Gunan v. Kyrgyzstan

On 21 May 1998 an unidentified person left a bag containing an improvised explosive device (‘IED’) in a minibus in Osh, Kyrgyzstan. Unaware of its contents, the driver of the minibus gave the bag to someone to hold in case the owner came back to claim it. On 1 June 1998, the IED in the bag accidentally exploded in the watchman’s kitchen, killing two persons and severely wounding a third. On 30 May 1998, an unidentified person left another bag with an IED in a minibus which exploded, killing two people and injuring eleven others. On 12 July 1998, a car was stopped by police in Almaty, Kazakhstan. G, a Turkish national, was a passenger in this car along with three other people. During a search of the car, police found a grenade, eight IEDs, seven self-made detonators and a pistol. While this criminal case was on-going in Kazakhstan, a connection was made between one of the suspects in the Kyrgyz blast and G. On 14 May 1999, G was extradited from Kazakhstan to Kyrgyzstan and arrested on suspicion of terrorism. G was placed in the Investigation Isolator (SIZO) No.1 in Bishkek, Kyrgyzstan.

G alleged that during his detention he was subjected to different forms of ill-treatment by officers of the National Security Service (NSS), including being beaten with sticks all over his body and beaten with a truncheon on the soles of his feet. Not able to withstand additional torture, G signed several incriminating statements in the absence of a lawyer. On an unspecified date, G was transferred to Osh and was again tortured by officers of the NSS. G’s counsel was eventually appointed by the NSS but did not submit any complaint regarding G’s treatment. During court proceedings, G and his co-accused retracted their previous incriminating statements and indicated they had been obtained by torture, and all openly showed signs of ill-treatment on their bodies. Nonetheless, and despite other alleged evidential deficiencies, on 3 May 2000, Osh City Court found G guilty of murder, terrorism and other charges and sentenced him to 22 years in prison. After several appeals, the case was referred by the Supreme Court back to the Osh City Court for re-examination. On 12 March 2001, the Osh City Court in a closed session sentenced G to death.

G filed a communication with the HRC alleging a violation of his rights under Article 6 of the International Covenant on Civil and Political Rights (ICCPR), as he was sentenced to death after an unfair trial. In addition, the communication alleged that G was innocent and that his arrest and detention amounted to a violation of his right to liberty and security under Article 9 ICCPR. The communication further contended that Articles 7, 10(1) and 14(3)(g) ICCPR were violated when G was subjected to torture and compelled to sign self-incriminating statements, and that Article 14 ICCPR was breached because G was denied a fair trial and was not provided legal assistance from the time of his arrest. Finally G argued that he was denied access to an effective remedy, in breach of Article 2(3) ICCPR.

[Adapted from INTERIGHTS summary, with permission]

The Committee held that: (1) once G made a complaint to the authorities regarding his torture and the compelled self-incriminating statements, Kyrgyzstan had an obligation under Article 7 to investigate these allegations; (2) although G’s complaints were noted in his trials, no investigation of the merits of these complaints was made, therefore Kyrgyzstan violated Articles 7 and 14(3)(g); (3) the detention of G from 14 May 1999 through 30 July 1999 without access to legal counsel and the refusal by Kyrgyzstan to provide copies of the prosecutor’s office applications to the Supreme Court constituted a violation by Kyrgyzstan of Article 14; (4) the evaluation of evidence against G by the national courts in Kyrgyzstan reflected a failure to comply with the guarantees of a fair trial under Article 14; (5) due to G’s rights under Article 14 not being respected and to G being consequently sentenced to death as a result of an unfair trial, Kyrgyzstan violated G’s right to life under Article 6; (6) in light of the foregoing conclusions it is unnecessary to examine separately G’s claims under Articles 10(1), 9 and 2(3); (6) however, under Article 2(3) Kyrgyzstan is under an obligation to provide G with an effective remedy, including (a) carrying out an impartial, effective and thorough investigation into the allegations of torture and ill-treatment and initiating criminal proceedings against those responsible, (b) providing a retrial in conformity with all guarantees enshrined in the ICCPR or releasing G, and (c) providing full reparation, including appropriate compensation, to G; (7) within 180 days, Kyrgyzstan is to provide information to the HRC about the measures taken to give effect to its views.

[Adapted from INTERIGHTS summary, with permission]

6.2 The Committee notes the author's claim that he was tortured by the police and investigative officers during his interrogation, and was compelled to sign self-incriminating statements, inter alia that he had participated in a military training camp in Chechnya, in the absence of a lawyer. The author provides detailed information regarding his torture. He claims that he was initially refused access to SIZO No. 1 in view of his bad physical condition and that he retracted his statement made under physical and psychological pressure at the time of the first instance court hearings. Eventually, his complaint was ignored by the prosecution and the courts. In this regard, 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. Although the author's allegations of torture and forced confession are mentioned in the decisions of all courts that considered his criminal case, these claims were ultimately rejected as being groundless, not supported by materials on file and made in order to avoid criminal responsibility. There is no indication in the decisions that the claims were investigated. The Committee therefore considers that the State party’s competent authorities have failed to give due and adequate consideration to the author’s complaints of torture made during the domestic criminal proceedings. In these circumstances, and in the absence of any observations on the author’s specific claims by the State party, the Committee concludes that the facts before it disclose a violation of Mr. Gunan’s rights under articles 7 and 14, paragraph 3 (g), of the Covenant.”

“6.5 The author finally claims a violation of his right to life under article 6 of the Covenant, as he was sentenced to death after an unfair trial. In this regard, the Committee reiterates its jurisprudence that the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of article 6 of the Covenant. In light of the Committee’s findings of a violation of article 14, it concludes that the author is also a victim of a violation of his rights under article 6, paragraph 2, read in conjunction with article 14, of the Covenant.”