CAT/C/51/D/441/2010
courts did not examine his allegations of torture, as they perceived his complaints as a way
of influencing the court in an attempt to avoid the investigation of his criminal liability.
7.3
The complainant adds that the State party has not commented on his argument that it
was possible to submit an appeal against the refusal of 8 June 2009 by the Internal Security
Division of the Department of Internal Affairs of Astana city to initiate criminal
proceedings on his allegations of torture only in the context of the appeal against the
judgment of the court of first instance. He notes that the State party constantly refers to
numerous forensic medical examinations allegedly performed on him, but, with the
exception of the forensic report concerning his statement in which he confessed his guilt,
does not provide any information as to who, when and why such examinations were
performed. The complainant emphasises that during one of the hearings, a forensic expert
explained that he did not have enough samples of the complainant’s handwriting to reach
any concrete conclusion as to the circumstances under which he had produced his written
confessions. The complainant also notes that he was examined by a medical doctor only
shortly after his placement in the temporary detention centre. As to the State party’s
comments on the effectiveness of the procedure for submitting complaints concerning the
decisions and actions of investigators, the prosecutor, the courts, etc. under articles 103,
105, 109 and 284 of the criminal procedure code, the complainant maintains that in his
case, the procedures and requirements (inter alia, the time limits) prescribed in the those
articles of the code were not observed by the national authorities.
7.4
The complainant further stresses that he never voluntarily confessed his guilt during
the preliminary investigation or in court. He reiterates that during his trial before the courts
of first and second instance, his allegations of torture were not taken into consideration. In
this connection, he quotes in detail from the trial transcript his statements concerning the
fact that he had been subjected to torture. He adds that the national courts were biased as
they were influenced by numerous negative publications about him in the mass media (e.g.
by the interviews given by different officials).
7.5
The complainant explains that the investigation of his complaints of torture is
neither impartial nor objective, as the unlawful actions of the police officers of the
Department of Internal Affairs of Astana were investigated by the same Department of
Internal Affairs of Astana, while the Prosecutor’s Office and the courts failed to ensure
respect of the international principles of effective investigation. He further notes that from
the State party’s observations it appears that three decisions were adopted on the refusal to
initiate criminal proceedings regarding his torture – on 21 December 2008 and on 16 March
and 8 June 2009. However, he received a copy only of the last one. He adds that in any
event, none of the three investigations met the requirements of promptness, independence,
impartiality, thoroughness and effectiveness, as required under the Convention. He adds
that the investigator of the Internal Security Division of the Department of Internal Affairs
of Astana (who adopted the decision of 8 June 2009), in the course of examining his
allegations, did not question the complainant personally, did not take into account forensic
medical report No. 3393, did not order a scientific examination of the clothes worn by the
complainant or the officers indicated by the complainant and did not examine the video
recordings of the interrogations of 10 and 16 December 2008. He reiterates that, given that
he received a copy of the decision of 8 June 2009 only following his conviction, he could
only challenge it within the appeal proceedings.
7.6
With regard to the exhaustion of domestic remedies, the complainant, inter alia,
reiterates that he had unsuccessfully complained about his ill-treatment to the prosecutor on
10 December 2008, thereafter to the Prosecutor’s Office of Astana and then to the
representative of the General Prosecutor’s Office during his appeal to the Supreme Court.
Consequently, the failure of authorities to address his allegations of torture undermined the
complainant’s confidence of obtaining redress at the national level. As to the supervisory
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