Human Rights Committee

Views adopted by the Committee under article 5 (4) of theOptional Protocol, concerning communication No.3000/2017 * , **

C ommunication submitted by:Kazybek Usekeev (represented by counsel, Rysbek Adamaliyev, of the Kylym Shamy human rights centre)

Alleged victim:The author

State party:Kyrgyzstan

Date of communication:10 March 2017 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 6 July 2017 (not issued in document form)

Date of adoption of Views:6 November 2020

Subject matter:Torture by law enforcement officers; lack of effective investigation; arbitrary detention

Procedural issues:Substantiation of claims; exhaustion of domestic remedies

Substantive issues:Prohibition of torture; right to an effective remedy; arbitrary arrest and detention; forced confession

Articles of the Covenant:2 (3) (a), 7, 9 (1) and (2) and 14 (3) (g)

Articles of the Optional Protocol:1, 2 and 5 (2) (b)

1.The author of the communication is Kazybek Usekeev, a national of Kyrgyzstan, born in 1973. He claims that Kyrgyzstan violated his rights under article 7, read alone and in conjunction with article 2 (3) (a), and articles 9 (1) and (2) and 14 (3) (g) of the Covenant. The Optional Protocol entered into force for Kyrgyzstan on 7 January 1995. The author is represented by counsel.

Facts as submitted by the author

2.1On 27 December 2010, at around 5 p.m., the author, his brother, and several other people were arrested on suspicion of having organized a terrorist attack in Bishkek on 30 November 2010. The arrest was carried out by a group of armed officers in camouflage military uniforms and balaclavas at the house of the author’s brother. On apprehending him, the officers forced the author into a minivan, which they drove to an unknown destination. The author had to wait for two hours in the van, while search activities were carried out in relation to other persons.

2.2At about 7.30 p.m. on the same day, the author was taken to the office of the State Committee on National Security. He was placed in one of the rooms, where a group of officers in camouflage uniforms and balaclavas beat him up to try to force him to confess to having taken part in the terrorist act. According to the author, the beatings lasted eight to nine hours, during which time he was handcuffed, with his hands fixed behind his back and his legs bound to a chair. With the aim of extracting a confession, the officers inflicted numerous blows on different parts of his body; in particular, they hit him with hands and feet on his belly, arms, legs, head and lower back; they also subjected him to electric shocks. Several times, the officers put a plastic bag over his head, causing suffocation and loss of consciousness. Having failed to obtain a confession, the officers left the author locked in the office with no access to drinking water until his release at about 5 p.m. on 29 December 2010. Before releasing him, they made him sign a written undertaking not to file any complaints. His detention remained unrecorded, despite the legal requirement to draw up a record within three hours of an arrest, and he was never informed of the reasons for his arrest.

2.3Between 4 and 12 January 2011, the author underwent inpatient medical treatment in the Scientific Research Centre for Traumatology and Orthopaedics in Bishkek. He was diagnosed with contusions of the lumbar area and chest and contusions and abrasions of the limbs and torso.

2.4On 4 January 2011, the author applied to the Kylym Shamy human rights centre in Bishkek to obtain legal assistance in relation to his ill-treatment. On the same date, he was photographed with the aim of securing evidence of his injuries. On 4 January 2011, the author submitted a request to the Prosecutor General to open criminal proceedings into his ill-treatment, as advised by counsel. The complaint was assigned to the Police Investigations Unit No. 7 of the Pervomai District Department of the Interior in Bishkek. On 6 January 2011, an investigator ordered an expert medical examination in relation to the injuries sustained by the author. It was noted in medical expert report No. 12, dated 10 January 2011, that the author had had burns on his back, contusion of the lumbar area and chest and contusions and abrasions of the limbs and torso. The injuries were qualified as being of a low level of severity. That conclusion was subsequently confirmed in a forensic medical expert panel report, No. 372 of 22 October 2012.

2.5On 26 January 2011, the author lodged a complaint with the President of Kyrgyzstan about the failure of the authorities to take the necessary measures to investigate his ill-treatment.

2.6Subsequently, on an unspecified date, the author’s complaint concerning ill-treatment was transferred to the military prosecutor’s office for further investigation. On 14 February 2011, the investigator from the military prosecutor’s office refused to open a criminal case into the incident due to the absence of corpus delicti. The decision stated, inter alia, that, according to an internal review conducted by the State Committee on National Security on the basis of the author’s complaint, at the moment of apprehension, the author and his brother had exerted active resistance, compelling the officers to use physical force and measures of restraint, which had caused the burns on the author’s back. After their arrest, the author and his brother had been taken to the office of the State Committee on National Security for identification. As shown in the logbook of visitors, the author was present in the office from 9.20 a.m. to 9.50 a.m. on 29 December 2010; he had then been released. The investigator’s decision of 14 February 2011 was communicated to the author only on 3 June 2011, after his counsel had sent two requests to the military prosecutor.

2.7On 30 June 2011, the author challenged the investigator’s decision of 14 February 2011 before the Bishkek Military Garrison Court, contending that the authorities had failed to properly investigate his ill-treatment during his interrogation in the office of the State Committee on National Security and his undocumented detention from 27 to 29 December 2010. He further submitted that, not only had the investigator failed to familiarize the author with the results of the medical expert examination conducted in the case, but he had also failed to notify him in a timely manner of the contested decision of 14 February 2011. The author thus remained unaware of the course of the proceedings in respect of his complaint. On 2 September 2011, the Court quashed the decision of 14 February 2011 as premature, having found that no evidence had been produced to show that the author had resisted arrest. The Court further found that the author’s detention in the State Committee on National Security office from 27 to 29 December 2010 could have been confirmed by a number of witnesses whom the investigator failed to interview. On 27 September 2011, the Military Court of Kyrgyzstan upheld the decision of the Garrison Court. The case materials were returned to the investigator for further investigation.

2.8Five decisions were adopted, on an unspecified date in 2011 and then on 1 February 2012, 13 April 2012, 18 July 2012 and 14 November 2012, each of them containing a refusal to open a criminal case on the grounds that there was no possibility of identifying the officers who had been involved in the author’s detention and ill-treatment. Following complaints from the author’s counsel, the decisions were reversed by the supervising prosecutor on 21 January 2012, 2 April 2012, 26 June 2012, 27 August 2012, 21 December 2012 and 18 January 2013, respectively, on the grounds that they were premature and ill-founded. In each case, an additional investigation was ordered.

2.9On 1 February 2013, on completion of a further additional investigation, the investigator again refused to open a criminal case, relying on submissions obtained from police officers who had been involved in the author’s arrest and detention in the office of the State Committee for National Security. All the officers confirmed that the author had been detained on 27 December 2010 in the course of the police operation; however they denied that physical force had been used against him during his arrest and interrogation.

2.10On 24 February 2012 and again on 3 May 2013, the author’s counsel lodged a complaint with the military prosecutor about the lack of access to the case files and the impossibility of obtaining photocopies of the materials that they contained. On 15 March 2012 and 16 May 2013, respectively, replies were received explaining that such photocopies could be made in an open criminal case; however, that was not possible in cases where the preliminary investigation had led to a refusal to prosecute.

2.11On 14 May 2013, before the Garrison Court, the author challenged the decision of 1 February 2013 refusing to open a criminal case. On 24 May 2013, the Garrison Court rejected the complaint, finding that all necessary measures had been taken and the preliminary inquiry was complete. The author appealed the decision. On 29 July 2013, the Military Court quashed the decision of 1 February 2013 as premature and ill-founded. Pointing to a number of substantive flaws in the investigation, such as the failure by the investigators to take basic steps to establish the circumstances under which the author’s injuries had been caused, including measures to locate witnesses to his detention and ill-treatment, the Court ordered that the case materials be returned to the investigator for further investigation.

2.12On 3 September 2013, the investigator again refused to open a criminal case, finding that the author’s complaint about ill-treatment was implausible. Relying on the submission obtained from the officers and other witnesses interviewed in the course of the preliminary inquiry, who denied that there had been any use of physical force against the author, the investigator concluded that the author’s allegations of ill-treatment were not corroborated by any evidence. Furthermore, it was stated in the decision that the author had been unable to either identify the alleged perpetrators or provide information on the registration plate of the vehicle in which he had been taken to the office of the State Committee for National Security; and he had failed to bring his ill-treatment complaint to the attention of the authorities immediately after the alleged events, as he had not lodged his application with the Prosecutor General until 10 days after the alleged incident. The decision further referred to the author’s brother, who had been accused of having taken part in terrorist activities as a member of a terrorist organization. The circumstances undermined the credibility of the author’s account of the events, leading to the conclusion that there were no grounds for opening a criminal case.

2.13On 9 September 2013, the author challenged the 3 September 2013 decision before the Garrison Court. On 17 September 2013, his complaint was dismissed on the same grounds as those put forward by the investigator. On 11 October 2013, the Military Court upheld the decision of the Garrison Court on appeal. The author appealed the decision to the Supreme Court, which rejected the appeal on 4 December 2013.

Complaint

3.1The author claims a violation of article 7, read alone and in conjunction with article 2 (3) (a), and articles 9 (1) and (2) and 14 (3) (g) of the Covenant, on account of ill-treatment and unlawful deprivation of liberty by agents of the State party and lack of an effective domestic investigation into the matter.

3.2Under article 7, read alone and in conjunction with article 2 (3) (a), of the Covenant, and with reference to article 14 (3) (g) of the Covenant, the author contends that, on 27 December 2010, he was subjected to ill-treatment by police officers who beat him up with the aim of forcing him to confess to being guilty of a crime. He further contends that no effective investigation was carried out into his ill-treatment. The investigative authorities failed to conduct a full-fledged investigation into the matter, consistently ignoring the physical injuries that he had sustained, the existence of which was confirmed by medical documents. Furthermore, the authorities failed to keep the author and his legal counsel informed about the course of the preliminary inquiry and key procedural decisions taken in the case.

3.3The author raises the further complaint under article 9 (1) and (2) of the Covenant that his detention between 4 p.m. on 27 December 2010 and 5 p.m. on 29 December 2010 was unlawful. His arrest was not recorded and he was not informed of the grounds for his deprivation of liberty, nor was he provided with legal assistance during the whole period of detention.

3.4The author asks the Committee to establish a violation of article 7, read in conjunction with article 2 (3) (a), and articles 9 (1) and (2) and 14 (3) (g) of the Covenant and to recommend that the State party provide an effective remedy by conducting an investigation into the ill-treatment he suffered, sanctioning those responsible and providing him with adequate compensation and rehabilitation. He asks that measures be taken to prevent the occurrence of similar violations in the future, with an independent investigation mechanism in compliance with domestic legislation and international standards being set up and it being ensured that each deprivation of liberty is officially documented from the moment of detention.

State party’s observations on admissibility and the merits

4.1By note verbale of 17 January 2018, the State party submitted its observations, asserting that the author’s claims were unsubstantiated. It provides information on the author’s brother, his involvement in an organized criminal group and a criminal investigation into his activities. The State party notes that the author lived in the same house as his brother. The author’s brother was arrested on 29 December 2010. On 7 April 2011, he was charged with numerous crimes. A criminal case against him was brought to court on 15 April 2011.

4.2The State party summarizes the author’s claims that he was arrested on 27 December 2010 and then ill-treated in the office of the State Committee for National Security and refers to the forensic medical reports describing his injuries. The State party notes that the author did not lodge a complaint with the prosecutor’s office until 6 January 2011, 10 days after allegedly being subjected to ill-treatment. The State also notes that, according to the logbook of the office of the State Committee on National Security, the author and his brother were brought to the office on 29 December 2010 at 9.20 a.m. and the author was released at 9.50 a.m. Those facts cast doubts on the author’s allegations.

4.3Numerous checks carried out by the military prosecutor’s office resulted in decisions not to open a criminal case because of the absence of corpus delicti. The decisions were adopted on 14 February and 2 December 2011, 1 February, 13 April, 18 July and 14 November 2012 and 4 January and 1 February 2013. The last such decision was adopted on 3 September 2013. The author’s appeal against that decision was rejected and the decision was found lawful by the Bishkek Garrison Court on 17 September 2013, by the Military Court on 11 October 2013 and by the Supreme Court on 4 December 2013.

4.4By note verbale of 18 September 2018, the State party reiterated its observations, noting that the decision of the Military Court dated 11 October 2013 could be reviewed by the Supreme Court under supervisory review proceedings and the author had thus failed to exhaust domestic remedies.

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

5.1On 20 March 2018, the author provided comments on the State party’s observations. Regarding the delay in submitting his complaint of ill-treatment to the authorities, he claims that he was afraid and that officers of the State Committee on National Security had made him sign a document to the effect that he had no complaints. He submitted his initial complaint to the Prosecutor General on 4 January, and not on 6 January 2011, as noted by the State party. Furthermore, the positive obligations of a State include the obligation to carry out an independent, prompt and thorough investigation, regardless of the timing of the victim’s complaint. The prosecutor’s office did not take into account the conclusion drawn in the forensic reports that the burns, contusions and abrasion marks on the author’s back could have been inflicted at the time he alleged. In fact, the State party never explained the origin of the author’s injuries.

5.2The prosecutor’s office never questioned the five witnesses indicated by the author, who were his neighbours and could confirm that he had returned home two days after being arrested, nor did the authorities take into account the author’s request to question a human rights defender, whom he had contacted on 4 January 2011. The State party, despite having the possibility to carry out investigations, did not identify and locate witnesses or ask the author about their whereabouts.

5.3The officers who arrested and brought the author to the office of the State Committee on National Security remain unidentified. The authorities did not establish which measures of restraint had been used during the author’s arrest. The author named two State Committee officers who had participated in his questioning and asked to have a confrontation with them. He also asked the prosecutor’s office to request from the State Committee on National Security a list of names of the officers who had interrogated him. Those and other requests have been left unanswered. The prosecutor’s office limited itself to a preliminary inquiry and never launched a full-fledged investigation into the author’s complaints.

5.4The first decision not to open a criminal investigation, dated 14 February 2011, was only communicated to the author four months later, on 3 June 2011. The medical expert’s report, No. 12 of 10 January 2011 (see para. 2.4), was never communicated to him.

5.5The decisions not to open a criminal case contain contradictions. In the decision of 14 February 2011, the prosecutor refers to an internal State Committee inquiry according to which the author had resisted arrest, which prompted the use of force by the arresting officers (see para. 2.6). In later decisions, the prosecutors indicate that, according to officers who had carried out a search in the author’s house and arrested him, the author offered no resistance and the reason for his detention was to verify his identity (see para. 2.9).

5.6The author repeats his claim that no charges were brought against him at the time of the arrest, the arrest was not recorded and his detention therefore violated article 9 (1) and (2) of the Covenant.

5.7He submits that he has sufficiently substantiated his claims and that it is now up to the State party to open a criminal case, carry out an investigation and prove that no ill-treatment took place.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before 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.

6.2As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee takes note of the State party’s claim that the author has not exhausted all available effective domestic remedies because he did not seek a supervisory review by the Supreme Court of the decision of the Military Court of 11 October 2013. The Committee observes that, in its initial observations dated 17 January 2018, the State party indicates that the decision mentioned was subject to a review by the Supreme Court, which rejected the author’s appeal on 4 December 2013. The Committee is thus satisfied that the author has indeed exhausted all domestic remedies available to him. Accordingly, it considers that it is not precluded by virtue of article 5 (2) (b) of the Optional Protocol from examining the present communication.

6.4The Committee notes the author’s claim that an attempt by officers of the State Committee on National Security to extract a confession by force violates article 14 (3) (g) of the Covenant. The Committee observes however that the article applies to testimonies and confessions in the determination of any criminal charges brought against a person. Since no criminal charges were brought against the author in the present case, the claim falls outside of the scope of article 14 (3) (g) and is inadmissible under article 1 of the Optional Protocol.

6.5In the Committee’s view, the author has sufficiently substantiated his claims raising issues under article 7, read alone and in conjunction with article 2 (3) (a), and article 9 (1) and (2) of the Covenant for the purposes of admissibility. Accordingly, it declares those parts of the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the communication in the light of all the information submitted by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claim under article 7 of the Covenant that he was apprehended and detained in the office of the State Committee on National Security from 27 December to 29 December 2010 and that there he was beaten up and tortured by State Committee officers on 27 December 2010 in an attempt to obtain his forced confession to a crime. In that regard, the Committee notes that the author provides not only a detailed account of the different types of torture to which he was subjected, but also pictures taken by the Kylym Shamy human rights centre in Bishkek and a copy of a forensic medical report, No. 292, issued by the Scientific Research Centre for Traumatology and Orthopaedics in Bishkek, confirming his injuries and the possible time of their occurrence, which coincides with his detention in the State Security office (see para. 2.4). The Committee also notes that the Bishkek Garrison Military Court, in its decision of 2 September 2011, found that the period of the author’s detention in the office of the State Committee on National Security, from 27 to 29 December 2010, could have been confirmed by a number of witnesses whom the investigator failed to interview (see para. 2.7) and a later investigation led by the State party’s authorities indeed confirmed that the author was detained, as he claims, on 27 December 2010 (see para. 2.9). The Committee observes, in that respect, that the State party denies responsibility for the injuries in question by suggesting that they could have been inflicted after the release of the author from the State Committee facility. The State party acknowledges, however, the existence of such injuries, confirmed by a medical expert on 10 January 2011 and later confirmed by a forensic medical expert panel examination (see para. 2.4), but provides no plausible explanation as to the exact origin of the injuries in question.

7.3The Committee recalls that a State party is responsible for the security of any person it holds in detention and that, when an individual in detention shows signs of injury, it is incumbent upon the State party to produce evidence showing that it is not responsible for such injury. The Committee has held on several occasions that the burden of proof in such cases cannot rest with the author of a communication alone, especially considering that frequently only the State party has access to the relevant information. In the absence of any plausible evidence from the State party to counter the claims made by the author concerning his ill-treatment by State Committee officers and the evidence he produced in support of the claims, the Committee decides that due weight must be given to the author’s detailed allegations of the cause of his injuries. The Committee therefore decides that the facts as submitted reveal a violation of the author’s rights under article 7 of the Covenant.

7.4Regarding 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 under article 7 of the Covenant. The Committee also recalls that, once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially so as to make the remedy effective.

7.5In the present case, the Committee notes that, on 4 January 2011, the author lodged a complaint with the Prosecutor General claiming to have been subjected to torture; he underwent a medical examination of his injuries on the same day and was admitted for inpatient medical treatment in the Scientific Research Centre for Traumatology and Orthopaedics in Bishkek. The Committee notes that the first action by the authorities was taken on 6 January 2011, when a forensic medical examination of the author’s injuries was ordered. The first investigation was concluded on 14 February 2011. The Committee notes, however, the negative effect on the promptness and effectiveness of the criminal investigation that most probably resulted from the fact that the author had to repeatedly challenge premature and ill-founded decisions to have the investigation closed, leading the courts to repeatedly quash those decisions (see paras. 2.7–2.8 and 2.11). Despite numerous appeals to the Prosecutor General and to the courts, in which the author asked for concrete investigative steps to be taken, many of his requests concerning an effective and thorough investigation remained unanswered, in particular his request that certain witnesses be questioned and a confrontation be arranged between himself and the State Committee officers who had participated in his questioning, whom he named.

7.6The Committee notes that the decision dated 14 February 2011 not to open a criminal case established that the author’s injuries had been inflicted by the officers who arrested him, given that they had to use force because the author resisted arrest (see para. 2.6). The decision concluded that the force used by the officers was necessary, without, however, specifying in what manner the author was resisting arrest and what exact means of restraint were used on him. Subsequent investigations departed from that conclusion, noting that the author had not resisted arrest and that force had not been used against him either at the stage of arrest or during his detention (see para. 2.9). None of the eight successive investigations attempted to establish the exact origin of his medically documented injuries. In the light of the above considerations, the Committee concludes that the State party failed to launch a prompt, impartial and effective investigation into the circumstances of torture of the author and therefore failed to provide him with an effective remedy, in violation of article 7, read together with article 2 (3) (a), of the Covenant.

7.7The Committee notes the author’s claim that his detention from 27 to 29 December 2010 was arbitrary, undocumented and unlawful and violated article 9 (1) and (2) of the Covenant. The Committee notes that the State party denies that the author was detained on those dates and argues that, according to the logbook of the office of the State Committee on National Security, he was detained only from 9.20 a.m. to 9.50 a.m. on 29 December 2010. However, the State party does not provide any documents to support its position, and at least one investigation led by the State party’s authorities indeed confirms that, on the contrary, the author was detained, as he claims, on 27 December 2010 (see para. 2.9). The Committee therefore decides that due weight must be given to the author’s detailed allegations to the effect that there was no official record of his arrest and detention from 27 to 29 December 2010 and that he was never informed of the reasons for his arrest. The Committee notes that, under paragraph 23 of its general comment No. 35 (2014), States parties are required to comply with domestic rules providing important safeguards for detained persons, such as making a record of an arrest. In view of the information on file, the Committee concludes that there has been a violation of the author’s rights under article 9 (1) and (2) of the Covenant on account of his unrecorded arrest and detention and the failure of the State party to inform him about the reasons for his arrest.

8.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 article 7, read alone and in conjunction with article 2 (3) (a), and article 9 (1) and (2) of the Covenant.

9.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) conduct a prompt, effective, thorough, independent, impartial and transparent investigation into the torture of the author and to prosecute and, if the suspicions are confirmed, punish those responsible; (b) keep the author informed regularly about the progress of the investigation; and (c) provide the author with adequate compensation for his suffering and the violations of his rights, with adequate rehabilitation measures, if needed. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

10.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.