Z Y v. Kazakhstan

The author of the communications is Ms. Z Y, a national of Kazakhstan born in 1947. She claims to be a victim of a violation by Kazakhstan of her rights under articles 2 and 7 of the International Covenant on Civil and Political Rights (“the Covenant”). The Optional Protocol entered into force for Kazakhstan on 30 June 2009. The author is not represented by counsel.

On 26 April 2017, the Committee, acting through its Special Rapporteur on new communications, denied a request from the State party to examine the admissibility of the communication separately from the merits.[

The author submits that in autumn 2013, she was elected by the residents of the apartment building № 26, Tselina Str., Amangeldy village of Kostanai region, where she was residing to represent them and protect their common interests. On 17 October 2013, the residents of neighbouring apartment building № 8a made an attempt to install a sewer pipe across the courtyard of the author’s house. When the author tried to prevent unauthorized works on a sewage installation, four women from the neighbouring building confronted her physically by kicking and pushing her away from the working excavator. The author managed to place herself in the hole dug by the excavator, thus preventing further construction works. The following day, on 18 October 2013, four women filed a complaint claiming that the author had physically assaulted two of them.

On 13 December 2013, at around 10.00h, the author was apprehended while entering her apartment building by three police officers who dragged her to a police car. While in the car, the police officers held her roughly by her arms, pushed her body against the seat and prevented her from moving. After around half an hour, the police car arrived at the Specialized Administrative Court in Kostanai city. The police officers dragged her to the court room. On the same day, the court found the author guilty of an administrative offence under article 79 (3)(2) of the Administrative Offences Code⁴ and fined her to 173 000 tenge.⁵

4. Liability for intentional infliction of light bodily injuries. ↩
5. At the time of the administrative hearing, this was equal to about approximately $ 1160. ↩

On 14 December 2013, the author underwent a medical examination at the Kostanai city Hospital which revealed bruises on her right shoulder. On 15 December 2013, the author met with the officer of the Personal Safety Department of the District police where she gave her testimony on police ill-treatment and filed a complaint in this regard. The same day, the interviewing police officer referred the author to a forensic examination. On 18 December 2013, the author was examined by a forensic expert at the Kostanai branch of the Centre for Forensic Examination, which confirmed inflicted bruises on the author’s shoulders.⁶

6. The author provided a forensic report. Although the author was examined on 18 December 2013, the report was issued two days later, on 20 December 2013. ↩

Having received no reply from the Personal Safety Department of the Police, the author filed complaints to various state institutions, including the Office of the Prosecutor General, the Administration of the President, the Department for Combating Economic and Corruption Crimes of Kostanai region (DCECC) of the Police Agency. On 13 May 2014, the author received a response from DCECC stating that following its preliminary inquiry, a procedural decision was taken not to open a criminal investigation into the author’s allegations of ill-treatment by three police officers.

On 22 May 2014, the author appealed the decision of DCECC with the City Court No.2 of Kastanai, claiming that when conducting its preliminary inquiry, the state agency failed to interview key witnesses and to provide her with effective remedies in investigating claims of ill-treatment by police officers. On 2 June 2014, the court noted the lack of certain materials on the file and several procedural inconsistencies, thus upheld the author’s complaint and ruled that a further enquiry should be conducted. The Prosecutor appealed such a decision. On 16 June 2014, the Regional Court of Kostanai, acting as appellate court, dismissed the Prosecutor’s appeal decision on the legality of the ruling of the first instance court.

On 25 July 2014, the DCECC, after having examined key witness testimonies and questioned forensic experts, found no criminal elements in police actions and upheld its earlier decision, i.e. not to open a criminal investigation into the alleged ill-treatment of the author. The DCECC’s decision also referred to the fact that the author failed to attend the court hearing on administrative charges brought against her, scheduled for 9.00 a.m. on 13 December 2013. In this context, the Court ordered the police to ensure the participation of the author in the proceedings re-scheduled for 11.00 a.m. Therefore, police officers were only implementing the court’s ruling when they apprehended and tried to accompany the author to the courtroom, since she was offering physical resistance to the execution of such ruling. The DCECC’s preliminary inquiry concluded that the police did not exceed its authority and acted lawfully, thus there were no substantial grounds to open criminal investigation.

On 13 September and 3 November 2014, the Office of the Prosecutor of Kostanai Region and the General Prosecutor’s Office, acting upon the author’s appeals, upheld the DCECC decision.

The author claims a violation of article 7 in conjunction with article 2 of the Covenant arguing that the police used excessive force whereas the State party failed to conduct an effective investigation into the allegations of police ill-treatment.

The author requests the Committee to carry out an effective investigation into the ill-treatment by the police officers and apply appropriate sanctions on the responsible officers; provide full and adequate reparation from moral damages inflicted, including rehabilitation and compensation.

In a note verbale dated 3 February 2017, the State party submits that the communication should be declared inadmissible under articles 2 and 5 of the Optional Protocol due to non-exhaustion of available domestic remedies, noting that the author failed to appeal the second refusal to open criminal investigation to court.

The State party observes that the author’s complaint on police ill-treatment was received by the Office of the Prosecutor of Kostanai region on 17 April 2014. On 21 April 2014, the Office of the Prosecutor forwarded the complaint to the Department for Combating Economic and Corruption Crimes of Kostanai region (DCECC) with an instruction to conduct a pre-investigative inquiry.

On 30 April 2014, the DCECC, based on its pre-investigative inquiry took a procedural decision not to open a criminal investigation against three police officers due to the absence of elements of crime in their actions and informed the author accordingly.

On 2 June 2014, the Kostanai City Court No 2 upheld the author’s appeal and ordered DCECC to reexamine the case and take a new procedural decision. The court found the author’s arguments substantiated, noting that the authorities failed to conduct a full and comprehensive investigation and to question author’s relatives.

On 25 July 2014, having conducted an additional pre-investigative inquiry, the DCECC took again a procedural decision not to open a criminal investigation due to lack of criminal elements in the actions of police officers.

The State party observes that the author failed to appeal this procedural decision, as foreseen by article 109 of the Criminal Code of Kazakhstan⁷ and therefore argues that the author failed to exhaust all available domestic remedies, contrary to articles 2 and 5(b) of the Optional Protocol, as well as to the provision 96(f) of the Rules and Procedures of the Committee.

7. The State party refers to article 109 on “Judicial procedure for consideration of complaints on action (inactions) and decisions of prosecutor, investigation authorities and inquiry bodies”. ↩

The State party concludes that the Committee should declare the communication inadmissible.

In a response dated 16 March 2016, the author expressed her disagreement with the State party’s arguments about the inadmissibility of her communication. She reiterated that on 2 June 2014, the Kostanai city Court No.2 upheld her complaint and ordered DCECC to further examine the case and to take a new procedural decision. On 16 June 2014, the Regional Court of Kostanai dismissed the appeal of the Regional Prosecutor’s Office and maintained the decision of the first instance court. The author submits that while the Court ruling was implemented and witnesses were questioned, the DCECC decided not to open a criminal investigation. It is further to that decision not to open a criminal investigation that the author filed complaints with the Office of the Prosecutor of Kostanai region and the Office of the Prosecutor General. Her complaints were however rejected.

The author contends that she has exhausted all available domestic legal remedies and requests the Committee to consider the communication on its merits.

In a note verbale of 2 October 2017, the State party reiterated its arguments, stating that the communication should be declared inadmissible since the author failed to exhaust available and effective domestic remedies.

The State party further observes that according to the information received from the Supreme Court of Kazakhstan, the author did not contest, through judicial proceedings, neither the decisions of criminal investigative authorities, dated 25 July 2014, nor the replies of the prosecution bodies as foreseen under article 109 of the Criminal Code of Kazakhstan.

The State party observes that the author failed to provide substantiated legal arguments as to why she did not exercise her right to appeal as foreseen under the Criminal Procedural Code. In this context, the State party draws the attention of the Committee to the fact that earlier, the author did use her right to appeal efficiently when she contested the decision of the criminal investigative authority of 30 April 2014.

The State party concludes that the author failed to exhaust all available domestic remedies and therefore the communication should be declared as inadmissible under articles 2 and 5(b) of the Optional Protocol, and in line with Rule 96(f) of the Rules and Procedures of the Committee.⁸

8. CCPR/C/3/REV.10 Rules and Procedures of the Human Rights Committee. ↩

On 5 April 2018, the author reiterated her arguments stating that she has exhausted all available domestic remedies.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

With regard to the requirement set out in article 5, paragraph 2 (b), of the Optional Protocol, the Committee notes the State party’s argument that the author has not exhausted the available domestic remedies as foreseen under article 109 of the Criminal Code of Kazakhstan, which regulates on a judicial procedure for consideration of complaints on action (inactions) and decisions of prosecutor, investigation authorities and inquiry bodies. Namely, the author failed to contest the second decision of criminal investigative authorities of 25 July 2014 not to open a criminal investigation to the author’s allegation of ill-treatment by police officers (see §§ 4.5 and 4.6).

The Committee notes in this regard that on 2 June 2014, the Kostanai City Court No 2 upheld the author’s appeal and ordered DCECC to reexamine the case and take a new procedural decision (see § 4.4). The Committee further notes that the author acknowledges that this court ruling was implemented and key witnesses were thus interviewed (see § 5.1) but she disagrees with the later decision of the authorities not to open the criminal investigation. The Committee observes that, other than her complaint to the first instance court, following the first decision of DCECC of 30 April 2014, the author did not make any other judicial attempt, after the second decision, of 25 July 2014, of the said DCECC, to contest the alleged ineffectiveness of the investigative authorities, apart from filing complaints with the Office of the Prosecutor of Kostanai region and the Office of the Prosecutor General. The Committee further notes that in the present case the author, while disagreeing with the second procedural decision of the investigative body not to open a criminal case against police officers allegedly involved in her ill-treatment, did not explore any judicial avenue to contest such a decision. In the present case, the author has not argued that the domestic remedies available to her were ineffective, nor that she was otherwise exempt from availing herself of those remedies. The Committee therefore concludes that the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol.

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;