Message: Dmitry Tyan against Kazakhstan. Message No. 2125/2011. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) on March 16, 2017.
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
Subject matter: the right not to be subjected to torture or cruel, inhuman or degrading treatment; arbitrary arrest and detention; conditions of detention; fair trial.
Substantive issues: torture; prompt and impartial investigation; arbitrary arrest and detention; fair trial; legal assistance; the right to a judicial hearing in one's presence.
The Committee's assessment of the factual circumstances of the case: The Committee notes that the allegations of torture made by the author relate to the events that took place on 22 October 2008 and from 25 to 27 October 2008, when he was interrogated by police officers as a witness and a suspect, respectively. The Committee notes the author's claim that, since he had been under police supervision since the morning of 23 October 2008, he could not see a medical expert for examination after suffering beatings. The Committee also notes, based on the materials available to it, that on 24 and 30 October 2008, the author was examined by medical experts, who found no traces on his body and did not receive any complaints from the author. The author does not dispute the independence of medical experts. The Committee also notes the author's allegations that the investigation of his complaints of torture by police officers on 22 October 2008 was not effective. In this regard, the Committee notes that on February 9, 2009, the Astana Prosecutor's Office overturned the decision of the Department of Internal Affairs of December 29, 2008. not to initiate a criminal investigation against the police officers who allegedly tortured the author. The Committee notes that the reasons cited by the Prosecutor's Office include the inability of the investigators to identify and interrogate a number of possible witnesses mentioned by the author. On March 16, 2009, after additional investigation, the Department of Internal Affairs refused to initiate a criminal investigation. The Committee notes, however, that the decision of the Department of Internal Affairs of 16 March 2009 is identical to its decision of 29 December 2008. and it did not contain information about any additional investigative measures taken. The Committee notes the arguments of the domestic authorities that the author's allegations of torture and the results of the investigation were examined by the court of first instance. The State party, however, has not provided any documents to support its arguments. Based on the information available to it, the Committee notes that the court of first instance not only failed to consider the author's allegations of torture, but also prevented the author from speaking about them in front of a jury. In the light of the above, the Committee notes that, due to the lack of an effective investigation into his allegations of torture, there has been a violation of the author's rights under article 2, paragraph 3, in conjunction with article 7 of the Covenant (paragraph 9.2 of the Views).
The Committee notes the author's claim that he was denied the right to participate in the hearing of the Court of Appeal on 10 November 2009. In this regard, the Committee notes that the author requested personal presence in court, and the court, rejecting his written request, followed the domestic law (According to paragraph 2 of article 408 of the Code of Criminal Procedure, the presence of a convicted person at a hearing in a court of second instance is possible only if the prosecutor demands a more severe punishment for this person.). The Committee... Notes that the author was represented at the appeal hearings by four lawyers and at least two of these lawyers represented him throughout the criminal proceedings against him. The Committee finds ... that article 14, paragraph 3 (d), is applicable to the present case, since the court in the appeal proceedings examines the case both from the point of view of fact and from the point of view of law and makes a new assessment on the problem of guilt or innocence. The Committee recalls that article 14, paragraph 3 (d), of the Covenant requires that accused persons have the right to be present during their trial, and proceedings in the absence of the accused are permissible only if it is in the interests of the proper administration of justice or when the accused, having been sufficiently notified of the proceedings in advance, refuse to exercise their right to be present. Accordingly, in the absence of an adequate explanation from the State party, the Committee considers that the facts before it reveal a violation of article 14, paragraph 3 (d), of the Covenant. In view of this conclusion, the Committee decides not to consider the author's claims under article 14, paragraph 5, of the Covenant (paragraph 9.3 of the Views).
The Committee further notes the author's claim that the court of first instance accepted his forced confessions as evidence... Notes the State party's statement that the evidence examined by the court was obtained lawfully and accepted by the court as admissible. In this regard, the Committee notes that, as indicated in the case file, the court of first instance did not consider how the four confessions were obtained by police officers. Nothing in the case file indicates that the court took into account that when the author wrote the confessions, he was under police control in the detention center and that, after talking with his lawyers, he recanted the confessions. In this light, the Committee concludes that the author's rights under article 14, paragraph 1 and paragraph 3 (g), of the Covenant (paragraph 9.4 of the Views) have been violated.
Conclusions of the Committee: information... Reveals the violation by the State party of the author's rights under article 2, paragraph 3, read in conjunction with article 7 of the Covenant, and under article 14, paragraphs 1 and 3 (d) and (g) of the Covenant (paragraph 10 of the Views).