2011, where the prosecutor’s office refused to grant the bringing of a supervisory appeal to the Supreme Court.

5.15The author also submits that, during his imprisonment in Facility No. 162/4, he was subjected to harsh treatment. For example, on 6 September 2011, at 5 a.m., E.S., one of the guards, along with two soldiers, stormed into the author’s cell, started yelling at him and searched his cell. When they didn’t find anything, E.S. threatened to place the author in the solitary confinement unit. On 8 September 2011, the Deputy Head of the prison, A.M., and other officers, came into the author’s cell, started insulting him and said that he “pretends to be a disabled person”, pushed him off his bed, suggesting that he could walk, banged him against the wall and took his belongings, including an electric kettle and space heater.

5.16The author reiterates that he was tortured to confess guilt and his co-defendants were also tortured to provide information against the author. Once such information was obtained, under duress, the defendants became witnesses. But even as witnesses, they admitted during the court hearings that they had been pressured to testify against the author. G.R., one of the witnesses, testified in court that the law enforcement officers had hung him “head down, electrocuted him, and put a screwdriver in his ear” so he had been obliged to confess.

From the State party

6.1On 10 December 2013 and 8 May, 5 August and 31 December 2014, as well as on 28 January, 6 May, 31 July and 29 December 2015 and 12 January, 11 March, 19 August and 25 November 2016, the State party reiterated its observations on admissibility and the merits.

6.2The State party argues that the author failed to exhaust domestic remedies. The author’s brother and co-defendant did file a supervisory review request, but the author was charged with additional crimes, which makes his case different.

6.3The State party further submits that, as stated in its initial observations, the author was provided with all necessary medical care. His torture claims were examined and it was ascertained that there had been no mistreatment of the author or the witnesses.

6.4The State party submits that, on 23 September 2011, the Department against Economic Crimes and Corruption received a complaint from the author. The author claimed that, on 8 September 2011, the Deputy Head of Prison No. 162/4 in the Pavlodar region, A.M., and one of the officers, K.A., had entered the author’s cell and searched it and, in the process, “abused the author both morally and physically”. K.A. was questioned regarding this alleged incident. He confirmed that the author’s cell was indeed searched, and “prohibited items” were discovered; no physical or other forms of pressure were used against the author. The authorities therefore refused to initiate a criminal investigation.

6.5On 11 May 2014, the author was visited by a representative from the prosecutor’s office and representatives of the national preventive mechanism. The author, who was at the time held in Prison No. 166/18, was examined and it was ascertained that he was receiving proper medical care. On 21 April 2014, the author became aggressive and refused to return to his cell. The nurse who was assigned to him, P.U., filed a complaint against the author claiming that he had insulted her. The authorities of Prison No. 166/18 provided explanations and it transpires from these documents that the author was never pressured or physically threatened or abused.

6.6In August 2014, the author applied for early release. On 26 September 2014, the Akmola Region Criminal Court rejected his request.

6.7The State party further contends that the author was examined not only by the penitentiary authorities, but also private clinics, in June and September 2014. On several dates, such as from 2 to 13 April 2013, from 8 to 14 May 2014 and on 15 December 2015, he refused to undergo medical examination or treatment.

6.8Owing to the fact that the author had committed crimes based on his religious convictions, the officers of the National Security Committee held two conversations with him of a “prophylactic nature”. These conversations were held in the presence of the prison administration and allegations of “pressure” on the author are unfounded.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether or not it is admissible under the Optional Protocol to the Covenant.

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 investigation or settlement.

7.3The Committee notes the State party’s claim that the author failed to file a cassation appeal or a request for a supervisory review before the Supreme Court of Kazakhstan. The Committee notes that the author’s aunt submitted two supervisory review requests on behalf of the author, which were rejected by the prosecutor’s office on 7 December 2010 and 24 August 2011. Additionally, the Committee considers that filing requests for supervisory review with the president of a court against court decisions that have entered into force and depend on the discretionary power of a judge constitutes an extraordinary remedy and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case. The State party has not shown, however, whether and in how many cases requests to the president of the Supreme Court for supervisory review were successful in cases concerning torture and fair trial. Regarding the cassation appeal, the Committee notes that the procedure came into force only on 1 July 2012, that is, after the author submitted his claims to the Committee. Accordingly, the Committee concludes that it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the communication.

7.4The Committee further notes the State party’s argumentation to the effect that the author’s claims are inadmissible ratione temporis. The Committee observes that it is precluded ratione temporis from examining alleged violations of the Covenant that occurred before the entry into force of the Optional Protocol for the State party, unless the violations complained of continue after that date or continue to have effects that in themselves constitute a violation of the Covenant or an affirmation of a prior violation. In this light, the Committee notes that the alleged violations under article 9 all occurred before entry into force of the Optional Protocol for the State party. The Committee is therefore precluded by the reasons of ratione temporis from considering this part of the author’s claims.

7.5Regarding the author’s claims under article 7, read separately and in conjunction with article 2 (3), the Committee notes that the author contends that the violations that he claimed in his initial submission to the Committee was continuing as of the date of the submission of the complaint. In this connection, the Committee notes that, after the entry into force of the Optional Protocol, the author claimed that he had been continuously subjected to torture and that his claims were never adequately addressed by the authorities. Additionally, the Prosecutor General’s Office, on 7 December 2010 and 24 August 2011 (i.e., after the entry into force of the Optional Protocol for the State party), refused to bring a supervisory review request to the Supreme Court or to otherwise verify the author’s claims of torture. In these circumstances, the Committee considers that it is not precluded ratione temporis from considering the present communication under article 7, read separately and in conjunction with article 2 (3).

7.6The Committee has noted the author’s claims under articles 14 and 18 of the Covenant (see paras. 3.4 and 3.5 above). In the absence of any further pertinent information on file, however, the Committee considers that the author has failed to sufficiently substantiate, for purposes of admissibility, these allegations. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.

7.7In the Committee’s view, the author has sufficiently substantiated, for the purposes of admissibility, his remaining claims raising issues under article 7, read separately and in conjunction with article 2 (3), and article 10 of the Covenant, declares them admissible and proceeds with their consideration of the merits.

Consideration of the merits

8.1The Committee has considered the present 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 first takes into consideration the author’s allegations that he was, on a number of occasions, tortured and otherwise mistreated. The Committee notes that the author reported torture both during his first official interrogation on 7 February 2009 and throughout the court trial. The Committee also notes that the author and his aunt provided the prosecutor’s office and the courts with specific evidence of torture that the author had suffered at the hands of law enforcement officers, such as injuries to his legs, but the claims of torture were never adequately investigated. The Committee considers that, in the circumstances of the present case, and in particular in the light of the State party’s inability to explain the alleged mistreatment on a number of occasions, due weight should be given to the author’s allegations.

8.3Regarding the State party’s obligation to properly investigate the author’s claims of torture, the Committee recalls its jurisprudence, according to which criminal investigation and consequential prosecution are necessary remedies for violations of human rights, such as those protected by article 7 of the Covenant. The Committee underscores two episodes from the author’s many allegations. Firstly, the author complained about torture which allegedly occurred during his initial interrogation on 7 February 2009 to force him to confess guilt. The Committee notes the author’s allegations that he was beaten and not allowed to use his wheelchair. The author claims that he filed an immediate complaint. According to copies of the responses from the authorities, on 20 March 2009, they simply rejected the author’s allegations, without providing any explanation or conducting a formal investigation. On 10 April 2009, a similar letter rejecting the author’s allegations was issued by the prosecutor’s office, again, without any explanation. In addition, on 23 April 2009, the author’s request to investigate allegations of torture was rejected by the Investigation Department of the National Security Committee, again without providing any details or reasons for the rejection. Finally, the author’s request to investigate his claims of torture was rejected by the Committee’s Investigation Department in Astana in a letter dated 20 November 2009.

8.4Secondly, as admitted by the State party, a number of the author’s complaints were brought before the court for it to consider the allegations, for example the author’s complaints dated 25 September 2009 and 21 October 2009. The Committee recalls that, once a complaint about ill-treatment contrary to article 7 has been filed, a State must investigate it promptly and impartially. Instead of conducting a prompt and impartial investigation into the author’s claims of torture, however, the court simply questioned one of the investigators, who denied any wrongdoing in relation to the author. The Committee notes that the material on file does not allow it to conclude that any prompt or impartial investigation was carried out into the allegations of torture, despite a number of verifiable complaints from the author himself and from his aunt. In the absence of any other pertinent information, and in the circumstances of the present case, the Committee concludes that the facts before it disclose a violation of the author’s rights under article 7 of the Covenant, read separately and in conjunction with article 2 (3).

8.5Lastly, the Committee must decide whether the author’s treatment and the alleged lack of adequate medical assistance in detention amounted to a violation of his rights under article 10 (1). The author also complained that the court building, detention centres and prisons were not accessible to persons with disabilities and that he was refused medical treatment on numerous occasions.

8.6The State party contested these allegations by stating that the author had received medical care when he requested it and that the detention centres and prisons were provided with the necessary personnel, equipment and facilities to treat a person with disabilities. The records show that the author requires special medical attention, given his status as a person with disabilities. Additionally, the author required assistance with access to toilets and showers and treatment for his long-standing medical issues, such as constant bedsores.

8.7In that connection, the Committee notes that the State party is under an obligation to observe certain minimum standards of detention, which include the provision of medical care and treatment for sick prisoners, in accordance with rule 24 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). It is apparent from the author’s account that the pretrial detention facilities, prisons and medical facilities where the author was held after the trial were not suitable for a person with disabilities who is able to move only in a wheelchair. The Committee further notes the author’s claims that he was left alone in his cell without any meaningful activities, which caused numerous bedsores on his body. The author could not move independently and was not provided with continuous assistance even for his most basic needs. The Committee further notes that, despite several examinations by the penitentiary medical specialists, he was not able to receive medical treatment adequate to his condition and that he continued suffering from the lack of specialized medical care and medicine that he needed. On the basis of the information before it, the Committee finds that confining the author in such conditions constitutes a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) 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 of the author’s rights under article 7 read alone and in conjunction with article 2 (3), and article 10 (1) of the Covenant.

10.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors 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: (a) to conduct a prompt and impartial investigation into the authors’ allegations of torture and ill-treatment; (b) to provide the author with adequate compensation; (c) to provide the author with appropriate medical care and assistance considering his disability and medical condition, including permitting access to private doctors and nurses to examine and assist the author. 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 Committee’s Views. In addition, it requests the State party to publish the Views and to have them widely disseminated in the official languages of the State party.