View Adopted: 2020.03.12
The author is a national of the Russian Federation who claims that the State Party has violated his rights under articles 7, 9, 10, 14 (1), 14 (2), 14 (3) (b), (e), and (g) and 15 (1) of the Covenant.
On 21 August 2010, the author was arrested on charges of sexual assault against his stepdaughter, a minor. Once in detention, the author submits that he was beaten and deprived of food and sleep. He also submits that from 21 August to 20 October 2010, during the preliminary investigation, the author did not have access to a lawyer except for on 1 October 2010. During this time period, he signed a letter of confession which he claims was practically beaten into signing in the absence of a lawyer.
Before the inception of the author’s trial, media sources (including a documentary) reported on the case without disclosing his identity but referring to the author as a paedophile who has sexually assaulted his stepdaughter. During the following trial, the author states that the judge did not recourse himself despite having seen content related to the case, and that he did not have access to both main and expert witnesses for questioning as their statements were simply read into the record. He was ultimately sentenced to 13 years of imprisonment for repeated acts of sexual violence inflicted on the victim, who was a child. The author had been previously convicted of another crime of rape.
On the basis of the above, the author argues that after exhuasting all available domestic remedies, that the State party has violated his rights to a fair trial and the prohibition on torture and ill-treatment.
In relations to the author’s claims under articles 9, 14 (1) (regarding the author’s right to a trial by jury), 14 (3) (b) and article 15 (1) the Committee considered that the author had failed to sufficiently substantiate, for the purposes of admissibility, these allegations. Additionally, in the absence of documentary evidence in support of the author’s allegations and an indication why the decisions of the courts were arbitrary or unreasonable, the Committee cannot conclude that the conditions in the detention centre with regard to the author constituted a violation of his rights under articles 7, 10 (1), and 14 (3) (g) of the Covenant. Thus, the Committee considered that the author had also failed to sufficiently substantiate these allegations and declared these inadmissible.
In taking note of the author’s claim that the media articles violated his rights under article 14 (2) of the Covenant, the Committee considered that in the circumstances described, particularly given that these did not directly identify the author or contain confidential information, the Committee cannot conclude that these amounted to a violation of 14(2) of the Covenant. Thus, it considered that this part of the author’s complaint was also insufficiently substantiated for the purposes of admissibility.
Finally, the Committee found that the author had sufficiently substantiated his claims in relation to his right to call, obtain the attendance of and examine witnesses under article 14 (3) (e) of the Covenant. Thus, it declared these admissible and proceeded to the consideration of the merits.
The Committee recalled its general comment no. 32 on the right to equality before courts and tribunals and to a fair trial, in which it is underscored that the ability of a person to compel the attendance of witnesses and to examine and cross-examine them is important for ensuring an effective defence by the accused and his or her counsel. It also noted that the right of the accused to obtain the examination of witnesses on his own behalf is not absolute. Certain restrictions, such as the need for protection of the victim’s rights, may be imposed.
In the present case, the Committee noted that the State party does not provide pertinent explanations on the unavailability during the court hearings of the witnesses, including the expert witnesses, who provided important forensic information. In the absence of such pertinent explanations, such as, for example, alternatives to direct questioning of the victim in an open court, the Committee concluded that the State Party violated the author’s rights under article 14(3)(e).
Committee members Vasilka Sancin, Jose Manuel Santos Pais, and Gentian Zyberi dissented to the finding of a violation of the author’s rights under article 14 (3)(e) on the basis that it is not sufficient for a defendant to complain about not being allowed to question certain witnesses but the author must also adequately explain why it was important to question those witnesses, including the victim, and how this negatively affected the case, or why he did not react to such violations during the legal proceedings.
This argument was made in the present case as follows. The Committee members noted that the right of the accused to obtain the examination on his or her own behalf is not absolute. It is only the right to have those witnesses admitted who are relevant for the defence and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. There can be certain restrictions that are justified by the need for protection of the victim's rights.
The Committee members observed that the author and his lawyer actively participated in the hearings, providing evidence and questioning the conclusions of the prosecution and were not prevented from presenting the arguments for the defence. They also noted that the victim “fully confirmed” her testimony but refused to answer any questions - neither from the defence nor from the prosecution. On this basis, they argued that there was no violation of the principle of equality of arms and that the refusal to testify by the victim is fully understandable given the need to avoid her further re-victimization. They additionally stated that in cases concerning minors subjected to rape, article 14 (3) (e) cannot be interpreted as requiring all cases that questions be put directly to the victim by the accused or his or her defence counsel.
In relation to the author’s complaint that another important witness L.M.A. testified in court but the judge did not allow any questions to be posed to her, the Committee members noted that the author himself acknowledges, contradictorily, that LMA was questioned only during the investigation but did not appear in court to testify. Thus, the Committee members argued that the judge could not have prevented questions to be posed to her. In addition, the Committee members noted that LMA did not testify as a witness but as a teacher, and in that end, the author did not ask for her presence - despite having had the possibility of requesting a postponement of the proceedings to that effect.