Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2842/2016 * , **

Communication submitted by:S.Sh. (not represented by counsel)

Alleged victim s :I.Sh., S.Sh. and E.Sh.

State party:Kazakhstan

Date of communication: 23 June 2016 (initial submission)

Date of adoption of decision:28 March 2017

Subject matter:Fair trial, torture, unlawful detention, discrimination, privacy, voting and elections

Procedural issues: Exhaustion of domestic remedies, substantiation of claims, admissibility ratione temporis

Substantive issues: Fair trial, torture, unlawful detention

Articles of the Covenant: 2 (1) and (3) (a, b and c); 7; 8 (3) (a); 9 (1-5); 10 (1), (2) (a) and (3); 14 (1-3 (a-g), (5) and (6); 15 (1 and 2); 17 (1 and 2); 25 (b) and 26

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

1.1The author of the communication is S.Sh., a citizen of Kazakhstan. He submits the communication on his own behalf and on behalf of his sons I. and E. He claims that Kazakhstan violated the rights of I. under articles 2 (1) and (3) (a, b and c); 7; 8 (3) (a); 9 (1-5); 10 (1), (2) (a) and (3); 14 (1-3 (a-g), (5) and (6); 15 (1) and (2); 17 (1) and (2); 25 (b) and 26 of the Covenant. He also claims a violation of his own rights and the rights of E. under articles 2 (1) and (3) (a, b and c); 7; 9 (1), (2), (4) and (5); 10 (1); 14 (1) and (5); 15 (2); 17 (1) and (2) and 26 of the Covenant. The Optional Protocol entered into force for Kazakhstan on 30 September 2009.

1.2On 5 September 2016, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to grant the author’s request for protection measures for himself and for I.

Factual background

2.1On 12 February 2009, I. was detained by the police as a car theft suspect. He was kept at the Almalinsk district department of internal affairs in Almaty for two days, and claims to have been tortured there. After being threatened with the potential arrest of his brother, I. gave a confession, allegedly in the absence of a lawyer. I. was held in pretrial detention on the basis of court decisions of 15 February, 10 April and 15 May 2009. On 5 October 2009, Almaty City Court sentenced I. under article 178 (3) of the Criminal Code (robbery of a large amount, committed by an organized group) to eight years in prison. The author appealed, as a legal representative of his son, to the Supreme Court, on 26 October 2009. On 21 April 2010 the Supreme Court reduced the sentence to a six-year prison term, on the basis of new legislation. The author’s appeal under the supervisory review proceedings, to the Chair of the Supreme Court, dated 13 June 2011, was rejected by that court on 1 August 2011. The author claims that the investigation was carried out with procedural violations, that the video recording of his son’s interrogation was tampered with by the prosecutors to remove the parts where he might have been subjected to pressure, and that the principal witness testimonies were not taken into account, among other things. He claims that the ex officio lawyer who represented his son at this stage signed the transcript of his questioning as a suspect and of his confession without having been present during the questioning. The author was not informed about his right to hire a lawyer of his choice. He also claims that the trial was unfair, in particular because he and his son did not receive the closing indictment and did not have time to familiarize themselves with the case file. The court took into account all the unlawful evidence and based the verdict solely on I.’s confession given under duress. I. was not present at the appeal hearing.

2.2I. served his sentence in correction colony LA/155-13 and was released on 11 February 2015. The author claims that his son was held in inhuman conditions in the colony, mainly due to the lack of necessary medical assistance for his numerous diseases which included tuberculosis. The author claims that the State should have provided I. with housing and a means of existence after his release from prison, and claims that currently his son is suffering from several diseases contracted in prison and acquired after being tortured by the police. He also submits that without registration at a particular address, his son could not vote in the elections. On 3 April 2012, I. requested early release, which was refused by a court on 10 April 2012. On 3 September 2013, he requested that his sentence be reduced from six to five years. That request was rejected by a court on 10 October 2013.

2.3On 13 February 2009, the police searched the author’s apartment in connection with their suspicions of I. The author claims that the police had the wrong search warrant, that they hit him and that they caused his son E. to have a heart attack. The author also submits that, after the search, E. was taken for questioning to the police detention facility, where his brother I. was being held, and was kept there until 7.30 p.m.

2.4On 10 February 2016, I. was detained by police for one and a half hours in connection with a theft allegedly committed by acquaintances of his. He was ill-treated in the detention facility. On 11 February 2016, I. submitted a complaint to the prosecutor’s office in Almaty in this regard.

The complaint

3.1The author claims that the rights of I. under articles 2 (1) and (3) (a, b, c); 7; 8 (3) (a); 9 (1-5); 10 (1), (2) (a) and (3); 14 (1-3 (a-g), (5) and (6); 15 (1) and (2); 17 (1) and (2), 25 (b) and 26 of the Covenant were violated, in particular due to torture by the police, lack of effective investigations thereof, irregularities in the pretrial investigation, unlawful detention and lack of a fair trial.

3.2He also claims a violation of his own rights and the rights of his son E. under articles 2 (1) and (3) (a, b, c); 7; 9 (1), (2), (4) and (5); 10 (1); 14 (1) and (5); 15 (2); 17 (1) and (2); and 26 of the Covenant, among others, due to the unlawful police search, the lack of an effective investigation into the author’s respective complaints, and the unlawful keeping of E. in the police detention facility.

Issues and proceedings before the Committee

Consideration of admissibility

4.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

4.2The 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.

4.3The Committee notes that the majority of the events in the author’s case happened before 30 September 2009, thereby taking place before the entry into force of the Optional Protocol for the State party. The Committee observes that it is precluded ratione temporis from examining alleged violations of the Covenant that occurred before the Optional Protocol entered into force for the State party, unless the violations complained of continued after that date or continue to have effects which in themselves constitute a violation of the Covenant or an affirmation of a prior violation. In this light, the Committee notes that, in the claim concerning unlawful pretrial detention of the author’s son I., the relevant domestic proceedings were finalized before 30 September 2009. Therefore, the Committee finds this part of the communication inadmissible ratione temporis.

4.4The Committee also notes that the author has failed to exhaust domestic remedies regarding the unlawful search in his house, since he missed the deadline established in the national law for appealing the relevant decisions before the court, and failed to provide an explanation for the delay. The Committee also notes that the author’s son E. has not brought any claims before the domestic authorities and courts. It further notes that I. has not exhausted the available domestic remedies concerning the conditions of detention in prison and the right to vote. It therefore finds these claims inadmissible under article 5 (2) (b) of the Optional Protocol, for failure to exhaust domestic remedies.

4.5As for the author’s claims concerning the torture of I. in police detention on 12 February 2009, the Committee notes that these allegations were investigated by the personal safety department and considered by the trial court. It also notes that the author has not commented on the outcome of the investigation or the conclusions by the court. Concerning the author’s allegations of ill-treatment of I. by the police on 10 February 2016, the Committee notes that the author has not provided any information on whether there has been a failure by the authorities to carry out an investigation in this connection or what the outcome of the investigation was. The Committee thus finds that the material before it is not sufficient to support these allegations and finds this part of the claim inadmissible for lack of substantiation under article 2 of the Optional Protocol.

4.6The Committee notes the author’s claims concerning procedural violations at the stage of investigation and trial, as well as his claims concerning the reduction of the prison sentence for I. and his early release. It recalls that it is generally for States parties’ courts to evaluate the facts and the evidence in a particular case, and to interpret domestic law, unless it can be ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice, or that the court failed in its duty to maintain independence and impartiality. In the present case, the Committee observes that the material before it does not allow it to conclude that the courts’ proceedings evaluated evidence in an arbitrary manner, or amounted to a denial of justice. The Committee therefore declares this part of the communication insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

4.7Finally, the Committee notes the author’s claim that I. was not present in the appeal court on 26 October 2009. The Committee also notes that I. was represented by the author. Taking into account that the author has not provided any explanation as to why his participation as the legal representative of his son deprived I. of a fair trial, and given the nature of the specific features of the appeal process, the Committee finds the author’s claim that I.’s absence during the appeal hearing amounted to an unfair trial insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

5.The Committee therefore decides:

(a)That the communication is inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol;

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