The case of Rosa Gorbayeva v. the Republic of Kyrgyzstan. Views of the UN Human Rights Committee dated October 23, 2023. Communication No. 3261/2018.
In 2018, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kyrgyzstan.
The author claimed, in particular, that she had been subjected to physical and psychological torture by the police; the investigation into her allegations of torture had not been effective; the judicial proceedings had been unreasonably prolonged, and her rights under article 14, paragraph 3 (e), of the International Covenant on Civil and Political Rights had been violated because witnesses who They could have confirmed her statements, were not questioned, and the author was unable to ask questions of witnesses who gave contradictory testimony.; The police forced her to confess to a crime in violation of article 14, paragraph 3 (g), of the International Covenant on Civil and Political Rights. The author also referred to the poor conditions of detention in pre-trial detention facilities. The Committee found a violation of certain provisions of the Covenant.
The Committee's legal position is that the State party is responsible for the safety of any person in custody, and that if the person in custody shows signs of bodily injury, the State party is required to provide evidence that it is not responsible for such injuries. The Committee has repeatedly stated that the burden of proof in such cases cannot be placed solely on the author of the communication, especially since often only the State party has access to relevant information (paragraph 7.3 of the Views).
The UN Human Rights Committee refers to its practice that criminal investigation and subsequent prosecution are necessary remedies for violations of human rights, such as those protected by article 7 of the International Covenant on Civil and Political Rights. The UN Human Rights Committee points out that after filing a complaint of ill-treatment in violation of article 7 of the International Covenant on Civil and Political Rights, the State party must conduct a prompt and impartial investigation in order for the remedy to be effective (paragraph 7.4 of the Considerations).
The UN Human Rights Committee recalls its General Comment No. 35 (2014) on freedom and personal integrity, according to which a detained person must appear before a judge within 48 hours. As stated in the same general comment, detention within the meaning of article 9 of the International Covenant on Civil and Political Rights does not necessarily imply official detention, as defined under domestic law (paragraph 7.7 of the Considerations).
The UN Human Rights Committee notes that persons deprived of their liberty should not experience other hardships and hardships than those that are an inevitable consequence of deprivation of liberty, and they should be treated humanely in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (paragraph 7.9 of the Views).
The UN Human Rights Committee reiterates the importance for participating States to establish appropriate judicial and administrative mechanisms to address complaints of violations of rights in domestic legislation. He refers to paragraph 15 of his general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the International Covenant on Civil and Political Rights, in which he stated that failure by a State party to take measures to investigate allegations of violations could in itself constitute a separate violation of International law. The International Covenant on Civil and Political Rights (paragraph 7.11 of the Views).
The UN Human Rights Committee refers to paragraph 35 of its general Comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, in which it stated that in cases where the court denies defendants the right to bail, they should be tried as soon as possible. It's possible. This guarantee is relevant not only to the time period between the formal presentation of charges and the moment when the hearing is to begin, but also to the time that elapses before the final decision on the appeal is made (paragraph 7.12 Considerations).
The UN Human Rights Committee points to its previous practice, according to which the burden of proving that any delay was necessary and that the case was particularly difficult rests with the State party (paragraph 7.12 of the Views).
The UN Human Rights Committee recalls its previous practice, according to which the provision of subparagraph "g" of paragraph 3 of article 14 of the International Covenant on Civil and Political Rights states that everyone has the right, when considering any criminal charge against him, not to be forced to testify against himself or to plead guilty, It should be interpreted as the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused in order to obtain a guilty plea. The UN Human Rights Committee also draws attention to the fact that in cases involving complaints of forced confession, the burden of proving that the testimony of the accused was given by them of their own free will falls on the State (paragraph 7.13 of the Views).
The Committee's assessment of the factual circumstances of the case: Given the discrepancies in information about the time of the author's injuries and the lack of information about the possible origin of these injuries from the State party, the UN Human Rights Committee decided that due weight should be given to the author's detailed statements about the cause of her injuries. Therefore, the UN Human Rights Committee stated that the facts presented testified to a violation of the author's rights enshrined in article 7 of the International Covenant on Civil and Political Rights (paragraph 7.3 of the Views).
The UN Human Rights Committee noted that the author's allegations of incommunicado detention on March 1 and 2, 2013, and her allegations of police torture remained without substantive consideration. The Prosecutor General's Office did not specify the origin of her injuries. She accepted the statements of the police officers, whom the author accused of using torture, that she had not been detained on 1 and 2 March 2013, without questioning other possible witnesses to her detention (paragraph 7.6 of the Considerations).
In the present case, the author was arrested on 1 March 2013 and brought before a judge on 4 March 2013, and thus the 48-hour deadline was exceeded (paragraph 7.7 of the Considerations).
The UN Human Rights Committee considered, as it has repeatedly established with respect to similar substantiated allegations, that the conditions of her detention described by the author violated her right to humane treatment and respect for her gender and the inherent dignity of the human person, and therefore also contradicted paragraph 1 of article 10 of the International Covenant on Civil and Political Rights (paragraph 7.9 Considerations).
As follows from the text of the Considerations, "all the isolators had inadequate conditions, including a lack of furniture, bedding, heat, ventilation and natural lighting, as well as poor sanitary and hygienic conditions, including the lack of a proper toilet and the opportunity to retire from observation when using the toilet and shower. Such conditions of detention caused the author health problems, which she complained about 33 times.... The Committee also notes the author's claim that all the staff in the detention facilities were men. They were the ones who searched and controlled her" (paragraph 7.8 of the Considerations).
The UN Human Rights Committee cannot conclude that the criminal proceedings were conducted by administrative and judicial authorities without undue delay (paragraph 7.12 of the Views).
As could be seen from the text of the Considerations, "... the author was charged on March 2, 2013 and that her sentence was confirmed only on March 29, 2016, after three rounds of trials. Although none of the court sessions was excessively prolonged, the case was returned to the prosecutor's Office for further investigation four times" (paragraph 7.12 of the Considerations).
The UN Human Rights Committee noted that the courts used the author's confession along with other evidence to establish her guilt, despite her claim that this confession was obtained under duress (paragraph 7.13 of the Considerations).
The Committee's conclusions: The facts presented testified to a violation of the author's rights under articles 7, 9, 10, and 14 of the International Covenant on Civil and Political Rights.