Turdukan Zhumbaeva v. Kyrgyzstan

Communication No. 1756/2008
Download Judgment: English

On 24 October 2004, TM and his wife were in custody at the local police station on a public disturbance charge following an argument in the street. While in police custody, TM died, and there was a dispute of fact as to how his death occurred. The ambulance doctor who attended the scene testified that she had been informed that TM had hung himself, but after an examination of TM’s neck on arrival she observed red finger marks and enquired as to whether he had been strangled, to which a police officer replied that the victim had heart problems. The head inspector of the police station, M, initially asserted that TM had fallen to the floor while having chest pains and a second police officer provided similar testimony. An official police report stated that TM had been found dead on the street. An autopsy performed the day after death concluded that TM had died from mechanical asphyxiation whilst hanging on soft fabric. It also noted that TM had injuries on his eyebrow, lower lip and neck and that a high level of alcohol was found in TM’s blood and urine.

After a criminal investigation was opened by the deputy prosecutor, M changed his version of events and stated that TM hung himself and that the officers subsequently found his body in a detention cell. M stated that he had conspired with another police officer to say that TM had died of a heart attack because they were afraid of the consequences. The forensic expert who performed the autopsy later testified that neck injuries and a thyroid horn fracture suffered by TM could have been caused by any blunt object, including fingers or force of hand, but nonetheless maintained that histological examination of the body tissues suggested that asphyxiation by soft fabric was the most probable cause of death.

On 21 September 2005, M was found guilty in the Suzak District Court of negligent performance of duties resulting inadvertently in a person’s death. The second police officer involved was not charged. TM’s mother, TZ, appealed to the Zhalalabad Regional Court, which held that the District Court had failed to evaluate the contradictions between the testimonies of M and other witnesses and ordered a retrial. On appeal by M, the Supreme Court quashed this decision, holding that M’s actions were lawfully characterized as negligence and that his guilt in this regard had been established by the District Court. TZ, on behalf of herself and TM, submitted a communication to the United Nations Human Rights Committee, claiming that Kyrgyzstan was responsible for TM’s death because he was arbitrarily deprived of his life while in police custody. TZ alleged that TM had gone into custody in good health and that the available evidence, including the contradictory testimony, timescales and medical reports, suggested that it was highly unlikely that he committed suicide. TZ also asserted that no effective investigation into TM’s death was carried out and no one was held properly accountable for the incident. Accordingly, TM alleged violations of Articles 6(1)(right to life) and 7 (freedom from torture), both alone and in conjunction with Article 2(3)(right to effective remedy), of the International Covenant on Civil and Political Rights (ICCPR).

[Adapted from INTERIGHTS summary, with permission]

The Committee held that:

(1) Kyrgyzstan was responsible for the arbitrary deprivation of TM’s life, in breach of Article 6(1) ICCPR, given that the evidence supports such a conclusion and the authorities have not provided any evidence to refute such allegations;

(2) Kyrgyzstan had breached Article 7 ICCPR on account of the injuries sustained by TM whilst he was in police custody, which were corroborated by an official autopsy report and had not been explained by the authorities;

(3) TZ had been denied an effective remedy, as required by Article 2(3) ICCPR taken in conjunction with Articles 6(1) and 7, as the authorities did not take reasonable investigative steps towards determining the cause of TM’s death, M was exempted from criminal liability and the other police officer involved was never prosecuted;

(4) therefore, TM’s rights under Articles 6(1) and 7, and TZ’s rights under Article 2(3) read in conjunction with Articles 6(1) and 7, had been violated;

(5) Kyrgyzstan was obliged to provide TZ with an effective remedy, including an appropriate investigation, prosecution of those responsible and full reparation, including compensation.

[Adapted from INTERIGHTS summary, with permission]

"8.9 The Committee notes that author’s claim that the autopsy report of her son’s body revealed various injuries on the victim’s face and neck and that the State party has not explained how such injuries may have occurred in police custody. The Committee notes that the author’s allegations of the victim’s injuries are confirmed by the post mortem autopsy report of 25 October 2004. It also notes that the State party’s authorities have not addressed the cause for such injuries. The Committee recalls that a State party is responsible for the security of any person in custody and, when an individual is injured while in detention, it is incumbent on the State party to produce evidence refuting the author’s allegations.The State party did not provide any information as to whether any inquiry was undertaken by its authorities both in the context of the criminal investigations or in the context of the present communication to address the specific allegations advanced by the author in a substantiated way. In these circumstances, the Committee concludes that the author’s claims are substantiated and have been corroborated by the official autopsy report and finds, therefore, that there has been a violation of article 7, of the Covenant with regard to the author’s son." Paragraph 8.9

"8.10 As to the claims under articles 6, paragraph 1 and 7 on the ground that the State party failed in its procedural obligation to properly investigate the victim’s death and allegations of torture, and to take appropriate investigative and remedial measures, the Committee recalls its constant jurisprudence that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by articles 6, paragraph 1 and 7, of the Covenant. The Committee observes that the investigation order of 9 November 2004 considers as established that the victim had hanged himself and therefore does not take into account the author’s position that the victim was killed arbitrarily. The head inspector of the Bazarkorgon police station, Mr. Mantybaev, was sentenced for criminal negligence, but was exempted from criminal liability due to presumed reconciliation between the defendant and the victim’s family. The Committee notes the author’s allegations regarding the authorities failure to obtain a detailed description of the position of the victim’s body, that a mock hanging was not conducted, that the exact timing and sequence of events was not established, that medical records to establish if the victim had any suicidal tendencies were not requested, that a forensic expertise of the sport trousers was not ordered, that the cash the victim allegedly carried in his pocket was never located and that it was never established if the victim’s death was a result of torture or ill-treatment. The Committee further notes that the police sergeant, Mr. Abdukaimov was never charged or prosecuted. In the absence of any explanation by the State party on discrepancies in the criminal investigation and the reason why one of the alleged perpetrators was never charged or prosecuted and in view of the detailed material placed before it, the Committee concludes that the State party failed to properly investigate the circumstances of the author’s son’s death and the allegations of torture and ill-treatment and thus effectively denied the author a remedy, in violation of her rights under article 2, paragraph 3 read in conjunction with articles 6, paragraph 1 and 7." Paragraph 8.10