CAT/C/48/D/433/2010 7.16 The State party contends that the communication should be declared inadmissible on the following grounds: (1) the events complained of occurred on 27 March 2007 and the last procedural decision on the case was taken on 1 February 2008, i.e. before Kazakhstan recognized the Committee’s competence under article 22; (2) the complainant failed to appeal in court, as provided for under article 109 of the Criminal Procedure Code, the decision of 1 February 2008 (refusal to open a criminal case) and of 6 February 2011 (closure of the criminal case) – thus, he has not exhausted all available domestic remedies; (3) in March 2011, the Ministry of Foreign Affairs received a notarized letter by which the complainant withdrew his complaint before the Committee. In the light of the complainant’s withdrawal of the complaint submitted to the Committee by third parties, the Committee should not examine it. 7.17 The State party states that the claims advanced by the complainant’s representatives are unfounded. The allegations of torture have not been confirmed in the course of the investigation. Furthermore, the complainant declared that he had not submitted any complaint to the Committee and did not insist on further investigation of the criminal case. Although the State party has taken all measures to ensure that an objective investigation is carried out, it is not possible to criminally prosecute the police officers in view of insufficient evidence and the position of the complainant himself. However, eight police officers were subject to various disciplinary sanctions (see para. 7.2). It also submits that, according to domestic legislation, the issue of compensation for torture is decided only after conviction of the officials by a criminal court. Representatives’ comments on admissibility and merits 8.1 On 15 July 2011, the complainant’s representatives submitted comments on admissibility and merits. With regard to the State party’s argument that the violations are not within the temporal jurisdiction of the Committee, they reiterate the argument that the torture of the complainant in 2007 has been affirmed by the State party by act or clear implication due to its wilful failure to acknowledge responsibility for the torture and its continuing failure to conduct an adequate investigation also after Kazakhstan made the declaration under article 22 of the Convention on 21 February 2008. The State party ignores the attempts by the complainant to obtain an effective investigation from March to June 2008 by claiming that the last procedural decision was on 1 February 2008. It has still not undertaken an investigation that satisfies the requirements of articles 12 and 13 of the Convention, which constitutes an ongoing violation. The failure to prevent torture and failure to provide adequate remedies for torture are also ongoing violations. 8.2 As to the complainant’s alleged failure to appeal the decisions of 1 February 2008 and of 6 February 2011, representatives note that he filed appeals to prosecutors’ offices, as well as a judicial appeal to the City Court which was rejected on 25 March 2008. Any further appeal under article 109 was not available or effective in practice. Given the intimidating manner in which the renewed investigation was conducted, it would be unreasonable to expect him to restart the new round of appeals to the same bodies that have already considered his case repeatedly. 8.3 Concerning the complainant’s purported withdrawal letters from February 2011 invoked by the State party, none of the incidents relied upon can be seen as a “spontaneous, voluntary repudiation” of the complaint to the Committee. The State party has failed to mention the numerous occasions in January 2011 when, under interrogation, with his lawyer present, the complainant repeated his allegations. Instead, it has focused on the subsequent occasion when, under highly questionable circumstances – i.e. being questioned by the police without a lawyer present – he was intimidated into writing a short letter refusing to testify further. Without a free and unequivocal withdrawal, the Committee should continue to consider the communication as it is in the interests of justice to do so. 11