Ernazarov v. Kyrgyzstan
No Proper Investigation into Police Cell Death
Rahmanberdi Ernazarov was arrested in November 2005 and charged with the serious sexual offense of forced sodomy. Despite an order that he should be transferred to a detention facility, he was held in a police cell with six other men who subjected him to constant abuse. The police did nothing to protect him. Two weeks later he was found in the cell with missing teeth and cuts on his neck, bleeding to death. He died shortly afterwards. The police claim that the death was a suicide. The authorities failed to protect a vulnerable prisoner, and there has never been a proper investigation so as to establish exactly how he died.
Rahmanberdi Ernazarov was born in 1961 in the Osh Province of Kyrgyzstan. Following his separation from his wife, he became involved with another woman, although this relationship then failed. In late 2005 he was visited at home by the father of this woman to discuss the breakdown of the relationship. The father then complained to the police that Ernazarov had attempted to extort money from him and had committed an act of forced sodomy upon him.
On November 4, 2005, Ernazarov was arrested by the police and detained at Osh police station. He was kept in a police cell with six other men. After three days he was charged with an offense of forced sodomy. Despite an order that he should be moved to a pre-trial detention center, he was kept in police custody for a further two weeks.
The police informed the family lawyer that Ernazarov was being constantly abused by the other men in the cell. Despite the fact that he was clearly a vulnerable prisoner, they did nothing to prevent the abuse. When his sisters visited the police station, they were told by the investigating officer in charge of the case that he was “better off dead”.
At about 6 a.m. on November 20, 2005, Ernazarov was found lying unconscious and bleeding in the cell. He was taken to Osh Central Hospital and died shortly thereafter.
The police conducted a perfunctory investigation into his death and concluded, in the face of evidence which suggested otherwise, that it was suicide. An independent evaluation of the autopsy report by Physicians for Human Rights indicated that it was impossible to conclude that his death was suicide, and that several injuries detailed in the report were very unusual for a suicide and could indicate that he was trying to defend himself. The police failed to carry out even the most rudimentary investigatory measures, in that they failed to seize important evidence, question key witnesses, undertake a proper autopsy, or investigate the circumstances by which a vulnerable prisoner was detained in such a way.
Open Society Justice Initiative Involvement
The Open Society Justice Initiative filed a petition to the U.N. Human Rights Committee, together with local counsel, Saidkamal Akhmedov, arguing that his death in custody and the failed investigation violated human rights standards.
Substantial pro bono assistance was provided by Hogan Lovells LLP in New York, who worked with a local lawyer to investigate why the police failed to adequately protect a vulnerable prisoner. Legal research was provided by the Lowenstein International Human Rights Project at Yale Law School.
Failure to protect a vulnerable prisoner. The authorities failed in their positive obligation to protect the right to life of a vulnerable prisoner, and failed to provide a plausible explanation for his death, in violation of Article 6(1) of the ICCPR (right to life).
Arbitrary Killing. The lack of a plausible explanation for the death in custody leads to a presumption that he was arbitrarily killed, in violation of Article 6(1).
Torture. Ernazarov was subjected to physical and psychological abuse while in custody, with the knowledge and complicity of the police, in violation of Article 7 (prohibition of torture).
Failure to conduct an effective investigation. The authorities failed to conduct a prompt, impartial, thorough, and effective investigation into the death.
Failure to provide redress. The family of Ernazarov has been unable to obtain an effective remedy for his death, including compensation and adequate reparation, in further violation of Articles 6(1) and 7.
The UN Human Rights Committee concluded [pdf] that Kyrgyzstan is responsible for several violations of the ICCPR:
- Kyrgyz authorities failed to take adequate measures of protection of Ernazarov’s life, in breach of Article 6, paragraph 1 of the Covenant.
- The state failed to secure Ernazarov from torture and ill-treatment while he was in custody in violation of article 7 of the Covenant. The Committee referred to the official autopsy report and the independent evaluation of the report conducted by the Physicians for Human Rights.
- The State party had failed to conduct a prompt, impartial, thorough and effective investigation of the victim’s death and allegations of torture in violation of Art 2 (3) read in conjunction with Article 6 (1) and Article 7 of the Covenant. The investigation was not independent because both the internal investigation and the bulk of the criminal investigation were conducted by the Ministry of Internal Affairs, which is the institution in the custody where Ernazarov was tortured and killed, with the knowledge and acquiescence of police officers. The Committee also noted that the investigation had failed to seize important evidence and had failed to question key witnesses. No cutting instrument was recovered from the cell. The family was also not informed of the progress of the investigation.
The Human Rights Committee obliged Kyrgyzstan to provide Ernazarov’s brother with an effective remedy in accordance with article 2, paragraph 3 (a), of the Covenant. The remedy should include an impartial, effective and thorough investigation into the circumstances of Ernazarov’s death, prosecution of those responsible, and full reparation including appropriate compensation. The State party is also under an obligation to prevent similar violations in the future.
Adoption of Views by the UN Human Rights Committee.
JI’s reply to the Government’s further Observations sent to the UN Human Rights Committee.
Kyrgyzstan submits further Observations to the UN Human Rights Committee.
Justice Initiative replied to the State party’s Observations sent to the UN Human Rights Committee.
State submitted Observations to the UN Human Rights Committee.
Communication filed with the UN Human Rights Committee.
The new investigation is dismissed by the Osh City Court on the grounds that a document is missing. The applicants decide the further recourse to domestic courts is futile.
Supreme Court of Kyrgyzstan reverses the decision and orders a new investigation.
Osh City Court dismisses the claim.
Complaint filed with the Osh City Court claiming that prosecutors have failed to investigate the case properly.
Death in custody.
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