Moidunov v. Kyrgyzstan

Court:
UN Human Rights Committee
Country:
Kyrgyzstan
Status:
Active

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Justice Initiative and Tair Asanov, January 4, 2008
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No Justice for Death in Police Custody

After a dispute on the street, Tashkenbaj Moidunov was taken to a police station in Kyrgyzstan. An hour later he was dead. An ambulance doctor who examined him found finger marks around his neck and asked if he had been strangled. The police said that Moidunov had had a heart attack, and then changed their story to say he hung himself. Despite the evidence, there has never been a proper investigation into his death. The UN Human Rights Committee found that he had been killed in custody, and has called for a proper investigation, prosecution and reparations.

Facts

In October 2004, Tashkenbaj Moidunov and his wife had an argument in the street and were stopped by police officers. They were taken to the regional police office in Bazar-Kurgan, where the police made Moidunov’s wife write a complaint stating that her husband had assaulted her during their quarrel. She saw the police force her husband into a cell. She left the police station and was waiting at a nearby bus stop when a policeman came and asked her to return to the police station, explaining that her husband had died of a heart attack.

The police had also called an ambulance, saying that Moidunov had hung himself. When the ambulance doctor arrived, the police told her that Moidunov had clutched his chest and fallen over. She examined his body and could not find any signs of a rope mark, but did find red fingermarks on his neck. She then asked the police if he had been strangled, but they repeated to her that he had clutched his chest and fallen to the floor. She then asked why they had reported that he had hung himself, and the police replied that they had panicked.

The two policemen on duty on October 24, Mantybaev and Abdkaimov, made statements that day repeating how Moidunov had clutched his chest and fallen to the ground. The same day, Mantybaev also made an entry in the official register saying that they had found his body on a street in a village.

Despite this evidence, on November 9, 2004, the prosecutor opened an investigation limited to the offense of negligent performance of duties, on the basis that the police had failed to prevent Moidunov from committing suicide. A week later the two policemen were questioned by the prosecutor. They now said that Moidunov had used his long underwear to hang himself, and that they had initially lied as they were afraid of telling the truth. A medical examination revealed that there were scratches on Moidunov’s body and that there was a bloody wound on his neck. He also had a fracture to the horn of his thyroid, which an expert concluded could result from pressure by hands.

Mantybaev was then charged with negligence for failing to prevent a suicide. It appears that Abdkaimov then disappeared, and was not charged with any offense.

The trial of Mantybaev took place in September 2005. The family made a request for further criminal investigation, in particular with regard to the role of the missing policeman, Abdkaimov. The court considered the last statement of Mantybaev saying that it had been a suicide, but did not take into account his previous inconsistent statements. In a two page judgment the court found him guilty of the offense, but exempted him from criminal liability on the basis that he had reconciled with the Moidunov family.

The family did not agree, and appealed the decision to the Zhalalabad Regional Court, arguing that there had been no reconciliation at the earlier hearing, and that the policemen were directly involved in the death, given the discrepancies in their evidence, and asking the court to apprehend Abdkaimov. The Regional Court upheld the family’s appeal, referring the case back for a new trial which “must clarify the discrepancies and drawbacks of the investigation”. However, Mantybaev appealed to the Supreme Court, which found in December 2006 that the payment of 30,000 soms (approximately $860 USD) for funeral expenses by the policeman meant that there had been reconciliation.

Open Society Justice Initiative Involvement

The Justice Initiative worked with a local lawyer in Kyrgyzstan, Tair Asanov, to file a communication with the UN Human Rights Committee (UNHRC), and to bring domestic proceedings to implement the decision of the UNHRC.

Arguments

Right to life. Tashkenbaj Moidunov was arbitrarily deprived of his life by police officers while he was in custody, in breach of the right to life protected by Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR).

Torture and ill-treatment. Moidunov was subjected to unlawful force by police officers while in custody, amounting to torture and/or ill-treatment in violation of Article 7 of the ICCPR.

Failure to provide effective remedies. Kyrgyzstan failed to conduct an impartial and effective investigation into Moidunov’s death and, as a result, failed to prosecute and punish those responsible, in violation of Article 2(3) in conjunction with Article 6(1) and Article 7 of the ICCPR. Kyrgyzstan also failed to award adequate compensation to the relatives of the victim for his death.

Timeline

October 24, 2004. Kyrgyz police take Tashkenbaj Moidunov and his wife into custody. Moidunov dies.
September 21, 2005. First instance court finds police officer Mantybaev responsible for negligence, but concludes that there has been a reconciliation.
September 2006. Decision of the lower court appealed; new trial ordered.
December 27, 2006. Supreme Court upholds finding that there has been reconciliation.
January 4, 2008. Individual communication filed with the UNHRC.
June 16, 2010. Government files a response to the communication.
January 11, 2011. Justice Initiative files a reply to the Government’s response.
July 19, 2011. Views of the Human Rights Committee finding a violation of the ICCPR.

Findings

On July 19, 2011, the UN Human Rights Committee issued a decision finding that Moidunov had been killed in custody, and that Kyrgyzstan had violated the right to life.

The committee concluded that in the absence of arguments from the state rebutting the allegation that Moidunov had been killed in custody, the state was responsible for the arbitrary killing, contrary to Article 6(1) of the ICCPR. They also concluded that the evidence demonstrated that Moidunov had received injuries while in custody, substantiating the claim that he had been ill-treated before his death, contrary to Article 7 of the ICCPR.

The committee found that the authorities had failed to investigate the allegations properly, and had therefore denied his mother a remedy, in violation of her rights under Article 2(3) taken with Articles 6(1) and 7. The committee noted that the investigative order stated that Moidunov had killed himself, thus preventing the investigation of the allegation that he had been killed. The authorities failed to get a detailed description of the crime scene, did not carry out a reconstruction, did not establish the exact sequence of events, did not request medical records, did not carry out a scientific examination of the sport trousers, and did not find out what happened to the cash that he had on him.

The committee concluded that Kyrgyzstan was under an obligation to provide a remedy which should include an impartial, effective, and thorough investigation into the circumstances of the author’s son’s death, prosecution of those responsible, and full reparation including appropriate compensation. The committee also stated that Kyrgyzstan is under an obligation to prevent similar violations in the future.

The committee called for Kyrgyzstan to provide within 6 months information about the measures taken to give effect to their views.

Implementation

On September 5, 2012, a request was sent to the Kyrgyz authorities to implement the decision of the UNHRC, supported by an expert report on moral (non-pecuniary) damages. On September 19, 2012, the government refused to pay compensation, claiming that a decision of a domestic court was necessary.

In December 2012, a legal application for damages was filed in the domestic courts, which was rejected in July 2013 on formal grounds.

In its May 2013 submission to the UNHRC on follow-up to the case, the Kyrgyz government argued that domestic remedies were not exhausted and that there were no grounds to reopen the case. In July 2013 the Justice Initiative submitted a detailed response describing the efforts of Moidunov’s family to seek implementation of the decision and the refusal of the government to satisfy these requests, and asked the committee to continue dialogue with the Kyrgyz Republic.