The author of the communication is Aleksandr Simekha, a citizen of Kyrgyzstan born in 1982. He claims that the State party has violated his rights under article 7, read alone and in conjunction with article 2 (3), and article 14 (3) (g), of the Covenant. The Optional Protocol entered into force for the State party on 7 January 1995. The author is represented by counsel.
Facts as submitted by the author
On 9 June 2009, the author was visited at his home by two police officers. They told him that he needed to come with them to a police station. However, halfway to the station, they told him that he was free to go, as it was no longer necessary to take him there. Shortly after being dropped off, the author was approached in a car by another police officer, who told him that he was ordered to bring the author to Sokuluk District Police Department for a conversation. The author agreed, but after arriving at Sokuluk District Police Department, he was arrested and placed in a temporary detention facility. On 10 June 2009, he was taken to Sokuluk District Court, charged with public intoxication, and was sentenced to 10 days of administrative arrest.4
- The author submits a copy of the court decision. ↩
On the evening of 10 June 2009, several police officers came into the author’s cell and began asking him questions about his niece who had committed suicide a few days earlier. They threatened him and demanded that he confess to raping her before her death. After he refused to make such a confession, they beat him up, inflicting blows to his head and body. They told him that since he had a prior conviction, it would be easy to convict him for the rape and that there was a lot of evidence against him.
On 11 June 2009, the author was taken to a room at the police station and interrogated for about two hours about the rape. He was told to think hard about confessing, and that he would definitely go to prison for the rape. On 12 June 2009, the author was taken to the same room at the police station, where three police officers subjected him to beatings, demanding that he confess. On 13 June 2009, he was again taken to the same room and was asked if he was ready to sign his confession. After he refused, he was beaten by one of the officers, who punched and kicked him, aiming at his kidneys, and also hit him in the head with a book and a plastic bottle filled with water. The author does not remember how long he was tortured, because at some point he started experiencing epileptic seizures from the beatings. Unable to withstand the headache from the beatings and seizures, the author agreed to sign a confession. One of the officers then gave him a pen and paper and dictated the text of the confession, while another officer brought two unknown men into the room who signed witness statements confirming that the author had given the confession voluntarily. After signing the confession, the author was returned to the temporary detention facility, where he later started feeling sick from the beatings, which made it necessary to call an ambulance. The author does not remember what type of treatment he was given by the ambulance’s medical personnel. On 14 June 2009, the author’s health condition did not improve and he was taken to the local hospital where he was kept overnight for treatment. According to the hospital medical documents dated 15 June 2009, he was diagnosed with bruising of the soft tissue on his head and left ribs. On 15 June 2009, the author was returned to the temporary detention facility.
On 2 October 2009, Sokuluk District Court found the author guilty of the rape of a minor and sentenced him to 20 years in prison. On 11 October 2009, the author appealed the verdict to Chuy Regional Court. In the appeal, he argued that the trial court, inter alia, erred in admitting as evidence the confession that he gave under torture.
On 17 November 2009, Chuy Regional Court upheld the decision of the trial court. The appellate court noted that the confession was written in the presence of the author’s lawyer and that in the confession the author indicated that he was making it voluntarily without being under duress. The court also noted that contrary to his allegations of beatings, the forensic medical examination of the author, conducted on 19 June 2009, did not reveal any injuries to his body.5
- This author provides a copy of this medical examination, however he does not explain why its results differ from other medical documents. ↩
On 19 November 2009, the author submitted a request for a supervisory review to the Supreme Court. He argued that the lower courts had erroneously held that on 11 June 2009, he had voluntarily come to Sokuluk District Police Department with a confession about raping his niece several days earlier, whereas he had been detained by the police at his home on 9 June 2009 and later sentenced to 10 days of administrative arrest for public intoxication, during which he had been tortured and forced to confess to a crime that he had not committed. On 28 January 2010, the Supreme Court agreed with the conclusions of the lower courts and upheld the author’s verdict.
On 23 November 2009, the author submitted a complaint to the Office of the Prosecutor General about the torture he had suffered while in detention at Sokuluk District Police Department. On 25 November 2009, the complaint was forwarded to Sokuluk District Prosecutor’s Office, which only interviewed two officers from Sokuluk District Police Department and, on 5 December 2009, refused to open a criminal investigation due to a lack of corpus delicti in the actions of the police.
On 21 February 2012, the author’s new counsel submitted a new complaint to the Office of the Prosecutor General. The complaint was forwarded to the internal investigations department of the Ministry of the Interior for further investigation. The conclusions of the internal inquiry were forwarded to Sokuluk District Prosecutor’s Office, and on the basis of those conclusions, on 17 April 2012, the Sokuluk District Prosecutor quashed the refusal, dated 5 December 2009, to open a criminal investigation. He also ordered a new forensic medical examination of the author’s injuries on the basis of the medical records made during his detention in June 2009.
On 27 April 2012, without waiting for the results of the forensic medical examination, the Sokuluk Assistant District Prosecutor refused to open a criminal investigation into the beatings. On 2 May 2012, the Sokuluk District Prosecutor quashed the refusal, due to the absence of results of the forensic medical examination, and sent the case for additional inquiry.
On 12 May 2012, the Sokuluk Assistant District Prosecutor again refused to open a criminal investigation. In his decision, the assistant prosecutor only referred to the author’s confession, the results of the forensic medical examination, and the testimony of one of the officers from Sokuluk District Police Department who denied the author’s claims of torture. The forensic medical examination revealed that the author had suffered bruising to his head and chest which could be qualified as mild harm but which did not impair his health.
On 17 May 2012, the Sokuluk District Prosecutor quashed the refusal, noting that the assistant prosecutor’s decision was premature and unsubstantiated, and that a more thorough inquiry was necessary, which would include the questioning of another police officer, before a final decision could be made. On 27 May 2012, upon questioning the said police officer, the Sokuluk Assistant District Prosecutor refused once again to open a criminal investigation.
On an unspecified date, the author appealed the latest refusal by the Sokuluk Assistant District Prosecutor to open a criminal investigation, to Sokuluk District Court. On 3 September 2012, the Court denied the author’s appeal. On 26 November 2012, Chuy Regional Court upheld the lower court’s decision. On 26 February 2014, the Supreme Court denied the author’s appeal for a supervisory review.
The author submits that all available domestic remedies have been exhausted.
Complaint
The author claims that he has suffered torture and ill-treatment at the hands of the police and that the State party has failed to effectively investigate his complaints, in violation of article 7, read alone and in conjunction with article 2 (3), of the Covenant. The author notes that his complaints against the police were forwarded by the Office of the Prosecutor General for the investigation to Sokuluk District Prosecutor’s Office, the same office that prosecuted him in the rape trial. He also notes that during the enquiries, the Prosecutor’s Office never interviewed him, or the doctors who had treated him for the injuries sustained during the beatings, or potential witnesses who could have seen him being taken away by the police on 9 June 2009, and, most importantly, never reflected in its decisions or explained the fact that the author was already in detention starting from 9 June 2009 when the confession was obtained on 11 June 2009.
The author submits that while in detention on 11 June 2009, he was tested for alcohol, and the doctor who performed the procedure clearly indicated in her report that he was “untidy, but did not have any injuries or bruises”. The injuries sustained from the torture were later documented by the following medical documents: (a) an extract from the Sokuluk district hospital, dated 15 June 2009, noting that the author had bruising of the soft tissue on his head and left ribs; (b) a letter dated 6 August 2009 from the medical ward of the pretrial detention facility where he was kept before trial, which stated that the author had complained of a headache due to beatings suffered at Sokuluk District Police Department and had bruises on his left shoulder and left thigh; (c) a letter dated 29 June 2015 from the Centre for Family Medicine, in the Sokuluk district, confirming that on 14 June 2009 an ambulance was called to Sokuluk District Police Department for the author and he was diagnosed with two broken ribs and potentially concussion, with a recommendation that he see a surgeon; and (d) a forensic medical examination report, dated 20 April 2012, which concluded that based on the medical documents from the time of his detention, the author had suffered bruising of the soft tissue on his head and left ribs which could have been caused by a blunt hard object during the time of his detention at Sokuluk District Police Department.
The author also claims a violation of his rights under article 14 (3) (g) of the Covenant, given that he was forced to confess under torture. His confession was admitted as evidence by the trial court and served as the basis for his conviction. Although he consistently objected to the admission of the forced confession into the evidence and complained about the torture before the trial court and at the appeals, his complaints were not taken into consideration.
The author asks the Committee to establish a violation of the above-mentioned articles of the Covenant and to recommend that the State party provide an effective remedy, namely by conducting an investigation into the torture and, if it is confirmed, having those responsible prosecuted and adequately punished; by reopening the criminal proceedings against him and excluding his confession from the evidence; and by providing him with full and adequate compensation and rehabilitation. Finally, the author asks that measures be taken to prevent the occurrence of similar violations in the future.
State party’s observations on the merits
In a note verbale dated 10 March 2019, the State party submitted its observations on the merits of the communication. The State party notes that on 2 October 2009, the author was found guilty by Sokuluk District Court of the rape of a minor resulting in particularly grave consequences. The conviction stems from the death of a minor who committed suicide on 1 June 2009. The State party refers to the results of the forensic medical examination, which concluded that the victim was sexually assaulted shortly before her death. The examination also determined that samples of the antigens discovered on the victim’s body during the autopsy did not exclude the author as their potential source.
The State party further notes that on 30 November 2009, the author submitted a complaint to Sokuluk District Prosecutor’s Office about physical and psychological illtreatment suffered at the hands of the police at Sokuluk District Police Department. The forensic medical examination of the author showed that he had suffered bruising to his head and the left side of his chest, which had caused mild harm to his health. Several inquiries were conducted by Sokuluk District Prosecutor’s Office, however all of them resulted in refusals to open a criminal investigation against the police. The last refusal, of 27 May 2012, was appealed by the author to the domestic courts, but was upheld, in the last instance, by Chuy Regional Court on 26 November 2012.
According to the State party, all enquiries concluded that the author had voluntarily come to Sokuluk District Police Department on 11 June 2009 to confess to raping the victim 10 days before her death. The State party notes that during the inquiries, the police officers who were questioned in relation to his torture claims denied exerting any pressure on the author and stated that the author was at all times accompanied and assisted by a lawyer. It also notes that the author’s sister testified that several days before her death, the victim told her that she had been raped by the author, which was confirmed by the author during their confrontation during the pretrial investigation.6
- According to the excerpt from the court records provided by the author, the mentioned witness testified in court that during the pretrial investigation, she was threatened by the police and coerced into providing false testimony about being previously raped by the author. There is no mention of this testimony in any of the domestic courts’ decisions. ↩
With regard to the forensic medical examination of the author’s injuries, the State party submits that it was conducted on the basis of the medical documents issued at the time of the author’s detention, which made it impossible for the experts to identify the specific mechanism of how those injuries were caused, and resulted in sparse and vague descriptions of the injuries.
The State party notes that in accordance with an order of the Sokuluk District Prosecutor dated 2 May 2018, all documents relating to the author’s complaint against the police were destroyed due to the expiry of their storage time in the archives.
The State party informs the Committee that on 3 April 2019, the Supreme Court reduced the author’s sentence to 15 years in prison.
Author’s comments on the State party’s observations on the merits
On 19 November 2020, the author submitted his comments on the State party’s observations. He rejects the State party’s assertion that he voluntarily went to Sokuluk District Police Department on 11 June 2009 to confess to rape. He reiterates that on 9 June 2009, he was sentenced to 10 days of administrative arrest by Sokuluk District Court, and that his confession was obtained by means of torture at Sokuluk District Police Department.
The author draws the Committee’s attention to the fact that the State party does not explain the injuries that are reflected in various medical documents received at the time of his detention. He notes that instead, in its observations, the State party describes the charges and the decisions of the domestic courts in the criminal case against him as if to justify the unlawful actions and violence by the police.
The author finds it shocking that the State party allowed the destruction of all documents relating to his complaint against the police a year after the registration of his communication by the Committee. He considers this to be an indicator of the State party’s unwillingness to critically analyse the work of its law enforcement bodies and courts.
Consideration of admissibility
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 he has exhausted all available legal domestic remedies. In the absence of any objection by the State party in that connection, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the communication.
The Committee considers that the author has sufficiently substantiated his claims under article 7, read alone and in conjunction with article 2 (3), and article 14 (3) (g), of the Covenant for the purposes of admissibility. It therefore declares those claims admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that, on 9 June 2009, he was brought to Sokuluk District Police Department and placed in a temporary detention facility. On 10 June 2009, he was taken to Sokuluk District Court, charged with public intoxication and sentenced to 10 days of administrative arrest. Between 10 and 13 June 2009, the author on numerous occasions was subjected to beatings by several police officers for refusing to confess to raping his niece who later committed suicide. According to the author, the police officers punched and kicked him, aiming at his kidneys, and also hit him in the head with a book and a plastic bottle filled with water. At some point, the author started experiencing epileptic seizures from the beatings, and being unable to withstand the pain, confessed to the rape. The Committee observes that the author has submitted a detailed account of the treatment to which he claims he was subjected, with supporting medical evidence. According to several medical reports provided by the author (see para. 3.1 above), he was diagnosed with bruising of the soft tissue on his head, left ribs, left shoulder and left thigh, and a possible concussion. The Committee also notes the State party’s argument that several inquiries were conducted by Sokuluk District Prosecutor’s Office into the author’s allegations of torture, which concluded that the author had voluntarily come to Sokuluk District Police Department on 11 June 2009 to confess to raping the victim 10 days before her death. The State party also submitted that during the inquiries, the questioned police officers denied exerting any pressure on the author and stated that the author had at all times been provided with a lawyer.
The Committee recalls that a State party is responsible for the security of any person it holds in detention and, when an individual in detention shows signs of injury, it is incumbent on the State party to produce evidence showing that it is not responsible.7 The Committee has held on several occasions that the burden of proof in such cases cannot rest with the author of a communication alone, especially considering that frequently only the State party has access to the relevant information.8 In this regard, the Committee regrets the destruction by the State party of all documents relating to the author’s complaint against the police a year after the registration of the present communication by the Committee. In the absence of any specific arguments by the State party to counter the claims made by the author, the Committee decides that due weight must be given to the author’s allegations.
With regard to the State party’s obligation to properly investigate the author’s claims of torture, 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.9 The Committee also recalls that once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially so as to make the remedy effective.10
The Committee notes that, in the present case, the initial complaint about the torture suffered by the author was raised during his trial at Sokuluk District Court, and the formal complaint was submitted to the Office of the Prosecutor General on 23 November 2009. The Committee observes that the first refusal to open a criminal investigation into the author’s allegations was issued by Sokuluk District Prosecutor’s Office on 5 December 2009, before the author was medically examined for his injuries, and based only on the testimonies of two police officers against whom the author had submitted his complaint, who denied any use of force. The Committee also observes that following the author’s appeals, there were at least three more inquiries by Sokuluk District Prosecutor’s Office into the author’s allegations of torture, each ending with a refusal to open a criminal investigation. In this regard, the Committee notes the author’s argument that, despite repeated orders for additional inquiries, the Prosecutor’s Office never questioned the author himself, the doctors who treated him for the injuries sustained during the beatings, or potential witnesses who could have seen him being taken away by the police on 9 June 2009, and nor did it ever reflect or explain in its decisions the fact that the author was already in detention starting from 9 June 2009. Accordingly, the Committee concludes that the facts before it disclose a violation of the author’s rights under article 7, read alone and in conjunction with article 2 (3) (a), of the Covenant.
The Committee recalls its previous jurisprudence that the provision in article 14 (3) (g) of the Covenant that, in the determination of any criminal charge against him or her, everyone shall be entitled not to be compelled to testify against himself or herself or to confess guilt, must be understood in terms of the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused with a view to obtaining a confession of guilt.11 The Committee also recalls that, in cases involving allegations of forced confessions, the burden is on the State to prove that statements made by the accused have been given of their own free will.12 The Committee notes that the court used the author’s confession, among other evidence, in finding him guilty, despite his contention that the confession had been obtained under duress. In the circumstances of the present case, the Committee concludes that the facts before it disclose a violation of article 14 (3) (g) of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State party of the author’s rights under article 7, read alone and in conjunction with 2 (3) (a), and article 14 (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: (a) to conduct, if necessary, a new trial, in accordance with the principles of fair hearings and other procedural safeguards provided by the Covenant; (b) to conduct a prompt and impartial investigation into the author’s allegations of torture and, if the allegations are confirmed, to have the persons responsible prosecuted; and (c) to provide the author with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from 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 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 present Views and to have them widely disseminated in the official languages of the State party.