Spartak Kletsov v. Kazakhstan

The author of the communication is Spartak Kletsov, a citizen of Kazakhstan born in 1979. He claims that the State Party has violated his rights under articles 2 (3) (a)–(c), 7, 9 (1) and (2), 10 (1) and 14 (3) (b), (d) and (g) of the Covenant. The Optional Protocol entered into force for the State Party on 30 September 2009. The author is represented by counsel.

On 22 September 2010, an armed robbery took place in an apartment of the author’s former employer in Taraz, Kazakhstan, during which four people were shot. Three of them died. The fourth victim survived and identified the author as the perpetrator of the crime. On 23 September 2010, the author saw a television announcement concerning the crime in which he was identified as a suspect. The author was on parole at that time and decided to escape from Taraz. On 24 September 2010, Taraz City Court No. 2 issued an arrest warrant and authorized his arrest on the grounds that he was accused of committing multiple murders and had absconded while on parole.

On 25 September 2010, at about 8 a.m., the author was arrested in Shymkent. At about 4p.m. on the same day, he was taken to the Zhambyl Regional Department of the Interior in Taraz, where a police officer interrogated him about his involvement in a criminal group operating in the region. After the interrogation, several police officers drove him to the outskirts of the town where they beat him, fired gun shots past his legs and threatened to kill him if he refused to confess to the murder. After a while, the officers brought him back to the police station.

At about 8 p.m. on 25 September 2010, the author was taken to a temporary detention facility in Taraz. The administration of the facility refused to admit him because of injuries to his face. At 8.50 p.m. he was examined by the facility’s medical specialist. Bruises on his head, neck and torso and abrasions on his head were recorded. Police officers were present during the medical examination.

Following the medical examination, the officers took the author into a room in the detention ward, where they hit him with a heavy book several times on his head. The author lost consciousness. The beating lasted until 2.30 a.m. on 26 September 2010. At about 2.50 a.m., the author was taken to another room for a face-to-face confrontation with three witnesses, which lasted until 4 a.m. The beating continued the next day. The police officers hit him on his head again with a book, strangled him with their hands, put a plastic bag over his head and threatened him with sexual violence. The officers then gave him several pages of printed confession that they forced him to read. His reading of the confession was recorded on video.

The author informed his legal aid counsel about the ill-treatment; however, the latter did not take any measures in relation to the matter. On 28 September 2010, the author orally complained to a specialized prosecutor about the ill-treatment, but no further enquiry was made.

On 27 September 2010, the author was transferred to a pretrial detention facility in Taraz, which refused to admit him because he had physical injuries that had not been recorded in the medical certificate issued by the temporary detention facility. The author was taken to Taraz city hospital No. 1 for an examination. In medical report No. 13723, it was noted that the author had bruises and a haematoma on his face, abrasions on his right foot, bruises, and a haematoma and abrasions on the left side of his chest. He was then taken to the pretrial detention facility and examined by a medical specialist there. The following injuries were recorded: contusions on the back, left hip and right shoulder, a haematoma on the right eye and a 5-cm cut on the lower part of his left leg.

In the pretrial detention facility, the author was placed in a disciplinary cell, where there were no windows and no heating. He complained to the centre administration and asked to be transferred to another, warmer, cell. On 8 October 2010, his request was granted. Subsequently, he was placed in the disciplinary cell for the period starting from the end of his trial until his transfer to a corrections facility. The cell was allocated to people convicted for life, which violated the presumption of innocence.

The term of the author’s detention on remand was extended on several occasions. The decisions on the matter were taken in his absence; he was never brought before a competent judge. Furthermore, no official decision on his detention was ever provided to him, preventing him from lodging a complaint about the lawfulness of his deprivation of liberty.

On 20 November 2010, the author was officially charged with aggravated murder, attempted murder, robbery and unlawful possession of firearms. On 3 February 2011, the author was beaten up by three other detainees at the trial court holding cell while waiting for the hearing. After the incident, upon instruction of the trial judge, the author was taken to city hospital No. 1 for examination. It was established during the examination that he had received a contusion, a haematoma and abrasions on the back of his head (medical report No. 2332). During the hearing, the trial judge informed the parties that the incident would be referred to the prosecutor’s office for investigation.

On 7 February 2011, the specialized inter-district criminal court of the Zhambyl region sentenced the author to life imprisonment with confiscation of property. At the trial, the author pleaded not guilty, contending that he had been forced to confess under physical and psychological pressure from the police. The trial court questioned the police officers allegedly responsible for the ill-treatment. They denied exerting any pressure on the author. Relying on their statements and the author’s explanation recorded in medical certificate No. 1006 from the temporary detention facility, in which he had stated that the physical injuries were the result of falls while in a state of inebriation, the trial court found that the author’s allegations that he had confessed under physical and psychological pressure were unsubstantiated. In finding the author guilty, the trial court acknowledged that he had retracted the confession given during the investigation and pleaded not guilty. The court relied on the extensive body of evidence, such as statements of witnesses and victims, physical evidence and expert examinations testifying to the author’s guilt.

The author appealed against the conviction, complaining, inter alia, that he had been forced to confess by the police. On 29 March 2011, the Zhambyl Regional Court upheld the conviction on appeal. The allegations about the author’s forced confession were examined and dismissed as unsubstantiated on the same grounds as those put forward by the trial court. On 5 March 2012, the Supreme Court refused to initiate supervisory review proceedings in his case. On 19 November 2012, the author lodged a cassation appeal. He raised the claims of forced confession and violation of his right to defence because he had not had an opportunity to meet with a newly appointed counsel before the appeal hearing. On 10 January 2013, the Zhambyl Regional Court rejected the author’s cassation appeal.

On 21 February 2011, the Taraz Prosecutor’s Office refused to open a criminal case into the beatings allegedly sustained by the author in the court holding cell on 3 February 2011, having found that it was the author who had initiated the fight with the other detainees and that the other detainees beat him in self-defence, the guards had duly intervened to stop the fight and the allegations concerning the threats received were not corroborated by any evidence. The Taraz Prosecutor’s Office indicated in its decision that the author could file a private complaint against the alleged perpetrators. The author did not appeal this decision.

On 12 July 2012, the non-governmental organization International Bureau for Human Rights and Rule of Law in Kazakhstan made a complaint to the Zhambyl Regional Prosecutor on behalf of the author, requesting the opening of an investigation into his ill-treatment by police officers on 25 and 26 September 2010. The prosecutor’s office referred the complaint to the Zhambyl Regional Office for Fighting Economic Crimes and Corruption for investigation. On 4 September 2012, the latter refused to open a criminal case.

On 12 October 2012 and 29 January and 12 April 2013, the International Bureau for Human Rights and Rule of Law in Kazakhstan requested the Zhambyl Regional Prosecutor and the Prosecutor General to conduct a new investigation into the ill-treatment of the author. It claimed that the investigation into his claims of torture had not included forensic report No. 13723 of 27 September 2010 from Taraz city hospital, that the author had not been questioned and that the investigator had not tried to identify witnesses who could testify about the author’s physical state before the arrest. The requests were denied on 7 November 2012 and 13 February and 10 July 2013, with a reference to an existing valid decision of 4 September 2012 of the Zhambyl Regional Office for Fighting Economic Crimes and Corruption, which was upheld by the regional prosecutor’s office.

On 13 November 2013 and on an unspecified date in 2014, the author complained to the Zhambyl Regional Department of the Interior and requested that an investigation be opened into his ill-treatment by the police. On 19 November 2013 and 7 July 2014, the Department of the Interior refused to open a criminal case, referring to a valid decision of 4 September 2012 on the same subject matter and noting that there were no grounds to depart from the findings made in that decision. On an unspecified date in September 2014, the author’s complaints against the latter decisions were rejected by the Deputy Prosecutor General.

The author claims a violation of article 7, read in conjunction with article 2 (3) (a)–(c), of the Covenant, on account of ill-treatment by the police on 25 and 26 September 2010. Although the injuries sustained by the author were documented and reported to the domestic authorities, no fully fledged investigation was initiated into the matter.

The author complains that his arrest and pretrial detention were unlawful under article 9 (1) and (2) of the Covenant: his deprivation of liberty between 9 a.m. on 25 September 2010 (the time of his apprehension) and 4 p.m. on the same date (the time when he was brought to the police station) was not recorded. Furthermore, he was charged on 20 November 2010, about two months after his arrest, in violation of the Kazakhstan Code of Criminal Procedure, which stipulates that charges should be brought within 10 days of an apprehension, or the suspect should be released. Lastly, he was not brought before a competent judge authorized to decide on his deprivation of liberty either after his arrest on 25 September 2010 or at any other time during his remand detention, decisions adopted by a judge on his arrest and detention were never provided to him and he was not notified of his right to challenge those decisions at a court.

With reference to article 10 (1) of the Covenant, the author claims that, during his pretrial detention, he was subjected to ill-treatment and psychological pressure by the personnel of the detention centre and other detainees. Furthermore, the conditions of his detention in the detention centre in Taraz between 27 September and 8 October 2010 and then during an unspecified period of time after the trial were degrading as the cell in which he was placed had neither windows nor heating.

Lastly, with reference to article 14 (3) (b), (d) and (g) of the Covenant, the author submits that his right to be presumed innocent was not respected at the early stages of the preliminary investigation in his case. The investigating authorities very quickly issued a search warrant against him for murder, the trial court disregarded evidence that could have established his innocence, he was coerced into reading a pre-prepared confession, he was subjected to pressure and intimidation during his trial to prevent him from complaining about the ill-treatment and no effective investigation was conducted into the physical and psychological violence he had been subjected to by private individuals on the premises of the trial court. Furthermore, despite his unsatisfactory state of health during the trial, the court continued holding hearings in his case, the quality of legal assistance during the investigation and at the trial was poor and he was not given an opportunity to consult with his counsel before the hearing of his case on appeal, which took place in his absence.

The author asks the Committee to establish a violation of articles 2 (3) (a)–(c), 7, 9 (1) and (2), 10 (1) and 14 (3) (b), (d) and (g) of the Covenant and to ask the State Party to reopen his criminal case and review his conviction, ensure an effective investigation into his illtreatment and adopt relevant measures against those responsible, provide him with full and adequate compensation and rehabilitation for the violations suffered and take measures to prevent similar violations in the future, in particular, by introducing an obligatory video recording of each arrest conducted by State officials.

On 2 August 2019, the State Party submitted its observations on the admissibility and merits of the communication. Regarding the author’s allegations under article 7 of the Covenant, the State Party notes that the author was questioned in the presence of a lawyer and admitted his guilt. He was examined by a medical specialist when taken to the temporary detention facility and explained, in the presence of his lawyer, that he had fallen down the stairs. He did not make a complaint against the police officers. An investigation carried out on the basis of the author’s complaints resulted in a decision not to open a criminal case. The medical specialist at the facility who examined the author on 27 September 2010, before his transfer to the pretrial detention facility, was questioned. She stated that the author had been diagnosed with concussion but that he had had no bodily injuries and had been unable to remember where he had sustained his head injury. The results of the medical examination were recorded in the register of ambulatory patients at No. 213, which the author signed. The State Party denies that any unlawful actions were taken against the author.

The State Party submits that the author was detained for a short period of time for a disciplinary violation in a disciplinary cell at the pretrial detention facility. That cell did not have windows. He was not kept at other times in a cell without windows. All cells had central heating.

Concerning the author’s claim that the lawyers were often changed, the State Party submits that, whenever he did not have a lawyer, the investigative body had an obligation to provide him one.

The State Party denies any violation of article 14 (3) of the Covenant. According to the minutes of the court sessions, before the start of the hearing, the court enquired as to whether the author wished to file a motion for recusal against the court or the participants in the proceedings. No motions for recusal, including against the lawyer, were filed by the author. During the court proceedings, the author and his lawyer could present evidence in his defence. The court proceedings were conducted in accordance with the law and the sentence of the trial court was carefully reviewed by higher courts.

The State Party considers that none of the author’s claims have been substantiated.

On 30 September 2020, the author provided his comments on the observations of the State Party. He reiterates his claims under all the articles and insists on their admissibility.

The author states that he was represented by a lawyer during the court hearing concerning his arrest. During the preliminary investigation, another lawyer was appointed for him. During the trial, he was represented by a different lawyer, and by yet another lawyer in the appeal proceedings. He alleges that he met once, in the pretrial detention facility, with the lawyer who represented him during the trial and did not meet with the lawyer who participated in the appeal proceedings, during which the author was not present.

He claims that the trial court was biased towards him and rejected his motions to question witnesses who could confirm that he had not had injuries before the arrest, which would have allowed him to argue that his injuries, which were medically recorded, could only have been sustained after his arrest, to request video records that could support his alibi or to question additional experts. His alibi was not verified.

After the attack in the court holding cell, the author was in a bad physical state, but the court continued the hearing. The trial court referred the incident to the prosecutor’s office for investigation and did not wait for the result of the investigation, which was essential because he was forced to confess.

The author reiterates his claims under article 7, stating that the investigation into his claims did not consider medical reports No. 1006 and No. 13723. Witnesses who could testify that the author did not have injuries before the arrest were not questioned. The author reiterates his claims under article 10 (1) 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 allegation of the author that his rights under article 7 of the Covenant were violated because there was no effective investigation into the beatings that he sustained on 3 February 2011 in the court holding cell by three other detainees. The Committee also notes that the author has not appealed the findings of the investigation (decision of the Taraz city prosecutor of 21 February 2011). The Committee recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author.³ The Committee observes that the author does not dispute the availability of the remedy, nor does he offer an explanation as to why the decision in question was not appealed. The Committee considers that the author has not exhausted domestic remedies in relation to this claim and finds it inadmissible under article 5 (2) (b) of the Optional Protocol.

3. Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.4; Leghaei et al v. Australia (CCPR/C/113/D/1937/2010), para. 9.3; and Alekseev et al. v. Russian Federation (CCPR/C/134/D/2943/2017, 2953/2017 and 2954/2017), para. 6.4. ↩

The Committee also notes the author’s allegations that his arrest and detention were arbitrary and unlawful in violation of article 9 (1) and (2) of the Covenant. The Committee also notes that the author’s claims under article 10 (1) of the Covenant concerning the conditions of his detention in the pretrial detention facility and his claim that the presumption of innocence was violated under article 14 (3) (b) of the Covenant. The Committee observes that the author has not raised these claims before the domestic authorities and finds these parts of communication inadmissible under article 5 (2) (b) of the Optional Protocol.

The Committee further notes the author’s allegations under article 14 (3) (d) of the Covenant about the poor quality of legal assistance, the change of council before the appeal court hearing and the lack of opportunity to consult with his newly appointed counsel before the appeal hearing, which took place in his absence. The Committee observes that the author has not raised claims about the quality of legal representation before the domestic authorities. On the contrary, in his cassation appeal, available on file, the author argues that his lawyer was doing the best she could for his defence. The Committee notes that the appeal was written by the same lawyer and that she represented the author in the court of cassation. The author does not present any arguments concerning any negative consequences that the change of his lawyer had for the outcome of the appeal proceedings. The Committee notes, from the information on file, that the trial court informed the author of his right to request in-person participation at the appeal hearing. The author did not present information on whether he filed such request. The Committee does not find the author’s claims under article 14 (3) (d) of the Covenant sufficiently substantiated for the purposes of admissibility. It finds this part of communication inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claim concerning a violation of his right under article 14 (3) (g) of the Covenant because the trial court convicted him on the basis of a forced confession. The Committee also notes that there is no evidence that the trial court relied on the author’s confession given on 27 September 2010 to the police officers. On the contrary, from the material available on file and as submitted by the State Party in its observations, the trial court acknowledged that the author pleaded not guilty and based its verdict on evidence and on the testimonies of victims, witnesses and experts. The Committee finds the author’s claims under article 14 (3) (g) of the Covenant insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.⁴

4. Kyarizov v. Turkmenistan (CCPR/C/141/D/3097/2018), para. 5.5. ↩

The Committee finds that the author’s other claims under article 7, read in conjunction with article 2 (3), of the Covenant are sufficiently substantiated for the purposes of admissibility and therefore proceeds to its consideration 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 in article 5 (1) of the Optional Protocol.

The Committee notes the author’s allegations under article 7, in conjunction with article 2 (3), of the Covenant that, on 25 and 26 September 2010, he was ill-treated by police officers in the Zhambyl Regional Department of the Interior in Taraz in order to obtain a forced confession to a murder and that there has been no effective investigation into his allegations by the domestic authorities. The Committee also notes that the author provides a detailed account of his ill-treatment, describes his injuries and submits copies of medical reports No. 1006 and No. 13723. The Committee further notes that the author has attempted to exhaust available domestic remedies by requesting an investigation into his allegations. He disagreed with the conclusion of the investigation and tried, albeit unsuccessfully, to appeal it to the prosecutor’s office. The Committee notes the arguments of the State Party that the investigation was carried out effectively and that the decision not to open a criminal case of 4 September 2012 was confirmed by the prosecutor’s office on various occasions.

The Committee recalls that a State Party is responsible for the security of any person it holds in detention and that, when an individual in detention shows signs of injury, it is incumbent upon the State Party to produce evidence showing that it is not responsible for such an injury.⁵ 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 it is frequently only the State Party that has access to the relevant information.⁶ The Committee notes that, in the present case there is no information on file that could prove that the author’s injuries were inflicted after his arrest, as medical certificate No. 1006 of 25 September 2010 contains the author’s statement that his injuries were self-inflicted. Nevertheless, the Committee 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.⁷ The Committee notes that the Zhambyl Regional Office for Fighting Economic Crimes and Corruption carried out an investigation into the author’s allegations of ill-treatment by the police shortly after the International Bureau for Human Rights and Rule of Law in Kazakhstan submitted a complaint. The investigation led to a decision, on 4 September 2012, not to open a criminal case. The author, however, contests the effectiveness of the investigation.

5. Eshonov v. Uzbekistan (CCPR/C/99/D/1225/2003), para. 9.8; Siragev v. Uzbekistan (CCPR/C/85/D/907/2000), para. 6.2; and Zheikov v. Russian Federation (CCPR/C/86/D/889/1999), para. 7.2. ↩
6. Mukong v. Cameroon (CCPR/C/51/D/458/1991), para. 9.2; and Bleier v. Uruguay, communication No. 30/1978, para. 13.3. ↩
7. Human Rights Committee, general comment No. 20 (1992), para. 14; Neporozhnev v. Russian Federation (CCPR/C/116/D/1941/2010), para. 8.4; and Kurmanbekov v. Kyrgyzstan (CCPR/C/137/D/2723/2016), para. 9.4. ↩

The Committee observes that the Zhambyl Regional Office for Fighting Economic Crimes and Corruption, in its decision of 4 September 2012, referred to the testimony provided by the medical specialist of the temporary detention facility and to the information from Taraz city hospital No. 1 concerning medical services provided to the author in April 2010. The Committee observes from the text of the decision that the medical specialist examined the author on 27 September 2010 in relation to his complaints of headache, nausea, vertigo and vomiting and diagnosed him with concussion. It does not seem that the purpose of the examination was to record bodily injuries allegedly inflicted by the police officers but to provide medical help to the author when he was feeling unwell. The medical report from Taraz city hospital No. 1 of 12 April 2010 (dated 12 April 2012 in the decision) was not related to the author’s arrest. The investigator referred to the temporary detention facility medical report No. 1006 of 25 September 2010, noting that, according to the author, the injuries recorded in that report had been self-inflicted. The investigator noted that the medical examination had taken place in the presence of a lawyer. Medical report No. 13723 of 27 September 2010 from Taraz city hospital is not mentioned in the decision.

The Committee reiterates that it is for the authorities to demonstrate that the author’s injuries were sustained before the arrest (see para. 7.3 above). However, the investigator did not attempt to find and question the witnesses who had seen the author shortly before the arrest in Shymkent and whose names could have been indicated by the author and were available on the trial court records. The Committee notes the author’s allegation, unrefuted by the State Party, that he was not questioned in the course of the investigation and that police officers, not a lawyer, were present during the medical investigation at the temporary detention facility. In view of these facts, the Committee finds that the investigation was not carried out effectively and did not provide the author with an effective remedy. In view of the above, the Committee therefore concludes that the State Party violated the author’s rights under article 7, read in conjunction with article 2 (3), of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of article 7, read in conjunction with article 2 (3), 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 to provide the author with adequate compensation for the violation of his rights and to take appropriate steps to conduct a prompt investigation that is effective, thorough, impartial, independent and transparent into his allegations of ill-treatment and, if confirmed, to prosecute those responsible. 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.