CCPR/C/113/D/2054/2011 custody, the inescapable conclusion is that in all the circumstances, the [State party’s] authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6 (1) of the Covenant”.10 He further refers to reports indicating that in Kyrgyzstan prisoners charged with certain sexual offences or who are perceived to be homosexual are subjected to persecution and physical violence.11 The author maintains that because his brother was a prisoner charged with a sexual offence, the State party knew that he was at risk and that he was being abused and should not have placed him in a cell with six other men and kept him there in violation of an order of the prosecutor. 3.2 According to the author, as the State party’s authorities have failed to provide, through an independent investigation, a plausible explanation for the death in custody of the author’s brother, there is a presumption that he was killed arbitrarily,12 which can be rebutted only through a thorough, prompt and impartial investigation. The author refers to the Committee’s jurisprudence, in which the Committee has held that in cases of death in custody the burden of proof cannot rest alone with the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information.13 He maintains that a thorough, prompt and impartial investigation did not take place, that the authorities failed to explain the numerous traces of abuse on his brother’s body, that they failed to explain why he was not transferred from police custody, that they failed to locate and investigate the weapon used to kill his brother, that the autopsy report was inadequate and that an inadequate evaluation of the alleged suicide note was made. He further notes that his brother was a physically and mentally strong person who had not suffered from any psychiatric disorder, and that the only information indicating that he had contemplated suicide came from his cellmates, who were suspected of killing him. 3.3 The author submits that his brother was subjected to physical and psychological abuse while in the custody of the Kyrgyz authorities, with the knowledge and complicity of its officials. He maintains that the above amounted to torture, in violation of article 7 of the Covenant. 3.4 The author also submits that the State party failed to conduct a prompt, impartial, thorough and effective investigation, in violation of its obligations under articles 6 (1) and 7 of the Covenant, read in conjunction with article 2 (3). The author maintains that the investigation was not impartial because both the internal investigation and the bulk of the criminal investigation were conducted by the Ministry of Internal Affairs, which is the institution that was holding his brother in custody when he was tortured and killed with the knowledge and acquiescence of police officers, who were part of that same institution. 14 10 11 12 13 14 Dermit Barbato v. Uruguay, para. 9.2. The author refers to the International Crisis Group report “Kyrgyzstan’s prison system nightmare”, Asia Report No. 118 (16 August 2006), available from www.crisisgroup.org/en/regions/asia/centralasia/kyrgyzstan/, and to the report of the non-governmental organization Oasis, “Report of the monitoring of human rights in the penitentiary facilities of the Chuy Region of the Kyrgyz Republic: respect of the right for protection from discrimination of sexual minorities and stigmatized groups among prisoners” (Bishkek, 2004), copy provided by the author. The author refers to communication No. 1225/2003, Eshonov v. Uzbekistan, Views adopted on 22 July 2010, para. 9.2. The author refers to Bleier v. Uruguay, para. 13.3, and communication No. 458/1991, Mukong v. Cameroon, Views adopted on 21 July 1994, para. 9.2. The author refers to the Committee’s general comment No. 31, para. 15; the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the European Court of Human Rights, Bati and Others v. Turkey, Applications Nos. 33097/96 and 57834/00, judgement of 3 June 2004, para. 135. 5