Zhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011) Summary
In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person's rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee's decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.
On 24 October 2004, Kyrgyzstani police took Tashkenbaj Moidunov and his wife to a local police station after they were observed arguing in the street. The pair were questioned separately. The victim's wife was pressured to write a complaint against her husband, but was soon released. The victim died in police custody.
The police officers on duty, Mr Abdukaimov and Mr Mantybaev, gave several contradictory accounts of the victim's death. On the day of the death:
- The officers told the victim's wife that her husband suffered a heart attack.
- The officers gave a confused account to the ambulance doctor on the scene. Having been told by the ambulance dispatcher that the victim had hanged himself, the doctor observed red finger marks (but not rope marks) on the victim's neck. She asked the officers whether the victim had been strangled. They replied that he had suffered a heart attack, and that they had lied to the dispatcher because they had panicked.
- The officers said in their official statements that the victim had suffered a heart attack.
- Mr Mantybaev recorded in the official deaths register that the officers had found the victim's body in the street.
In the course of a subsequent official investigation into whether the officers had “negligently performed their duty”, Mr Mantybaev told the prosecutor that the victim hanged himself while unsupervised.
On 21 September 2005, the Suzak District Court found that Mr Mantybaev had negligently performed his duties by failing to take measures to prevent a suicide, and that his negligence resulted inadvertently in the death of the victim. The Court then exempted Mr Mantybaev from criminal liability on the ground that he had reached a reconciliation with the victim's family.
The victim's mother appealed the decision to the Zhalabad Regional Court. The Court found that the District Court's analysis was deficient and ordered a retrial. However, Mr Mantybaev appealed that decision to the Supreme Court of Kyrgyzstan, which quashed the decision of the Regional Court and upheld the decision of the District Court. The victim's mother, the applicant, then lodged a complaint with the UN Human Rights Committee.
The applicant alleged that Kyrgyzstan violated the International Covenant on Civil and Political Rights in three ways:
- It infringed the victim's right under article 6(1) not to be arbitrarily deprived of his life because he “died in police custody as a result of the use of force by police officers which was excessive and unnecessary”.
- It infringed the victim's right under article 7 not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, because the officers used unlawful force on him.
- It failed to investigate properly whether the officers were responsible for the victim's death in contravention of article 2(3).
The Committee found that all three allegations were sustained.
In relation to the claim under article 6(1), it held that a State assumes responsibility for a person that it takes into custody and that, when a person dies in police custody, the State must properly investigate and prosecute those responsible for the death. The Committee observed that neither Kyrgyzstan nor its judicial authorities had satisfactorily explained the basis upon which it was concluded that the victim committed suicide. This was particularly so because relevant forensic evidence established that the death could have resulted from either hanging or strangulation, and because the officers had given contradictory accounts of the death. In the absence of a satisfactory explanation to the contrary, the Committee held Kyrgyzstan responsible for arbitrarily depriving the victim of his life.
In relation to the claim under article 7, the Committee held that, when a person is injured in police custody, the State must produce evidence to refute any allegation that it was responsible for those injuries. The Committee observed that Kyrgyzstan provided no evidence that its authorities had inquired into – let alone explained – the victim's injuries.
In relation to the claim under article 2(3), the Committee highlighted that there were several deficiencies in the Kyrgyzstani authorities' investigation of the victim's death. Most glaringly, the investigator failed to follow basic forensic procedures, the prosecutor presumed that the victim hanged himself despite substantial evidence to the contrary, the State exempted Mr Mantybaev from criminal responsibility, and the State did not charge Mr Abdukaimov at all.
The Committee determined that Kyrgyzstan was under an obligation to provide an effective remedy; namely, to investigate the victim's death impartially, effectively and thoroughly, to prosecute those responsible, and to give full reparation.
Relevance to the Victorian Charter
Deaths in custody have been and continue to be an issue of concern in the Australian criminal justice system and political landscape. Section 9 of the Victorian Charter, which establishes a right not to be arbitrarily deprived of life, and section 10, which establishes a right not to be subjected to torture or cruel, inhuman or degrading punishment or treatment, very closely resemble articles 6(1) and 7 of the International Covenant on Civil and Political Rights.
The Committee's decision in this case could provide interpretative assistance for Victorian courts and tribunals applying these Charter provisions in the context of a death in custody. More specifically, as the Victorian Coroner has an obligation to investigate the death of most persons in custody, the decision highlights one way in which the Coroners Act 2008 (Vic) can be read in light of the Charter.
The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/450/02/PDF/G1145002.pdf?OpenElement
Andrew Wilcock is a Graduate and Duncan Travis is a Partner at Allens Arthur Robinson.