On October 19, 2021, the case was won in the UN Human Rights Committee.

Заголовок: On October 19, 2021, the case was won in the UN Human Rights Committee. Сведения: 2024-05-20 05:39:54

The case "E.S. v. the Republic of Kyrgyzstan". Views of the Human Rights Committee of October 19, 2021. Communication No. 2850/2016.

In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kyrgyzstan.

As follows from the text of the Views, the author claimed that the beating he suffered in the pre-trial detention facility violated his rights under articles 7 and 10, paragraph 1, of the Covenant. He also drew attention to the lack of an effective investigation into his allegations, which constituted a violation of articles 7 and 10, paragraph 1, read in conjunction with article 2, paragraph 3, of the Covenant. He noted that despite the fact that the investigation was resumed five times, the Prosecutor's office has not identified the persons responsible for beating the author, although he gave their names. Prosecutors questioned only three employees, although many others were involved in the incident on September 14, 2011. The investigation was superficial and seemed to be aimed at justifying the use of force by police officers. Not all witnesses were questioned, in particular, the members of the monitoring group were not questioned (paragraphs 3.1 - 3.2 of the Considerations).

The Committee's legal position is that the State party is responsible for the safety of any person deprived of their liberty, and 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 (See the case of Eshonov v. Uzbekistan (CCPR/C/99/D/1225/2003), paragraph 9.8; the case of Siragev v. Uzbekistan (CCPR/C/85/D/907/2000), paragraph 6.2; and the case of Zheykov v. the Russian Federation (CCPR/C/86/D/889/1999), paragraph 7.2.). 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 8.3 of the Views) (See Mukong v. Cameroon (CCPR/C/51/D/458/1991), paragraph 9.2; and the case "Bleyer Levenhof and Valigno de Bleyer v. Uruguay", communication No. 30/1978, paragraph 13.3.).

The scope of application of article 7 of the Covenant extends to the prohibition of corporal punishment, including excessive flogging, imposed as punishment for a crime or as a disciplinary measure (paragraph 8.5 of the Views).

The Committee's assessment of the factual circumstances of the case: it noted the author's claim under article 7 of the Covenant that on 14 September 2011, while he was in custody and sleeping in his cell in the detention facility, he was suddenly awakened and beaten by prison staff who struck him on the head and all over his body. The author spoke in detail about his beating, which initially lasted about 30 minutes. He claimed that his beating was actually connected with a fight that had occurred earlier with a police officer, which became one of the grounds for charges in the framework of the criminal case initiated against him. The Committee drew attention to the fact that the author provided several photographs taken on September 16, 2011 by a monitoring group consisting of representatives of the Ombudsman's Office and two human rights non-governmental organizations, which show two long red lines on his back. The Committee further noted that although the author had not provided a forensic medical examination report, the existence of such a report was mentioned in the decisions of the district Prosecutor's Office. The Committee pointed out the discrepancy between, on the one hand, the author's account of a prolonged and severe beating and, on the other hand, the minor injuries shown in the photographs, despite the fact that they were taken only a few days after the incident, as well as, obviously, minor superficial injuries, confirmed by the conclusion of the forensic medical expertise. The Committee noted that, in any case, the State party had acknowledged that the author had been beaten and slightly injured while in custody (paragraph 8.2 of the Views).

The Committee has taken into account the State party's argument that the police officers resorted to the use of force for legitimate purposes - to prevent the escape of detainees and restore order in the detention facility after riots by detainees in one of the cells. However, the Committee pointed out that the State party had not provided sufficient arguments to support the claim that the detainees had indeed tried to escape, or the claim that force had been used strictly to the extent necessary to achieve the objectives of preventing escape and restoring order (paragraph 8.4 of the Views).

In the Committee's view, the beating of the author by police officers on 14 September 2011 amounted to cruel and degrading treatment in violation of article 7 of the Covenant.

The Committee drew attention to the author's allegations of a violation of article 7, read in conjunction with article 2, paragraph 3, of the Covenant, due to the lack of an effective investigation into his allegations of beatings by police officers. In this regard, the Committee noted that the preliminary investigation was resumed four times, lasted a year and a half, and during this time the Prosecutor's office questioned a limited number of witnesses from the detention center. The Committee concluded that the police officers used force in accordance with instruction No. 263 in order to prevent an escape attempt and restore order, however, the prosecutors did not try to establish why so many detainees who did not participate in the attack on the duty officer, including the author, were beaten. In the Committee's opinion, no attempt has been made to substantiate the allegation of an escape attempt or to establish whether the use of force was proportionate to the purpose of restoring order in the detention facility or preventing an escape attempt. In addition, prosecutors did not interview all relevant witnesses, in particular members of the monitoring group who visited the detention center and interviewed the detainees just two days after the incident. The State party has not provided any information on the author's actions that justified the use of force in accordance with the provisions of the Law on Internal Affairs Bodies. The Committee further stressed that when the author appealed the prosecutor's decision, the courts rejected his complaint only because other detainees who had initially complained about the beatings to the prosecutor's office withdrew their complaints. The courts ignored the fact that the author did not withdraw his complaint (paragraph 8.7 of the Considerations).

The Committee's conclusions: The facts presented indicated a violation by the State party of article 7, considered separately and in conjunction with article 2, paragraph 3, of the Covenant.



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