ITEMID: 001-107141
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF STRUCL AND OTHERS v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicants were born in 1985, 1974 and 1977 and live in Kamnik, Zagoraje ob Savi and Kranj respectively.
6. The applicants served their sentence in the closed section of Ljubljana prison, which is the third largest prison in Slovenia. It holds sentenced prisoners, remand prisoners and prisoners in administrative detention. It has an official capacity of 128 inmates, which includes 55 places designated for prisoners on remand, who by law must be held in a separate section of the prison. In principle there are two types of cells in which the prisoners are held. Small cells measuring about 7.5 square metres (8.8 square metres including the sanitary annex) and normally containing two sleeping places, and large cells measuring 16.28 square metres (18 square metres including the sanitary annex) and normally containing six sleeping places. The windows of the cells face either west or east. Remand prisoners are held on the ground floor, which contains sixteen small and five large cells, and on the first floor, which has fourteen cells, including three small and eleven large cells. On the second floor, which contains fifteen cells, thirteen of which are large cells, both remand prisoners and sentenced prisoners are held. In the loft, which contains fourteen large cells, only sentenced prisoners seem to be held.
7. According to the Government, plans for constructing a new prison to replace Ljubljana prison were in progress. However, completion depended on financial resources and no definite date could be given.
8. The applicant served his sentence in Ljubljana prison in the period between 15 June 2009 and 15 June 2010. He was held in the following cells:
- Between 15 June and 17 November 2009 and between 10 May and 15 June 2010 he was held in cell no. 119 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six.
- Between 17 November 2009 and 26 February 2010 the applicant was held in cell no. 5 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed). The number of prisoners held in this cell varied between four and five.
- Between 26 and 28 February 2010 the applicant was held in cell no. 132 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed). Three prisoners were held in this cell.
- Between 28 February and 23 March 2010 the applicant was held in cell no. 129 measuring 7.5 square metres. The cell contained one bunk bed and the applicant was alone in the cell as he had been placed under a high security regime (see paragraph 10 below), after attacking another inmate.
- Between 23 March and 10 May 2010 the applicant was held in cell no. 123 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six.
9. Cells no. 119 and 123 had four windows measuring 91x57 centimetres each. Cell no. 132 had two such windows. Cell no. 5 had one window measuring 107x110 centimetres and cell no. 129 had two windows measuring 89x54 centimetres each.
10. In the period between 28 February and 23 March 2010 the applicant was placed in a cell under a high security regime which implied that he could only have two hours of outdoor exercise and was not allowed to spend time in the recreation room. He ate his meals in the cell and was allowed to receive visits two hours a week and use the telephone no more than twenty minutes a week.
11. According to a personal plan set up on 26 February 2010 it was anticipated that the applicant would enrol in a catering and hotel services training programme. However, there is no information in the file indicating if and when he attained this training course. According to the prison records the applicant was also involved in certain work activities in the period between 1 July 2009 and 31 December 2009; however, there is no indication as to what kind of work this was and where it took place.
12. According to the prison records, the applicant had an opioid dependency and was undergoing methadone maintenance treatment during his detention. He had visited a general practitioner forty times. According to the Government the reasons for these visits related to common health problems such as flu and attempts to obtain anti-anxiety and sleeping medication and analgesics. In addition, the Government submitted that the applicant had had seven appointments at the psychiatric office, five of which he had actually attended. The prison records, however, state that he underwent four examinations at the psychiatric office. Likewise, the report given by the psychiatrist mentions four sessions attended by the applicant in August and October 2009 and in February and March 2010. The psychiatrist also mentioned in his report that the applicant refused to undergo urine testing and consultations in the period before August 2009 and in the period between October and February 2010.
13. The applicant served his sentence in the closed section of Ljubljana prison in the period between 22 June 2009 and 18 February 2010 and between 2 April and 3 July 2010. In the period between 18 February and 2 April 2010 the applicant was held in Maribor prison, to which he was temporarily transferred further to a decision issued on 16 February 2010 by the director-general of the Administration for the Execution of Penal Sentences of the Republic of Slovenia (hereinafter referred to as “the General Administration”). The latter decision was issued at the request of the governor of Ljubljana prison and cited overcrowding as grounds for transfer. On 2 April 2010 the applicant was transferred back to Ljubljana prison, further to a court order, to serve another pending sentence of imprisonment.
The applicant’s complaints relate to the conditions of detention in Ljubljana prison only.
14. During his detention in Ljubljana prison the applicant was held in the following cells:
- Between 22 June and 2 July 2009 the applicant was held in cell no. 124 measuring 7.5 square metres. The cell contained two sleeping places (one bunk bed) and two prisoners were held therein. It had two windows measuring 98x54 centimetres each.
- Between 2 and 7 July 2009 the applicant was held in cell no. 120 measuring 16.28 square metres. The cell contained six sleeping places (three bunk beds). It had four windows measuring 91x57 centimetres each. According to the applicant, six prisoners were held in the cell in the period of his detention. The Government, however, submitted that the number varied between five and six.
- Between 7 July 2009 and 21 January 2010 the applicant was held in cell no. 119, in which the material conditions were the same as in cell no. 120 (see above).
- Between 21 and 28 January 2010 the applicant was held in cell no. 132 measuring 16.28 square metres. The cell contained five sleeping places (two bunk beds and a single bed) and, according to the Government, four prisoners were held therein. It had two windows measuring 91x57 centimetres each.
- Between 28 January and 18 February 2010 the applicant was held in cell no. 121, in which the material conditions were the same as in cell no. 120 (see above).
- Between 2 and 20 April 2010 the applicant was held in cell no. 117, in which the material conditions were the same as in cell no. 120 (see above).
- Between 20 April and 22 June 2010 the applicant was held in cell no. 5 measuring 16.28 square metres. The cell had one window measuring 107x110 centimetres. The cell contained five sleeping places (two bunk beds and a single bed). According to the Government, the number of prisoners held in this cell varied between four and five.
- Between 22 June and 3 July 2010 the applicant was held in cell no. 46, measuring 7.5 square metres. The cell contained two sleeping places (one bunk bed) and two inmates stayed therein. It had two windows measuring 98x54 centimetres each. The applicant was placed under a high security regime after he had attacked another inmate.
15. During the time the applicant spent under the high security regime, he could only have two hours of outdoor exercise per day and was not allowed to spend time in the recreation room. He ate his meals in the cell and was allowed to receive visits two hours a week and use the telephone no more than twenty minutes a week. On 29 June 2010 the prison governor decided that the applicant’s visits should be carried out behind a glass partition, since he had been suspected of receiving drugs from his visitors. This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director-general of the General Administration. The applicant did not appeal.
16. According to the prison records, the applicant had an opioid dependency and underwent methadone maintenance treatment during his imprisonment. He made one request for consultation with a psychologist, which was also carried out. He had nine consultations with a psychiatrist and visited a general practitioner a number of times.
17. The applicant served his sentence in the closed section of Ljubljana prison in the period between 29 June and 19 November 2009. On the latter date he was transferred to Celje prison, where he stayed until his conditional release on 9 December 2009. The transfer was made on the basis of a decision issued by the director-general of the General Administration at the request of the governor of Ljubljana prison. The decision referred to amendment no. 62/2008 (see paragraph 42 below) and cited overcrowding as grounds for transfer.
The applicant’s complaints relate to the conditions of detention in Ljubljana prison only.
18. During his detention in Ljubljana prison the applicant was held in cells nos. 119 and 121. Each cell measured 16.28 square metres and contained six sleeping places (three bunk beds). It had four windows measuring 91x57 centimetres each. According to the applicant, six prisoners were held in each of the cells in the period of his detention. The Government, however, submitted that the number varied between five and six.
19. The applicant received one visit during his detention, namely on 21 July 2009. On 24 July 2009 the prison governor decided that the applicant’s visit should be carried out behind a glass partition since he had been suspected of receiving drugs from his visitors. This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director-general of the General Administration. It was stated in the decision that the situation would be reviewed at the end of August. The applicant did not appeal.
20. According to the prison records, the applicant had an opioid dependency and underwent methadone maintenance treatment during his imprisonment. He made one request for consultation with a psychologist, which was also carried out. He had two consultations with a psychiatrist and visited a general practitioner a number of times.
21. All the cells contained one large and one small table, a number of chairs depending on the number of beds and a set of cupboards for each of the detainees. The prisoners were free to open and close the windows.
22. The prisoners were allowed to bring in a small TV or, with the approval of the prison governor, radios or other electronic devices. In addition, they could borrow books from the prison library and read them in their cells.
23. The cells had no artificial ventilation. They were aired by opening the windows and, also, opening the doors in the summer when the detainees were out. During the summer, the detainees were also allowed to bring in ventilators, but they rarely did so. The cells were also equipped with functioning radiators, which the detainees were free to regulate.
24. According to the data provided by the Government, the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 was approximately 28 oC, exceeding 30 oC on seven days.
25. A sanitary annex measuring 1.72 square metres was attached to each of the large cells. As regards the smaller cell no. 129, a sanitary annex of 1.3 square metres was attached to it. The sanitary annex was a room with floor-to-ceiling walls and a door, equipped with one basin with warm and cold water, a toilet, a drain and a mirror. It had a functioning artificial ventilation system.
26. The applicant had access to the shower room situated on the same floor and containing five showers with partitions. According to the Government, the applicant could use the shower for ten minutes every day in accordance with the daily schedule.
27. Detergents and products for personal hygiene were distributed to the prisoners on a weekly basis. Their bed linen was washed once a week and they were given a clean blanket on arrival at the prison. Regular everyday cleaning and thorough weekly cleaning was carried out by the prisoners under the supervision of the prison staff.
28. In the closed section of the prison the cells were locked throughout the day. The prisoners could leave the cell for the purpose of taking part in scheduled activities. The Government explained that out-of-cell time consisted of the following:
- The applicants could have their meal in the prison canteen for thirty minutes three times a day.
- Twice a day the applicants could use the telephone booth, which was situated on the corridor.
- Every day between 10 a.m. and midday the applicants could visit the recreation room (see paragraph 30 below).
- Twice a week they were allowed to visit the prison shop.
- Between 7.30 p.m. and 9.45 p.m. and on Fridays and Saturdays until midnight the applicants could watch TV in the aforementioned recreation room
- On Saturdays and Sundays they could receive visits lasting no longer than two hours.
- Between 3.30 p.m. and 5.30 p.m. and during weekends between 2.30 p.m. and 5.30 p.m. the applicants could use the outside yard which measured 1,740 square metres and allowed for the possibility to play basketball, football and bowling. It was not covered by a roof. In bad weather, the prisoners were instructed to use the recreation room.
29. According to the Government the applicants could spend nine hours and fifteen minutes out of their cells per day. On Fridays, Saturdays and Sundays even more time was allowed.
30. The Government further submitted that sentenced prisoners could use the recreation room for the purpose of playing table tennis every day between 10 a.m. and 12 a.m. and for the purposes of gym exercise between midday and 1.30 p.m. During the week, in the afternoon the recreation room was used for the purpose of gym exercise by those inmates who worked in the morning. There was one recreation room on each floor, measuring 50 square metres, which was supposed to be available to all the inmates accommodated on that floor. At a time, ten inmates were allowed to use the room; however, in practice, the average number was six. In addition, there was a creativity room of 12 square metres, a library of 25 square metres and a room used for reading and lecturing of 20 square metres at the prison.
31. A medical office operated in the prison subject to the general regime of the national health-care system. It was open for six hours, three times a week. A dental-care office was open once a week for six hours. A psychiatric clinic was open twice a week for half a day. The prison also employed two psychologists. All prisoners underwent a medical examination upon their arrival. Prisoners who were using intravenous drugs received vaccinations against hepatitis B in conformity with the standard protocol applied in such cases.
32. The prison provided the prisoners with the possibility to undergo testing for hepatitis B and C and HIV. In 2009 107 prisoners were tested. Five were diagnosed with Hepatitis C; the other tests were negative, but one person was diagnosed with TBC.
33. Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows:
“No one may be subjected to torture, or inhuman or degrading punishment or treatment. ...”
34. The Enforcement of Criminal Sanctions Act (Zakon o izvrševanju kazenskih sankcij, Official Gazette, nos. 22/2000, since amended, hereinafter referred to as “the ECS Act”) regulates, inter alia, the rights of sentenced prisoners and the conditions of their detention. The relevant provisions read as follows:
“...
(2) A sentenced prisoner shall be allocated to a single cell in accordance with the space available in the prison. Shared cells shall not have more than eight beds.
...”
“A sentenced prisoner must be provided with an opportunity to spend at least two hours in the open air each day.”
“(1) A sentenced prisoner shall be allowed unrestricted correspondence with immediate family members. A sentenced prisoner may exchange letters with others if his or her personal plan allows it. The decision shall be made by the governor at the sentenced prisoner’s request.
...
3) Sentenced prisoners must be guaranteed privacy of correspondence and communication.”
“(1) Inspection of mail shall only be allowed if there is suspicion that objects which a sentenced prisoner is not allowed to have in his or her possession are being brought in or taken out.
...”
“(1) A sentenced prisoner must be allowed visits from immediate family members, foster parents or guardians at least twice a week. A sentenced prisoner may also be visited by other persons with the permission of the prison governor. A visit may not be restricted to less than one hour.
...”
“(1) Visits to sentenced prisoners shall take place in suitably equipped internal or external premises and may be either supervised or unsupervised, whereby supervised visits may be carried out behind glass partitions. The method of visits shall be decided by the prison governor. The decision on the method of visits shall be entered in the sentenced prisoner’s personal plan.
...”
“(1) A sentenced prisoner must be given an opportunity to hold telephone conversations with immediate family members, his authorised representative, a consular...
...”
35. The Regulation on the Execution of Prison Sentences (Pravilnik o izvrševanju kazni zapora, Official Gazette no.102/2000 with amendments, hereinafter referred to as “the Regulation”) regulates the treatment of sentenced prisoners in more detail. The relevant provisions read as follows:
“Dormitories must be bright, dry, well ventilated and big enough. There must be 9 sq. m of surface area available for every sentenced prisoner in a single cell and at least 7 sq. m of surface area for every sentenced prisoner in a cell with multiple beds.”
“Supervised visits may last no longer than two hours and unsupervised visits no longer than three hours.”
“Sentenced prisoners shall be allowed to make telephone calls to immediate family members at least twice a week.
...”
“The standards provided in section 27 of this regulation shall apply to newly built facilities or, where possible, following the renovation of existing facilities.”
36. The Rules concerning Sentenced Prisoners in Ljubljana Prison (Hišni red Zavoda za prestajanje kazni zapora Ljubljana, hereinafter referred to as “the Prison Rules”) regulate the regime in the closed section of the prison in which sentenced prisoners are held. They provide that on work days, sentenced prisoners are woken up at 5.45 a.m. and on nonworking days at 8.15 a.m. and retire for the night at 9.45 p.m. As a rule, prisoners are expected to leave for work, go to the canteen, events or clinics in an organised manner. Meals, except for breakfast, must be eaten in the prison canteen in accordance with the daily schedule. As regards telephone conversations, the Rules provide that they should not exceed ten minutes and may exceptionally be longer, subject to conditions in prison.
37. The Daily Schedule (dnevni red) is annexed to the rules and determines the timetable of activities in the closed section of the prison.
38. Since 1 January 2009, the Health Care and Health Insurance Act (Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju, Official Gazette no. 9/1992 with amendments) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system. They can exercise their rights under the Act with certain exceptions. For example, they cannot choose their own general practitioner but are, as regards general health care, limited to the medical service provided in the prison establishment. However, the prisoners are also entitled to medical services for which other insured persons have to take out supplementary insurance.
39. The ECS Act regulates the transfer of sentenced prisoners from one prison to another prison or section of a prison. The relevant provisions read as follows:
“1) A sentenced prisoner may be transferred from one prison or section of a prison to another prison or section on the territory of the Republic of Slovenia if this is necessary in order to implement his or her personal plan or the prison’s work programme, is necessary for reasons of security, is in the interest of maintaining order and discipline in the prison, has been proposed by the unit responsible for the protection of persons whose security is at risk in compliance with the Act governing protection of witnesses in order to ensure the security of the sentenced prisoner.
...”
“(1) The procedure for transfer shall begin at the proposal of the prison governor or the head of the prison unit responsible for the protection of persons at risk in compliance with the Witness Protection Act or at the request of the sentenced prisoner or his immediate family members, foster parent or guardian.
(2) A decision to transfer a sentenced prisoner within the same prison shall be made by the prison governor after obtaining an opinion from the head of the section, whereas a decision on transfer from one prison to another prison shall be made by the director-general of the Administration for the Execution of Penal Sentences of the Republic of Slovenia [hereinafter referred to as “the General Administration”] after receiving opinions from the prison in which the sentenced prisoner is serving the sentence of imprisonment and from the prison to which the sentenced prisoner is to be transferred.
(3) If a sentenced prisoner is transferred within the same prison in compliance with section 80 of this Act, this shall be recorded in his or her personal plan.
...
(5) If a sentenced prisoner is transferred at his or her request or that of his or her immediate family members, the cost of the transfer shall be borne by the sentenced prisoner himself; in other cases, the cost shall be borne by the prison from which he or she has been transferred.
(6) An appeal against a decision on the transfer shall be allowed. An appeal against a decision referred to in section 79 of this Act shall not stay its execution.
(7) A request for transfer for the same reasons may be repeated after the expiry of six months from the day the decision on the earlier request was taken.
...”
40. Section 8 of the ECS Act prescribes the use of the Administrative Procedure Act in respect of the procedure under section 81 of the Act. It also provides:
“...
(2) The ministry responsible for justice shall decide on admissible appeals against decisions issued at first instance by the General Administration. The director-general shall decide at second instance on matters on which the prison governor decides at first instance.
(3) Authorities responsible for deciding on matters according to the provisions of the first paragraph of this section shall decide in a summary proceeding without hearing the parties.
(4) The entry of the decision in the personal plan based on this Act shall replace a written decision. A sentenced prisoner shall have the right to appeal against a decision entered in his personal plan to the director-general of the General Administration within eight days of being informed of the decision.
...”
41. Section 84 of the Regulation provides that the proposal of the prison governor for the transfer of a sentenced prisoner from one prison to another under sections 79 and 80 of the Act must be duly reasoned. The decision of the director-general of the Administration for the Execution of Penal Sentences (“the General Administration”) shall be served on the sentenced prisoner. Furthermore, section 85 provides:
“The petitioner shall lodge a request for transfer to another prison or section under Section 81 of the ECS Act with the prison in which the sentenced prisoner is serving the sentence. The prison or section shall send the request within no more than eight days to the General Administration together with the personal file of the sentenced prisoner, the report on the sentenced prisoner’s behaviour and work and the opinion on the merits of the request and the suitability of transfer.
The prison or section to which the sentenced prisoner should be transferred must send its opinion to the director-general within eight days at the latest.
...”
42. In the period between 21 June 2008 and 14 March 2009 an amendment published in Official Gazette no. 62/2008 was in force. It obliged prison governors to immediately request transfer of a prisoner if the occupancy level of the prison exceeded the average occupancy level of prisons in Slovenia by ten percent or more. This provision was abolished by the amendment published in Official Gazette no. 19/2009.
43. The ECS Act contains a special chapter which concerns the exercise and protection of sentenced prisoners’ rights. The Act distinguishes between two types of treatment, that is, “torture or other cruel forms of inhumane or degrading treatment” and “other violations of rights or other irregularities for which judicial protection is not guaranteed”. The relevant provisions read as follows:
“(1) A sentenced prisoner who believes that he has been subjected to torture or other cruel forms of inhumane or degrading treatment may apply for judicial protection by means of a request.
(2) The prison must also forward the request referred to in the preceding paragraph to the competent state prosecutor.”
“If a sentenced prisoner has suffered harm as a result of actions referred to in the first paragraph, he or she may request compensation directly from the person who caused the harm, in accordance with the law.”
“(1) If other violations of rights or other irregularities are involved, for which no judicial protection is guaranteed, the sentenced prisoner may lodge a complaint with the director-general of the General Administration.
...”
44. For the relevant domestic legislation concerning proceedings under the Administrative Disputes Act and proceedings for injunction and damages under the Civil Code, see Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 34-36, 27 September 2011.
45. Sections 4 and 33 of the Administrative Disputes Act, referred to in paragraph 125 below, read as follows:
“(1) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided.
(2) If actions of public authorities are challenged in an administrative dispute, the provisions of this Act referring to the challenging of an administrative act shall apply.”
“...
(2) A claim may be filed against the violation of human rights and fundamental freedoms under this Act seeking:
– to annul, issue or amend an individual act,
– to declare that an action infringed a human right or fundamental freedom of the plaintiff,
– to prohibit further action,
– to undo the consequences of an action.”
46. The ECS Act provides in so far as relevant:
“(1) Supervision of the legality of the treatment of sentenced prisoners shall be exercised by the ministry responsible for justice and the president of the district court in whose territory a prison or its section is located. An authorised official from the ministry responsible for justice or the president of the district court shall, at the request of sentenced prisoners also without the presence of prison staff, interview sentenced prisoners about the treatment they are receiving and about the exercise of their rights.
(2) If the ministry ... or the president of the district court ... establishes in the course of supervision that sentenced prisoners’ rights have been violated, they shall take all measures necessary to ensure [respect for] sentenced prisoners’ rights.
(3) In accordance with the Human Rights Ombudsman Act and international legal acts, the Human Rights Ombudsman and authorised bodies responsible for the protection of human rights and the prevention of torture, inhumane and degrading treatment or punishment, shall also be enabled to exercise supervision referred to in the first paragraph of this section.
...
(5) Expert supervision and administrative supervision of the provision of health care services in the prison shall be exercised in accordance with the law governing health care services.”
47. The Regulation sets out in more detail the supervision of the conditions in prisons by the president of a district court:
“If the sentenced prisoner files a complaint to the president of the competent district court exercising supervision under section 212 of the Act, the latter shall examine it and if he or she considers it well-founded, shall order the necessary measures; the president of the district court may also inform the prison governor thereof together with instructions, if necessary, or [inform] the General Administration writing.”
“The president of the district court ... shall exercise supervision under section 212 of the Act at least once a month.
If the president of the district court establishes in the course of supervision that sentenced prisoners’ rights have been violated, he shall inform the prison governor in whose prison he exercised supervision, the General Administration and the Ministry of Justice thereof.”
48. The relevant extracts from the general reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are set out in Mandić and Jović, cited above, §§ 38-40.
49. The CPT visited Ljubljana prison in 1995 and 2001. During its most recent visit in 2006 the CPT visited the remand section of Ljubljana prison.
50. In 1995 the number of prisoners held in the prison was 188 prisoners, which is significantly lower than it is currently (see document CPT/Inf (96) 18). Following the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36):
“ii. Ljubljana prison
59. ... the CPT reiterates its recommendation that efforts be made to reduce to a maximum of four the number of prisoners held in the cells measuring 18 m², and to accommodate only one prisoner in each cell measuring 8 m².”
51. Following the visit in 2006 of the remand section of Ljubljana Prison, the following recommendations were made to the Slovenian authorities which are relevant also to the situation of sentenced prisoners (CPT/Inf (2008) 7):
“49. ... The CPT calls upon the Slovenian authorities to implement its long-standing recommendation to reduce cell occupancy rates at Ljubljana prison. Cells measuring 18 m² should not accommodate more than four prisoners, and the 8 m² cells should preferably not accommodate more than one prisoner.
...
88. At all the establishments visited, sentenced prisoners had adequate access to telephones.”
52. In the chapter concerning the living conditions in Slovenian prisons, the reports include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory personal space requirement for sentenced individuals in prison, which is 9 square metres for a single occupancy cell and 7 square metres per person in a shared cell (see paragraph 35 above). According to the 2009 and 2010 reports nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. Ljubljana prison was the most overcrowded prison in Slovenia. With an official capacity of 128 prisoners, it held 261 and 245 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 204 and 191 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 200 and 196 percent respectively (p. 98). These figures include both sentenced and remand prisoners.
53. The 2010 Report noted that in respect of Ljubljana prison the maximum number of prisoners allowed was set at 245; if this number was exceeded the prison administration was required to institute a transfer procedure (p. 100). The report also noted (p. 100):
“... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia: Dob, Ljubljana and Maribor prisons. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman, the CPT and other institutions.
... It is understandable that such living conditions adversely affect prisoners’ hygiene and privacy. Poor living conditions sometimes also obstruct the exercise of prisoners’ rights (work, exercise and recreation, religious ceremonies). In some establishments, prisoners on remand live in worse conditions than sentenced prisoners. The outdated and inadequate furniture in living rooms and other areas presents an additional problem ...”
54. On 17 and 18 February 2009 the Human Rights Ombudsman conducted a visit to Ljubljana prison in her capacity as a “national preventive mechanism” under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol”). The report published following the visit reads as follows:
“Official capacity is still 128 prisoners. This includes 55 places designated for prisoners on remand, 65 places for sentenced prisoners and 8 places for prisoners in administrative detention. On the day of the visit, the prison held 254 prisoners (126 prisoners on remand, 126 sentenced prisoners and two prisoners in administrative detention). The official capacity was therefore exceeded by 98%.
... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... The Ministry has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison, the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ...
We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ...
... In the light of the critical overcrowding and all the consequences which relate to it, we consider the conditions unacceptable.
The prison still does not have a special drug-free unit. ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit. The administration estimated that about 50% of the prison population have drugrelated problems. ...
Smoking is allowed only in the cells, whereas the prison does not have permanent smoking or non-smoking cells. Efforts are made to separate the smoking and nonsmoking prisoners, but due to overcrowding this is often very difficult or impossible ...”
55. In her report concerning her activities under the Optional Protocol in 2009, the Human Rights Ombudsman also noted:
“The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions, especially when it comes to detention on remand. It seems that virtually everything that was possible was done to resolve this problem, by means of the reasonable transfer of prisoners between prisons or their departments.
...
A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [domestic and international] obligations at all ...
...”
56. As regards the temperatures in the cells, the following was noted in the 2007 Annual report of the Human Rights Ombudsman:
“... During the visit to Ljubljana prison the official capacity was exceeded by almost 95 percent ... At the time of the visit it was ... typically summer weather, therefore the air in the cells was hot and humid. On the third day of the visit (19 July 2007) we measured, at around noon, 31.9 degrees Celsius in some cells. By using their own ventilators and by means of putting shades on the windows, the prisoners tried to lessen the effect of the scorching ... heat, as their rooms were locked and the air could not circulate. We considered that the living conditions, as observed by us during the summer, were inhuman.”
VIOLATED_ARTICLES: 13
3


ITEMID: 001-97437
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BAYSAKOV AND OTHERS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (in case of extradition to Kazakhstan);Violation of Art. 13
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicants were born in 1962, 1960, 1971 and 1963 respectively and currently live in Kyiv.
7. At the end of 2002 the applicants left Kazakhstan, allegedly because of political persecution by the authorities. They arrived in Ukraine in 2005 and have remained there.
8. By four separate decisions of 28 March 2006, the Ukrainian State Committee on Nationalities and Migration granted the applicants’ requests for refugee status, finding that there were legitimate grounds to fear that the applicants would risk political persecution in Kazakhstan for their activities in 2001-02. In particular, the Committee noted that in November 2001 several top political and business figures in Kazakhstan had formed the opposition group Democratic Choice of Kazakhstan. The applicants took part in the activities of that group, mainly by providing it with financial and technical support, particularly through a television company owned by the first and second applicants. The fourth applicant held posts in the governing body (political council) of that group. Shortly afterwards, the Kazakh authorities arrested the leaders of the group. The authorities also instituted criminal proceedings against the applicants on various charges, including conspiracy to murder, abuse of power and fraud, annulled the broadcasting licence of their television company, and blocked the activities of their other companies. As pressure from the authorities mounted, the applicants fled the country.
9. By four separate requests issued in September 2007 and April and May 2008, the Office of the General Prosecutor of the Republic of Kazakhstan requested the applicants’ extradition with a view to criminal prosecution for organised crime and conspiracy to murder (first applicant, Articles 28, 96 and 237 of the Criminal Code of the Republic of Kazakhstan), tax evasion and money laundering (second and third applicants, Articles 193 and 222 of the Criminal Code) and abuse of power (fourth applicant, Articles 307 and 308 of the Criminal Code). Pursuant to Article 96 of the Criminal Code of the Republic of Kazakhstan, murder was punishable by deprivation of liberty for a term of from ten to twenty years or by the death penalty, or by life imprisonment with or without confiscation of property. As regards other crimes of which the applicants were accused, the relevant provision of the Criminal Code provided for punishment not exceeding ten years’ imprisonment. The Kazakh prosecutors provided assurances that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion, and that the prosecutors would not request the domestic courts to sentence the first applicant to death for the crimes for which he was wanted.
10. On 19 and 21 May 2008 the Deputy Prosecutor General lodged objections (protests) with the State Committee on Nationalities and Religion (the former State Committee on Nationalities and Migration) seeking reconsideration and subsequent annulment of its decisions of 28 March 2006. She submitted that the applicants were wanted by the Kazakh authorities on charges of “grave” crimes and that the Office of the General Prosecutor of the Republic of Kazakhstan guaranteed that the criminal prosecution of the applicants was not related to their political views, race, nationality or religion.
11. On 30 May 2008 the Committee rejected the objections and confirmed its previous findings.
12. On 17 June 2008 the Deputy General Prosecutor lodged two separate administrative claims with the District Administrative Court of Kyiv seeking annulment of the Committee’s decisions of 28 March 2006. The prosecutor also requested the court to suspend the contested decisions. On 4 July 2008 the court opened the proceedings and informed that it would decide on the prosecutor’s request for suspension of the Committee’s decisions at one of its next hearings.
13. On 24 November 2008 the court dismissed the prosecutor’s claims. On 22 January 2009 the Kyiv Administrative Court of Appeal upheld the first-instance court’s decision. No copies of the decisions were provided by the parties.
14. On 11 February 2009 the Office of the General Prosecutor of Ukraine lodged an appeal in cassation with the Higher Administrative Court, the outcome of which is unknown.
15. By a letter of 25 May 2009, the First Deputy General Prosecutor of the Republic of Kazakhstan sent the Deputy General Prosecutor of Ukraine assurances that in accordance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, if extradited to Kazakhstan the applicants would not be subjected to illtreatment, that they would receive a fair trial, and that if necessary they would be provided with adequate medical aid and treatment.
16. The Government submitted that they had received assurances from the Office of the General Prosecutor of Ukraine that no decision on the applicants’ extradition would be taken before the Court had considered the case.
17. The relevant extracts from the Constitution provide as follows:
“Foreigners and stateless persons who are lawfully in Ukraine enjoy the same rights and freedoms and also bear the same duties as citizens of Ukraine, with the exceptions established by the Constitution, laws or international treaties to which Ukraine is a party.
Foreigners and stateless persons may be granted asylum under the procedure established by law.”
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omission of bodies exercising State power, local self-government bodies, officials and officers.
...After exhausting all domestic legal remedies, everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
“The following are determined exclusively by the laws of Ukraine:
(1) human and citizens’ rights and freedoms, the guarantees of these rights and freedoms; the main duties of the citizen;
...
(14) the judicial system, judicial proceedings, the status of judges, the principles of judicial expertise, the organisation and operation of the prosecution service, the bodies of inquiry and investigation, the notary, the bodies and institutions for the execution of punishments; the fundamentals of the organisation and activity of the advocacy; ...”
18. Ukraine joined the Convention on 10 January 2002. The relevant extracts from the Convention provide as follows:
“For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or owing to such fear, is unwilling, to return to it.”
“1. The Contracting States shall not expel a refugee who is lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law...”
Article 33
“1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
19. The Convention entered into force in respect of Ukraine on 9 June 1998. Its relevant provisions read as follows:
“The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.”
“Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested Party as a political offence or as an offence connected with a political offence.
The same rule shall apply if the requested Party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.
The taking or attempted taking of the life of a Head of State or a member of his family shall not be deemed to be a political offence for the purposes of this Convention.
This article shall not affect any obligations which the Contracting Parties may have undertaken or may undertake under any other international convention of a multilateral character.”
20. Ukraine’s reservation in respect of Article 1 of the Convention contained in the instrument of ratification deposited on 11 March 1998 reads as follows:
“Ukraine reserves the right to refuse extradition if the person whose extradition is requested cannot, on account of his/her state of health, be extradited without damage to his/her health.”
21. The Convention was ratified by the Ukrainian Parliament on 10 November 1994. It entered into force in respect of Ukraine on 14 April 1995 and in respect of Kazakhstan on 19 May 1994. The relevant extracts from the Convention provide as follows:
“1. The Contracting Parties shall ... on each other’s request extradite persons who ﬁnd themselves on their territory, for criminal prosecution or to serve a sentence.
2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence...”
“1. No extradition shall take place if:
a) the person whose extradition is sought is a citizen of the requested Contracting Party;
b) at the moment of receipt of the request [for extradition] criminal prosecution may not be initiated or a sentence may not be executed as time-barred or for other reasons envisaged by the legislation of the requested Contracting Party;
c) concerning the same crime there has been a judgment or a decision which has entered into the force of law discontinuing the proceedings against the person whose extradition is sought, on the territory of the requested Contracting Party;
d) the legislation of the requesting and requested Contracting Parties envisages that criminal prosecution for [the crimes of which the person is accused] may be initiated [only upon a victim’s complaint].
2. Extradition may be refused if the crime in connection with which it is sought, was committed on the territory of the requested Contracting Party.
3. In the event of refusal to extradite the requesting Contracting Party shall be informed of the reasons for the refusal.”
“1. A request for extradition shall include the following information:
(a) the title of the requesting and requested authorities;
(b) a description of the factual circumstances of the offence, the text of the law of the requesting Contracting Party which criminalises the offence, and the punishment sanctioned by that law;
(c) the [name] of the person to be extradited, the year of birth, citizenship, place of residence, and, if possible, a description of his appearance, his photograph, ﬁngerprints and other personal information;
(d) information concerning the damage caused by the offence.
2. A request for extradition for the purpose of criminal prosecution shall be accompanied by a certiﬁed copy of a detention order...”
“1. If a request for extradition does not contain all the necessary data, the requested Contracting Party may ask for additional information, for the submission of which it shall set a time-limit not exceeding one month. This time-limit may be extended for up to a month at the request of the requesting Contracting Party...”
22. Article 2 of the Code provides that the task of the administrative judiciary is the protection of the rights, freedoms and interests of individuals and the rights and interests of legal entities in the sphere of public law relations from violations by State bodies, bodies of local self-government, their officials and other persons in the exercise of their powers. Under the second paragraph of this Article, any decisions, actions or omissions of the authorities may be challenged before the administrative courts.
23. Pursuant to Article 117, an administrative court may suspend a disputed decision by way of application of an interim measure, on a party’s own initiative. This measure may be applied if there exists a real danger of harm to the plaintiff’s rights, freedoms and interests, or if there are grounds to believe that the failure to apply the measure would render impossible the protection of such rights, freedoms and interests or would require considerable efforts and expense for their restoration. It can also be applied if it is evident that the contested decision is unlawful.
24. The relevant provisions of the Prosecution Service Act provide as follows:
“An objection to [the decision] shall be lodged by a prosecutor or his deputy with the body which issued [that decision] or with a higher authority...
In [his] objection a prosecutor raises a question of annulment of [the disputed decision] or of bringing it into compliance with the law...
An objection by a prosecutor suspends [the decision] in respect of which it was introduced and must be examined by the relevant authority ... within ten days...
In case the protest was rejected or was not examined, a prosecutor may challenge [the decision] before a court ... [w]ithin fifteen days... The introduction of such a complaint [by a prosecutor] suspends ... [the decision].”
25. The relevant extracts from the Refugees Act provide as follows:
“...a refugee is a person who is not a citizen of Ukraine and who, due to wellfounded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country or, due to such fear, is unwilling to avail himself of such protection, or who, not having a nationality and being outside the country of his former permanent residence, is unable or unwilling to return to it because of the said fear...”
“Matters relating to refugees are regulated by the Constitution of Ukraine, this law, and other normative acts, as well as by international treaties which have been agreed by the Verkhovna Rada of Ukraine.
If an international treaty which has been agreed to be binding by the Verkhovna Rada of Ukraine provides for rules other than those envisaged in this law, the rules of the international treaty shall apply.”
“No refugee may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
No refugee may be expelled or forcibly returned to a country where he may suffer torture and other severe, inhuman or degrading treatment or punishment, or [to a country] from which he may be expelled or forcibly returned to a country where his life or freedom is endangered for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
This article shall not apply to a refugee convicted of a serious crime in Ukraine.”
26. The relevant extracts from the resolution read as follows:
“...
2. Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue.
They [the courts] cannot on their own initiative decide on preventive measures applicable to persons subject to rendition or transfer, including their detention, as these matters are to be decided by the competent Ukrainian authorities...”
27. The relevant extracts from the resolution read as follows:
“...
2. ...The administrative courts enjoy jurisdiction over all disputes concerning claims by a foreigner or a stateless person challenging decisions, actions or inactivity of the authorities carrying out extradition ... except for cases concerning the authorities’ requests for arrest or detention with a view to extradition ... which fall to be considered in the framework of criminal proceedings...
16. Before deciding on an administrative case, the court ... may apply the measures envisaged by Article 117 of the Code of Administrative Justice... In particular, [the measures may be applied] if there exists a danger of harm to the interests of a foreigner or a stateless person, or if failure to apply the measures would render difficult or impossible the protection of a person’s rights...
Given the provisions of part 4 of section 21 of the Prosecution Services Act ... the courts should take into account that the introduction of a claim by the prosecutor under the procedure envisaged by this provision has a suspensive effect on the contested decision. Therefore, in such a case there is no need to decide on the application of the [interim] measures...
23. ...In the course of consideration of a case in which a decision granting refugee status ... is being challenged, the court may find such a decision unlawful, annul it and order the respondent [authority] to re-examine a request for refugee status with due regard to the circumstances on the basis of which the court annulled the decision. With the annulment of the decision granting refugee status the person [concerned] may not be forcibly removed or extradited before the procedure concerning [the request for] refugee status is completed...
28. ...In the course of the consideration of a dispute in which a foreigner or a stateless person challenges a decision, actions or inactivity of the authorities carrying out extradition ... the courts should take into account that the prohibition of removal of a person under international law on human rights and protection of refugees’ rights takes precedence over any obligation to extradite...
If an extradition is requested by the State of origin of a refugee, the courts should take into account that according to Article 33 (1) of the [United Nations] Convention [Relating to the Status of Refugees] of 1951 no extradition of such a person shall be carried out. In such cases the principle of non-refoulement ... provides for a complete prohibition of extradition, if it has not been established that [a refugee’s personal situation] provided for one of the exceptions [to this rule]...”
28. The relevant provisions of the instruction read as follows:
“1. General provisions
...
The procedure ... established by the Instruction ... is aimed at [introducing] uniform approaches to [dealing with] ... foreign States’ extradition requests [and] ensuring appropriate consideration and preparation of necessary documents, securing of rights and lawful interests of persons whose extradition is requested...
3. Procedure of consideration of foreign States’ requests
3.1. Upon receipt of information concerning an arrest on the territory of Ukraine of a person wanted for crimes committed in other countries [the prosecutor responsible for the consideration of a particular request] shall immediately, and at least within three days, prepare a relevant notification of the competent body of the foreign State, in which he should ask for confirmation of the [latter’s] intention to submit a request for removal of the person. In this context, [the prosecutor] must establish the qualification of the unlawful acts, for which extradition ... will be requested, and check whether the criminal proceedings are time-barred in accordance with the legislation of Ukraine.
At the same time, for the purposes of securing the rights of the arrested person ... the relevant prosecutors’ offices shall be given instructions to carry out a thorough examination of the lawfulness of the person’s arrest and to check if there are any circumstances capable of preventing the arrested person’s removal...
If in the course of an inquiry it is established that the arrested person is a Ukrainian national or a stateless person permanently residing on the territory of Ukraine or that there are other circumstances which according to the law render the person’s extradition impossible, [the prosecutor] shall immediately submit to the Deputy Prosecutor General ... a proposal for the person’s release or for remanding the person in custody and initiating criminal proceedings in Ukraine. The foreign authority shall be informed of such circumstances and, if there are [relevant] grounds, it shall be invited to consider the possibility of transferring the criminal [case to Ukraine]...
3.3. Upon [submission by] the regional prosecutors’ offices of materials of the inquiry and information concerning any obstacles to extradition ... the prosecutor [dealing with an extradition request] shall study all the documents concerning the matter, being mindful of the need to establish certain circumstances, in particular whether:
- it has been established ... which language the wanted person speaks...
- in the [written] explanations of the offender the date and purpose of his arrival in Ukraine, his place of residence and registration, his nationality, any requests for asylum or refugee status, his state of health, notification of the reasons of his arrest in Ukraine are mentioned;
- the lawfulness of his arrest ... has been ensured...
- information has been received on the arrested person’s ability to remain in detention ...
- it has been thoroughly checked if if the arrested person is a Ukrainian national, actually residing on a permanent basis in Ukraine ... [and if there are] other circumstances which could constitute an obstacle to removing the person;
- a reasoned opinion concerning the matter has been received from the State body [responsible for nationality matters].
Having examined [the documents] the prosecutor ... has prepared a reasoned opinion concerning the decision to be taken by the Office of the General Prosecutor concerning the extradition request...
3.4. The offender ... shall be notified of the decision taken by the Office of the General Prosecutor concerning the extradition request.
3.5. If a decision to extradite is taken ... instructions concerning the organisation of the person’s transfer abroad shall be prepared...
3.7. If the person or his lawyer has lodged with the court a complaint challenging the actions of the Office of the General Prosecutor ... or its decision [to extradite], [the prosecutor] shall make available, at the court’s request, materials confirming the lawfulness and reasonableness of the decision...”
29. At its forty-first session (3-21 November 2008) the CAT considered its second periodic report on Kazakhstan. The relevant extracts from its concluding observations provide as follows:
“6. While the Committee acknowledges the efforts made by the State party to enact new legislation incorporating the definition of torture of the Convention [against Torture] into domestic law, it remains concerned that the definition in the new article 347-1 of the Criminal Code [of the Republic of Kazakhstan] does not contain all the elements of Article 1 of the Convention, restricts the prohibition of torture to acts by “public officials” and does not cover acts by “other persons acting in an official capacity”, including those acts that result from instigation, consent or acquiescence on the part of a public official. The Committee notes further with concern that the definition of Article 347-1 of the Criminal Code excludes physical and mental suffering caused as a result of “legitimate acts” on the part of officials...
7. The Committee is concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including threat of sexual abuse and rape, committed by law enforcement officers, often to extract “voluntary confessions” or information to be used as evidence in criminal proceedings, so as to meet the success criterion determined by the number of crimes solved...
8. The Committee is particularly concerned about allegations of torture or other illtreatment in temporary detention isolation facilities (IVSs) and in investigation isolation facilities (SIZOs) under the jurisdiction of the Ministry of Internal Affairs or National Security Committee (NSC), especially in the context of national and regional security and anti-terrorism operations conducted by the NSC. The Committee notes with particular concern reports that the NSC has used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum seekers and members or suspected members of banned Islamic groups or Islamist parties...
9. The Committee is deeply concerned at allegations that torture and ill-treatment of suspects commonly takes place during the period between apprehension and the formal registration of detainees at the police station, thus providing them with insufficient legal safeguards. The Committee notes in particular:
(a) the failure to acknowledge and record the actual time of the arrest of a detainee, as well as unrecorded periods of pre-trial detention and investigation;
(b) Restricted access to lawyers and independent doctors and failure to notify detainees fully of their rights at the time of apprehension;
(c) The failure to introduce, through the legal reform of July 2008, habeas corpus procedure in full conformity with international standards...
10. The Committee expresses concern that the right of an arrested person to notify relatives of his/her whereabouts may be postponed for seventy-two hours from the time of detention, in the case of so-called “exceptional circumstances”...
11. The Committee notes with concern the Government’s acknowledgement of frequent violations of the Code of Criminal Procedure by State party officials as regards the conduct of an interview within a twenty-four-hour period, detention prior to the institution of criminal proceedings, notification of relatives of the suspect or accused person of that person’s detention within twenty-four hours, and the right to counsel. The Committee is also concerned that most of the rules and instructions of the Ministry of Interior, the Prosecutor’s Office and especially the National Security Committee are classified as “for internal use only” and are not in the realm of public documents. These rules leave many issues to the discretion of the officials, which results in claims that, in practice, detainees are not always afforded the rights of access to fundamental safeguards...
13. The Committee is concerned that Article 14 of the Code of Criminal Procedure provides for forced placement of suspects and defendants at the stage of pre-trial investigation in medical institutions in order to conduct a forensic psychiatric expert evaluation. The Committee notes with further concern that the grounds for making such a decision are subjective and that the law fails to regulate the maximum duration of forced placement into a medical institution, as well as to guarantee the right to be informed of and to challenge methods of medical treatment or intervention...
17. The Committee expresses concern that sentences of those convicted under Part 1 of article 347-1 of the Criminal Code are not commensurate with the gravity of the offence of torture as required by the Convention...
18. The Committee is also concerned that despite the criminalisation of torture in 2002 in a separate article of the Criminal Code, it appears that when prosecuted, law enforcement officials continue to be charged under Articles 308 or 347 of the Criminal Code (“Excess of authority or official power” or “Coercion into making a confession” respectively)...
21. The Committee welcomes the successful reform of much of the Kazakh penitentiary system through the adoption of programmes conducted in close cooperation with international and national organisations, as well as the enactment of new laws and regulations. It further notes that this reform resulted in a decrease in the rate of pre-trial detention, an increased use of alternative sanctions to imprisonment, more humane conditions of detention, and a marked improvement in the conditions of detention in post-conviction detention facilities. However, the Committee remains concerned at:
(a) The deterioration of prison conditions and stagnation in the implementation of penal reforms since 2006;
(b) Persistent reports of abuse in custody;
(c) Poor conditions of detention and persistent overcrowding in detention facilities;
(d) Excessive use of isolation with regards to pre-trial detainees and prisoners and lack of regulation of the frequency of such isolation;
(e) Instances of group self-mutilation by prisoners reportedly as a form of protest for ill-treatments;
(f) Lack of access to independent medical personnel in pre-trial detention centres and reported failure to register signs of torture and ill-treatment or to accept detainee’s claims of torture and ill-treatment as the basis for an independent medical examination;
(g) Persistent high incidence of death in custody, in particular in pre-trial detention (such as the case of the former KNB General Zhomart Mazhrenov), some of which are alleged to have followed torture or ill-treatment...
22. While welcoming the creation in 2004 of the Central Public Monitoring Commission and in 2005 of regional independent public monitoring commissions with the power to inspect detention facilities, the Committee remains concerned that their access to IVSs is neither automatic nor guaranteed and that their access to medical institutions has yet to be considered. Furthermore, it has been reported that the commissions have not been granted the right to make unannounced visits to detention facilities, that they are not always given unimpeded and private access to detainees and prisoners, and that some inmates have been subjected to ill-treatment after having reported to the commissions’ members...
23. The Committee welcomes the creation of the Human Rights Commissioner (Ombudsman) in 2002 with a broad mandate and notably the competence to consider communications of human rights violations and to conduct visits of places of deprivation of liberty. The Committee notes however with concern that the ombudsman’s competencies are substantially limited and that it lacks independence due to the fact that it does not have its own budget. The Committee notes with further concern that the mandate of the Human Rights Commissioner does not empower it to investigate action taken by the Prosecutor’s office...
24. The Committee notes with concern that the preliminary examinations of reports and complaints of torture and ill-treatment by police officers are undertaken by the Department of Internal Security, which is under the same chain of command as the regular police force, and consequently do not lead to prompt and impartial examinations. The Committee notes with further concern that the lengthy period for preliminary examination of torture complaints, which can last up to two months, may prevent timely documentation of evidence...
25. While noting with satisfaction the introduction of many fundamental legislative amendments, the Committee remains concerned about allegations, as reported by the Special Rapporteur on the independence of judges and lawyers in 2005 (see E/CN.4/2005/60/Add.2), of a lack of independence of judges since the designation of oblast and rayon judges rests entirely with the President...
26. While welcoming the adoption of a recent legal amendment transferring the power of issuing arrest warrants to courts solely, the Committee expresses concern, however, at the preeminent role performed by the Procuracy. The Committee reiterates the concerns expressed in its previous concluding observations (A/56/44, para. 128(c)) regarding the insufficient level of independence and effectiveness of the Procurator, in particular due to its dual responsibility for prosecution and oversight of proper conduct of investigations and failure to initiate and conduct prompt, impartial and effective investigations into allegations of torture and ill-treatment...
27. The Committee notes with concern the report by the Special Rapporteur on the independence of judges and lawyers that defence lawyers lack adequate legal training and have very limited powers to collect evidence, which conspires to hamper their capacity to counterbalance the powers of the Prosecutor and impact on the judicial process. The Committee notes with further concern allegations that the procedure of appointing a lawyer lacks transparency and independence...
28. While welcoming the information provided by the delegation that victims of torture have the opportunity to be compensated, the Committee is concerned, nevertheless, at the lack of examples of cases in which the individual received such compensation, including medical or psychosocial rehabilitation...
29. While welcoming the assurance given by the delegation that judges reject such evidence in court proceedings, the Committee notes however with grave concern reports that judges often ignore the complaints of torture and ill-treatment, do not order independent medical investigations, and often proceed with the trials, therefore not respecting the principle of non-admissibility of such evidence in every instance...”
30. In its 2004 report “Political Freedoms in Kazakhstan”, Human Rights Watch made the following observations:
“...On November 18, 2001, the day after Abliazov lost his bid for control of Halyk Savings Bank, he and Zhakianov founded Democratic Choice of Kazakhstan (DVK). The new organisation’s platform included broadening the parliament’s powers, establishing direct elections of regional political leaders, instituting electoral and judicial reform, and expanding media freedoms. As of the end of 2003, it reportedly had about 32,000 members.
The central government’s response to the establishment of DVK was to immediately dismiss its members who held government posts and to prosecute others. On November 20, just two days after DVK’s formation was announced, Zhakianov was abruptly dismissed from his post as governor of Pavlodar. Other DVK founding members and principals who were also senior government officials – including a deputy prime minister, the deputy minister of defence, the minister of labour, and a deputy finance minister – were also dismissed. Zhakianov’s four deputies from the Pavlodar governor’s office were immediately fired, and almost twenty other Pavlodar provincial and local government members perceived as DVK supporters were alleged to have submitted "voluntary" resignations in the wake of the DVK’s founding.
In late December 2001, state authorities brought charges of abuse of position against two of Zhakianov’s Pavlodar administration deputies, Sergei Gorbenko and Aleksandr Riumkin. A few days later, on January 4, 2002, the same charges were brought against Zhakianov.
Confrontation between the DVK and the Nazarbaev government was heated during the early days after its founding. On January 19-20, 2002, the DVK joined forces with other opposition groups and led large-scale meetings in Almaty, attracting about 1,000 participants. At the meeting, Zhakianov and other prominent political figures delivered speeches that criticized the Nazarbaev government, and Zhakianov called for a referendum on the direct election of regional political leaders. President Nazarbaev countered on January 25 with a speech criticising the meeting, and demanded that law enforcement agencies take steps to stop "the buffoonery".
The government also moved to restrict information about the DVK and its calls for reform. Television stations that had covered DVK activities, including the Almatybased Tan and Pavlodar-based Irbis were abruptly taken off the air. Publishing houses came under pressure from the government, and as a result refused to print DVK material. Committee for National Security (KNB) and other security officials interrogated meeting participants in at least five provinces. In the days that followed the Almaty gathering, criminal charges of abuse of position and financial mismanagement were brought against Mukhtar Abliazov. Then, on March 27 2002, following publication of materials on “Kazakhgate” in Abliazov-controlled media, Abliazov himself was arrested.
Five months later, both Abliazov and Zhakianov were convicted on charges of abuse of office and sentenced to six and seven-year prison terms respectively, during trials that international observers called grossly flawed...”
31. Several Amnesty International reports dating back to 2002 referred to politically motivated prosecutions of persons who openly disagreed with and criticised the Kazakh authorities. In particular, in its report ‘Concerns in Europe and Central Asia: January - June 2002’, published on 1 September 2002, Amnesty International observed that:
“...[In Kazakhstan] [i]n the period under review, criminal cases were opened on charges of “abuse of office” and financial crimes against two well-known leaders of the opposition party Democratic Choice for Kazakstan (DCK), Mukhtar Ablyazov - the former Minister of Energy, Industry and Trade - and Galymzhan Zhakiyanov - the former Governor of the Northern Pavlodar region. There were reports that the charges were brought to punish them for their peaceful opposition activities. Mukhtar Ablyazov was detained on 27 March [2002], and on 28 March [2002] a criminal case was reportedly opened against Galymzhan Zhakiyanov. Galymzhan Zhakiyanov subsequently sought refuge in the French embassy in Almaty from 29 March to 3 April [2002]. He reportedly agreed to leave the embassy and be placed under house arrest on condition that he had free access to lawyers and that embassy representatives of European Union states could visit him freely. On 10 April [2002] police transferred him to the town of Pavlodar, where he was also kept under house arrest.”
32. Its next report “Concerns in Europe and Central Asia: July - December 2002”, published on 1 July 2003, contained the following observations:
“...Mukhtar Ablyazov and Galymzhan Zhakiyanov, two former senior government officials and well-known leaders of the opposition Democratic Choice for Kazakstan movement, were sentenced to six and seven years’ imprisonment respectively, on charges of “abuse of office” and financial crimes, including misappropriation of state funds. Mukhtar Ablyazov was convicted on 18 July [2002] by the Supreme Court of Kazakstan and Galymzhan Zhakiyanov was convicted on 2 August [2002] by Pavlograd city court... Reportedly, the trials of both men did not conform to international fair trial standards. There were allegations of limited access to both men by lawyers and family members before and after the trial... Despite a sharp deterioration in Galymzhan Zhakiyanov’s health as a result of interrogations in May and June [2002], the investigator had reportedly insisted on continuing interrogating him... Mukhtar Ablyazov and Galymzhan Zhakiyanov were apparently targeted because of their peaceful opposition activities...
Forty-nine-year old Sergey Duvanov – independent journalist and editor of a human rights bulletin – was arrested by police on 28 October [2002], accused of having raped a minor. The trial against him opened on 24 December [2002] in Karasay district court in Almaty region. There were allegations that the rape charge was brought to discredit him and that the case was politically motivated. Reportedly, Sergey Duvanov had been targeted before to punish him for his independent journalism. He had been interrogated by the security service in Almaty on 9 July [2002] and subsequently charged with “insulting the honour and dignity of the President” (Article 318 of the Criminal Code of Kazakhstan), reportedly in connection with an article implicating governmental officials in financial crimes; on 28 August [2002] he was assaulted by three unidentified men in plainclothes and had to be hospitalised...”
33. In November 2008 Amnesty International submitted its briefing ‘Kazakhstan: Summary of Concerns on Torture and Ill-treatment’ to the CAT to complement the information concerning the human rights situation in Kazakhstan provided by various domestic and international NGOs with the aim of assisting the CAT in the examination of the Kazakhstan’s second periodic report under Article 19 of the Convention against Torture (see above). This briefing covered the period 2002-08 with more emphasis on recent years, and focused on Amnesty International’s “most pressing concerns about the failures of the authorities in Kazakhstan to implement fully and effectively Articles 2, 3, 4, 11, 12, 13, 15 and 16 of the Convention against Torture”. The relevant extracts from the briefing read as follows:
“...Amnesty International has ... received allegations in some high-profile criminal cases linked to the prosecution and conviction in absentia of the former son-in-law of President Nazarbaev, Rakhat Aliev, for planning an alleged coup attempt and several other charges, that associates or employees of Rakhat Aliev were arbitrarily detained by NSS officers, held incommunicado in pre-charge and pre-trial detention facilities where they were tortured or otherwise ill-treated with the aim of extracting “confessions” that they had participated in the alleged coup plot. In at least one case, relatives have alleged that the trial was secret and that the accused did not have access to adequate defense...”
34. The same document also contained more general observations relating to the issue of torture and ill-treatment in Kazakhstan:
“...Amnesty International remains concerned that despite efforts by the authorities of Kazakhstan to fulfill their obligations under the CAT and implement recommendations made by the Committee in 2001 torture and other ill-treatment remain widespread and such acts continue to be committed with virtual impunity...
According to reports received by Amnesty International from domestic and international non-governmental organizations (NGOs) and inter-governmental organizations (IGOs), lawyers, diplomats, citizens and foreign nationals, beatings by law enforcement officers, especially in temporary pre-charge detention centers, in the streets or during transfer to detention centers, are still routine. From interviews Amnesty International conducted in 2006 and 2008 with concerned organizations and individuals it has emerged that torture or other ill-treatment in detention continues to be widespread, despite the safeguards against torture or other ill-treatment which the authorities have introduced and the education, reform and training programs for law enforcement forces and the judiciary often run in conjunction and in cooperation with NGOs and IGOs.
While, by all accounts, Kazakhstan had implemented a successful reform of its penitentiary system - starting with the transfer of the prison system to the Ministry of Justice in late 2001 - with significant improvements in the conditions of detention in post-conviction detention centers, the last two years have reportedly seen a decline in prison conditions, and many of the abusive practices reoccurring more and more often.
Comparatively few law enforcement officers – even according to official figures – have been brought to trial and held accountable for violations they have committed, including torture, and yet scores of people throughout the country routinely allege that they have been arbitrarily detained and tortured or ill-treated in custody in order to extract a “confession”. Evidence based on such “confessions” is still routinely admitted in court. Corruption in law enforcement and the judiciary is believed to contribute largely to a climate of impunity. This climate of impunity leads to a lack of public confidence in the criminal justice system. It was reported to Amnesty International that people only rarely lodge complaints as they feel that they will not obtain justice, nor get compensation. Many are not willing to testify against law enforcement officers out of fear of reprisals against themselves or their relatives and associates...”
35. As regards the application of the death penalty in Kazakhstan, Amnesty International made the following observations:
“...In May 2007 the scope of the application of the death penalty permitted by the constitution was reduced from 10 "exceptionally grave" crimes to one – that of terrorism leading to loss of life. The death penalty also remains a possible punishment for "exceptionally grave" crimes committed during times of war. A person sentenced to death in Kazakhstan retains the right to petition for clemency. A moratorium on executions, which had been imposed in 2003, remained in force and no death sentences were passed during 2007 and the first 10 months of 2008. All 31 prisoners on death row had their sentences commuted to life imprisonment...”
VIOLATED_ARTICLES: 13
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