Gerasimov v. Kazakhstan

Communication No. 433/2010; CAT/C/48/D/433/2010
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In March 2007, the complainant went to the local police station, the Kostanai City Southern Department of Internal Affairs, where his stepson was being detained. Upon arrival, he was detained by five police officers and questioned about the death of an elderly neighbor. After stating he did not murder the women he was beaten by the police, threatened with sexual violence, bound and repeatedly suffocated with a plastic bag put over his head until he lost consciousness. The complaint bled from multiple facial contusions and became disoriented. The police did not register his detention and he was not released until the following day. When the pain from the interrogation did not abate, he was admitted to a hospital where he was diagnosed with head, brain, and kidney trauma. He remained hospitalized for 13 days. He was also subsequently treated for post-traumatic stress disorder due to ongoing hallucinations and a sense of insurmountable fear.

The complainant and his stepson filed a complaint with the City Prosecutor’s Office and the Southern Department of Internal Affairs, where the alleged torture occurred. The Southern Department of Internal Affairs initiated a preliminary investigation and had a medical examination conducted (which was not provided to the complainant) but ultimately decided not to open an official investigation. Shortly thereafter, however, the City Prosecutor’s Office quashed this decision and ordered the department to continue the investigation. Around this time, the complainant received threatening phone calls and bribes instructing him to drop all complaints.

The Regional Department of Internal Affairs concluded its review and engaged disciplinary sanctions for the violation of not registering the complainant as a detainee and brought criminal charges. At this time the Regional Prosecutors Office reversed the decision to open a criminal investigation and instead sent the case to the Department for Combating Economic Crimes and Corruption (DCECC) for further examination. DCECC refused to open an investigation for lack of evidence. The complainant appealed and the Regional Prosecutor’s Office referred the case back to the DCECC.

In December 2007, the Regional Department of Internal Affairs reported that it found “flagrant violations” in its investigation and that 10 officers were removed. Nonetheless, the DCECC still refused to open a criminal investigation on the grounds of insufficient evidence.  The complainant’s subsequent appeals, first to the Regional Prosecutor’s Office and later to the Second Court of the City of Kostanai, were rejected. The General Prosecutor’s Office refused to initiate a criminal investigation.

Then in December 2010, after complainant submitted his complaint to the Committee, the General Prosecutor’s Office opened a criminal case. In the course of this investigation, the complainant was required to undergo a psychiatric exam and questioned without his lawyer. At this time there were additional threats made towards complainant’s family. The investigation was closed in January of 2011 and in March Kazakhstan provided the Committee with a notarized letter signed by complainant requesting the withdrawal of the complaint.

The Committee first held that the complaint was admissible. Although the complainant’s detention and torture occurred before Kazakhstan ratified the Convention, because the violation’s effects continued after ratification with DECEE’s refusal to open a criminal investigation and futility of subsequent appeals, the Committee found that it had jurisdiction to examine the allegations. In addition, the Committee held that the complaint’s withdrawal was not valid because the circumstances around the withdrawal letter gave the committee “substantial reason to doubt” that it was voluntary and unequivocal.

The Committee next held that complainant was tortured and that the state failed to prevent and punish torture in violation of article 2. Because the complainant was in police custody when his injuries occurred and while the state disputed the fact that the police perpetrated the assault, it did not provide “a compelling alternative explanation,” the Committee found the state liable.

The Committee then held that the state breached article 12 and 13 of the Convention by not providing a “prompt, impartial and effective investigation.” The investigation lacked impartiality because it was entrusted to the Department of Internal Affairs where the alleged torture occurred and under the same chain of command as the police officers. The investigation was not prompt because the preliminary investigation began one month after the torture and the forensic examination occurred 3 months later. In addition, the investigators improperly relied on police testimony rather the complainant’s consistent claims and corroborating medical evidence.

The Committee also held that under article 14, the victim has a right to fair and adequate compensation and redress including restitution, compensation, rehabilitation, and measures preventing recurrence. Kazakhstan’s law that civil compensation is only available when there has been a criminal conviction, therefore, impermissibly impeded complainant’s right to civil compensation.

Finally, the Committee held that Kazakhstan violated its article 22 obligation to cooperate with the Committee and to refrain from intimidating the complainant by pressuring complainant to withdraw his complaint.

“It is uncontested that the complainant was in the custody of the police at the time his injuries were incurred, and that he sough medical treatment for his injuries promptly after his release from their custody. Under these circumstances, the State party should be presumed liable for the harm caused to the complainant unless it provides a compelling alternative explanation.” (Para. 12.2)

Additional information about the victim of the case and the type of torture is available on this page from the Open Society Foundation.
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