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

October 17, 2011. Moidunov’s family files a request for compensation with the Office of acting Prime Minister of Kyrgyzstan.

December 29, 2011. Government of Kyrgyzstan submits observations on follow-up to the UNHRC.

April 13, 2012. The Justice Initiative files a reply to the government’s observations on follow-up to the UNHRC.

September 5, 2012. Moidunov’s family sends a request to the government to implement the decision of the UNHRC, supported by an expert report on moral (non-pecuniary) damages.

September 19, 2012. Government refuses to pay compensation, stating that a decision of a domestic court is necessary.

October 12, 2012. Government submits new observations on follow-up to the UNHRC.

December 12, 2012. Moidunov’s family files an application for compensation in Pervomaysky District Court in Bishkek against the Ministry of Finance.

March 12, 2013. The Justice Initiative files a reply to the government’s observations on follow-up to the UNHRC.

March 19, 2013. Government files additional observations with the UNHRC on follow up.

April 23, 2013. Moidunov’s family files a civil claim to Pervomayskiy District Court for compensation for moral damages.

July 1, 2013 – The Pervomaysky District Court in Bishkek dismisses the application for damages on formal grounds.

July 2, 2013. The Justice Initiative files a response to the government’s observations as part of the UNHRC follow-up procedure.

October 18, 2013. Government submits new observations on follow-up to the UNHRC.

April 3, 2014. Pervomaysky District Court refuses to accept the claim for compensation for local damages filed by the family of Moidunov in March 2014. 

April 14, 2014. Moidunov’s family files an appeal with Bishkek City Court.

July 1, 2014. Bishkek City Court decides that the lower’s court decision on refusal to accept the claim violated material and procedural law. The court annuls the decision and sends the case back to the Pervomaysky District Court

January 15, 2015. UNHRC informs the Justice Initiative about its intention to suspend the follow up of the case.

April 10, 2015. The Justice Initiative writes to the Special Rapporteur of the UNHRC on Follow-Up to Views urging the Committee to resume active follow-up on this case.

April 29, 2015. Pervomaysky District Court decides to partially satisfy the lawsuit of Moidunov’s family against the Ministry of Finance for the compensation of moral damages in the amount of 500,000 Kyrgyz soms.

October 13, 2015. Following an appeal by the Ministry of Finance, the Bishkek City Court upholds the decision to award compensation but lowers the amount to 200,000 Kyrgyz soms to be paid out of the public treasury represented by the Ministry of Finance of the Kyrgyz Republic.

November 16, 2015. The Committee informed the Justice Initiative about reconsidering the request of resuming the follow-up in its March 2016 session.

January 27, 2017. The Judicial Board on Civil Cases of the Supreme Court dismisses an appeal by the Ministry of Financeandorders payment of compensation to the family of Moidunov. This is the first time the Supreme Court rules on the right to receive compensation of victims of human rights violations who won their cases at the UNHRC.

February 7, 2017. Government files new observations on the follow-up with the UNHRC requesting to close the case.

October 28, 2017. Moidunov’s family receives the compensation after several administrative delays.