CASE OF KABOULOV v. UKRAINE
Preliminary objections dismissed;No violation of Art. 2 (in case of extradition to Kazakhstan);Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-1-f;Violation of Art. 5-2;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 34;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
10. The facts of the case, as submitted by the parties, may be summarised as follows. 11. The applicant was born on 14 August 1979. The applicant claims to be Mr Amir Damirovich Kubulov, a citizen of the Russian Federation. He also claims that he has citizenship of the Republic of Kazakhstan. The applicant is currently detained in the Poltava pre-trial detention (“the Poltava SIZO”) of the State Department for Enforcement of Sentences. 12. On 16 June 2003 an unidentified person murdered Zh.U.Zh. On the same date the Ministry of the Interior of Kazakhstan launched a criminal investigation into the murder. 13. On 28 June 2003 the applicant was accused in Kazakhstan, in his absence, of having committed a crime under Article 96(1) of the Criminal Code of Kazakhstan (murder). On the same date an investigator the Ministry of the Interior decided that the applicant should be detained. 14. On 4 July 2003 the Ministry of the Interior of Kazakhstan (“the MIK”) issued an international search warrant for the applicant on suspicion of his having committed aggravated murder, involving capital punishment as a sanction (Article 96(2) of the Criminal Code of Kazakhstan). 15. The facts surrounding the applicant's initial detention may be summarised as follows. 16. It was agreed by the parties that the applicant had been picked up at 9.20 p.m. on 23 August 2004 and detained thereafter, although there was no agreement as to where and why the applicant was detained. They provided various documents certifying what happened in the period from 9.20 p.m. on 23 August 2004 to 7.30 p.m. 25 August 2004, which can be summarised as follows. 17. According to a document entitled “Record of arrest based on suspicion of involvement in a crime” (“Протокол о задержании по подозрению в совершении преступления”; hereafter - the “detention record”), issued by Major Tsarruk of the Dniprovsky District Police Department of Kyiv, a police patrol stopped the applicant, described as Amir Damirovich Kubulov, born on 14 August 1979, residing at 86, Zenkova Street, Almaty, Kazakhstan, on 23 August 2004 at 9.20 p.m. The detention record was dated with the same date and time. 18. In smaller print, in what appear to be standard blocks of text, the following grounds for arrest (основания задержания) are set out: “(...) 1. Person had been arrested at the moment of committing a crime or in flagranto; 2. The witnesses of a crime and its victims have identified this person as an offender; 3. Traces of crime were found on the suspect or his clothes, with him or in his place of residence; 4. [There is] other data, giving grounds to suspect the person in committing a crime, if he/she tried to escape or has no permanent place of residence or when the identity of the suspect has not been established.” 19. The detention record also set out, again in small print, reasons for the applicant's arrest (мотивы задержания): “To prevent crime. 1. To prevent a possibility of disappearing from the investigation and the court, ensuring enforcement of a criminal sentence. 2. To prevent events which would hinder the establishment of objective truth in the criminal case.” 20. The detention record then noted, in large print, that the applicant was suspected of involvement in the crime envisaged in Article 96 § 1 of the Criminal Code of Kazakhstan. The detention record was signed by Major Tsarruk and stated that the applicant had been “familiarised” with the reasons for his detention (the applicant signed it and marked it stating that he familiarised with it in Russian language - “ознакомлен”), and with his rights and duties, as it was provided by Article 10 of the Regulation “On temporary detention of persons suspected in committing of crime”. It contained no exact date and time when the applicant had been familiarised with the reasons for his detention. After the applicant's signature, the record stated that the prosecutor had been informed about the applicant's arrest at 10.00 p.m. on 23 August 2004. 21. In their further observations of 13 March 2007 the Government contended that after his apprehension at 9.20 p.m. on 23 August 2004 under Article 115 of the Code of Criminal Procedure and Article 10 of the Regulation of 13 July 1976 “On the temporary detention of persons suspected of having committed a criminal offence” (see paragraphs 65 - 67 below), the applicant stayed at the Dniprovsky District Police Station. In particular, they referred to the aforementioned detention record. The Government also stated that the applicant had been familiarised with the reasons for his detention after 10.00 p.m. on the same day. They did not specify when. 22. In their further observations of 23 May 2007 the Government stated that the applicant was taken to the sobering up facility at 9.25 p.m. on 23 August 2004. They referred to a written reply of 4 April 2007 to a request of the Dniprovsky Prosecutor dated 28 March 2007. In reply the centre's director informed the District Prosecutor that the applicant arrived at the facility at 9.25 p.m. on 23 August 2004 and left it at 7.30 a.m. on 24 August 2004. The director also stated that the applicant had been diagnosed with acute alcohol intoxication with perception, psychic and behavioural disorders. 23. According to the medical card concluded by the sobering up facility (Kyiv City Narcological Clinical Hospital “Sociotherapy” of the Ministry of Health), the applicant arrived there at 9.25 p.m. on 23 August 2004. The medical card also provided that the applicant's diagnosis of alcohol intoxication and respective disorders had been established on 24 August and that he had stayed in the facility for two nights. The centre's contemporaneous records note the applicant as having been brought to the centre from Malyshka street in the Dniprovsky District of Kyiv by a Mr Kolomiyets. The card states that the applicant stayed at the sobering up facility from 9.25 p.m. on 23 August 2004 to 7.30 a.m. on 25 August 2004, that is, for two nights. 24. On 24 August 2004 the MIK, in reply to request of the Ministry of the Interior of Ukraine, confirmed to the Kyiv Department of the Interior that the applicant was wanted as a murder suspect. 25. The applicant, through his mother's submissions to the Kyiv City Court of Appeal (Апеляційний суд міста Києва) on 13 September 2004, contended that he had been taken directly to the sobering up facility on 23 August 2004 as he had no identity papers with him, and, in his observations of 21 October 2005 he stated that the detention record dated 9.20 p.m. on 23 August 2004 had been prepared only after his identity had been established and the authorities were aware that the applicant was wanted by the law enforcement authorities of Kazakhstan. 26. On 3 September 2004 the MIK established that Mr Kaboulov was a citizen of Kazakhstan. 27. On the same date the General Prosecutor's Office (“GPO”) of Ukraine informed the Kazakhstan GPO that the applicant had been apprehended in Ukraine and asked whether Kazakhstan intended to seek the applicant's extradition. 28. After his return to the police station, the applicant made an “explanatory statement” to a prosecutor, dated 8 September 2004, which was written for him in Ukrainian by the senior assistant of Kyiv prosecutor. The applicant confirmed its contents in Russian (“записано верно”). After stating that he had not committed any criminal offences, he added without mentioning any exact times, that he had been stopped by police officers on 23 August 2004, who took him to the sobering-up facility and after that to the police station, where he remained. 29. On 10 September 2004 the Deputy Prosecutor of Kyiv informed the Extradition Department of the GPO of Ukraine of the details as to the applicant's identity. In particular, it was established that the applicant's name was Mr Amir Damirovich Kaboulov and that he was a citizen of Kazakhstan only. The information also stated that he committed no crimes on the territory of Ukraine and did not have refugee status. 30. On 13 September 2004 the Dniprovsky prosecutor and the head of the Dniprovsky District Department of the Interior lodged a petition with the Dniprovsky District Court of Kyiv (“the Dniprovsky Court”; Дніпровський районний суд міста Києва) seeking a warrant for the applicant's detention in SIZO no. 13 of the State Department for Enforcement of Sentences. 31. On the same day the Dniprovsky Court, in the presence of the prosecutor and after having heard the applicant, issued a warrant for the applicant's detention on the grounds that there was a search warrant in respect of him in Kazakhstan and that the Ukrainian authorities were awaiting documents from the Kazakh authorities for his extradition to Kazakhstan. The court found that the applicant had been picked up drunk at Malyshka street by the police at 9.20 p.m. on 23 August 2004. The court noted that the applicant had explained to the police officers at the time of his arrest that he resided in Kyiv without registration. The court decided to detain the applicant in SIZO no. 13, and also ruled that the applicant's detention was not to exceed 30 days (that is, until 12 October 2004). The сourt further decided that the applicant should be detained on the basis of Articles 60 – 62 of the Minsk Convention, as he was to be extradited to Kazakhstan. The Court also referred to Articles 165 §§ 1 and 2 of the Code of Criminal Procedure. The applicant was informed of the possibility of lodging an appeal. 32. On 16 September 2004 the GPO of Kazakhstan requested the GPO of Ukraine to detain the applicant pending extradition. 33. On 18 September 2004 the GPO of Kazakhstan, by letter, confirmed the search warrant in respect of the applicant and requested his extradition to Kazakhstan on the grounds that on 30 June 2003 the applicant had been charged with non-aggravated murder (Article 96 § 1 of the Criminal Code) of Zh.U.Zh. They also stated that criminal proceedings had been pending against the applicant since 16 June 2003 and he had been on the wanted list since 28 June 2003. The GPO of Kazakhstan assured the Ukrainian authorities that the applicant would not be prosecuted for criminal offences different from those mentioned in the extradition proceedings without the consent of the Ukrainian authorities. 34. On 2 December 2004 the GPO of Kazakhstan, again by letter, gave additional assurances confirming that the applicant would not be liable to the death penalty in Kazakhstan and that his rights and lawful interests in the course of criminal proceedings would be adequately protected. They mentioned inter alia a moratorium on executions imposed by the Presidential Decree of 17 December 2003 until full abolition of the death penalty. 35. On 23 and 24 September 2004 the applicant's mother and his advocate in the domestic proceedings (Mr Priduvalov), respectively, appealed against the order of the Dniprovsky Court of 13 September 2004. They requested that the applicant be released subject to an undertaking not to abscond, until the applicant's identity had been verified. In particular, they claimed that the applicant was not a citizen of Kazakhstan, but a citizen of the Russian Federation and that the order referred to a different person. They also requested an extension of the time-limit for lodging an appeal as the applicant had not been informed about the possibility of doing so in good time. 36. On 27 September 2004 the Deputy Prosecutor General of Ukraine informed the GPO of Kazakhstan that the GPO of Ukraine agreed to extradite the applicant. The letter mentioned the need to organise the applicant's transfer to Kazakhstan. By a separate letter written on the same date, the Deputy Prosecutor General informed the Ministry of the Interior, the SDES and the Deputy Prosecutor of Kyiv that he approved the applicant's extradition and his transfer to Kazakhstan under guard. 37. On 5 and 10 October 2004 the applicant's lawyers (Mr Priduvalov and Ms Shevchenko) appealed against the failure of the judge of the Dniprovsky Court to pursue the appeal proceedings asked for by the applicant's mother and lawyer on 23 and 24 September 2004. On 7 October 2004 the Kyiv City Court of Appeal refused to consider the appeal on the grounds that it had been lodged out of time, and remitted it for a decision on its admissibility to the first-instance court (Articles 165 (2), sub-paragraphs 7 and 353 of the Code of Criminal Procedure), which on 16 November 2004 rejected the appeals lodged by the applicant's mother and Mr Priduvalov as his mother had no standing in the proceedings and the appeal had been lodged out of time, respectively. This ruling was not appealed. 38. On 14 October 2004 the applicant's mother requested the Governor of SIZO no. 13 to release the applicant from detention on the grounds that he was detained unlawfully. 39. On 15 October 2004 the applicant's advocate lodged a complaint with the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”; Шевченківський районний суд міста Києва) requesting that the applicant be released from SIZO no. 13. 40. On 23 October 2004 the applicant was transferred to Kharkiv SIZO no. 27 with a view to his further transfer to the competent authorities of the Russian Federation which were to hand the applicant over to the law-enforcement authorities of Kazakhstan. 41. On 24 November 2004 the applicant's extradition was suspended by the GPO of Ukraine, following the interim measure indicated to the Government of Ukraine under Rule 39 of the Rules of Court on 23 November 2004. 42. On 6 January 2005 the applicant lodged complaints with the Dniprovsky Court seeking a finding that his detention in Kharkiv SIZO no. 27 was unlawful. On 18 January 2005 the court refused to accept the applicant's complaint as it had been lodged with the wrong court, contrary to the requirements as to territorial jurisdiction. 43. On 11 April 2005 the applicant's lawyer, Mr Bushchenko, informed the Court that the applicant had requested refugee status in Ukraine and that this request was being examined. 44. On 30 November and 1 December 2004 the applicant's mother lodged administrative complaints with the Zhovtnevy District Court of Kharkiv (“the Zhovtnevy Court”; Жовтневий районний суд міста Харкова) requesting the applicant's release and a finding that the inactivity of the Governor of Kharkiv SIZO no. 27 in examining the applicant's complaints about his continued detention had been unlawful. 45. On 10 December 2004 the court refused to consider the complaint as it had been lodged under the Code of Civil Procedure. The court suggested that the applicant should re-lodge the complaint under Article 106 of the Code of Criminal Procedure (detention of a criminal suspect by the investigating body) as it concerned his detention and the criminal proceedings instituted against him in Kazakhstan. 46. On 24 March 2005 the Kharkiv Regional Court of Appeal (Апеляційний суд Харківської області) quashed the ruling of 10 December 2004 and decided not to examine the applicant's mother's complaints as she had no standing in the criminal proceedings against her son. 47. No appeal on points of law was lodged with the Supreme Court against this ruling. 48. On 7 and 10 December 2004 the applicant's lawyer in the domestic proceedings (Ms Shevchenko) and the applicant's mother each lodged a complaint with the Pechersky District Court of Kyiv (“the Pechersky Court”; Печерський районний суд м. Києва) against the GPO of Ukraine requesting that the applicant's extradition to Kazakhstan be prohibited. They also asked the court to declare the GPO of Ukraine's decision to extradite the applicant unlawful. They referred, inter alia, to Articles 5, 6, 7 and 13 of the European Convention on Human Rights, Article 55 of the Constitution of Ukraine and various provisions of the Code of Civil Procedure. A hearing in the Pechersky Court was scheduled to take place on 26 January 2005, but was adjourned to 28 January 2005. 49. On 28 January 2005 the Pechersky Court, in the absence of the representatives of the GPO of Ukraine, allowed the applicant's complaints, declared the decision to extradite the applicant to Kazakhstan unlawful and prohibited the GPO of Ukraine from extraditing the applicant. 50. On 28 February 2005 the GPO of Ukraine lodged an appeal with the Kyiv City Court of Appeal against the aforementioned judgment, requesting that the case be remitted for fresh consideration to the firstinstance court. They mentioned in the appeal that the applicant had been detained in Kyiv on 23 August 2004. On 14 and 17 March 2005 the applicant lodged counter-arguments against the GPO of Ukraine's appeal, referring inter alia to various provisions of the domestic and international law, including Article 5 § 1(f) of the Convention and Article 106 of the Code of Criminal Procedure. 51. On 27 May 2005 the Kyiv City Court of Appeal examined the GPO of Ukraine's appeal, quashed the decision of the Pechersky Court of 28 January 2005 and remitted the case for fresh consideration. In particular, it found that the Pechersky Court's judgment of 28 January 2005 had been adopted in the absence of the GPO of Ukraine's representatives, who had not been duly informed of the date and time of the hearing in the case, as required by Article 307 of the Code of Civil Procedure. 52. On 1 July 2005 the Pechersky Court terminated the proceedings on the grounds that the applicant had failed to comply with the procedure prescribed by law for introducing complaints in criminal proceedings. In particular, the court found that the complaints against the GPO of Ukraine should be examined in the course of criminal proceedings, in accordance with the procedural rules of the Code of Criminal Procedure (paragraphs 7 and 8 of Article 106 of the Code) and not as administrative complaints under the Code of Civil Procedure. 53. On 22 September 2005 the Kyiv City Court of Appeal upheld the ruling of 1 July 2005, finding it to be lawful. In particular, it referred to resolution no. 16 of the Plenary Supreme Court of 8 October 2004 and the relevant provisions of the Code of Administrative Justice (Articles 199, 200, 205 and 206), stating that as the applicant complained about lawfulness of his detention and his possible extradition, he had to appeal against it to the court in accordance with the rules enshrined in the Code of Criminal Procedure and the relevant provisions of the international treaty, which were applicable to extradition. 54. On 12 October 2005 the applicant appealed on points of law to the Higher Administrative Court against the ruling of 22 September 2005. The outcome of these proceedings is unknown. 55. On 20 December 2004 the applicant lodged complaints with the Zhovtnevy Court seeking a declaration that his detention in Kharkiv SIZO no. 27 was unlawful. He referred to Articles 29 and 55 of the Constitution, and Article 5 §§ 1, 3, 4 and 5 of the Convention. In particular, he alleged that the time-limit for his detention had expired on 12 October 2004 (thirty days after 13 September 2004, the date of the decision of the Dniprovsky Court to detain him). 56. On 25 January 2005 the court resumed the examination of the applicant's appeal. The hearing was adjourned until 7 February 2005 owing to the failure of the applicant's representative to appear before the court. 57. On 7 February 2005 the court decided to adjourn the examination of the applicant's appeal in order to obtain further evidence from the Pechersky Court and the GPO of Ukraine. The next hearing was scheduled for 4 March 2005, when the proceedings were again adjourned for the same reason. 58. On 14 April 2005 the court adjourned the proceedings pending the examination of the GPO of Ukraine's appeal against the decision of the Pechersky Court of 28 January 2005 (see paragraph 50 above). 59. On 7 September 2005 the Zhovtnevy Court rejected the applicant's complaints. In particular, it found that the applicant was detained in Kharkiv SIZO no. 27 not on the basis of the decision of the Dniprovsky Court of 13 September 2004, but on the basis of the extradition warrant (санкція) by the Deputy Prosecutor General and his decision to transfer the applicant under guard (етапувати та конвоювати) to Kazakhstan (see paragraph 36 above). Furthermore, the court referred to the fact that the extradition had been suspended in view of the proceedings pending before the European Court of Human Rights. It therefore found the applicant's detention to be lawful. It referred inter alia to Article 29 of the Constitution of Ukraine, Articles 56 – 62 of the Minsk Convention, Articles 165(1) and 165(2) of the Code of Criminal Procedure, as well as Article 5 §§ 1, 3 and 4 of the Convention. It also held that the applicant's name was “Amir Damirovich Kaboulov” and that he was a citizen of the Republic of Kazakhstan. 60. On 14 October 2005 the Zhovtnevy Court forwarded the case file to the Kharkiv Regional Court of Appeal with a view to the hearing of the applicant's appeal which was scheduled for 15 November 2005. The outcome of these proceedings is unknown. 61. The relevant domestic law and practice, including the relevant provisions of the Constitution of Ukraine, Codes of Civil and Criminal Procedure and the Code on Administrative Justice and the relevant extracts from the Supreme Court's practice, are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008). 62. Article 29 of the Constitution of Ukraine reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody. Everyone arrested or detained shall be informed without delay of the reasons for his or her arrest or detention, apprised of his or her rights, and from the moment of detention shall be given the opportunity to personally defend himself or herself, or to have the legal assistance of a defender. Everyone detained has the right to challenge his or her detention in court at any time. Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention.” 63. The relevant provisions of the Convention are summarised in the judgment of Soldatenko v. Ukraine (no. 2440/07, §§ 21 - 31, 23 October 2008), and Ryabikin v. Russia (no. 8320/04, § 104, 19 June 2008). Other relevant extracts from the Convention read as follows: “The requesting Contracting Party shall immediately adopt the necessary measures for detention of a person whose extradition is requested, except in circumstances in which the person cannot be extradited.” Procedural relations with regard to extradition and criminal prosecution “Procedural relations with regard to extradition, criminal prosecution, and enforcement of investigative sanctions involving citizens' rights and necessitating the approval of the prosecutor shall be handled by the prosecutors general (prosecutors) of the Contracting Parties.” 64. According to section 11 § 5 of the Militia Act, persons arrested for alcohol intoxication in a public place, unable to walk, posing danger to themselves or others, shall be transferred by police that arrested them to specialised sobering-up facilities or to their home. They shall be held in police stations only if their address is unknown or there is no sobering-up facility in the locality. 65. According to the section 3 of the Regulation, each instance of detention of a suspect shall be documented. The relevant record shall contain reasons, grounds, motives, exact day and time, year and month, place where a suspect was arrested, explanations from detained and the time when the record was concluded. The record shall be signed by the suspect and a person who prepared it. The period of detention shall be calculated from the moment the suspect was brought to the relevant investigation body or from the actual moment of apprehension. 66. According to section 4 of the Regulation, the lawenforcement authorities must inform the prosecutor of any facts related to the detention of a person within twenty-four hours of the time he or she was apprehended. The prosecutor must issue a warrant for detention within forty eight hours from receipt of such information, or release the detained. 67. Section 10 of the Regulation envisaged that a record should be drawn upon person's apprehension and that this person should be informed of the rights of an apprehended suspect. 68. The relevant extracts provide as follows: “5. Cruel, inhuman or degrading treatment or punishment (Article 16) 5.1. The death penalty In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 “exceptionally grave” crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for “exceptionally grave” crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment. Amnesty International is concerned that the death penalty could be applied to acts committed outside Kazakhstan and ... concern is heightened in view of the documented failure of judges to exclude evidence extracted under torture and the numerous reports of the authorities using national and regional security and the fight against terrorism to target vulnerable groups such as asylum-seekers and groups perceived to be a threat to national and regional stability. .... 5.2. Prison conditions Whereas by all accounts Kazakhstan had implemented a successful reform of its penitentiary system ... the last two years have reportedly seen a decline in prison conditions, with many of the abusive practices reoccurring more and more often. 2007 saw a number of disturbances in prisons camps throughout the country with large groups of prisoners committing acts of self-mutilation, such as slicing their abdomens, hands and necks, reportedly in protest at deteriorating conditions of detention. The South Kazakhstan Regional office of the prosecutor opened a criminal case into the abuse of office, and the unlawful use of police equipment, by prison officials in relation to 77 prisoners committing acts of self-mutilation. The prosecutor's office was quoted by the press as admitting that prison officers had beaten and otherwise ill-treated prisoners. Nevertheless the prison officials were not charged under Article 347-1 (Torture). The prisoners themselves were charged with organizing disturbances in order to disrupt the functioning of the prison, a criminal offence under Article 361 of the Criminal Code punishable from one to up to 10 years' imprisonment. NGOs told Amnesty International that the conditions of detention in prisons had severely deteriorated since 2006 and that they were receiving increasing numbers of complaints of torture or ill-treatment from prisoners or from relatives. It was becoming increasingly difficult for prisoners to lodge complaints about torture or other ill-treatment by prison officers, according to these reports, because all correspondence was vetted by the prison administration and complaints could only be forwarded to the local prosecutor's office with the permission of the prison administrator, in contravention of the rights of prisoners and detainees. NGOs were told that prisoners had to pay the prison administration to see a medical doctor or to get medical treatment, or to send letters or make phone calls to their families, that they were often locked up in punishment cells for extended periods of time for either complaining about cruel, inhuman or degrading treatment or punishment or for disobeying orders by prison officers. Some methods of punishment meted out to prisoners reportedly included being forced to clean toilets with their bare hands and wash the floor naked.” 69. The relevant extracts from the Special Rapporteur's report provide as follows: “... 20. Moratorium on the death penalty In December 2003, the Senate proposed a moratorium on the death penalty. By presidential decree the moratorium was extended in January 2004 and the Criminal Code amended to introduce life imprisonment instead of capital punishment. With all human rights organizations, the Special Rapporteur welcomes this development, especially having in mind that 40 persons were executed in 1999; 22 in 2000 and 15 in 2001. Since the moratorium, only one death sentence was registered and the Supreme Court commuted it to life imprisonment.” 70. The relevant extracts from the Report read as follows: “.... Though there has been a moratorium on executions since December 2003 and life imprisonment has been a viable legal alternative to the death sentence since January 2004 -- both developments welcomed by the IHF -- this latest ruling signals that obstacles remain in Kazakhstan's journey towards abating the use of the death penalty and, eventually, abolishing it. With the moratorium in place, Ibragimov now goes to death row, joining 27 other inmates and awaiting his death should the political will of the Kazakh government break and lift the moratorium. ...” 71. The relevant extracts from the Report of the Committee against Torture read as follows: “... The Committee was concerned about the allegations of torture and other degrading treatment committed by law enforcement officials. The lack of independence of the [prosecutors], the defence counsel and the judiciary was also raised with concern. The Committee highlighted that allegations of torture are not being considered seriously, as reflected by the fact that investigations are being postponed and judges sometimes refuse to recognise evidence of torture. Another point of concern related to overcrowding and reduced access to medical care in prisons and detention centres. ... The Committee recommended that the crime of torture, as outlined in the Penal Code, be amended in line with the Convention. It urged the State Party to ensure a fully independent mechanism of complaints and enable the defence counsel to follow a case from the beginning and to gather evidence ...” 72. The relevant extracts from the analysis by the OSCE Office for Democratic Institutions and Human Rights on the death penalty (by means of shooting) in Kazakhstan, dated 20 November 2004, read as follows: “.... There are currently 27 persons on death row in Kazakhstan. Persons subjected to the moratorium are currently detained in pre-trial detention facilities. ... Official statistics provided by the Office of the Prosecutor-General indicate that nine death sentences were passed in the period from 30 June 2003 to 30 March 2004. No death sentences entered into force (i.e., all appeals stages exhausted) in this period. According to unofficial statistics, only one death sentence has been passed since the moratorium was put in place, but this was subsequently reduced to life imprisonment by the Supreme Court. ... Official statistics provided by the Office of the Prosecutor-General indicate that no executions were carried out in the period from 30 June 2003 to 30 March 2004. ... All persons sentenced to death have the right to appeal for commutation of the sentence to life imprisonment or 25 years' imprisonment (Art. 49(3) of the Criminal Code, Art. 31(2) of the Criminal Procedure Code, and Art. 166(1) of the Criminal Executive Code). The cases of all persons sentenced to death are considered regardless of whether the sentenced person has submitted an appeal for clemency (Presidential Decree No. 2975 “On provisions for pardoning procedure by the president of the Republic of Kazakhstan”, 7 May 1996) ... Relatives are not informed in advance of the date of execution, the body is not returned, and the location of the place of burial is not disclosed to the relatives until at least two years after the burial has taken place (Art. 167, Criminal Executive Code).” 73. The relevant extracts from the US Department of State report read as follows: “The Government reported that 51 criminal cases against law enforcement officers for physical abuse were filed during the year. ... Prison conditions remained harsh and sometimes life threatening. Mistreatment occurred in pre-trial detention facilities and in prisons, and nongovernmental organizations (NGOs) and international organizations reported that abuses of prisoners increased after the head of the penitentiary system and approximately onethird of the prison administrators were replaced in 2003. The December 2003 transfer of supervision of pre-trial detention facilities from the Ministry of the Interior to the Ministry of Justice was completed in May; as a result of this transfer, conditions improved, although they remained harsh. The head of the prison system and two deputies resigned in February following reports of brutal beatings of inmates in certain prisons. Violent crime among prisoners was common. During the year, the number of prisoners continued to decline significantly. Much of the decrease was associated with the 2002 Humanization of Criminal Justice Law, which prescribes punishments other than imprisonment, such as probation, for minor first offences. The Government reported 2,600 total violations, including physical force violations, by employees of the penitentiary system during the year. Some officials were punished for these abuses; 911 employees received disciplinary punishment, including fines, demotions, and dismissal and another 8 employees were convicted on criminal charges. In the past several years, prison diets and availability of medical supplies have improved. There were 6 tuberculosis colonies and 2 tuberculosis hospitals for prisoners; 5,591 prisoners were housed in these colonies. While the incidence of tuberculosis stabilized, HIV/AIDS continued to be a problem. The Government, together with the U.N. Development Program (UNDP), continued to implement a project to prevent HIV/AIDS and other sexually transmitted diseases in penitentiaries. Prisoners were permitted to have visitors, although the number and duration of visits depended on the security level of the prison and the type of sentence being served. Prisoners were held in close proximity, barracks-style facilities; however, a government program to build new correctional facilities and rehabilitate existing facilities continued throughout the year. Incidents of self-mutilation by inmates to protest prison conditions continued. In general, the Government did not take action in response to self-inflicted injuries by prisoners... ” 74. The relevant extracts from the report read as follows: “(...) The following human rights problems were reported: an incident of unlawful deprivation of life; ... detainee and prisoner abuse; unhealthy prison conditions; ... lack of an independent judiciary; ... a. Arbitrary or Unlawful Deprivation of Life ... The court sentenced Rustam Ibragimov, a former ministry of internal affairs official, to death, though he will remain in prison as long as the death penalty moratorium remains in effect. .... c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The constitution and law prohibit such practices, but police and prison officials at times tortured, beat, and abused detainees, often to obtain confessions. In its Human Rights Commission's annual report, the government acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and procurator's practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. ... The ombudsman's office reported 2,613 citizen complaints during the year, over 20 percent of which were allegations of abuse by law enforcement. ... Prison and Detention Centre Conditions Though the government implemented prison reforms and granted greater access, prison conditions remained harsh and facilities did not meet international health standards. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took some steps to address systemic patterns that encouraged prisoner abuse. These included continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MVD police; however, no prison officials were prosecuted for abuses during the year. The government conducted 13 criminal investigations of penitentiary officials for corruption in the first eight months of the year. These investigations resulted in 12 convictions and one acquittal. ... Although the government made some efforts to upgrade existing facilities and build new ones, buildings at many prisons remained outdated and hygiene conditions were substandard. In February the procurator general's office issued an order closing one of the buildings in the Semipalatinsk pre-trial investigation facility because it did not meet sanitary standards and posed a threat to the health and lives of detainees. On May 25, the procurator general's office issued a statement criticizing the MOJ for failing to address overcrowding, sewage, and poor sanitation in prisons. During the year, 31 detainee deaths, including five suicides, were reported at pre-trial detention facilities. The government reported 268 deaths in prisons during the year, including 26 suicides. Incidents of self-mutilation by inmates to protest prison conditions continued. On March 31, inmates in the Zarechny prison outside of Almaty rioted to protest harsh conditions, mistreatment, and confiscation of personal belongings. According to human rights activists, the prison was originally designated to house convicted law enforcement officers. However, prior to the riot, regular criminals were added to the population, leading to increased tension and the tightening of controls. Twenty-four inmates mutilated themselves by cutting their abdomens, and three inmates were injured when prison guards restored order. Local NGOs were permitted to visit the facility and interview inmates after the incident. An activist from the Public Committee for Monitoring Human Rights reported that the prison officials' response to the riot was generally appropriate. Several officers of the prison administration were disciplined for their failure to deal with the protest action. After the incident, prison officials transferred the regular criminals out of the population to reduce tension and problems.” 75. The relevant extracts from the US Department of State report read as follows: “(...) There were the following human rights problems: (...) detainee and prisoner abuse; unhealthy prison conditions; arbitrary arrest and detention; lack of an independent judiciary; (...) pervasive corruption, especially in law enforcement and the judicial system; (...) a. Arbitrary or Unlawful Deprivation of Life In contrast with the previous year, there were no reports that the government or its agents committed arbitrary or unlawful killings. (...) c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment The procurator general's office (PGO) and the human rights ombudsman acknowledged that torture and other illegal methods of investigation were still used by some law enforcement officers. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant's confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that their confessions were obtained by torture or duress. The ombudsman's office reported 1,684 citizen complaints during the first 11 months of the year, approximately 300 of which were allegations of abuse or misconduct by law enforcement. Prison and Detention Centre Conditions NGOs and international observers reported that prison and detention centre conditions declined during the year. Observers cited worsening treatment of inmates and detainees, lack of professional training for administrators, and legislative changes on April 26 that criminalized prisoner protests and self-mutilation. The legislative changes also transferred operation of the parole system from penitentiary officials to the MIA and implemented forced tuberculosis treatment. Prison conditions remained harsh and facilities did not meet international health standards, although the government began renovating three prisons and two detention facilities during the year as part of a penitentiary development program. Mistreatment occurred in police cells, pre-trial detention facilities, and prisons. The government took steps to address systemic patterns that encouraged prisoner abuse, including continued operation of and increased access for regional penitentiary oversight commissions, training of prison officials, and seminars for MIA police. Authorities did not prosecute any prison officials for abuses during the year, although they opened 21 investigations for corruption, resulting in eight convictions by year's end. During the first ten months of the year, 32 detainee deaths, including six suicides, were reported at pre-trial detention facilities. The government reported 40 suicides in prisons during the first 11 months of the year. Incidents of self-mutilation by inmates to protest prison conditions continued. e. Denial of Fair Public Trial The law does not provide adequately for an independent judiciary. The executive branch limited judicial independence. Procurators enjoyed a quasi-judicial role and were permitted to suspend court decisions.” 76. The Constitution of the Republic of Kazakhstan envisages the death penalty, as an exception to the right to life. A Presidential Decree placing a moratorium on executions was introduced on 17 December 2003. 77. The relevant extracts from the Constitution of Kazakhstan provide as follows: “1. Everyone shall have the right to life. 2. No-one shall deprive a person of his/her life. The death penalty shall be established by law as an exceptional punishment for terrorist crimes which have resulted in the loss of human life, and also for especially grave crimes, committed in time of war, with a sentenced person having a right to appeal for pardon.” “1. The Prosecutor's Office, acting on behalf of the State, effectuates highest supervision over strict and unified application of the laws, Presidential decrees, and other normative acts of the Republic of Kazakhstan ...” 78. Article 39 of the Criminal Code (Types of punishment), provides that persons found guilty of committing criminal offences may be subject to the capital punishment as one of the types of punishment. Under Article 49 (Capital punishment) envisages that: “1. Capital punishment, that is a sentence to be shot, is an exceptional form of punishment reserved for especially grave crimes infringing a person's right to life and for crimes committed in war time or in a combat situation, high treason, crimes against the peace and safety of mankind and especially grave military crimes. 2. Capital punishment shall not be applied to women, to persons who committed a crime while under the age of eighteen or to men who have reached the age of sixtyfive when the sentence is passed by a court. 3. Should the President of the Republic of Kazakhstan introduce a moratorium on enforcement of the death penalty, the enforcement of a death sentence shall be suspended for the effective period of the moratorium. 4. A sentence of death shall be implemented not earlier than one year from the time of its entry into force and no less than one year after the abolition of a death penalty moratorium. 5. Under the pardon procedure, the death penalty may be replaced with life imprisonment or with deprivation of liberty for a period of twenty-five years in a special-regime correctional facility. Persons sentenced to the death penalty shall, in the event of the abolition of a moratorium, have the right to petition for pardon, irrespective of whether or not they had made such a petition prior to the introduction of the moratorium.” 79. The third party stated that the legislation of Kazakhstan contained insufficient guarantees to ensure respect for human rights. In particular, it contained no sufficient guarantees for a person not to be ill-treated. In particular, they stated that the Criminal Code of Kazakhstan provided no punishment for ill-treatment, as it only referred to torture. Furthermore, they stated that in cases of ill-treatment by the law enforcement or prison authorities, these complaints were investigated by the same authorities, who were directly dependent on the executive, thus it created a vicious circle of impunity. Furthermore, under Article 82 of the Constitution of Kazakhstan judges were to be appointed by the President of Kazakhstan, having no authority to supervise complaints of ill-treatment. Thus, there was no independent body able to investigate complaints in respect of ill-treatment. Furthermore, they referred to the Amnesty International report of January 2006 – March 2007, the US State Department report of 2006 and the Almaty Helsinki Committee report for 2004, which, from their point of view, also proved that legal practices in Kazakhstan did not comply with human rights standards.