Adrakhim Usaev v Russian Federation, UN Doc CCPR/C/99/D/1577/2007 (20 August 2010) The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman and degrading treatment during interrogations and while in detention.
The author of the complaint to the Committee is a Russian national currently imprisoned in Norislsk, Russia. On 14 July 2001, the author was arrested for allegedly taking part in an armed attack against a police station in Gudermes (Chechen Republic) on 14 March 2001, and was sentenced to 13 years imprisonment. He was found guilty of illegal acquisition of fire arms, participation in an illegal armed organisation, terrorism and attempt on the life of law enforcement officials in the exercise of their duties.
The author contended that on the day of his arrest, several armed individuals broke into his house, and without identifying themselves or presenting any warrant, started beating him, his father and his brother. The police subsequently ‘discovered’ a pistol which he alleges they brought with them. Based on the finding of the pistol, he was taken to the police station and arrested. According to the author, the pistol was a mere pretext for his arrest, and there was no mention of it in his criminal case.
While in detention, the author alleged he was beaten and tortured over three days, where a nylon bag and gas mask were placed on his head to prevent him from breathing, to the point where he lost consciousness on two occasions and had to be revived. Further, he was prevented from sleeping. On 17 July 2001, unable to withstand the torture anymore, he agreed to sign all necessary documents. The author claims that during the preliminary investigation, his requests to be represented by a lawyer were refused and instead, procedural documents were signed by lawyers whom he had never met.
The author claimed that the Russian Federation had breached his rights under arts 2, 5, 7, 9, 14, 20, and 26 of the Covenant.
The first key issue for the Committee was whether the author’s allegations under arts 2, 5, 7, 9, 14, 20, and 26 were admissible.
The second issue for the Committee was whether the merits of the claim were made out.
The Committee found that the author’s allegations under arts 5, 9, 20 and 26 of the Covenant, were inadmissible under the Optional Protocol as the author had not presented sufficient evidence to support his claim.
However, the Committee considered that the remaining claims regarding violations of arts 7 (freedom from inhuman or degrading treatment or punishment) and 14 (right to a fair hearing) had been sufficiently substantiated and declared them admissible.
The Committee held that the facts did not support the author’s claim that, because he was not represented by a lawyer during the preliminary investigation, his rights under art 14(3)(a) (which provides a person must be informed promptly and in detail of charges laid against them) had been violated. The Committee found that the author’s appeal to the Supreme Court contained no claim of non-representation by a lawyer throughout the preliminary investigation. Further, in the author’s comments dated 31 August 2008, he admitted that he had met with a lawyer during the preliminary investigation.
Similarly, the Committee found, in the absence of any other pertinent information on the file, the facts did not support the author’s claim that his rights under article 14(3)(f) (which guarantees the assistance of an interpreter if required) were violated as he was never offered the services of an interpreter despite his requests.
However, the Committee concluded the author had established violations of arts 7 and 14(3)(g) (which provides a person should not be compelled to confess guilt) of the Covenant. The Committee was satisfied the author was beaten and subjected to ill-treatment by the police during the interrogation, in the absence of a lawyer, which forced him to confess guilt. The Committee noted that the State party had adduced no specific explanation or substantive refutation of these allegations which therefore gave due weight to the author’s allegations.
Finally, the Committee noted that the State party is required to provide the author with an effective remedy, including the payment of appropriate compensation, pursuit of criminal proceedings to establish responsibility for the author’s ill treatment and to consider the author’s immediate release.
Relevance to the Victorian Charter
Similar to the Covenant, the Victorian Charter provides for the right to a fair hearing (s 24) and protection from torture and cruel, inhuman or degrading treatment (s 10). This decision assists in defining the nature and scope of the state’s obligation to investigate alleged breaches of these rights and the importance of substantive evidence when determining a claim.
The decision is at www2.ohchr.org/tbru/ccpr/CCPR-C-99-D-1577-2007.pdf.
Ashleigh Ellis is a lawyer with Mallesons Stephen Jaques