CCPR/C/120/D/2162/2012
2.5 The author claims that from 2 p.m. to 11.40 p.m. his brother was detained unlawfully.
He was not informed of important procedural stages, such as the initiation of a criminal
case against him and an expert examination that was conducted during his detention.
Important procedural documents, such as the decision to initiate criminal proceedings, the
detention protocol and the search protocol, were written in Kyrgyz and in the absence of a
lawyer and/or an interpreter, in violation of article 24 of the Constitution of Kyrgyzstan.4
2.6
On 26 February 2011, at around 2 a.m., the author’s brother was transferred to a
temporary detention facility, where he was released from handcuffs for the first time. On 27
February, 46 hours after his arrest, the author’s brother was interrogated as an accused;
however, his rights were not explained to him, in particular, the right to remain silent. The
author submits that the interrogation protocol lacks a note record that his brother’s rights
were explained to him.
2.7
On 27 February 2011, the Osh City Court held hearings and decided that the
author’s brother should remain in custody until 25 April, as he was accused of a grave
crime and could attempt to escape justice. The hearings lasted between 10 and 15 minutes,
and the judge did not question the suggested legal basis for detention, nor did he consider
alternative measures of restraint, in violation of domestic law.
2.8
During the court hearings, the author’s brother complained about being subjected to
torture by the officers. Neither the court nor the prosecutor reacted to his allegations, and
did not refer the case for further investigation. The author submits that his brother did not
raise allegations of torture before the prosecutor’s office for fear of reprisal and further
torture. The author refers to the Committee’s jurisprudence in Avadanov v. Azerbaijan5 and
instructions Nos. 70 and 75 of the Prosecutor-General in support of his argument that the
prosecutor, who was present at the hearings and was aware of the torture allegations, should
have referred the case for further investigation, despite the absence of a request to that
effect from the author’s brother. The author also refers to a report by Human Rights Watch
to support his argument that prosecutors often refuse to investigate allegations of torture.6
2.9
On 3 and 9 March 2011, the author’s brother’s counsel appealed the decision of the
Osh City Court issued on 27 February 2011 to the Osh Regional Court, which, sitting in a
three-judge panel, rejected the appeal on 22 March. The author alleges that the composition
of the Osh Regional Court did not comply with the requirements of article 132-1 of the
Criminal Procedure Code, according to which the appeal should had been decided by a
single judge.
2.10 On 8 April 2011, the author’s brother’s counsel, D.T., appealed under the
supervisory review procedure to the Supreme Court of Kyrgyzstan, challenging the
decision of the Osh City Court of 27 February 2011 and the decision of the Osh Regional
Court of 22 March 2011, which had ordered the author’s brother’s pretrial detention as a
measure of restraint. On 19 May, the Supreme Court of Kyrgyzstan, based on article 383 (4)
of the Criminal Procedure Code, rejected the appeal, arguing that the criminal case of the
author’s brother had been examined on the merits by the court of first instance. The author
notes that neither his brother nor the counsel D.T. were present at the hearings. The author
maintains that the notification about the scheduled hearings at the Supreme Court on 19
May 2011 was received in Osh only on 20 May, and that the protocol of the hearing
contained false information regarding the participation of the counsel.7 The author further
notes that article 383 (4) of the Criminal Procedure Code does not provide for the
4
5
6
7
(2) The detained shall be interrogated in accordance with the rules provided herein in article 191”.
Article 24 of the Constitution of Kyrgyzstan: “From the moment of actual detention a person should
be kept safe. Such person shall be granted an opportunity to protect himself/herself personally, enjoy
qualified legal aid from a lawyer as well as have an attorney”.
See communication No. 1633/2007, Views adopted on 25 October 2010, para. 6.3.
“Prosecutorial authorities have refused to investigate allegations of torture, and courts have relied
heavily on confessions allegedly extracted under torture.” Ole Solvang, Distorted Justice:
Kyrgyzstan’s Flawed Investigations and Trials on the 2010 Violence (New York, Human Rights
Watch, 2011).
From the protocol of the hearing and the court decision, it transpires that the author’s brother’s
counsel, D.T., lodged the appeal, while another counsel, Z.T., was present during the hearing.
3