The decision of the Committee against Torture of July 31, 2017 in the case of Ashim Rakishev v. Kazakhstan (communication No. 661/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
Subject matter: Torture and death of the applicant's son after arrest and detention.
Substantive issue: torture is a prompt and impartial investigation.
The Committee's legal position: article 12 of the Convention also requires that the investigation be prompt and impartial, while speed is of great importance, since this makes it possible to stop the use of torture against the victim, and also because, except in cases of long-term or serious injury as a result of the use of the above-mentioned methods, physical traces of torture, and above all cruel, inhuman or degrading treatment, as a rule, disappears after a short time (See communication No. 59/1996, Blanco Abad v. Spain, Decision adopted on May 14, 1998, paragraph 8.2.).. The Committee recalls that an investigation in itself is not sufficient to demonstrate compliance by a State party with its obligations under article 12 of the Convention if it can be shown that it was not impartial (paragraph 8.7 of the Decision) (See communication No. 257/2004, Keremedchiev v. Bulgaria, Decision adopted on 11 November 2008 G., paragraph 9.4.).
The Committee recalls ... that article 14 of the Convention recognizes not only the right to fair and adequate compensation, but also imposes an obligation on States parties to provide appropriate compensation to the victim of torture. Compensation should cover the totality of the damage caused to the victim and include, among other measures, restitution, compensation and rehabilitation of the victim, as well as measures to ensure that violations cannot be repeated, taking into account the circumstances of each case. Civil proceedings should be accessible independently of criminal proceedings, and the necessary legislation and institutions should be provided for such civil proceedings (paragraph 8.9 of the Decision) (See communication No. 441/2010, Yevloev v. Kazakhstan, Decision adopted on November 5, 2013, paragraph 9.7.).
The Committee's assessment of the factual circumstances of the case: The Committee notes that the complainant alleges a violation of articles 1 and 2, paragraph 1, of the Convention on the grounds that the State party has failed to comply with its obligation to prevent acts of torture and punish perpetrators. These provisions are applicable to the extent that the acts committed against the applicant's son can be defined as acts of torture within the meaning of the provisions of article 1 of the Convention (Communication No. 269/2005, Ali Ben Salem v. Tunisia, Decision adopted on November 7, 2007, paragraph 16.4.)...The Committee notes the results of forensic medical examinations, which concluded that there were several bruises on the body of the deceased. In addition, it is also clear to the Committee that Dmitry Rakishev suffered from severe physical pain and that the administration of the temporary detention facility was forced to call an ambulance. Despite the doctors' recommendations that he should be hospitalized, the head of the temporary detention facility refused to give permission for this. The Committee refers to the provisions of the Istanbul Protocol, according to which the methods of torture can be both physical and psychological, and may also include, among other things, the failure to meet basic needs such as food, water and medical care. The Committee considers that the lack of medical care and refusal to hospitalize Dmitry Rakishev, who was in critical condition, can be qualified as severe pain and suffering caused intentionally by an official in order to obtain confessions (paragraph 8.2 of the Decision).
The Committee considers that, in the circumstances, it should be assumed that the State party is responsible for the damage caused to Dmitry Rakishev, unless it provides a convincing alternative explanation. In this case, the State party conducted an investigation into A.D.'s negligence. A.D. was found guilty and convicted, but never served a prison sentence. Apart from these charges, no other torture charges have been brought against any of the perpetrators. In the absence of such allegations of torture and investigations, and in the light of the circumstances of the present communication, the Committee considers that the author's detailed allegations should be taken very seriously. In this regard, based on a detailed description of the state of health of Dmitry Rakishev, the refusal of A.D. to hospitalize him, the testimony of at least two witnesses and the confirmation of his statements by forensic medical documentation, the Committee concludes that the facts presented indicate the commission of acts constituting torture within the meaning of article 1 of the Convention, and that the State party has violated its obligations regarding the prevention of acts of torture and the punishment of those responsible for their commission, in violation of article 2, paragraph 1, of the Convention (paragraph 8.3 of the Decision).
The Committee notes the complainant's allegations, which fall within the scope of article 11 of the Convention, as well as the description provided by the State party of the measures taken to combat torture. The Committee considers, however, that the information provided by the State party on its efforts to prevent and combat torture is general in nature and does not indicate that it has taken specific measures to prevent torture in this place of detention. In addition, the State party has failed to take measures to "provide prisoners and detainees with adequate and effective medical care, including necessary medicines, and to ensure that they are examined by independent doctors." Despite the Committee's recommendation to transfer the authority to manage medical services to the Ministry of Health, doctors in temporary detention facilities are still accountable to the administration of these institutions and therefore cannot be considered independent. Thus, in the circumstances of the present case, the Committee considers that the State party is responsible for a violation of article 11 of the Convention (paragraph 8.4 of the Decision).
The applicant also claims that, in violation of articles 12 and 13 of the Convention, there was no prompt, impartial and effective investigation of his allegations of torture and that the perpetrators were not brought to justice. The Committee takes note of the irrefutable evidence that Ashim Rakishev repeatedly alleged the use of torture against his son (paragraph 8.5 of the Decision).
The Committee notes that the State party has nevertheless conducted two different investigations. The investigation conducted against the head of the temporary detention facility, A.D., led to a conviction in connection with his negligence in accordance with part 2 of Article 316 of the Criminal Code. The Committee notes the applicant's claim that A.D. should have been charged under article 146 of the Criminal Code, which explicitly prohibits torture. The Committee also notes that A.D. He was convicted and sentenced to three years in prison with a probation period of two years and was subsequently released under amnesty without having been in prison for even one day. The second investigation concerned medical workers...Central City Hospital (Republic of Kazakhstan.). This investigation, as it appears from the State party's submission, did not lead to the prosecution of any person and was effectively suspended on 27 October 2011, the same day it was initiated. It was eventually resumed in 2015 after a complaint was filed with the Committee, but to date the State party has not provided the Committee with any results (paragraph 8.6 of the Decision).
The Committee notes that in this case, the State party initiated two criminal investigations, conducted several forensic examinations and interviewed numerous witnesses. However, the Committee notes that as a result of these investigations, no one has been charged with the crime of torture. The only person convicted of negligent performance of his official duties, established as a result of the investigation, did not spend even one day in prison and was not even arrested. The investigation of negligence on the part of medical workers was terminated without considering the detailed evidence provided by the applicant and resumed only in 2015, also without leading to any obvious results (paragraph 8.7 of the Decision).
In the light of the above-mentioned findings and on the basis of the materials reviewed by it, the Committee concludes that the State party, in violation of article 12 of the Convention, has failed to comply with its obligation to conduct a prompt and impartial investigation into the allegations of Ashim Rakishev's torture of his son. The Committee considers that the State party has also failed to comply with its obligation under article 13 of the Convention and has not ensured the applicant's right to file a complaint and to have his case promptly and impartially examined by the competent authorities (paragraph 8.8 of the Decision).
In paragraph 9 of its concluding observations on Kazakhstan's third periodic report (CAT/C/KAZ/CO/3), the Committee also called on the State party to "ensure that those found guilty are given appropriate penalties commensurate with the gravity of the crime of torture".
With regard to the alleged violation of article 14 of the Convention, the Committee notes that the complainant was undoubtedly unable to claim compensation for the harm caused as a result of the torture inflicted on his son, since the perpetrators of the torture had not been identified. The Committee takes note of the State party's contention that, since no one has been charged or convicted of torture, the courts cannot consider compensation. In the absence of civil proceedings conducted independently of criminal proceedings and on the basis of the information at its disposal, the Committee concludes that the State party has also violated its obligations under article 14 of the Convention (paragraph 8.9 of the Decision).
The Committee's conclusions: The facts before it reveal a violation of article 2, paragraph 1, in conjunction with articles 1 and articles 11 to 14 of the Convention (paragraph 9 of the Decision).