Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2586/2015 * , **

Submitted by:Ulyana Zakharenko and Elena Zakharenko (represented by counsel, Raisa Mikhailovskaya, head of The Belarusian Documentation Centre, Lithuania)

Alleged victims:The authors and Yuri Zakharenko (deceased)

State party:Belarus

Date of communication:27 March 2014 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 11 March 2015 (not issued in document form)

Date of adoption of Views:17 March 2017

Subject matter: Enforced disappearance; right to life; torture, cruel, inhuman or degrading treatment or punishment; deprivation of liberty; effective remedy

Substantive issues:Arbitrary deprivation of life; torture and ill-treatment; arbitrary deprivation of liberty; lack of proper investigation

Procedural issues:Third party submission; Exhaustion of domestic remedies

Articles of the Covenant: 2 (3), 6, 7, 9, 10 and 26

Article of the Optional Protocol:5 (2) (b)

1.The authors of the communication are Ulyana Zakharenko, a Belarusian citizen born in 1924, and Elena Zakharenko, a German citizen born in 1975. They submit the communication on their own behalf and on behalf of Yuri Zakharenko, a Belarussian citizen born in 1953. They claim a violation by Belarus of articles 6, 7, 9, 10 and 26 of the Covenant, read in conjunction with article 2 (1), with respect to Mr. Zakharenko, and a violation of their own rights under article 7 of the Covenant. The authors are represented by Raisa Mikhailovskaya, head of the Belarusian Documentation Centre in Lithuania. The Optional Protocol entered into force for Belarus on 30 December 1992.

The facts as presented by the authors

2.1Mr. Zakharenko was a former Minister of the Interior who had been actively opposed to President Lukashenko. In the second quarter of 1999, the Office of the Gomel Department of the Ministry of Internal Affairs initiated a criminal investigation against Mr. Zakharenko. The authors claim that he was placed under police surveillance with his telephone tapped and recorded.

2.2On 7 May 1999, around 9.30 p.m., Mr Zakharenko was forcibly abducted by unidentified individuals on his way home in Minsk. According to the authors, he was forced to get into a car and driven to an unknown destination.

2.3On 8 May 1999, Elena Zakharenko reported the disappearance of her father to the Department of the Oktyabrski District of the Ministry of Internal Affairs in Minsk. On 12 and 19 May 1999, the Deputy Minister for Internal Affairs and the Head of the Criminal Police of the Ministry of Internal Affairs, respectively, requested the Prosecutor General to initiate a criminal investigation into the disappearance of Mr. Zakharenko. On 17 September 1999, the Prosecutor’s Office of the city of Minsk initiated a criminal investigation under article 101 of the Criminal Code (murder). The investigation was launched more than four months after the initial reporting of Mr. Zakharenko’s disappearance and following the disappearance of other political opponents, namely, Messrs. Gonchar and Krasovsky, on 16 September 1999.

2.4The authors submit that Mr. Zakharenko’s enforced disappearance was politically motivated. According to a handwritten letter from the Chief of the Criminal Police of Belarus, the Secretary of the Belarusian Security Council had ordered the murder of Yuri Zakharenko, to be carried out by a special group headed by a Colonel P., with the assistance of the Minister for Internal Affairs at the time, Yuri Sivakov. The latter had provided Colonel P. with a pistol, which had been temporarily removed from a temporary confinement ward in the prison. According to the former head of the pretrial detention centre No. 1 (SIZO-1) in Minsk, Mr. A., the pistol was given to associates of Mr. Sivakov — Mr. K. and Mr. D. — on 30 April and 16 September 1999, respectively. According to the authors, Messrs. Gonchar and Krasovsky were disappeared and murdered, as was Mr. Zakharenko, using the same pistol, which was later returned to the pretrial detention centre.

2.5During the investigation, the Minister for Internal Affairs, Mr. Sivakov, and his associates, Mr. K. and Mr. D., did not provide any plausible explanation for the removal of the pistol. On 22 November 1999, Colonel P. was arrested. The arrest warrant was signed by the then-Chief of the Belarus State Security Committee, Mr. M., and sanctioned by the Prosecutor General. However, Colonel P. was released shortly after, presumably under the direct order of the President.

2.6The former Prosecutor General of Belarus, Mr. B., requested the Prosecutor General of the Russian Federation to provide special equipment for searching buried corpses. However, the new Prosecutor General of Belarus, Mr. Sh., withdrew the request and no search was ever conducted. The investigation team, composed of the most experienced officials of the Prosecutor’s Office, the Ministry of Internal Affairs and the State Security Committee, was suspended from the case when Mr. B. and Mr. M. were dismissed from their functions. Since November 2000, no real investigation in Mr. Zakharenko’s case has been conducted.

2.7In June 2002, Mr Zakharenko’s wife requested the Court of the Oktyabrski District of the city of Minsk to declare Mr. Zakharenko dead in absentia as of the date of his abduction, i.e., 7 May 1999. On 9 September 2002, the Court discontinued the examination of the application owing to the fact that the preliminary investigation of the criminal case into the disappearance of Mr. Zakharenko had not been closed. The author’s complaints against the Court’s ruling were rejected.

2.8On 22 January 2004, the authors and relatives of other disappeared politicians launched an application for a new criminal case to be initiated under article 128 of the Criminal Code (crimes against [the safety of] humanity), but to no avail.

2.9None of the claims submitted by the authors to the investigators was investigated, and all of their requests to the Prosecutor’s Office were ignored. The authors submit that the investigation did not bring any outcome in the past 15 years since it is controlled by political powers that oppose it. Every three or four months, a letter is sent to the authors, confirming that the investigation is ongoing, but there is no proof that the investigatory work is being actually pursued.

2.10In support of their claims, the authors refer to a memorandum by Christos Pourgourides, prepared for the Parliamentary Assembly of the Council of Europe (the PACE memorandum). The memorandum concludes that the competent Belarusian authorities have not conducted adequate investigation into four disappearances, including that of Mr. Zakharenko. On the contrary, it appears that the highest governmental authorities have taken active steps to cover-up information and that the authorities might be involved in those disappearances.

2.11The authors submit that they have exhausted all available domestic remedies even though they have been unreasonably prolonged. The disappearance of Mr. Zakharenko was reported to the Working Group on Enforced or Involuntary Disappearances. In the view of the authors, the proceedings before the Working Group do not, however, constitute an international procedure of investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol.

The complaint

3.1With reference to the jurisprudence of the Committee and paragraph 4 of its general comment No. 6 (1982) on the right to life, the authors claim that the State party has violated article 6 (1) of the Covenant in relation to Mr. Zakharenko, since it has failed to protect his life, as it is highly likely that he was the victim of an extrajudicial killing committed by State officials.

3.2Furthermore, the authors claim a violation of article 7 of the Covenant with respect both to Mr. Zakharenko and themselves. Referring to the Committee’s above-mentioned jurisprudence, they maintain that the enforced disappearance constitutes cruel and degrading treatment not only for the victim but also for the victim’s relatives owing to the emotional stress and mental suffering it has caused them.

3.3The authors also claim a violation of article 9 of the Covenant, since the disappearance of Mr. Zakharenko represents an arbitrary and unlawful arrest by the State party’s officials. Furthermore, they note that Mr. Zakharenko was never brought before a judge and was unable to initiate proceedings before a court.

3.4The authors further claim a violation of article 10 of the Covenant as the State party officials did not treat Mr. Zakharenko with humanity and respect for his dignity, and that it is likely he was killed while in their hands.

3.5They claim a violation of article 26 of the Covenant since Mr. Zakharenko was the victim of enforced disappearance — and had no equal and effective protection against discrimination on political grounds — owing to his political opinions.

3.6The authors also claim all of the above violations in conjunction with article 2 (1). The Committee considers that, in fact, the present submission raises issues under article 2 (3) of the Covenant.

State party’s observations on admissibility

4.1On 7 May 2015, the State party challenged the admissibility of the communication arguing that it had been submitted by a third party and not the individual himself, as required by article 1 of the Optional Protocol. It submits that the Committee does not have the competence to consider communications submitted by third parties.

4.2The State party also argues that the communication is inadmissible owing to non-exhaustion of domestic remedies under article 5 (2) (b) of the Optional Protocol, without specifying which domestic remedies have not been exhausted by the authors. On that basis, the State party submits that it will “suspend further consideration” of the present communication.

Author’s comments on the State party’s observations on admissibility

5.1On 10 August 2015, the authors challenged the State party’s argument that the communication had been submitted by a third party, arguing that, since Mr. Zakharenko had been missing for 16 years, he should be legally considered dead, and that he could not submit a communication. They further claim that no provision of the Optional Protocol prevents the authors from authorizing a third person to act before the Committee as their representative.

5.2The authors reiterate their position that they have exhausted all available domestic remedies, with regard to Mr. Yuri Zakharenko under articles 6, 7, 9, 10 and 26 of the Covenant and under article 7 with regard to the authors’ claims. They further resubmit that all available domestic remedies that they have exhausted were in any case unreasonably prolonged. The disappearance of Mr. Zakharenko was reported to the Working Group on Enforced or Involuntary Disappearances. They note that the investigation and prosecution into his disappearance have yielded no results in more than 16 years.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with article 93 of its rules of procedure, whether or not it is admissible under the Optional Protocol.

6.2As required under article 5 (2) (a) of the Optional Protocol, the Committee must ascertain that the same matter is not being examined under another procedure of international investigation or settlement. The Committee notes that the disappearance of Mr. Zakharenko has been reported to the Working Group on Enforced or Involuntary Disappearances. However, it recalls that extraconventional procedures or mechanisms established by the Commission on Human Rights or the Human Rights Council, and whose mandates are to examine and report publicly on human rights situations in specific countries or territories, or cases of widespread human rights violations worldwide, do not generally constitute an international procedure of investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol. Accordingly, the Committee considers that the examination of Mr. Zakharenko’s case by the Working Group on Enforced or Involuntary Disappearances does not render the present communication inadmissible under this provision.

6.3As to the State party’s argument that the Committee cannot consider communications submitted to it by a third party, the Committee notes that nothing in the Optional Protocol prevents authors of communications from designating third parties as recipients of the Committee’s correspondence on their behalf. It also notes that it has been its longstanding practice that authors may designate representatives of their choice, not only to receive correspondence, but to represent them before the Committee. Similarly, it has been the long-standing practice of the Committee to allow relatives to bring proceedings for alleged victims, who have died, disappeared or been prevented for other reasons from bringing a communication or designating a representative. Both modes of representation are reflected in rule 96 (b) of the rules of procedure. In the present case, the authors have presented a duly signed power of attorney for the counsel to represent them and Mr. Zakharenko — their son and father — before the Committee. The Committee therefore considers that, for purposes of article 1 of the Optional Protocol, the communication has been presented by the alleged victims, through their duly designated representative. Accordingly, it is not precluded by virtue of article 1 of the Optional Protocol from examining the present communication.

6.4Regarding the State party’s argument that the authors have not exhausted the domestic remedies available, the Committee takes note of the authors’ claim that they have submitted a number of complaints regarding the disappearance of Mr. Zakharenko and that the investigation has been ongoing since 1999 without any result owing to lack of effectiveness of the investigation conducted by the Prosecutor’s Office. The Committee takes note in that regard of the complaints filed by the authors on 26 January and 2 August 2004, 12 January 2005, 1 and 6 February 2009, 9 June and December 2010, an unspecified date in February 2011, 30 April 2013 and others, to the Prosecutor of the city of Minsk, the investigator of serious cases of the Minsk Prosecutor’s Office and the Prosecutor General. The Committee also notes that the State party has not provided any details about the current state of the investigation and has not demonstrated that the continuing investigation is effective despite the apparent lack of any progress for many years, notwithstanding the serious and grave nature of the authors’ allegations. A State party cannot avoid review of a communication merely by relying on the existence of an ongoing investigation when such an investigation is extremely prolonged and patently fruitless. Under these circumstances, the Committee considers that domestic remedies have been unreasonably prolonged and ineffective. Accordingly, it finds that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication.

6.5The Committee considers that the authors’ claims are sufficiently substantiated for purposes of admissibility and therefore proceeds to their consideration on the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol.

7.2The Committee notes the authors’ claim that articles 6, 7, 9, 10 and 26 of the Covenant have been violated by the State party because of the enforced disappearance of Mr. Zakharenko and that it is highly likely that he was the victim of an extrajudicial killing committed by State officials. It notes that the State party has not submitted any information to refute the detailed allegations of the authors concerning the time of the abduction and the alleged murder, the weapon used, the identity of the suspected killer and the involvement of State officials in the act. Under those circumstances, due weight must be given to the allegations and it must be assumed that the events occurred as described by the authors. Consequently, the Committee finds a violation by the State party of the rights of Mr. Zakharenko under articles 6, 7 and 9 of the Covenant.

7.3The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, according to which States must establish appropriate judicial and administrative mechanisms for addressing claims of rights violations (para. 15), and that criminal investigation and consequential prosecution are necessary remedies for violations of human rights such as those protected by articles 6 and 7 of the Covenant. In the present case, the Committee observes that the numerous complaints filed by the authors have not led to specific information concerning the fate and whereabouts of Mr. Zakharenko, nor to the arrest or prosecution of a single perpetrator. The Committee further observes not only the failure of the State to conduct a proper investigation but also the failure to explain at which stage the investigation proceedings are, 16 years after the disappearance of Mr. Zakharenko. In the absence of an explanation of the lack of progress in the investigation by the State party, and in view of the information before it, the Committee concludes that the State party has also violated its obligations under articles 6, 7 and 9, read in conjunction with article 2 (3) of the Covenant, for failure to properly investigate and take appropriate remedial action regarding the disappearance of Mr. Zakharenko.

7.4The Committee also accepts the authors’ uncontested claim that the failure of the State party to promptly and effectively investigate the disappearance of Mr. Zakharenko has significantly exacerbated their emotional stress and caused them mental suffering, resulting in a violation of their rights under article 7 of the Covenant.

7.5In view of these conclusions, the Committee decides not to examine separately the authors’ claims relating to the violation of Mr. Zakharenko under articles 10 and 26 of the Covenant.

8.The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is therefore of the view that the facts as submitted before the Committee reveal a violation by Belarus of Mr. Zakharenko’s rights under articles 6, 7 and 9, read alone and in conjunction with article 2 (3), and of the authors’ rights under article 7 of Covenant.

9.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia: (a) to conduct a thorough and effective investigation into the authors’ allegations and provide adequate information about the results of its inquiries; if the allegations are confirmed, (b) to prosecute, try and punish the perpetrators; and (c) to provide adequate compensation to the authors for the violations suffered. The State party is also under an obligation to take all steps necessary to prevent the occurrence of similar violations in the future.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in Belarusian and Russian in the State party.