Human Rights Committee

Communication No. 2013/2010

Views adopted by the Committee at its 113th session (16 March–2 April 2015)

Submitted by:Oleg Grishkovtsov (represented by counsel, Roman Kislyak)

Alleged victim:The author

State party:Belarus

Date of communication:6 December 2010 (initial submission)

Document references:Special Rapporteur’s decision under rules 92 and 97, transmitted to the State party on 6 December 2010 (not issued in document form)

Date of adoption of Views:1 April 2015

Subject matter:Imposition of a death sentence after unfair trial, based on confessions obtained under duress

Procedural issues: Failure of the State party to cooperate, non-respect of the Committee’s request for interim measures, level of substantiation of claims

Substantive issues: Arbitrary deprivation of life; torture and ill-treatment; habeas corpus; right to a fair hearing by an independent and impartial tribunal; right to be presumed innocent; right not to be compelled to testify against oneself or to confess guilt

Articles of the Covenant: 6 (1-2); 7; 9 (1–4); 14 (1, 2 and 3 (a), (b), (d) and (g))

Articles of the Optional Protocol:1 and 2

Annex

Views of the Human Rights Committee under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights (113th session)

concerning

Communication No. 2013/2010 *

Submitted by:Oleg Grishkovtsov (represented by counsel, Roman Kislyak)

Alleged victim:The author

State party:Belarus

Date of communication:6 December 2010 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 1 April 2015,

Having concluded its consideration of communication No. 2013/2010, submitted to the Human Rights Committee by Oleg Grishkovtsov under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5 (4) of the Optional Protocol

1.1The communication was submitted on behalf of Oleg Grishkovtsov (“the author”), a Belarusian national born in 1980 who, at the time of the submission of the communication, was detained on death row in Minsk, after having been sentenced to death by the Grodno Regional Court on 14 May 2010. Counsel claims the author to be a victim of a violation, by Belarus, of his rights under articles 6 (1–2), 7, 9 (1–4) and 14 (1, 2 and 3 (a), (b), (d) and (g)) of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 30 December 1992. The author is represented by counsel.

1.2When registering the communication on 6 December 2010, and pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party not to carry out the death sentence of Oleg Grishkovtsov while his case was under examination by the Committee. On 14 April 2011, the Committee reiterated its request.

1.3On 20 July 2011, the Committee received information that the author’s death sentence had been carried out, despite its request for interim measures of protection. On 21 July 2011, the Committee sought clarifications from the State party, drawing its attention to the fact that non-respect of interim measures constitutes a violation by States parties of their obligations to cooperate in good faith under the Optional Protocol to the Covenant. No response was received. On 27 July 2011, the Committee issued a press release deploring the situation and condemning the execution.

The facts as submitted by the author

2.1On 14 October 2009, the author was detained and held in police custody in the Oktyabrsk district police station in the city of Grodno. On 21 October 2009, on the order of the Prosecutor, he was placed in pre-trial detention. He was subsequently charged with the murder of three persons, kidnapping, theft and arson. Counsel submits that, after his arrest, he was not immediately informed of the charges against him, in violation of article 9 (2) of the Covenant and of article 110 (1) of the Belarus Code of Criminal Procedure. Counsel also claims that this delay violated his rights under article 14 (3) (a) of the Covenant.

2.2Counsel further submits that, in violation of article 9 (3) of the Covenant, he was never “brought promptly before a judge” to review the validity of his detention. He only saw a judge at the beginning of the trial, more than five months after his actual arrest. In addition, his arrest was ordered by a prosecutor, as required by the Code of Criminal Procedure of Belarus. This procedure, according to the author, violates his rights under the Covenant. In this connection, counsel refers to the Committee’s long-standing jurisprudence in Kulomin v. Hungary, among other cases. Furthermore, the authorities failed to inform him of his right to complain about this arrest procedure, as required by article 119 (3) of the Code of Criminal Procedure.

2.3Counsel submits that, during his pre-trial detention, the author was tortured by police officers in order to force him to confess to the kidnappings, murders, theft and arson. Counsel claims that, initially, when the author was brought to the police station, a group of about 10 police officers beat him for about 10–15 minutes, until his nose started bleeding. After that, police officers pressured him to admit to committing other crimes that they had not previously been able to resolve.

2.4On an unknown date, during a medical examination, the examining medical doctor inquired into the author’s bruises. The author was so afraid of the police officers that he told the doctor that he had fallen accidentally. After the medical examination, he was returned to the police station, where the beatings continued. On 14 October 2009, he was transferred to the pre-trial detention centre of the Oktyabrsk district in Grodno. During the transfer, he felt ill, could not walk and had bruises all over his body. The administration of the detention centre had to call an ambulance four times during the first night at the detention centre. Again, the author was forced to tell the ambulance doctors that he had fallen accidentally and had no complaints against the police. The first time that he was able to tell his mother about the torture and ill-treatment he had been subjected to was after the verdict was announced by the court. He also reported torture to his lawyer when he was preparing to submit his cassation appeal to the Supreme Court.

2.5Counsel adds that the facts of torture and ill-treatment were confirmed by a medical expert, who concluded, on 23 October 2009, that the author “was unable to move around by himself” and had signs of “hyperaemia around his both wrists”. The author reiterated that the purpose of torture and ill-treatment was to force him to sign a confession. During the initial interrogation, he was intoxicated after drinking large amounts of alcohol and could not express himself in a coherent way. The investigators nevertheless continued the interrogation and gave him additional alcohol. Counsel claims that, during the author’s interrogations and beatings, no lawyer was present. He submits that, in cases where there is a risk of death penalty, the authorities must ensure that all justice standards are followed.

2.6Counsel submits that, during the trial, the court clearly showed its bias against the author, in violation of article 14 (1) of the Covenant. Regarding the presumption of innocence, the court disregarded several discrepancies in the author’s statements to the police and during the court hearings. According to the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, defendants, normally, should not be in shackles and should not be kept in cages. Despite these requirements, the author was kept in a metal cage during the court hearings and the photograph of him in the cage was published in the mass media. After the verdict was announced, the author was forced to wear a special robe with letters that indicated that he had been sentenced to death even though the verdict was not then in force.

2.7Counsel further claims that the author’s right to legal assistance had also been violated. Even when he saw a lawyer on 14 October 2009, he was not given an opportunity to meet with him or her in confidence. He therefore refused the assistance of the lawyer. Later, during the cassation appeal procedure, he was also not allowed to meet with a lawyer in private, even if, as indicated in the Committee’s general comment No. 32, in cases involving capital punishment, it is “axiomatic” that the defendant must be effectively assisted by a lawyer through all stages of the investigation and trial. Counsel submits that, during a number of interrogations and other actions by the authorities, the lawyer was not present. The lawyer only studied the case after the investigation was over, during the preparations for the trial.

2.8Counsel submits that the author was sentenced to death based on a forced confession obtained under torture and ill-treatment; such evidence should not have been retained by the court. In addition, the court disregarded the author’s claims that he was tortured to force a confession of guilt.

2.9On 14 May 2010, the Grodno Regional Court found the author guilty of three murders, kidnapping, theft and arson. On 22 May 2010, the author, acting through his lawyer, filed a cassation appeal and, on 26 July 2010, he filed an addendum to his appeal, with new arguments including references to articles of the Covenant. On 17 September 2010, the Supreme Court of Belarus rejected the appeal, finding that the author’s conviction was fully supported by the evidence on file. The Supreme Court also ignored the author’s complaints that he was forced to confess his guilt. Counsel therefore contends that the author exhausted all available domestic remedies.

The complaint

3.Counsel claims that the author’s rights under articles 6 (1–2), 7, 9 (1–4) and 14 (1, 2 and 3 (a), (b), (d) and (g)) of the Covenant were violated by the State party, because he was subjected to arbitrary arrest, torture and ill-treatment after his arrest, and was sentenced to death after an unfair trial.

State party’s observations on admissibility and interim measures

4.1On 6 January 2011, the State party submits that it did not assume any commitment in accordance with the Optional Protocol to the Covenant. The present communication should not have been registered by the Committee in the first place and, therefore, the State party states that it has the honour of returning all the documentation related to the communication. Furthermore, on 22 April 2011, the State party submits that the Committee should not have registered the present communication, which was submitted by third-party individuals who are not even subject to Belarusian jurisdiction.

4.2In a note verbale dated 25 January 2012, the State party added that, upon becoming a party to the Optional Protocol, it had agreed, under article 1 thereof, to recognize the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by the State party of any rights protected by the Covenant. It notes, however, that that recognition was undertaken in conjunction with other provisions of the Optional Protocol, including those establishing criteria regarding petitioners and the admissibility of their communications, in particular articles 2 and 5. The State party maintains that, under the Optional Protocol, States parties have no obligation to recognize the Committee’s rules of procedure nor its interpretation of the provisions of the Optional Protocol, which could only be effective when done in accordance with the Vienna Convention on the Law of Treaties. It submits that, in relation to the complaint procedure, States parties should be guided first and foremost by the provisions of the Optional Protocol and that references to the Committee’s long-standing practice, methods of work and case law are not subjects of the Optional Protocol. It also submits that any communication registered in violation of the provisions of the Optional Protocol will be viewed by the State party as incompatible with the Optional Protocol and will be rejected without comments on the admissibility or merits, and any decision taken by the Committee on such rejected communications will be considered by its authorities as invalid. The State party considers that the present communication, as well as several other communications before the Committee, were registered in violation of the Optional Protocol.

Author’s comments on the State party’s observations

5.1On 19 April 2013, counsel, on behalf of the author, submits that, by ratifying the Optional Protocol to the Covenant, the State parties have recognized the Committee’s competence to receive and consider “communications from individuals claiming to be victims of violations” of their rights. The rules of procedure of the Committee and the Optional Protocol to the Covenant do not have procedures for the State party to dispute the registration of the communication. If the State party wants to challenge the admissibility of the communication, it should do so within the existing procedures. By rejecting the Committee’s right to register new communications, the State party violates its obligations under article 1 of the Optional Protocol.

5.2Regarding the submission of new communications by “third parties”, counsel, on behalf of the author, submits that at the time of the registration of the communication, Oleg Grishkovtsov was being held on death row in Minsk. Therefore, he hired counsel to represent him, in accordance with the power of attorney submitted with the initial communication to the Committee. The State party’s concern regarding some “third party” is baseless. The present communication is clearly admissible and should be considered by the Committee on its merits.

5.3Regarding the State party’s failure to comply with the Committee’s request for interim measures of protection, counsel considers that it constitutes a flagrant violation of the State party’s obligations under the Optional Protocol. Counsel invites the Committee to recommend amendments in the Belarusian legislation, so that the State party respects the Committee’s requests for interim measures.

Issues and proceedings before the Committee

The State party’s lack of cooperation and failure to respect the Committee’s request for interim measures

6.1The Committee notes the State party’s assertion that there are no legal grounds for consideration of the present communication insofar that the State party has no obligation to recognize the Committee’s rules of procedure or the Committee’s interpretation of the provisions of the Optional Protocol; and that it has no obligation to respect the request by the Committee for interim measures.

6.2The Committee recalls that under article 39 (2) of the Covenant, it is empowered to establish its own rules of procedure, which States parties have agreed to recognize. It further observes that, by adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction claiming to be victims of violations of any of the rights set forth in the Covenant (preamble and art. 1 of the Optional Protocol). Implicit in a State’s adherence to the Optional Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination thereof, to forward its Views to the State party and to the individual concerned (art. 5 (1 and 4)). It is incompatible with its obligations under article 1 of the Optional Protocol for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication and in the expression of its Views.

6.3In the present case, the Committee observes that, when submitting the communication on 6 December 2010, the author informed the Committee that he had been sentenced to death and that the sentence could be carried out at any time. On the same date, the Committee transmitted to the State party a request not to carry out the death sentence while the case was under examination by the Committee. On 14 April 2011, the Committee reiterated its request. On 20 July 2011, the Committee received information that the author had been executed, despite its request for interim measures of protection. The Committee observes that it is uncontested that the execution in question took place, despite the fact that a request for interim measures of protection had been duly addressed to the State party and that it was subsequently reiterated.

6.4The Committee reiterates that, apart from any violation of the Covenant found against a State party in a communication, a State party commits serious breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views concerning the implementation of the obligations of the State party under the Covenant nugatory and futile. In the present case, counsel alleges that his rights under various provisions of the Covenant have been violated in a manner that directly reflects on the legality of his death sentence. Having been notified of the communication and the request by the Committee for interim measures of protection, the State party committed a serious breach of its obligations under the Optional Protocol by executing the alleged victim before the Committee had concluded its consideration of the communication.

6.5The Committee further recalls that interim measures under rule 92 of its rules of procedure, adopted in accordance with article 39 of the Covenant, are essential to its role under the Optional Protocol, in order to avoid irreparable damage to the victim of the alleged violation. Flouting of that rule, especially by irreversible measures, such as in the present case of the execution of Oleg Grishkovtsov, undermines the protection of Covenant rights through the Optional Protocol.

Consideration of admissibility

7.1Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee takes note of the argument of the State party that the communication is inadmissible since it was submitted to the Committee by a third party and not by the alleged victim himself. In that respect, the Committee recalls that rule 96 (b) of its rules of procedure states that a communication should normally be submitted by the individual personally or by a representative of that individual. In the present case, the Committee notes that the alleged victim was detained on death row at the time of the submission and that the communication was submitted on behalf of the alleged victim by his counsel, who presented a duly signed power of attorney to represent him before the Committee. Accordingly, the Committee is not precluded by article 1 of the Optional Protocol from examining the communication.

7.4The Committee takes notes of the author’s allegations that his rights under article 14 (1 and 3 (a) and (b)) of the Covenant were violated. However, in the absence of further information, explanations or evidence in support of those claims on file, the Committee finds them insufficiently substantiated for purposes of admissibility and declares them inadmissible under article 2 of the Optional Protocol.

7.5The Committee considers that the author’s remaining claims, raising issues under articles 6 (1–2), 7, 9 and 14 (2 and 3 (d) and (g)) of the Covenant, have been sufficiently substantiated for purposes of admissibility and proceeds to their examination on the merits.

Consideration of the merits

8.1The Committee has considered this communication in the light of all the information received, in accordance with article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claims under articles 7 and 14 (3) (g) of the Covenant that he was subjected to physical and psychological pressure to force him to confess to a number of crimes and that his confession served subsequently as a basis for his conviction by the courts. The Committee also notes that those allegations have not been refuted by the State party. In that regard, the Committee recalls that, once a complaint about ill-treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. It further recalls that the safeguard set out in article 14 (3) (g) of the Covenant must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The Committee notes that, despite clear signs that the author was tortured (see paras. 2.4–2.5), and complaints by his mother and the author himself in this connection, the State party has not presented any information to demonstrate that its authorities have conducted an effective investigation into those specific allegations. In those circumstances, the Committee decides that due weight must be given to the author’s allegations. Accordingly, the Committee concludes that the facts before it disclose a violation of the author’s rights under articles 7 and 14 (3) (g) of the Covenant.

8.3The Committee recalls that, in accordance with article 9 (3) any person arrested or detained on a criminal charge “shall be brought promptly before a judge or other officer authorized by law to exercise judicial power”. The Committee also recalls that while the exact meaning of “promptly” may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. The Committee takes note of the author’s unchallenged allegations that he was arrested on 14 October 2009, was officially placed in pretrial detention by the decision of a prosecutor on 21 October 2009 and was not brought before a judge until the beginning of the court trial, on 30 March 2010. The Committee thus considers that the author was not brought promptly before the judge or other officer authorized by law to exercise judicial power as required by article 9 (3) of the Covenant. Accordingly, the Committee concludes that the above-mentioned facts reveal a violation of the author’s rights under article 9 (3) of the Covenant. In the light of this conclusion, the Committee will not examine separately the author’s allegations under article 9 (4) of the Covenant.

8.4The Committee further notes the author’s allegations that the principle of presumption of innocence was not respected in his case, because he was shackled and kept in a metal cage during the court hearings. Moreover, the photographs of him behind metal bars in the courtroom were published in the media. In this respect, the Committee recalls its jurisprudence as also reflected in its general comment No. 32, according to which the presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt and requires that persons accused of a criminal act must be treated in accordance with this principle. The same general comment further states that defendants should normally not be shackled or kept in cages during trial or otherwise presented to the court in a manner indicating that they may be dangerous criminals and that the media should avoid news coverage undermining the presumption of innocence. On the basis of the information before it and in the absence of any other pertinent information or argumentation from the State party as to the need to keep the author in a metal cage during his trial in court, the Committee considers that the facts as presented demonstrate that the right to be presumed innocent of Mr. Grishkovtsov, as guaranteed under article 14 (2) of the Covenant, has been violated.

8.5The Committee notes the author’s allegation that, during the investigation stage, the trial and the appeal procedures, he was not afforded assistance of a lawyer, in violation of his rights under article 14 (3) (d). The Committee notes, for example, that, during the five months of pretrial detention, the author did not have effective access to legal assistance, while during this period of time he confessed guilt under duress, and that, during the preparations for the cassation appeal, he was not allowed to meet with his lawyer privately. Referring to its general comment No. 32 (2007), the Committee recalls its jurisprudence that, in cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. The Committee also notes that these allegations have not been refuted by the State party. In these circumstances, the Committee concludes that the facts as submitted by the author reveal a violation of his rights under article 14 (3) (d) of the Covenant.

8.6Counsel further claims a violation of the author’s right to life under article 6 of the Covenant, since he was sentenced to death after an unfair trial. The Committee observes that these allegations have not been refuted by the State party. In that respect, the Committee recalls its general comment No. 6 (1982) on the right to life, in which it noted that the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence and the right to review by a higher tribunal. In the same context, the Committee reiterates its jurisprudence that the imposition of a sentence of death upon conclusion of a trial in which the provisions of article 14 of the Covenant have not been respected constitutes a violation of article 6 of the Covenant. In the light of the Committee’s findings of a violation of article 14 (3) (d) and (g) of the Covenant, especially in the light of the author’s unrefuted allegations of absence of legal assistance, torture and ill-treatment to make him confess guilt, which served as a basis for his conviction, it concludes that the final sentence of death and the subsequent execution of Oleg Grishkovtsov did not meet the requirements of article 14 and that, as a result, his right to life under article 6 of the Covenant has also been violated.

9.The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is of the view that the facts before it disclose a violation of Oleg Grishkovtsov’s rights under articles 6, 7, 9 (3) and 14 (2 and 3 (d) and (g)) of the Covenant. The State party has also breached its obligations under article 1 of the Optional Protocol to the Covenant.

10.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide adequate monetary compensation to the author’s family for the loss of his life, including reimbursement of the legal costs incurred. The State party is also under an obligation to prevent similar violations in the future and, in the light of its obligations under the Optional Protocol, to cooperate in good faith with the Committee, particularly by complying with the requests of the Committee for interim measures of protection.

11.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 or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in cases where 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 Views of the Committee. In addition, it requests the State party to publish the present Views and to have them widely disseminated in Belarusian and Russian in the State party.