Darya Kvasha v. Belarus

The author of the communication is Darya Kvasha, a national of Belarus born in 1981. She claims that the State party has violated her rights under articles 7, 9 and 10 of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The author is not represented by counsel.

On 11 August 2011, pursuant to rule 93 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, decided to examine the admissibility of the communication separately from the merits.

On 6 July 2012, the Committee, acting under article 4 (2) of the Optional Protocol and rule 101 (2) of its rules of procedure, concluded that the author’s claims under articles 7, 9 and 10 of the Covenant were admissible and discarded the State party’s arguments on failure to exhaust domestic remedies under article 5 (2) (b) of the Optional Protocol. The Committee requested the State party to submit information on the merits of the claims.

The present communication was submitted for consideration before the State party’s denunciation of the Optional Protocol became effective, on 8 February 2023. In accordance with article 12 (2) of the Optional Protocol and the Committee’s previous case law, the State party continues to be subject to the application of the Optional Protocol in respect of the present communication.⁴

4. See, for example, Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; Lobban v. Jamaica (CCPR/C/80/D/797/1998), para. 11; and Shchiryakova et al. v. Belarus (CCPR/C/137/D/2911/2016, 3081/2017, 3137/2018 and 3150/2018). ↩

On 18 April 2010, around midnight, the author was arrested by three police officers at her home following a complaint by her husband about her aggressive behaviour, informing the police that she had threatened him with a kitchen knife. She demanded to know on what charges she was being arrested, but received no answer. She was taken to Police Station No. 2 in Minsk. According to the information on file, the author was arrested under article 17 (1) (petty hooliganism) of the Code of Administrative Offences. According to the interrogation report dated 18 April 2010, the author gave written explanations on the merits of the allegations against her and confirmed that, in the course of a dispute with her husband, she had behaved inappropriately and verbally abused him. She said that she fully admitted her guilt and was aware of the acts that she had committed.

At the station, a male police officer conducted a body search, in the absence of any female staff, and touched her, including on her private/intimate parts, which was particularly humiliating for her. She was placed in a room with a metal-barred door. The author continued to express her indignation and to ask about the reasons for her arrest. The officers told her to keep quiet and that they would find charges to keep her in detention if necessary. Since she continued to demand to be released, she was subjected to various forms of ill-treatment: her hands were cuffed behind her back and she was gagged with a dirty rag and splashed with cold water. At one point, she was dragged by her hair to another cell with a metal door. At some point, the officers removed the handcuffs, slapped her, forced her to lie face down on the floor, cuffed her hands behind her back again and tied her legs together with a belt. The author was kept in detention until 9 a.m. the next day.

A medical examination carried out on 20 April 2010 identified several circular bruises on the author’s arms with minor bodily injuries.⁵ On 28 April 2010, the author complained to the Office of the Prosecutor about her unlawful arrest and ill-treatment by the police officers. The Frunze District Senior Deputy Prosecutor in Minsk conducted an investigation following her complaint and questioned the arresting police officers and the duty officers in the police station who were present on the night of her arrest. They testified that the author had used abusive language, resisted arrest and refused to come to the police station voluntarily, and that they had had to use physical restraint to control her. On the basis of the investigation findings, the Prosecutor concluded that the use of force and restraint measures by the police officers had been lawful under articles 22–28 of the Law on Police⁶ and that the attested bodily injuries could have been sustained by the author because of her violent behaviour as well as in the course of police attempts to control her aggressiveness. On 28 May 2010, the Prosecutor refused to initiate criminal proceedings against the police officers for lack of evidence.⁷

5. A copy of the medical report was provided by the author. ↩
6. These provisions refer to the circumstances in which the use by the police of physical force, special restraint measures, firearms and other special techniques is authorized. ↩
7. A copy of the six-page decision is on file. According to the decision, the author’s husband stated that, when he returned home on the evening of 18 April 2010, he was verbally abused by his wife, who also threw his backpack into the street from the balcony. He called the police in order to calm her down, but she continued to insult him in the presence of the police officers. After taking written statements from him, the police officers left. His wife then waved a kitchen knife in his face, causing him cuts on his arms. He called the police for the second time; they took statements from him, while his wife was trying by all means to prevent him from speaking to the officers. Thereafter, the officers invited his wife to follow them to the police station in order to elucidate the circumstances of the incident, and she categorically refused. The police officers stated that the author categorically refused to follow them to the police station after it was explained to her that she was under arrest. She was, therefore, handcuffed and taken to the patrol car. She continued to behave aggressively and started to kick the car window and the officers were obliged to use physical force by holding her legs in order to stop her. Upon arrival at the police station, the author refused to get out of the car, so the officers took her out of the car by force. When she refused to walk independently, they took her by the arms and legs and onto the police station premises. When she calmed down, the officers removed the handcuffs and informed her that she would be released in the morning after the examination of the report on the commission of an administrative offence. The author was left alone and, shortly afterwards, she started to shout and swear at the police officers, hitting the bars of the cell and spitting. She was asked to calm down, but she behaved violently the whole night, so she was moved to a closed cell with a metal door, where she continued to hit the door. The officers testified that the author had not been beaten by any of them, as alleged. Physical force and special measures of restraint (handcuffs) were used in order to stop her violent behaviour. In order to prevent the author from self-inflicted harm during her violent behaviour, the officers decided to make use of special measures of restraint (binding), as duly recorded. With regard to the body search, the police officer explained that the author was invited to empty her pockets. She refused to do so but, 20 minutes later, put all the items on the table. ↩

The author appealed the decision of the Frunze District Senior Deputy Prosecutor to the Frunze District Prosecutor, who upheld the decision on 23 June 2010. On 17 August 2010, the Minsk City Office of the Prosecutor reversed the decision on the refusal to initiate criminal proceedings and referred the author’s case back to the Frunze District Office of the Prosecutor for a new investigation. On unspecified dates, the Frunze District Prosecutor once again refused to open criminal proceedings against the police officers. The author’s appeals of the new decision to refuse the initiation of criminal proceedings were rejected by the Minsk City Office of the Prosecutor on 30 September and 15 November 2010.

In addition to the investigations carried out by the Office of the Prosecutor, the author’s allegations of ill-treatment were investigated by the Frunze District Department of the Interior and the Division of Internal Security of the Ministry of the Interior. They both came to the conclusion that the use of force by the police officers had been justified under the Law on Police.

The author claims that her rights under articles 7, 9 and 10 of the Covenant were violated. She maintains that the police officers arrested her without legal grounds and that they subjected her to humiliating and degrading treatment. She also maintains that the verification conducted by the prosecutor was purely formal and biased.

After the transmittal of the admissibility decision on 30 July 2012, the State party was reminded to submit its observations on 23 November 2021 and 22 September 2022. The State party has not submitted any observations on the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the allegations of the author that she was ill-treated and humiliated by the police officers upon her arrest (see para. 2.2 above), in violation of article 7 of the Covenant. The Committee notes that, in order to fall under article 7 of the Covenant, the treatment must achieve a certain level of severity and that the nature and purpose of the treatment are two other decisive elements in establishing whether article 7 can be involved.⁸ In the present case, the nature and purpose of the treatment were established during the preliminary investigation of 28 May 2010 conducted by the Frunze District Senior Deputy Prosecutor in Minsk (see para. 2.3 and footnote 4 above). According to that decision, the police officers were compelled to use force in order to arrest the author and take her to the police station while she was violently resisting arrest. They then had to handcuff her and lock her in a cell with a metal door because she was shouting, hitting herself and spitting. The investigation found that the police officers had acted lawfully under the domestic legislation regulating the use of force by the police.

8. General comment No. 20 (1992), para. 4. ↩

The Committee notes, therefore, that the use of force and the restrictive measures (handcuffs and locking behind a metal door) were necessary because of the author’s own violent behaviour and resistance to arrest. As to the severity of the treatment, there is no convincing evidence before the Committee, including the medical report on file, that the force used by the police was excessive and caused the author physical or mental suffering that would amount to the level prohibited by article 7. The Committee therefore decides that the facts as submitted by the author concerning her treatment by the police officers do not reveal a violation of her rights under articles 7 and 10 of the Covenant.

The Committee notes the author’s allegation that she was arrested arbitrarily in violation of article 9 of the Covenant. From the information available to it, the Committee notes that the author was arrested after a physical altercation with her husband, after her husband called the police for the second time the same night, alleging that the author was threatening him with a kitchen knife. According to the interrogation report of 18 April 2010, the author admitted her guilt (see para. 2.1 above). The basis for her arrest was article 17 (1) (petty hooliganism) of the Code of Administrative Offences. She was released the morning after the arrest, after the police had examined the allegations against her. The Committee notes that the information provided by the author in support of her allegations does not indicate that there was a violation of article 9 of the Covenant.

In its admissibility decision, the Committee raised the question of a possible violation of article 3⁹ but in view of the absence of any additional information, the Committee decides not to consider that aspect separately.

9. See Kvasha v. Belarus (CCPR/C/105/D/2065/2011), para. 7 (b). ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses that there has been no violation by the State party of the author’s rights under articles 7, 9 and 10 of the Covenant.