Amir Abdiev v. Kazakhstan

The author of the communication is Mr. Amir Abdiev, a national of Kazakhstan born in 1982. He claims that Kazakhstan violated his rights under articles14 (1), (2), (3)(e) and (5) of the International Covenant on Civil and Political Rights (“the Covenant”). The Optional Protocol entered into force for Kazakhstan on 30 September 2009. The author is represented by counsel

The author is serving a 17-year prison sentence. He claims he has been wrongly identified, accused and charged for having stabbed two men causing the death of one of them and serious bodily injuries to the other. According to the documents in the file, the incident took place on the night of 30 July 2005 in a recreation centre “Montazhnik”, not far from the city of Aktau, in Kazakhstan. A fight broke out among holiday makers, in the course of which five persons were stabbed with a knife, including G.A., a Belarusian national, and T.A., a Kazakh national. The latter subsequently died in a hospital.

Shortly after the incident, the investigator M.A. arrived at the scene of the crime. The case file reveals that M.A. failed to order forensic examination of material evidence, including blood stains on clothes worn by the author on the night of the fight.⁴

4. Judgement of Mangistau Regional Court of 5 September 2007. The investigator M.A. was later prosecuted and dismissed from the Police for falsifying evidence in the author’s case (see observations of the State party in para. 4.7). ↩

The author submits that on 2 August 2006, the Aktau City Court found L.V., a Belarusian national, guilty of causing bodily harm to two persons injured in “Montazhnik” but considered that L.V.’s guilt in injuring T.A. was not established. After having been sentenced to suspended imprisonment, L.V. departed to Belarus. The author underlines that in his statements following the fight, G.A. could not identify the person who had stabbed him. Therefore, no criminal case on the fact of inflicting injuries to G.A. was initiated in 2005. Having undergone a medical treatment in Kazakhstan, G.A. also departed to Belarus.

On 5 August 2006, E.I., another investigator from the Aktau police department, took over the investigation of the death of T.A. and began investigating the infliction of bodily harm to G.A. In October 2006, E.I. collected witness statements of three Belarusian nationals, L.O., L.N. and Y.A., who identified the author as an active participant of the fight. In February 2007, E.I. travelled to Stolin, Belarus, to collect additional witnesses statements, under judicial cooperation framework based on Chisinau Convention on “Legal Assistance and Legal Relations in Civil, Family and Criminal Matters 2002” (Chisinau Convention). Several witness statements were recorded in Belarus, including those of G.A. (one of the victims), Sh.E. and Y.V.

In May 2007, an indictment act against the author was submitted to the Mangistau Regional Court based on a number of witness statements collected in Kazakhstan and Belarus. On 5 September 2007, the Mangistau Regional Court found the author guilty of the murder of T.A. and of causing serious injuries to G.A. and sentenced him to seventeen years in prison. The Court established that on 30 July 2005, the author, under the influence of alcohol entered building N12 in “Montazhnik” recreation centre, where he stabbed T.A. in the chest. Two Belarusian nationals, G.A. and Y.V., heard a noise and entered the building. They saw the author with a knife in his hand and T.A. suffering from a stab wound. The two Belarusians heard T.A. say “Amir, why did you stab me?” The author acted aggressively and demanded them to leave the building, which they did. Later that night, the author engaged in a fight with Belarusian holiday makers, causing injuries to G.A. A nurse in Mangistau Regional Hospital, where T.A. was placed in intensive care, claimed that she had heard him calling the name of the author shortly before he died.

The Court established the guilt of the author based, among others, on written witness statements of several Belarusian nationals, including L.O., L.N.,Y.A, G.A., Sh.E. and Y.V. The author submits that in total, testimonies of nine Belarusian witnesses, who were not present in the courtroom, were read out during the trial. The author also draws the Committee’s attention to contradictions in witness testimonies given during the trial. He stresses that the nurse who testified against him in court had not been heard during the pre-trial investigation. Contrary to her declarations, the doctor who had been on duty in the hospital on the night of T.A.’s death testified that access to the intensive care room had been restricted and that he had not seen this nurse in the room

The author filed an appeal against the judgement of 5 September 2007 of the Mangistau Regional Court to the Supreme Court of Kazakhstan, claiming that the lower instance Court had failed to assess serious discrepancies in the witness statements given by Belarusian nationals right after the event and those collected in Belarus. He also underlined that none of the preliminary witness statements given after the incident accused him of killing T.A. The Supreme Court dismissed the appeal noting that witness statements provided by Belarussian nationals had been collected in line with the agreement with the Belarusian authorities, based on the Chisinau Convention, and that these witnesses had testified against the author. On 31 October 2007, the Supreme Court dismissed the author’s appeal noting that it had assessed all evidence of the case and had found the ruling of the Regional Court lawful. On 11 March 2008, the author’s further appeal under the supervisory review procedure was dismissed by the Supreme Court.

On an unspecified date, the author’s mother requested Belarusian prosecutorial authorities to verify alleged falsification of witness statements collected in Belarus in 2007. By a letter of 12 September 2008, the Office of the Prosecutor of Stolinsk district, Brest region (Belarus) informed the author’s mother that the Belarusian investigator P.D., who had worked with the Kazakh investigator E.I. on collecting evidence in Belarus in 2007, had confessed not having interrogated the witnesses G.A. and Sh.E. but having merely signed their witness statements prepared by E.I. The letter also stated that Sh.E. and G.A. had confirmed that they had been interrogated by a Kazakh investigator without presence of Belarusian investigative authorities.⁵

5. The author submits a copy of the letter and a copy of a written statement of P.D. dated 31 July 2008. ↩

The author submits files related to an investigation conducted by the Office of the Prosecutor of Stolinsk district (Belarus) in relation to alleged falsification of evidence by P.D. in the author’s criminal case. According to these files, the witness Sh.E. declared that in March 2007, he had been interrogated by a Kazakh investigator but had refused to sign the witness statement prepared by the investigator because it contained incorrect information. Moreover, he claimed that the investigator from Kazakhstan had attempted offering him money in exchange for signing the false report.⁶ It was also established that the mother of the deceased T.A. had accompanied the investigator E.I. to Stolin and, after E.I. informed her that some witnesses refused to testify, she told him she would “pay everyone to send the assassin to prison”.⁷ In addition, the Office found that the signatures of attesting witnesses in the reports on identification of a person and murder weapon (knifes) by G.A., Sh.E. and Y.V. had been falsified.⁸ By a resolution of 12 September 2008⁹, the Office of the Prosecutor of Stolinsk district (Belarus) dismissed a request of the author’s mother to open criminal proceedings against the investigator P.D. arguing that this latter had not personally interrogated the witnesses, “therefore had not made any modifications in the witness statements and had not been not formally aware of the falsified evidence”¹⁰.

6. Explanation by Sh.E. of 2 September 2008 submitted by the author. ↩
7. Explanation by P.D.L., an employee of the Stolinsk ROVD (District Office of Internal Affairs), dated 29 July 2008. ↩
8. The author presented a copy of the confirmation by two attesting witnesses, dated 10 September 2008 and 1 April 2010, and a report from the Office of Public Prosecutor of Stolin district, Belarus, dated 26 July 2008. ↩
9. A copy submitted by the author. ↩
10. A copy submitted by the author. ↩

Starting from 17 September 2008, the author’s mother filed multiple complaints with state institutions, including the Office of the Public Prosecutor of Aktau, claiming that materials of his criminal case had been falsified by investigator E.I.¹¹ In March-April 2010, a Police investigator from Mangistau Region travelled to Belarus to conduct an investigation on the allegations of falsification of evidence by E.I. The author submits that in the course of the investigation, the Office of the Public Prosecutor of Aktau conducted several examinations. According to an examination conducted on 21 June 2010¹², the signatures of Sh.E. in the reports from 2007 were made by another person; Pursuant to an examination conducted on 20 December 2011,¹³ the photographs of knives presented to the witnesses from Belarus were similar to those which had been registered as a part of the criminal case against L.V. According to an examination conducted on 21 September 2010,¹⁴ the signature of the investigator who compiled the charts with photographs were made by another person. Pursuant to an examination conducted on 16 July 2010¹⁵, the signatures of the attesting witnesses on suspect identification reports prepared during the interrogation of the witnesses L.N., Y.A. and L.O. were not authentic G.A. informed Belarusian and Kazakh investigative authorities that he had been interrogated in 2007 by a Kazakh investigator. He claimed that one of the witness statements allegedly signed by him contained incorrect data.¹⁶ Sh.E., interrogated by the Public Prosecutor Office of Stolinsk (Belarus), reiterated his previous statements that in 2007, he had been interrogated by a Kazakh investigator who had offered him money in exchange for signing a false witness statement. The former investigator P.D. reiterated his statements that E.I. had conducted interrogations of witnesses in Belarus and P.D had only signed the witness statements prepared by E.I.¹⁷

11. The author motioned to open a criminal case against E.I. many times during 2008 and 2011. Each time the authorities decided to open a criminal investigation, the higher instance would dismiss the decision. ↩
12. The author provided a copy of the Examination №694 from 21 June 2010. ↩
13. The author provided a copy of Examination №1722 from 20 December 2011. ↩
14. The author provided a copy of Examination №1126 from 21 September 2010. ↩
15. The author provided a copy of Examination №905 from 16 July 2010. ↩
16. Witness statement of 1 April 2010 signed by G.A., an investigator of the Public Prosecutor’s Office of Stolinsk district (Bwelarus) and an investigator of the Department of internal affairs of Mangistau region ↩
17. Witness statements of Sh.E. and D.P. of 16 March 2017 of P.D. to the Public Prosecutor’s Office of Stolinsk district submitted by the author. ↩

On 29 August 2012, the Court of Aktau found E.I. guilty of falsifying signatures of the attesting witnesses on suspect identification reports prepared during the interrogation of L.O., L.N. and Y.A.¹⁸ and sentenced him to three years of suspended service, barring him from any governmental post during that period. The Court did not uphold the charges related to alleged falsification by E.I. of witness statements in Belarus because, it argued, there were discrepancies between statements of E.I. and of P.D. in that regard and it was impossible for the Court to hear the latter. Therefore, the Court dismissed these charges due to the fact that “the pretrial investigative authorities had not taken the necessary steps to eliminate these shortcomings”.¹⁹.

18. The court established that E.I. had mentioned his relatives as attesting witnesses and had forged their signatures. ↩
19. The Court noted that according to statements of P.D., the witnesses in Belarus had been heard by E.I. and P.D. had only signed the witness statements prepared by E.I. The latter claimed, however, that he had not participated in any investigative activities in Belarus. ↩

On 2 October 2013, the author challenged this sentence by submitting a cassation complaint to the Cassation Court of the Mangustau Region, noting that the assessment of the criminal case of E.I. by the Court of Aktau had been incomplete. The author noted that the Court should have applied article 413, the provisions 1 and 2 of the Criminal Procedure Code (CPD).²⁰ The author also argued that the Court had failed to invite the Belarussian witnesses, nor had it requested the Belarusian Courts for assistance in this matter, as foreseen by the Chisinau Convention. With reference to article 415 of the CPD, the author argued that the sentence shall be subject to abolition or repeal.²¹ On 23 October 2013 the Cassation Court of Mangistau Region dismissed the author’s cassation appeal stating that the investigative activities in Belarus had been conducted by the Belarusian investigator P.D. based on the Chisinau Convention, as attested by his signature. The author’s further appeal to the Supreme Court under the supervisory review procedures was dismissed on 10 February 2014.

20. The author refers to para. 1: A court investigation which left unclear the circumstances, of which the establishment might have material significance for the accurate adjudication of the case, shall be recognized as biased or incomplete, and para. 2: A court investigation shall be recognized as incomplete if persons whose testimony has material significance for the case, have not been interrogated. ↩
21. Where the bias or incompleteness of the court investigation of first instance resulted from an erroneous exclusion from consideration of the allowed evidence or unreasonable denial to a party of examining the evidence, which may have significance importance for the case, or examination of incompetent evidences ↩

On 23 April 2013, the author appealed to the Supreme Court requesting to have his case re-opened in view of the newly discovered circumstances, stating, inter alia, that witness statements collected in Belarus, on which his conviction had been based, had been falsified by the investigator E.I.²² In its order of 22 May 2013, the Supreme Court stated that the author’s criminal conviction had found its basis in witness statements of G.A., Y.V., Sh.E.. L.O., L.N. and Y.A. The Court confirmed that the investigator E.I. had been convicted for falsifying the signatures of the attesting witnesses in witness statements of L.O., L.N. and Y.A. The Court considered however that the author’s guilt had been fully proven in the Aktau Court, noting that its ruling had been based on appraisal of physical evidence and witness testimonies. The Supreme Court contended the author’s arguments of falsification of witness statements collected in Belarus, noting that it was the Belarusian investigator who had conducted the investigation and had signed the witness statements. The Supreme Court reiterated the findings made by the Mangistau Regional Court on 5 September 2007 and dismissed the author’s appeal to re-open the case and review the materials on newly discovered circumstances.

22. The author submitted to the Court all related materials pertinent to his case, including witness statements, decisions and reasoning of courts, experts reports. ↩

The author submits that in March 2014, he requested the Office of the Prosecutor General to bring an appeal against the decision of the Supreme Court. The Office denied his request and terminated all correspondence with the author. Therefore, the author submits that all domestic remedies available to him have been exhausted.

The author claims that the State party has violated his rights under article 14(1) of the Covenant since the courts failed to demonstrate impartiality, they were biased and promoted the interests of the accusing party which influenced the decision and convicted the author unlawfully. The trial proceedings ignored the author’s accounts and were biased against him. Witness testimonies supporting his innocence were not taken into account, whereas dubious evidence against the author, that suited accusation, the court counted as evidence proving his guilt.

The author also claims that his right to be presumed innocent until proved guilty under article 14 (2) has been violated because the court erred in sentencing the author for criminal acts that he did not commit. In this context, the author submits that the examination reports have demonstrated that the witness statements that were used as evidential proof to condemn the author, were falsified. The author stresses that these testimonies should have been declared inadmissible since they were obtained in violation of the article 116 of the Criminal Code of Kazakhstan.²³ The author submits that his criminal case should have been re-opened in view of the newly discovered circumstances.

23. Article 116 is devoted to Factual Data that is not Admissible as Evidence. It also states that evidences which are received with violation of the law shall be recognized as invalid and they may not be used as a basis to accuse. ↩

The author submits that the State party acted in violation of article 14(3)(e) because the courts failed to ensure the attendance and examination of witnesses who had allegedly declared against him in writing. The author submits that the Criminal code provides for circumstances which could exclude the possibility of a person's appearance at the court session, including a death, serious illnesses, alleged business trip, departure from the place of residence and the failure of establishing the whereabouts of a person. However, the Court failed to ensure the presence of important witnesses whose statements at pre-trial investigation stage were different from those read out at the trial. The courts also failed to demonstrated any document which could prove that attendance of these witnesses was not possible. The author claims that he did raise these inconsistences in his appeal with the Supreme Court and under the supervisory review procedure to the general Prosecutor, however they failed to properly appraise them.

The author further claims that the State party violated his right under article 14(5) of the Covenant because, despite his numerous appeals, his sentence was not reviewed by a higher tribunal according to law. The author notes that as per article 471 of the Criminal Procedure Code, the court sentence that has entered into legal force may be abolished and proceedings on the case may be resumed in view of the newly-discovered circumstances. As for the bases for resumption of proceedings on a criminal case in view of newly-discovered circumstances, the Code inter alia, includes criminal acts of the investigator that entailed unlawful sentence as established by the court ruling which has entered into legal force. The author underlines that although the facts of falsification of witness statements were confirmed by numerous national instances, the judicial authorities refused to re-open the case.

The author requests the Committee to recommend the State party to re-open his criminal case in line with article 14 of the Covenant.

By notes verbales of 7 December 2015 and 21 January 2016, the State party submitted its observations and informed. The State party informs that on 31 July 2005, criminal proceedings in relation to the murder of T.A. were instituted. On 22 September 2005, the Office of Criminal Investigations of the Department of Internal Affairs (SU DVD) of Aktau dismissed criminal charges in relation to the murder of T.A. against the author and two other persons due to a lack of evidence. On 10 July 2006, SU DVD suspended the investigation due to impossibility to identify the suspects. On 14 March 2006, the Public Prosecutor Office of Mingistau overthrew this decision.

On 5 September 2007, the Mangistau Regional Court sentenced the author to 17 years of imprisonment for violating art 96 (2)(i) (murder with hooligan motives) and 103 (2)(g) (deliberate Infliction of grievous harm to health committed with hooligan motives) of the Penal Code of Kazakhstan.

On an unspecified date, the author appealed the decision of the Mangistau Regional Court on his conviction to the Supreme Court, which was dismissed on 31 October 2007. The author’s further appeal under the supervisory review procedures was dismissed by the Supreme Court on 11 March 2008.

The State party observes that author’s appeals to re-open his case in view of newly discovered circumstances were assessed by domestic courts: on 15 January 2013, the Specialized inter-district court of Mangistau region refused the author’s appeal; on 7 March 2013 the Mangistau Regional Court upheld the decision of the lower instance court; on 22 May 2013 and 9 February 2015, the author’s further appeals under supervisory review procedures were dismissed by the Supreme Court.

The State party observes that on 30 July 2005, in the recreation center “Montazhnik”, at around 23h00, the author, who was intoxicated by alcohol, entered building N12 with no particular reason and stabbed T.A. on his chest, inflicting serious life-threatening injuries. When G.A. and Y.V., nationals of Belarus, entered that building, they saw the author with a knife in his hand and T.A. sitting on the chair, suffering from a stab wound. Later, at around midnight, the author and his two friends started a fight against six Belarussian nationals residing in the recreation centre. As a result of the incident, several people suffered minor injuries. The State party observes that the author, who was carrying a knife and a firearm (pistol) in his hand, according to Sh.E.’s witness statement, stabbed a Belarusian national, G.A. in his stomach. The latter subsequently underwent a surgery in Mangustau regional hospital.

The State party further observes that the pre-trial investigation collected sufficient pieces of evidence and materials charging the author with the murder of T.A. and were properly apprised at the Regional Court hearing. In this context, the State party refers to witness statements of G.A. and Y.V. who saw that the author and victim were both in building N12, the author was holding a knife in his hand whereas injured T.A, was saying “Amir, why did you stab me?” The witness reports also demonstrated that the author: was dressed in yellow short; holding a knife in his hand throughout the fighting; was the most active participant of the clash. Referring to witness statements of U.T.²⁴ and N.M.²⁵ , the State party observes before he died, that the victim clearly called the authors name in the hospital.

24. The State party refers to the witness report of 22 April 2007 ↩
25. The State party refers to the testimony provided during the Court hearing. ↩

The State party notes that five members of the Police Department, who participated in the investigation of this criminal act, provided their testimonies at the Court and confirmed that the author was the most active participant in the fight. Law enforcement officers informed that they interviewed those involved and collected their accounts of the event, which were subsequently submitted to the investigator M.A. who later destroyed them. In this context, the State party observes that on 29 February 2008, the Aktau City Court sentenced former investigator M.A. to three years of suspended sentence with two years probation period and banned him to hold any governmental position for three years. The City Court established that on 31 July 2005, M.A., as part of the operational investigation group, arrived at the scene of the crime and collected hard evidences, including: curtains, broken chair legs, pieces of broken glass, etc. However, M.A. failed to examine important pieces of evidence as a result of which they were destroyed and lost evidential value: the author’s shorts with blood stains and white t-short were not examined as a material evidence but were handed over to the author’s relatives, the identity of whom could not be established by the Court. In addition, M.A. failed to file a report on seizure of knifes and, with the aim to forge evidence and avoid the author’s criminal conviction, destroyed three witness statements according to which, the author was holding a knife in his hand and wearing yellow shorts during the events.

Referring to the legal proceedings against investigator E.I., the State party observes that procedural violations he committed were not of a nature sufficient to affect the reliability of evidence and to influence the outcome in the Court assessment in relation to the author. It observes that on 17 October 2006, E.I., when completing the witness reports on identification of a person by L.N., Y.A. and L.O. forged signatures of two attesting witnesses, A.N. and Dz.A.²⁶ On 29 August 2012, the Aktau City court found E.I. in violation of article 348 (3) (forged evidence) of the Penal Code and sentenced him to three years suspended sentence. The Supreme Court upheld this decision and dismissed the author’s appeal to re-open the case on newly discovered circumstances noting that E.I. was already convicted for falsification of witness statements. Regarding witness statements collected in Belarus, the State party observes that the Supreme Court accepted them as valid, noting that E.I. was on official trip as per the agreement with the Belarussian side. The State party disagrees with author arguments and observes that there were no discrepancies in the Belarussian account of events that were recorded immediately after the fighting and those collected by investigator E.I. in Belarus.

26. Reference is made to the Examination report N905, dated 16.07.2010 ↩

The State party observes that the domestic courts have established that E.I. never conducted the investigation in Belarus but was present during the interrogations as could be confirmed by the fact that the signature on related witness reports belongs to the Belarussian investigator, P.D. The competent Belarussian authorities took a procedural decision not to open a criminal case against P.D. who later resigned voluntarily from his job. The State party refers to the Supreme court decision under the supervisory review procedure, dated 22 May 2013, and observes that it dismissed the author’s appeal to re-open the case on newly discovered circumstances.

The State party concludes that despite the conviction of two Kazakh investigators, exiting evidential materials on the file were sufficient to confirm the author’s guilt in committing a serious criminal act and upholding earlier ruling on his conviction.

Referring to the author claims that none of the Kazakh nationals testified against the author, the State party observes that witness U.T. and N.M. did hear the victim calling the name of the author shortly before he died in the hospital. The State party notes that U.T. is a family friend of the deceased, and, as as a health care professional, she was able to enter the intensive care room by wearing her white medical coat. The State party further observes that the administrator of the recreation center “Montazhnik”, gave her account of the events, noting that the fight first erupted between two groups of Kazakh nationals, including the author on one side, and the victim on the other, which then grew into a larger fight involving Belarusian nationals. The State party also reiterates that five representatives of the Police Department also provided their account of the author’s active involvement in the fight.

Concerning the author’s claims that the State party failed to ensure the attendance of Belarusian witnesses in the trial, the State party observes that, as per the letter of the Prosecutor of Brest regions, dated 25 June 2007, witnesses G.A., B.M. and Y.V. refused to travel and attend the proceedings in Kazakhstan on various grounds. For example, the State party observes, G.A. could not travel in the given date due to his bad health conditions following his two surgeries. The State party further observes that the Court sent several letters to Belarussian witnesses, notifying them about their appearance in the trial but to no avail. Based on its established legal procedure, the testimonies of these witnesses were read out at the hearing and accepted by the Mangistau Regional Court.

Referring to author’s claim that there were substantial discrepancies in witness statements given by several Belarussian nationals, the State party observes that the domestic Courts have thoroughly assessed all these claims and, based on totality of the evidence presented by all parties, sentence the author to seventeen years of imprisonment.

The State party observes that the author’s claims of violation of his right to fair trial do not have a standing and notes that witness testimonies of those who were not able to attend the trial were read out and appraised by the court.

The State party observes that the author’s right under article 14 (1) of the Covenant have been fully guaranteed and respected. In this context, the State party referred to its national legislation²⁷ and confirmed that the principles of fair trial, equality before courts, right to judicial defense are reflected in the Constitution and the Criminal Procedure Code of the State party. It further observes that the criminal case of the author was considered by competent, independent and impartial court through an open public hearing. The equality of arms principle was fully guaranteed and the court was able to examine all witness testimonies during its hearings.

27. The reference is made to article 13(2), 14(2), 77 of the Constitution, as well as articles 12, 21(2), 23, 24 (3, 4 and 5) and 29(1) of the Criminal Procedure Code of the Republic of Kazakhstan. ↩

Referring to author’s claims under article 14(3)(e), the State party observes that national courts impartially assessed all witness statements and dismisses several of them as they lacked credibility. Testimonies of five witnesses were dismissed due to their inconsistency and because they were the author’s friends, i.e. having personal interest in the outcome of the court proceedings.

Concerning the author’s claims under article 14(2) of the Covenant, the State party observes that as per article 77 of the Constitution, when applying the law, the judge shall be guided by the principles according to which a person is considered to be innocent of committing a crime until his guilt is recognized by the court judgment that has entered into legal force. The author was sentenced to 17 years of imprisonment for violating articles 96 (2)(I) (murder based on hooligan motives) and 103 (2)(k) (intentional and repeated infliction of grievous harm) of the Penal Code of Kazakhstan. The Supreme Court upheld this ruling in its decision of 31 October 2007. From that day the ruling entered into force.

The State party further observes that the author’s right under article 14(5) of the Covenant were also respected and guaranteed by article 31 of the Criminal Procedure Code which states that every convicted or acquitted person shall have the right to reconsideration of the sentence by a higher court. The author’s appeals were considered by appellate instances and under supervisory review procedure.

The State party concludes that the author’s claims of violation of his rights under article 14 of the Covenant are unfounded and should be dismissed.

On 29 January 2016, the author responded to the State party’s observations stating that national authorities acted in contradiction to article 111²⁸ and 112²⁹ of the Criminal Procedure Code. In this context, the author notes that the Supreme Court, by refusing to re-open the case on newly discovered circumstances, failed in reviewing the facts of falsification of witness statements, particularly those collected in Belarus, i.e. G.A., Sh.E. and Y.V. and revealed as a result of the investigation conducted by the Belarussian authorities. The author also reiterates that: G.A. said that he did not remember who stabbed him in his stomach, and that he could not identify the perpetrator since he lost conscience right after the accident, and that he never mentioned in his testimony such sentence as “Amir, why did you do this to me”; Y.V.’s statements were of similar nature, which could be confirmed by his letter to the Chairman of the Commission on Criminal Affairs under the Supreme Court of Belarus, dated 30 September 2007, where he denied hearing the victim calling the author’s name³⁰, whereas Sh.E. did not even sign the investigation report presented by Kazakh investigator since it contained incorrect information.

28. The Article 111, inter alia, reads “The evidence in criminal case is legally obtained evidence on the basis of which in the manner, provided for in this Code the body of inquiry, interrogating officer, investigator, procurator, the court establishes the presence or absence of the act, provided by the Criminal Code of the Republic of Kazakhstan, the commission or omission of an act by the suspected, accused or the defendant, his (her) guilt or innocence, as well as other circumstances relevant for the proper resolution of the case”. ↩
29. The Article 112, inter alia, reads “The evidence must be declared not admissible as evidence, if they are obtained in violation of this Code, which, through deprivation or restraint of the legally guaranteed rights of participants in the proceedings or in violation of other rules of criminal procedure in pre-trial investigation or judicial proceedings had, or could affect the reliability of the evidence…” ↩
30. The author provided a copy of this letter. ↩

The author refers to State party’s observation where it said that G.A. and Y.V. saw the author standing by the wounded victim in building N12, and contends that this statement was not corroborated by the testimony of L.O.,³¹ who testified that he entered the building before the two witnesses.

31. The author notes that this witness statement was recorded on the video. ↩

The author submits that although he participated in the fight, as many others did, this could not be used as a proof of his guilt in committing a murder. Therefore, the State party’s statement about author’s active participation in the fight with a knife in his hands, as presented by several witnesses, including five policemen,³² cannot be used as a confirmation of his guilt.

32. The author underlines that these policemen did not witness the fighting but filed police reports of witness accounts of the event. ↩

He further argues that, while the Court accepted the witness statements by U.T. and N.M., who are close family friends of the victim, it dismissed authors’ witness statements arguing that they were inconsistent and presented by interested persons. The author submits that these two persons indeed arrived in the hospital, however their accounts of overhearing the victim calling the name of the author are very arguable.

The author maintains that national courts failed to assess existing substantial discrepancies in the witness statements and to re-open his case on newly discovered circumstances, and that by doing this the State party violated his rights under articles 14 (1), (2), (3)(e) and (5) of the Covenant.

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.

The Committee notes the author’s claim that his rights under article 14(2) of the Covenant have been violated because the court erred in sentencing the author for criminal acts that he did not commit and failed to re-open the case on newly discovered circumstances. In the absence of any other pertinent information in that respect on file, however, the Committee considers the author has failed to sufficiently substantiate that claim for purposes of admissibility. Accordingly, it concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.

The author further claims that his right under article 14(5) of the Covenant have been violated because his conviction was not reviewed by a higher tribunal to adjudicate the newly discovered facts. The Committee, however, notes that the review panel of the Supreme Court did consider the author’s appeal. Accordingly, it concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.

The Committee considers that the author has sufficiently substantiated his remaining claims under articles 14 (1) and (3)(e) of the Covenant for the purposes of admissibility. It therefore declares them admissible and proceeds with examination of the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

The Committee notes that author’s claims that the State party has violated his rights under article 14(1) of the Covenant since national Courts ignored the significant discrepancies in statements of Belarussian witnesses, falsification of which was confirmed by the Belarussian authorities. He alleges that the State party failed to ensure the participation of Belarusian witnesses at the court hearing and assessed their read-out statements thus allowing falsified reports at the proceedings. The Court’s reliance on falsified statements against him had a direct bearing in the decision of the Court which convicted him to 17 years of prison for causing the death of T.A.

The Committee notes the State party observations that on 5 September 2007, the Mangistau Regional Court sentenced the author to 17 years of imprisonment for violating art 96 (2)(i) (murder with hooligan motives) and 103 (2)(g) (deliberate infliction of grievous harm to health committed with hooligan motives) of the Penal Code of Kazakhstan. The Committee also notes State party’s observations that on 30 July 2005, in the recreation center “Montazhnik”, the author and his friends engaged in a fight with other residents, including Kazakh and Belarussian nationals, as a result of which, T.A, was killed, whereas several other people received minor bodily injuries. The Committee further notes that according to the State party, two Belarussian nationals, G.A. and Y.V., were at the scene of the crime when they entered the building N12 and saw the author with a knife in his hand and T.A. sitting on the chair, who was suffering from a stab wound and, at the same time, calling the author’s name. The Committee further notes the State party’s observations that the author was the most active participant of the fighting as was testified by several witnesses.

Regarding witness statements collected in Belarus, the Committee notes that the Supreme Court accepted them as valid, because investigation was conducted by the Belarussian investigator, which could be confirmed by his signatures on the witness reports.

The Committee notes that in investigating the author’s case, three investigators violated their national legislation, as a result of which: on 29 February 2008, the Aktau City Court sentenced M.A. to three years of suspended sentence; on 29 August 2012, the Aktau City court found E.I. in violation of article 348 (3) (forged evidence) of the Penal Code and sentenced him to three years suspended sentence; following the investigation conducted by competent Belarusian authorities, the Belarus Public Prosecutor imposed disciplinary reprimand on P.D.. As it transpires from the materials on the file, in investigating the author’s case, important evidential materials were destroyed, several witness statements were falsified, thus adding to the complexity in investigating and adjudication of the case at the national level.

The Committee notes that article 14 of the Covenant guarantees procedural equality and fairness. The Committee recalls its jurisprudence according to which it is incumbent on the courts of State parties to review facts and evidence in each case, or the application of domestic legislation, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice.³³ The Committee notes that following the author’s conviction on 5 September 2007, the State party’s judicial authorities established that three witness statements used as a basis for his conviction (those of L.O., L.N. and Y.A.) had been falsified.³⁴ The Committee further notes that it transpires from the case file before it that investigative authorities of the State party, acting jointly with investigative authorities of Belarus, collected evidence suggesting that three other witness statements used as a basis of the author’s conviction (those of G.A., Sh.E. and Y.V.) may also have been falsified.³⁵

33. General Comment No. 32 (2007), CCPR/C/GC/32, para. 39; Suleymanova and Israfilova v. Azerbaijan, CCPR/C/133/D/3061/2017, paras 7.2., 7.3.; Manzano and others v. Colombia, CCPR/C/98/D/1616/2007 para. 6.4. ↩
34. Judgement of 29 August 2012 of the Court of Aktau in E.I.’s criminal case. ↩
35. Criminal indictment of E.I. by the Public Prosecutor’s Office of Mangistau of 30 July 2012. ↩

With regard to the author’s claim that the State party has violated his rights under article 14 (1), the Committee notes that the author appealed to the Supreme Court requesting to have his case reopened in light of these newly discovered circumstances under article 471 of the Criminal Procedure Code. The Committee further observes that in its order of 22 May 2013 refusing to re-open the author’s criminal case on newly discovered circumstances, the Supreme Court stated that the author’s criminal conviction had found its basis in testimonies of the six aforementioned witnesses, acknowledged falsification of three of those testimonies and refused to take into consideration evidence suggesting probable falsification of the remaining three. By doing so, the Supreme Court failed to draw relevant legal conclusions from the evidence of the irregularities brought before it. The allegations presented by the author and not rebutted by the State party therefore meet the threshold of manifest error or denial of justice established by the Committee. Consequently, the Committee considers that the facts of the case amount to a breach of the basic guarantees of a fair trial under article 14 (1).

Regarding the author’s claim under Article 14 3(e) (see para. 3.3), the Committee notes that it transpires from the material before it that the author did not have a possibility to cross-examine several key witnesses whose testimony was essential for his defence, since they were not present at the trial, whereas their statements were read out at the hearing. The Committee recalls that according to its General Comment No. 32, as an application of the principle of equality of arms, the right of accused persons to examine, or have examined, the witnesses against them, guaranteed by article 14 (3)(e) of the Covenant, is important for ensuring an effective defence by the accused and their counsel. Under this provision, the accused persons have a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.³⁶ The Committee observes that the author has not been offered an opportunity to cross-examine several key witnesses whose statements have been essential for his defence. Therefore, the Committee finds a violation of article 14 (3)(e) of the Covenant.

36. General Comment No. 32 (2007), CCPR/C/GC/32, para. 39. ↩

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 14, paragraph 1 and 3 (e), of the International Covenant on Civil and Political Rights.

In accordance with 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 to, inter alia, take appropriate steps to: (a) conduct a new trial, subject to the principles of fair hearings and other procedural safeguards; and (b) provide the author with adequate compensation. The State party is also under an obligation to take steps to prevent similar violations 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 and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable 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. The State party is also requested to publish the Committee’s Views and to have them widely disseminated in the official language of the State party.