The case of Mukhamadrasul Abdurasulov and Others v. Kyrgyzstan. Views of the Human Rights Committee of January 30, 2023. Communications No. 3200/2018.
In 2018, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Kyrgyzstan.
As seen from the text of the Views, the authors claimed that the State party violated their rights under article 7 of the Covenant by subjecting them to torture in order to obtain confessions of crimes they had not committed. These violations included beatings, strangulation and other forms of physical and psychological torture. In addition, the authors claimed that the State party had not conducted an impartial and effective investigation into allegations of torture, as required by the Committee in its jurisprudence.
The Committee's legal position: Criminal investigation and subsequent punishment of perpetrators are necessary remedies for violations of human rights such as those protected by article 7 of the Covenant. Although the obligation to bring to justice those responsible for a violation of article 7 is an obligation to take action, but not to achieve a result, States parties have an obligation to investigate in good faith, promptly and thoroughly all allegations that they or their authorities have committed serious violations of the Covenant (paragraph 7.4 of the Views).
The burden of proving the facts cannot rest solely on the authors of the communication, especially given that the authors and the State party do not always have equal access to evidence and often only the State party has access to relevant information, especially when injuries are allegedly caused in situations involving the detention of the authors by the authorities of the State partyparticipant (paragraph 7.5 of the Considerations).
Arrest within the meaning of article 9 of the Covenant does not necessarily imply official arrest, as defined under domestic law. The Committee referred to the requirements of the Covenant that no one should be deprived of liberty except on such grounds and taking into account such procedure as are established by law (paragraph 7.6 of the Views).
General comment No. 32 (2007) provides: "All judicial proceedings in criminal cases or in any civil proceeding should, in principle, be conducted orally and be open to the public." Article 14, paragraph 1, of the Covenant recognizes that the courts have the right to exclude all or part of the public "for reasons of morality, public order (ordre public) or State security in a democratic society or when the interests of the private life of the parties so require, or to the extent that, in the opinion of the court, strictly it is necessary - in special circumstances, when publicity would violate the interests of justice" (paragraph 7.7 of the Considerations).
Article 14 of the Covenant guarantees the accused the right to summon and interrogate witnesses. This guarantee is essential to ensure the effective protection of the accused and their defenders, and thus the accused are guaranteed the same legal authority to require the presence of witnesses and to interrogate or cross-examine any witnesses available to the prosecution (paragraph 7.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the authors' allegations that they were beaten, strangled, tortured and that they were forced to admit guilt for crimes they did not commit, in violation of their rights under article 7, considered separately and in conjunction with paragraph 3 of article 2, and subparagraph "g" of paragraph 3 of article 14 of the Covenant. The Committee noted the authors' statements that on different days they were taken to internal affairs offices, where police officers, guards and cellmates took turns beating and strangling them using plastic bags and gas masks. The authors were deprived of food, water, toilet facilities and medical care. The Committee drew attention to the authors' allegations that the torture did not stop even after they signed statements in which they confessed to participating in the murders, and in some cases, also as a result of torture, named other persons as their accomplices. In fact, the beatings continued, as they were told, to punish them for the murder of persons of Kyrgyz nationality. The Committee also noted that the authors had filed numerous complaints with the Prosecutor's Office, the police and the judge who presided over the trial, and that all their complaints had been rejected. The Committee found that the State party's authorities had not initiated a full-fledged criminal investigation into the numerous allegations of torture, despite detailed descriptions by the authors, and instead limited themselves to their initial examination (verification) (paragraph 7.2 of the Views).
The Committee noted the State party's brief submission that an initial examination of complaints of torture had been conducted, that victims, their representatives and witnesses had been questioned and that the Prosecutor's Office had refused to initiate a criminal investigation due to the lack of corpus delicti and this decision had been supported by courts at all levels, including the Supreme Court of Kyrgyzstan. The Committee has taken into account the State party's contention that the authors' guilt was established by evidence, including the conclusions of the forensic medical examination, which were examined by the court. The Committee pointed out that the State party had not provided copies of these conclusions and their conclusions to any of the authors (paragraph 7.3 of the Views).
The Committee found that the State party's authorities did not carry out a medical examination of the authors after their complaints of torture and five authors submitted a report prepared by a private psychiatric expert who concluded that his findings were consistent with the authors' allegations of torture (paragraph 7.4 of the Views).
The Committee drew attention to the statements of the authors of the communication, where they described in detail the torture they were subjected to during their detention. These complaints were brought to the attention of the Prosecutor's Office, and, most importantly, the case materials reflect that the authors complained to the court about torture in both the court of first instance and the court of appeal, their complaints were either ignored or rejected. In this regard, the Committee noted that the case file did not allow it to conclude that the investigation into the allegations of torture had been conducted effectively or that any suspects had been identified, despite the detailed statements of the authors on this matter, witness statements and a medical report confirming the findings of torture. In the absence of detailed explanations from the State party in this regard, the authors' allegations, in the Committee's opinion, should have been given due consideration, since they were sufficiently substantiated. The Committee also noted that in deciding on the authors' guilt, the court (along with other evidence) used their confessions, despite the fact that during the trial the authors reported that they had been tortured to obtain these statements. Consequently, in the light of these circumstances, the Committee concluded that the facts before it indicated a violation of the authors' rights under article 7, considered separately and in conjunction with article 2, paragraph 3, and article 14, paragraph 3 (g), of the Covenant (paragraph 7.5 of the Views).
The Committee considered the authors' position under article 9, paragraph 1, that they were arbitrarily detained during their initial detention and their arrest was neither registered nor registered. The authors claimed that this was done so that police officers could torture them. The State party has not submitted any comments on these facts. In the absence of any relevant explanations from the State party regarding the authors' whereabouts during the specified period of time, the conditions of their detention and the protocol of their arrest, the Committee considered that the authors' rights under article 9, paragraph 1, of the Covenant had been violated (paragraph 7.6 of the Views).
With regard to the authors' allegations under article 14, paragraph 1, of the Covenant, the Committee noted the indisputable facts that the defendants' relatives, including the authors' relatives, were not allowed to attend these hearings. The Committee stressed that the State party had not submitted any comments in this regard. According to the authors, the judge presiding over the trial explained that he could not guarantee the safety of the authors' relatives. The State party has not explained why it was necessary to exclude only the authors' relatives from the hearings on one of the grounds contained in article 14, paragraph 1, while relatives of the victims could be present. In the absence of clarification from the State party, the Committee concluded that the State party had applied disproportionate restrictions on the authors' rights to a fair and public hearing and that their rights under article 14, paragraph 1, had therefore been violated (paragraph 7.7 of the Views).
The Committee also considered the authors' arguments that their right to have sufficient time and facilities to prepare their defence had been violated. The Committee noted the authors' allegations that the detention facilities and detention centers were overcrowded and did not have sufficient lighting and air for them to prepare their defense. In addition, the authors alleged that in several cases, relatives of the victims threatened and physically assaulted their lawyers in and outside the courtroom, and the police and local prosecutors did not intervene, creating a general feeling of fear that is incompatible with the proper performance of the functions of a defender. The Committee noted that the State party had not refuted evidence that, for example, on 12 October 2010, two people posing as relatives of the victims threatened lawyers. The Committee stressed that on October 15, 2010, lawyers publicly refused to participate in court sessions, fearing for their safety. In December 2010, one of the lawyers, N.U.R., was attacked and beaten by representatives of one of the victims (paragraph 7.8 of the Considerations).
In these circumstances, the Committee concluded that the facts presented indicated a violation of the authors' rights under article 14, paragraph 3 (b) and (d) of the Covenant.
The Committee also noted the authors' allegations that their trial was characterized by a number of violations, such as riots and violence provoked by relatives of the victims who were present at the trial. The authors reported that they could not call witnesses on their behalf because the witnesses who were called were threatened by relatives of the victims. The Committee also noted that the State party had not provided any information in this regard. In the light of the circumstances described and on the basis of the materials submitted to it, the Committee concluded that the State party had violated the authors' rights under article 14, paragraph 3 (e), of the Covenant.
The Committee's conclusions: The facts presented revealed a violation by the State party of article 7, considered separately and in conjunction with article 2, paragraph 3, as well as articles 9, paragraph 1, article 14, paragraph 1, and subparagraphs "b", "d", "e" and "g" of article 14, paragraph 3, of the Covenant.