The case of Alexander Povstyuk v. the Republic of Kazakhstan. Views of the UN Human Rights Committee dated July 12, 2023. Communication No. 3006/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
The author claimed that his unlawful detention at the police station for 6 hours without being able to contact his family, transportation for 15 hours without stopping for a distance of about 1,000 km in a car unsuited to his health, and pre-trial detention in conditions incompatible with his health amounted to ill-treatment. The author also drew attention to the fact that his conviction was based on falsified evidence and perjury, and the investigative and judicial authorities did not try to resolve contradictions in the testimony of witnesses. The UN Human Rights Committee has found a violation of articles 7, 9 and 14 of the International Covenant on Civil and Political Rights.
The Committee's legal position is that conditions of detention can have disproportionately severe consequences for people with disabilities, which violates article 7 of the International Covenant on Civil and Political Rights (paragraph 8.1 of the Views).
The UN Human Rights Committee recalls that the State party is obliged to comply with certain minimum standards of detention, which include the provision of medical care and treatment for sick prisoners in accordance with rule 24 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). This obligation includes ensuring conditions of detention suitable for people with disabilities, such as the provision of necessary care and adequate medical treatment (paragraph 8.2 of the Considerations).
The UN Human Rights Committee draws attention to the fact that article 9 of the International Covenant on Civil and Political Rights provides that persons deprived of their liberty should be informed of the reasons for their detention, including sufficient factual grounds indicating the merits of the case, in particular the unlawful act and the identity of the alleged victim. Article 9 of the International Covenant on Civil and Political Rights also requires compliance with domestic legal norms that provide important guarantees in the interests of detainees, such as registration of detention and access to a lawyer (paragraph 8.3 of the Considerations).
Prompt action may be required in the context of the investigation (paragraph 8.4 of the Considerations).
The UN Human Rights Committee points out that pretrial detention should be the exception rather than the rule. Pretrial detention should be based on a case-by-case decision that it is justified and necessary, taking into account all the circumstances, for purposes such as preventing escape, interfering with the process of collecting evidence, or recidivism. The gravity of the alleged acts alone cannot serve as a basis for extending the preventive measure in the form of pre-trial detention. In addition, the authorities should periodically review this issue to determine whether detention is still justified and necessary, taking into account possible alternative preventive measures (paragraph 8.5 of the Considerations).
The UN Human Rights Committee recalls its practice that it is the courts of the participating States that, as a rule, must evaluate the facts and evidence in each case and apply domestic legislation, except in cases where it can be proved that such an assessment or application was clearly arbitrary or represented an obvious error or denial of justice. justice (paragraph 8.7 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author's allegations that he and his father warned the investigator about the danger to his health associated with transportation over a long distance in a car that was not adapted to his state of health are taken into account. According to the information available in the case file, which the State party has not disputed, despite these warnings, the author was transported over a distance of about 1,000 km without any prior medical assessment of the compatibility of such transportation with his disability (paragraph 8.1 of the Considerations).
As can be seen from the text of the Considerations, in 2007 the author suffered a spinal fracture as a result of a car accident. A plate was installed at the fracture site. After this injury, any physical activity caused him pain, and he walked with a crutch (paragraph 2.2 of the Considerations).
The UN Human Rights Committee found that the author underwent a medical examination after being detained on May 10, 2011, was repeatedly examined by various medical specialists after his transfer to the detention facility on May 25, 2011, and received treatment for his complaints of pain. The Committee took note of the author's decision to refuse a medical examination on 12 July 2011. It did not follow from the case file that the author had provided the national authorities with any medical documents attesting to his constant need for such medical care, which was incompatible with pre-trial detention. With regard to the author's claim, which is based on an opinion issued by the regional medical center on 25 May 2011 stating that he needed an urgent operation, the Committee noted that this opinion indicated only the need for elective surgery and the author did not claim that the national authorities had created obstacles to his having such an operation. Consequently, the Committee considered that the materials submitted to it did not disclose a violation of article 7 of the Covenant in connection with the author's detention pending trial in conditions incompatible with his disability (paragraph 8.2 of the Views).
The UN Human Rights Committee has taken note of the author's allegations that his wife and neighbor were present when he was detained by police officers, who refused to produce the relevant documents and explain the real reasons for his detention, prompting his family to file a kidnapping complaint. The UN Human Rights Committee also took into account the author's claim that his detention was not registered within 3 hours of his detention, as required by domestic law. The UN Human Rights Committee noted that the author's detention on a public holiday and his immediate transportation to another city created obstacles to the rapid search for and hiring of a lawyer (paragraph 8.4 of the Views).
The UN Human Rights Committee noted that regarding the decisions on the author's detention, only the decisions of the Karaganda Regional Court of May 17, 2011 and the District Court No. 2 of May 26, 2011 were attached to the communication. Both courts examined the medical documents provided by the author and assessed the compatibility of his detention with his state of health. As for the necessity of the author's detention, the decision of 17 May 2011 indicated the gravity of the crimes of which the author was accused and that the investigation was conducted in Karaganda, while the author lived in Kostanay. The decision of 26 May 2011 did not address the need for the author's detention. The UN Human Rights Committee considered that these brief assessments did not comply with international standards (paragraph 8.6 of the Views).
The UN Human Rights Committee indicated that, in accordance with the verdict of December 15, 2011, the author's guilt in the murder and robbery was established on the basis of consistent testimony from B., which was confirmed by the testimony of R. and the author's former cellmates. It followed from the interrogation protocols that B. and R. had repeatedly denied that they could identify the perpetrators of the attack during the events of July 2006. However, B. and R. unequivocally accused the author during interrogations with the investigator on April 29, 2011 and May 10, 2011, that is, 5 years after the commission of the crime. The UN Human Rights Committee drew attention to the fact that the courts did not consider contradictions in the testimony of these key witnesses and even stated that B.'s testimony was consistent. The Committee noted that the author's photograph was presented to B. during the latter's interrogation on 29 April 2011, that is, before the identification procedure. In addition, the testimony of the author's former cellmates was read out in court, and the author was not given the opportunity to cross-examine. The Committee pointed out that while the verdict of 15 December 2011 stated the grounds described above for finding the author guilty of murder and robbery, the appeals decisions provided other grounds for upholding the verdict, including witness statements and forensic examinations that did not indicate the author's guilt. Thus, the cassation and supervisory authorities rejected the complaints without properly examining the case materials and the author's allegations. In these circumstances, the Committee considered that the facts and information presented to it indicated a clear error or denial of justice (paragraph 8.8 of the Views).
The Committee's conclusions: The facts presented indicated a violation of articles 7, 9 and 14 of the International Covenant on Civil and Political Rights.