Views of the Human Rights Committee of 28 July 2017 in the case of Fakhridin Ashirov v. Kyrgyzstan (communication No. 2435/2014).
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kyrgyzstan.
Subject matter: Arbitrary detention and torture of the author after ethnic unrest.
Substantive issues: torture; fair trial; Fair trial - legal aid; arbitrary arrest - detention; discrimination based on ethnicity.
The Committee's legal position: The Committee refers to its jurisprudence according to which criminal investigation and subsequent prosecution are necessary means of restoring violated human rights, such as the rights protected by article 7 of the Covenant (paragraph 7.2 of the Views).
The Committee refers to its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, which states that: "All trials 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 confirms that in a democratic society, the courts have the right to exclude all or part of the public from proceedings for reasons of morality, public order (ordre public) or State security, or when the interests of the private life of the parties so require, or to the extent that, in the opinion of the court, it is strictly necessary - in special circumstances, when publicity would violate the interests of justice (paragraph 7.4 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that in several cases he was tortured by law enforcement officers. The author provided a detailed description of how he was tortured, when exactly this happened, and even gave the names of some of the perpetrators of this crime. In addition, the author submitted witness statements, including those of his father and his lawyer, as well as a medical report confirming the injuries he mentioned. In addition, the Committee notes that the author and his lawyer have submitted numerous complaints of torture to the Prosecutor's Office, as well as filed relevant complaints during court hearings. The Committee notes that, although the State party reports that it has conducted investigations into some of the author's numerous complaints, it has not been proven that these investigations were initiated urgently or that they were conducted effectively. The Committee would like to emphasize that the first allegations of torture were made by the author on 6 August 2010, immediately after he had access to his privately hired lawyer. The Committee considers that in the circumstances of the present case, and in particular in the light of the fact that the State party has not provided an explanation for the visible signs of ill-treatment that witnesses have repeatedly seen, the author's allegations should be given appropriate weight (paragraph 7.2 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. Although the State party claims that it has conducted an investigation, the Committee notes that, as appears from the case file, the State party's authorities have not provided information that they have questioned any witnesses (including the author himself and his father), and have not provided the results of a medical examination. In these circumstances, the Committee considers that, despite the testimony of the author's father and the medical report on the injuries on the author's body, there was no effective investigation into the allegations of torture. In the circumstances of the present case, and taking into account that the State party has not provided additional medical documentation, the Committee concludes that the facts before it reveal a violation of the author's rights under article 7 of the Covenant, read in conjunction with article 2, paragraph 3 (paragraph 7.2 of the Views).
With regard to the author's allegations under article 14, paragraph 1, of the Covenant, the Committee takes note of the undeniable facts that the court sessions were held not in ordinary courtrooms, but at a military facility and that the relatives of the defendants, including the author, were not allowed to attend these meetings. In its observations, the State party argues that the reason for holding court hearings in a military unit is precisely the need to ensure the safety of the defendants and their relatives... The State party argues that the reason for holding court hearings in a military unit is only the need to "ensure the safety of the accused and their relatives". However, the State party has not explained why it was necessary to prevent the author's relatives from attending the hearing on one of the grounds contained in article 14, paragraph 1, of the Covenant. In the absence of a substantive explanation from the State party, the Committee must conclude that the State party has applied disproportionate restrictions on the author's right to a fair and public hearing, and therefore the author's rights under article 14, paragraph 1, of the Covenant have been violated (paragraph 7.4 of the Views).
The Committee's conclusions: submitted...The facts reveal a violation of the author's rights under article 7, read in conjunction with article 2, paragraph 3, and article 14, paragraph 1, of the Covenant (paragraph 8 of the Views).