The case of Kuluipa Tashtanova v. Kyrgyzstan. Opinion of the Committee against Torture of March 14, 2023. Communication No. 2723/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kyrgyzstan.
As seen from the text of the Considerations, the author of the communication is Kuluipa Tashtanova, a citizen of the Kyrgyz Republic. She filed a complaint on behalf of her son Belek Kurmanbekov, who was serving a prison sentence at the time of filing the complaint. She claimed that the State party had violated her son's rights under article 7, considered separately and in conjunction with article 2, paragraph 3, article 9, paragraphs 1, 3 and 4, article 10, paragraphs 1 and 2, and article 14, paragraph 3 (g), of the Covenant (paragraph 1 of the Views).
The Committee's legal position is that the State party is responsible for the safety of any person deprived of their liberty, and that in cases where a person deprived of liberty shows signs of bodily injury, the State party should provide evidence that it is not responsible for this. The Committee has repeatedly stated that in such cases the burden of proof cannot be placed solely on the author of the communication, especially since often only the State party has access to relevant information (paragraph 9.3 of the Views).
With regard to the State party's obligation to properly investigate the author's allegations of torture, the Committee refers to its jurisprudence that criminal investigation and subsequent prosecution are necessary means of restoring violated human rights, such as those protected by article 7 of the Covenant. The Committee also recalls that when a complaint of ill-treatment in violation of article 7 is received, the State party must investigate it promptly and impartially in order to provide an effective remedy (paragraph 9.4 of the Views).
The Committee refers to its general comment No. 35 (2014), according to which arrest within the meaning of article 9 of the Covenant does not necessarily imply official arrest, as defined under domestic law (paragraph 9.7 of the Views).
The Committee's assessment of the factual circumstances of the case: It has taken note of the author's claim that the State party violated her son's rights under article 7 of the Covenant when, on 21 July 2012, he was ill-treated by police officers who tried to force him to confess to the murder. In this regard, the Committee noted that the author had described in detail the ill-treatment to which her son had been subjected. She herself witnessed the beating of her son during his detention by police officers in their apartment. The son's wife saw how he was mistreated during his stay at the police station. The author provided a copy of the conclusion of the forensic medical examination No. 115 dated July 25, 2012, which confirmed that Mr. Kurmanbekov had minor injuries. She also cited Dr. K.'s conclusion. dated August 10, 2012, from which it followed that Mr. Kurmanbekov had painful sensations in the left iliac region, epigastric region and in the area around the kidneys, which indicated damage to the soft tissues of the abdominal cavity, possibly caused by beatings (paragraph 9.2 of the Considerations).
In the absence of any plausible evidence from the State party that could refute the author's allegations of ill-treatment of her son by police officers and the evidence she provided in support of her allegations, the Committee decided that due attention should have been paid to the details in the author's allegations about the causes of the injuries sustained by her son. Accordingly, the Committee concluded that the facts before it indicated a violation by the State party of Mr. Kurmanbekov's rights under article 7 of the Covenant (paragraph 9.3 of the Views).
The Committee noted that on 24 July 2012, a complaint about Mr. Kurmanbekov's torture and a request for a forensic medical examination were filed with the Aksyisk district police station. A forensic medical examination was conducted on July 25, 2012. On August 5, 2012, a complaint about Mr. Kurmanbekov's torture was filed with the Aksy district Prosecutor's Office. A preliminary check was immediately carried out, including a repeated forensic medical examination, and on August 8, 2012, the prosecutor's office refused to initiate criminal proceedings due to the absence of corpus delicti (paragraph 9.5 of the Considerations).
The Committee noted that the Aksy district Prosecutor's Office, in its decision of 8 August 2012 to refuse to institute criminal proceedings on allegations of torture of Mr. Kurmanbekov, referred to two conclusions of the forensic medical examination - dated 25 July and 8 August 2012. According to this decision, none of these conclusions contained information about the presence of injuries to Mr. Kurmanbekov. The Committee pointed out that opinion No. 115 of 25 July 2012, a copy of which was provided by the author, indicated that Mr. Kurmanbekov had minor injuries. In its decision on appeal dated December 11, 2012, the Jalal-Abad Regional Court emphasized that conclusion No. 115 was not taken into account when making the initial decision. The Committee recognized that the conclusions contained in the forensic medical report No. 115 had not been taken into account by the Prosecutor's office of the Aksyisk district. The Committee took note of the author's claim that the prosecutor did not ask Mr. Kurmanbekov any questions during the preliminary examination. According to the conclusion of the Jalal-Abad Regional Court dated December 11, 2012, other possible witnesses in the case, including Mr. Kurmanbekov's wife and mother, were also not questioned. In the absence of detailed information received from the State party on the progress of the preliminary examination, the Committee considered that this examination was carried out ineffectively and did not provide the author's son with an effective remedy (paragraph 9.6 of the Views).
The Committee has taken note of the author's allegations that her son was detained by police officers in his apartment on 21 July 2012, while the detention report indicates that the detention was carried out on 22 July 2012. The Committee noted that several people witnessed the detention of Mr. Kurmanbekov on July 21, 2012. The Committee noted that neither the national courts nor the State party in their observations addressed the author's allegations of unlawful detention, with the exception of the Jalal-Abad Regional Court, which ruled on 11 December 2012 that Mr. Kurmanbekov's detention was unlawful. However, this decision was overturned by the Supreme Court on April 9, 2013. The Committee pointed out that the State party had not provided any explanation of the circumstances of Mr. Kurmanbekov's detention on 21 July 2012, witnessed by members of his family, and his unrecorded detention between 21 and 22 July 2012. The Committee decided that due consideration should have been given to the author's detailed allegations of the unlawful and arbitrary detention of her son for 18 hours from 21 to 22 July 2012. The Committee concluded that Mr. Kurmanbekov had been unlawfully detained in violation of article 9, paragraph 1, of the Covenant. In the light of this finding, the Committee did not consider it necessary to examine the author's allegations of a possible violation of paragraphs 3 and 4 of article 9 of the Convention (paragraph 9.7 of the Views).
The Committee took note of the author's allegations that the courts had attached to the case the confession of her son obtained by police officers as a result of torture, in violation of article 14, paragraph 3 (g), of the Covenant. The Committee noted that during the trial of Mr. Kurmanbekov, despite his claims that the confessions were obtained under torture, the court referred to the decision of the Aksy district Prosecutor's Office of 8 August 2012, which did not confirm the author's allegations of torture against her son. Mr. Kurmanbekov's statement about the use of torture against him was recognized by the courts as a defense strategy aimed at avoiding criminal liability. The Committee pointed out that the documents submitted by the author indicated that the courts of appeal and the courts of supervisory instance did not consider Mr. Kurmanbekov's complaints of torture and continued to rely on his initial confession. The Committee took note of the State party's statement that the courts were not based solely on Mr. Kurmanbekov's confession and that his guilt was confirmed by witnesses and the conclusions of forensic, biological and technical examinations. The Committee noted that, since the national courts, when convicting Mr. Kurmanbekov, took into account the confession obtained from him forcibly, without proper consideration of his allegations of torture, there had been a violation of article 14, paragraph 3 (g), of the Covenant (paragraph 9.8 of the Views).
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, article 9, paragraph 1, and article 14, paragraph 3 (g), of the Covenant (paragraph 10 of the Views).