The author of the communication is Zhakhangir Bazarov, an ethnic Uzbek and a citizen of Kyrgyzstan born in 1974. He claims to be a victim of violations, by Kyrgyzstan, of his rights under article 7, separately and read in conjunction with article 2, paragraph 3, article 9, paragraphs 1 and 3, and 4; article 14, paragraph 1, 3 (d), (e), (g), and article 26, of * Adopted by the Committee at its 118th session (17 October-4 November 2016). ** The following members of the Committee participated in the examination of the communication: Yadh Ben Achour, Lazhari Bouzid, Sarah Cleveland, Olivier de Frouville, Ahmet Amin Fathalla, Yuji Iwasawa, Ivana Jelić, Duncan Laki Muhumuza, Photini Pazartzis, Mauro Politi, Sir Nigel Rodley, Víctor Manuel Rodríguez-Rescia, Fabián Omar Salvioli, Anja Seibert-Fohr, Yuval Shany, Konstantine Vardzelashvili and Margo Waterval. the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Kyrgyzstan on 7 January 1995. The author is represented by counsel, Khusanbai Saliev.
The facts as submitted by the author
The author submits that on 19 July 2010, in the morning, he was detained by the police in his home and, together with his mother, delivered to the Internal Affairs Department of the Osh District. Between 10 and 17 o’clock that day he was kept in an office without being given any explanation for the reasons for his apprehension. At 17:00 two police officers told him that they are going to take his fingerprints, but instead they handcuffed him, placed him in a vehicle and drove him to the Karasuy police department.
The author submits that on the way to the police department, the officers started beating him over the face and the head, asking that he confessed committing a murder. He refused to do so. When they arrived to the police department, he was taken to an office where there were five or six plain-clothes officers. They again requested a confession. When the author refused they stripped his clothes and started beating him with a stick over the head and in the area of the kidneys. Then he was handcuffed, forced to lie down, beaten on the soles of his feet, strangled with a plastic wrap over his head and the nail on his big toe was ripped off. The torture continued for two days. He was occasionally taken to a cell and given an ointment with the instruction to put it on his injuries to cover the bruises. After two days, the author signed a confession drafted by the police officers.
The author submits that between 19 and 24 July 2010, he was in the hands of the police officers in the Karasuy Police Department. On 20 and 24 July, the Osh City Court issued orders for his detention on remand and, as a result, he should have been transferred to the pre-trial detention facility SIZO- 5, but he was kept in the police department until 11 August 2010, so that his injuries healed and became difficult to detect. He maintains that the above was a regular practice in Kyrgyzstan.
On 27 August 2010, the Karasuy District Court convicted the author of crimes under article 233, paragraph 3 (calls to active insubordination of the lawful requests of the authorities, and to mass riots, and calls for violence against persons), article 168, paragraph 1, subparagraph 3 (commission of a robbery with the use or threat of violence, committed repeatedly), article 97 (murder committed with particular violence; or connected with robbery; due to interethnic, race or religious hostility; premeditated hooliganism; committed in group) of the Criminal Code and sentenced to 23 years of imprisonment and confiscation of property.
On 12 October 2010, as a result of his appeal to the Osh regional court, the court excluded from the verdict the charges under article 168, paragraph 1, subparagraph 3 and article 97, paragraph 14, but left the rest of the verdict unchanged. On 16 December 2010, following a review requested by the author’s attorney, the Supreme Court overruled the decision of the Osh regional court and confirmed the 27 August 2010 verdict.
The author submits that he did not complain regarding the torture endured while he was still in the hands of the police, because he feared for his safety. He attempted to complain to the medical service after he was transferred to the pre-trial detention facility SIZO-5, but the personnel there ignored his complaints and told him that he should have filed a complaint while in the police department. He submits that for that reason he is unable to present a medical certificate confirming his injuries.
The author maintains that he complained regarding the torture experienced to the courts at two instances and that he showed the wounds on his legs and feet. Further, he raised torture allegations in the cassation appeal; his lawyer photographed the marks of his injuries, which were visible over a month after the events and filed to the Supreme Court a complaint, dated 13 December 2010, regarding the treatment endured by him; judges and prosecutors at all levels heard his torture allegations. In addition, the author and his lawyers provided results of medical examinations and testimonies of several witnesses. All of the above failed to result in an investigation in his torture allegations. The author submits that he exhausted all available and effective domestic remedies. The complaint
The author claims that the torture and ill-treatment, suffered in the hands of the law enforcement officers, violated his rights under article 7 of the Covenant. The failure of the State party to launch an investigation into his complaints about ill-treatment and torture, violated his rights under article 7, read together with article 2, paragraph 3 of the Covenant.
The author further submits that he was kept for five days in a police department without any record of his detention, or any charges brought against him, in violation of article 9, paragraph 1 of the Covenant. He also submits that the police concealed from the court the fact that he was already detained on 19 July, when the detention issue was reviewed by the Osh city court on 24 July and that he did not attend the hearing. He also believes that the judge, who decided on his detention, failed to examine the legality of his arrest and did not consider any alternatives to detention, in violation of article 9, paragraphs 3 and 4, of the Covenant.
The author claims that he did not receive a fair and public hearing, in violation of his rights under article 14, paragraph 1, of the Covenant. The author further claims that his fellow villagers were not allowed to be present in court during his trial; that there was general atmosphere of fear during the trial and that ethnic Uzbek witnesses felt intimidated; that he was not allowed to summon witnesses to testify in court, in violation of article 14, paragraph 3(e), and that he was forced to confess guilt, in violation of article 14, paragraph 3(g). He further submits that during the investigation, the investigating officers “offered” him to hire the lawyer on duty and that the latter was working for the investigation, ignored his torture complaints and was trying to convince him to confess guilt, promising that she will assist his release. He maintains that the fact that he did not have legal assistance during the pre-trial investigation amounts to a violation of his rights under article 14, paragraph 3(d) of the Covenant.
The author claims that he was unfairly targeted because of his ethnicity, in violation of article 26 of the Covenant. He submits several reports from international NGOs, testifying of the discriminatory treatment of Uzbeks in the aftermath of the June 2010 violence in Osh. State party’s observations on admissibility and merits
On 22 February and 4 March 2013, the State party presented its observations on admissibility and merits of the communication.
The State party submits that it is confirmed that the author participated in mass violence that started on 11 June 2010. The author participated in calling for mass violence against law enforcement agents and destruction of property. He himself actively participated in these events. On 12 June 2010, the author and his accomplices intended to kill a person of Kyrgyz ethnicity near “Myrzalim” café which is located in Karasuy district. They attacked Mr. U.K, a person who was present at that time near the “Myrzalim” café; hit him with wooden sticks, and Mr. U.K. died as a result.
On 23 June 2010, the deputy prosecutor of Karasuy district initiated a criminal investigation against the author. The deputy prosecutor also asked the Karasuy district court to order the author’s detention pending trial. The author was arrested on 24 July 2010. From the moment of his arrest, he was provided with a lawyer, Mr. I.T. This lawyer was able to participate in all investigation activities. The lawyer had an unlimited access to the author.
The State party submits that neither the author nor his lawyer ever challenged the court order regarding the author’s arrest.
As a result of the Karasuy district court hearings, the author was sentenced to 23 years of imprisonment on 27 August 2010. The verdict and the sentence were based on several articles of the Criminal Code of Kyrgyzstan, such as mass violence, mass riots, murder, robbery and others. The author filed an appeal to the Osh regional court, which changed the lower court’s verdict, and excluded two articles of the Criminal Code. The author filed a subsequent appeal to the Supreme Court of Kyrgyzstan.
The Supreme Court of Kyrgyzstan, in turn, overturned the Osh regional court’s decision, and reinstated the Karasuy district court’s verdict and sentence dated 27 August 2010.
During the investigation, and during his trial, the author did not complain about torture or other forms of ill-treatment. Such complaints are not part of his initial appeal either. These complaints were only made when another lawyer, Ms. T.T. started representing author during court hearings in the Osh regional court, starting from 2 September 2010. The verdict and sentence therefore became final, and are not subject to any further appeals.
It was also established that the author has never filed a torture complaint to the prosecutor’s office or to the police. Based on the afore-mentioned, it can be concluded that the torture allegations were made by the author “in order to avoid criminal punishment”. The prosecutor’s office, nevertheless, will conduct an investigation into these allegations.
The State party submits that the author is currently imprisoned in the city of Osh prison No. 10. There are currently no complaints from the author or his lawyer regarding the conditions of his imprisonment. Based on the medical examination, “there are no signs of bodily injuries”.
Consideration of admissibility
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of investigation or settlement.
The Committee takes note of the author’s claim that he has exhausted all effective domestic remedies available to him. In the absence of any objection by the State party, the Committee considers that the requirements of article 5, paragraph 2 (b), of the Optional Protocol have been met.
The Committee has noted the author’s claims under articles 9, paragraph 3, and 4, article 14, paragraphs 1, 3 (d) (e) and article 26, of the Covenant. In the absence of any further pertinent information on file, however, the Committee considers that the author has failed to sufficiently substantiate, for purposes of admissibility, these allegations. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.
In the Committee’s view, the author has sufficiently substantiated, for the purposes of admissibility, his remaining claims under article 7, read separately and in conjunction with article 2, paragraph 3 of the Covenant, article 9, paragraph 1, and article 14, paragraph 3 (g), declares them admissible and proceeds with their consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information submitted by the parties, in accordance with article 5 (1) of the Optional Protocol.
The Committee first takes into consideration the author’s allegations that he was, on a number of occasions, tortured and otherwise mistreated. The Committee notes that the author reported torture both to the Osh regional court and to the Supreme Court of Kyrgyzstan. The Committee also takes note of the State party’s admission that the author submitted his torture allegations on 2 September 2010. The State party, instead of launching a prompt and impartial investigation by competent authorities2, attributed these complaints to the author’s desire to avoid criminal punishment. The Committee also notes that the author and his lawyers provided courts with photographs of the signs of torture, medical examination results confirming signs of torture, and testimonies of witnesses. The Committee considers that, in the circumstances of the present case, and in particular in the light of the State party’s inability to explain the visible signs of mistreatment that were witnessed on a number of occasions, due weight should be given to the author’s allegations.
Regarding the State party’s obligation to properly investigate the author’s torture claims, the Committee recalls its jurisprudence according to which criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by article 7 of the Covenant. The Committee notes, that according to the material on file, there was no investigation that was carried out into the allegations of torture, despite a number of incriminatory witness accounts. In the circumstances of the present case, the Committee concludes that the facts before it disclose a violation of the author’s rights under article 7 of the Covenant, read separately and in conjunction with article 2, paragraph 3.
The Committee further notes the author’s claims under article 9, paragraph 1, that he was arbitrarily detained from 19 July to 24 July 2010, when his detention was reviewed by the Osh city court. The author claims that the State party arbitrarily detained him until 24 July 2010 to allow and enable the police officers to torture him. The State party contends that the author was detained only from 24 July 2010. The author further submits that during these several days of arbitrary detention, he was tortured by several police officers and forced to confess guilt. This confession, the author claims, was used as basis of his conviction on 27 August 2010, in violation of his rights under article 14, paragraph 3 (g). Considering the Committee’s conclusions regarding violations under article 7, and the State party’s inability or unwillingness to investigate the allegations of torture made by the author, and the unrefuted fact that the author’s forced confession was retained as evidence and used as a basis for his conviction, the Committee considers that the author’s rights under article 9, paragraph 1, and article 14, paragraph 3 (g), of the Covenant were also violated.
The Human Rights Committee, acting under article 5 (4), of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of the author’s rights under article 7 of the Covenant, read separately and in conjunction with article 2, paragraph 3, article 9, paragraph 1, and article 14, paragraph 3 (g), of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, take appropriate steps to release the author; quash the author’s conviction and, if necessary, conduct a new trial, in accordance with the principles of fair hearings, presumption of innocence and other procedural safeguards; to conduct a prompt and impartial investigation into the author’s allegations of torture, provide the author with an adequate compensation, including reimbursement of the court fines, the legal costs and other related fees. The State party is also under an obligation to take all necessary steps to prevent similar violations occurring in the future.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. In addition, it requests the State party to publish those Views.