Gerasimov v. Kazakhstan

Court:
UN Committee against Torture
Country:
Kazakhstan
Status:
Active

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Police Beating to Force Confession

Alexander Gerasimov went to the local police station in Kostanay, Kazakhstan, in March 2007 to ask about his son who had been arrested. He was detained by the police for 24 hours, interrogated, and beaten in an attempt to get a confession, before the police released him without charge. Gerasimov spent two weeks in the hospital. Local authorities argue that his injuries were not sufficiently serious for them to investigate the case any further.

Facts

On March 27, 2007, Alexander Gerasimov learned from his wife that his elder stepson had been taken to the police station in Kostanay, Kazakhstan. When he went to enquire after his stepson, the police immediately took him into custody as well. The police accused Gerasimov of murdering an elderly woman. He denied the accusations, and the police tortured him in order to elicit a confession.

The police beat him with heavy blows to the kidney area. They threatened him with sexual violence. They then tortured him with a tactic called "dry submarino"—the police forced him face down on the ground and put a plastic bag over his head. Four policemen stood on him as the fifth pulled his head back with the plastic bag, causing immense pain in his back and suffocating him. He lost consciousness. When he came round they repeated the process until he lost consciousness again. They did it again, and again, and again, until his head was bleeding. Every time the police released the plastic bag they shouted "Confess and that's it!" The torture lasted into the night.

The next morning, Gerasimov was released without charge. Immediately following his release he suffered from strong headaches and nausea. His body was swollen and he was unable to sit in a taxi. He was admitted to the hospital that evening and was diagnosed with a major head injury, including bruising to his head, a wound to his right eye, as well as bruising to the right kidney and to the lumbar region. He was admitted to the neurological unit and remained in the hospital for 13 days. In August 2007 he was diagnosed with Post-Traumatic Stress Disorder (PTSD) and was treated as an in-patient for nearly a month in a psychiatric hospital.

Gerasimov filed a complaint. An investigation was started, but by the very same police unit who had tortured him. In May 2007 the police decided not to hold a criminal investigation. Gerasimov appealed multiple times in order to force an investigation, and was threatened and offered bribes by the police to drop the case. However, the Kostanay Courts upheld the decision not to investigate the case, saying that there was no evidence.

Open Society Justice Initiative Involvement

The Justice Initiative is assisting local partner, the Kazakhstan International Bureau for Human Rights and the Rule of Law (KIBHR), in advocating in Kazakhstan for the implementation of the UN CAT decision by making requests to the government and through a legal action for damages. The Justice Initiative supported the preparation of a moral (non-pecuniary) damages assessment of Mr. Gerasimov for use in domestic litigation.

The Justice Initiative maintains regular dialogue with the follow-up rapporteur of the UN CAT, insisting on the need to continue requesting the authorities to implement the decision, in particular by paying appropriate compensation to Gerasimov, and by introducing relevant legal safeguards for the prevention of torture in custody. 

Arguments

Torture. The treatment of Gerasimov by the police officers amounted to torture as defined by Article 1 of the UN Convention against Torture (UNCAT).

No safeguards to prevent torture. Kazakhstan has failed to introduce anti-torture safeguards such that numerous administrative and procedural failings allowed the torture of Gerasimov to occur in violation of the obligation to prevent torture in Article 2(1) UNCAT.

Ineffective investigation. No prompt, impartial and effective investigation has been undertaken into the torture of Gerasimov that was able to bring about the prosecution of those responsible for his treatment, contrary to Article 12 and Article 13 UNCAT.

Failure to Provide Redress. Without a criminal conviction of the perpetrators, Gerasimov cannot claim compensation and reparations, in violation of Article 14 UNCAT.

Timeline

March 27, 2007. Kostanay police detain Gerasimov and torture him.
March 28, 2007. Police release Gerasimov without charge.
May 8, 2007. Police refuse to initiate a criminal investigation.
September 5, 2007. After referral, the Department for Combatting Economic Crimes and Corruption refuses to initiate a criminal investigation.
March 25, 2008. The Second Court of the City of Kostanay upholds the decision not to open an investigation.
April 22, 2010. Communication filed with the UN Committee against Torture.
January 18, 2011. Government files a response to the communication.
February 28, 2011. Justice Initiative files a reply to the Government’s response.
May 6, 2011. Government makes further submission on merits.
July 15, 2011. Justice Initiative files consolidated comments on Government submissions.
May 24, 2012  The UN Committee against Torture adopts its decision.

Findings

The UN Committee against Torture found Kazakhstan responsible for several violations of UNCAT:

  • The treatment of Gerasimov was of sufficient severity to amount to torture, and was done for the purpose of eliciting a confession in violation of the Article 1 of UNCAT. It is uncontested that he was in the custody of the police at the time his injuries were inflicted and that he sought medical treatment for his injuries promptly after his release. The State should be presumed liable for the harm caused to Gerasimov.
  • The police also failed to register Gerasimov’s detention, to provide him with a lawyer and with access to an independent medical examination amount to the violations of the duty to prevent and punish acts of torture, in violation of Article 2 (1) of UNCAT.
  • The investigation was not independent. It was not prompt, as the preliminary investigation was not started until one month after he reported the acts of torture and the medical examination was delayed. The investigation relied heavily on the evidence of the officers accused, and Gerasimov and his family were subject to pressure and intimidation. All of the above amounted to the failure to investigate in violation of the Articles 12 and 13 of UNCAT.
  • The inability of Gerasimov to obtain civil compensation without the conclusion of criminal proceedings, and the delays in the investigation and lack of criminal prosecution, constituted a breach of the obligation to provide remedy to victims under the Article 14 of UNCAT.
  • This pressure and intimidation also amounted to a violation of the right of petition in violation of the article 22 of UNCAT.

The committee urged Kazakhstan to conduct a proper, impartial and effective investigation in order to bring to justice those responsible for mistreatment of Gerasimov, to take effective measures to ensure that he and his family are protected from any forms of threats and intimidation, to provide him with full and adequate reparation for the suffering inflicted, including compensation and rehabilitation, and to prevent similar violations in the future.

Implementation

On March 14, 2013, the KIBHR sent a letter to the government asking that the decision of UNCAT be implemented, and that the authorities pay just compensation to Gerasimov. On April 16, 2013, the Financial police replied stating that they refused to initiate a criminal case.

In July 2013 a psychologist from the Ukraine examined Gerasimov and concluded that he had suffered irreversible psychological damage, and would need life-long treatment and support.

On September 4, 2013, the KIBHR filed a legal action for damages on behalf of Gerasimov before the Kostanai city court.