ICCPR Case Digest

CCPR/C/128/D/2789/2016

Communication

2789/2016

Submission: 2016.07.15

View Adopted: 2020.03.12

Gennady Yakovitsky & Aleksandra Yakovitskaya v. Belarus

Substantive Issues
  • Fair trial
  • Imposition of a death sentence after unfair trial
  • Independent and impartial tribunal
  • Presumption of innocence
Relevant Articles
  • Article 14.1
  • Article 14.2
  • Article 14.3 (a)
  • Article 14.3 (b)
  • Article 14.3 (d)
  • Article 6.1
  • Article 6.2
  • Article 9.1
  • Article 9.2
  • Article 9.3
  • Article 9.4
Full Text

Facts

The author of the communication is a national of Belarus who claims that the State party violated her father's rights under 6 (1) and (2), 9 (1)-(4) and 14 (1), (2), and (3)(a), (b), and (d) of the Covenant. The Committee decided to grant interim measures under rule 92 of its rules of the procedure and requested the State party not to carry out the death sentence of the father while his case was under examination by the Committee.

On 28 July 2015, the author’s father killed T.A. This crime was committed after the consumption of alcohol and was motivated by jealousy. On the same day, the father was arrested on suspicion of murder and subsequently detained. He received the order of pretrial detention only on 31 July 2015, was not brought before a judge or other officer authorized by law until December 2015, as part of his criminal trial.

At the trial the author’s father was found guilty of intentional deprivation of life of another person committed with extreme cruelty, nothing he had already committed murder and had evaded paying alimony, and sentenced him to death. Following the verdict, the author’s father submitted unsuccessful cassation appeals, request for a pardon, and an appeal within the supervisory review procedure.

The author, on behalf of her father, claims that the State party violated her father’s right to life under article 6 of the Covenant. She also claims that his trial, which lacked due process guarantees and resulted in a death sentence, itself violated her fathers right’s under article 6 (1) and (2) of the Covenant.

She maintains that her father’s rights were violated under article 14 (1) of the Covenant as court proceedings were biased and failed to maintain objectivity. The author also claims that his rights to be presumed innocent under article 14 (2) was likewise violated as during the trial he was brought to court hearings in a head to knees position, forced to sit in a cage, and biased reporting by state media before the court sentence had acquired the force of res judicata. During his cassation appeal, he was also forced to wear special clothing for persons sentenced to death, marked with Russian letters indicating his sentence. Beyond these two, the author also claims a violation of her father’s rights under articles 14 (3) (a), (b), and (d) of the Covenant as he was no informed promptly of the nature and cause of the charges brought before him, he was not offered sufficient time to prepare his defence and his access to his lawyer was limited.

Admissibility

The Committee noted the State party objection that the author’s father did not file any complaint about violations of his right to communicate confidentially with his counsels and the special clothing for persons sentenced to death. In the absence of any further information, it considered itself precluded by article 5(2)(b) of the Optional Protocol from considering this part of the communication – the claims under 9 (1), (2), and (4) and article 14 (1)-(3) owing to a lack of exhaustion of domestic remedies

The Committee considered that it was not precluded from considering the author’s remaining claims, raising issues under article 6(1) and (2), 9 (3) and 14 (2) of the Covenant, have been sufficiently substantiated for the purposes of admissibility and proceeded to the examination of merits.

Merits

The Committee noted that the State party failed to respect the Committee’s request for interim measures by executing the author’s father before the Committee had concluded its consideration of the communication. It noted that it was incompatible with State 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 communications and in the expression of its views. Indeed, by not respected the Committee’s request for interim measures, the State party violated its obligations under article 1 of the optional protocol.

Regarding the claims that the author’s father was not affording his rights under article 9(3) of the Covenant, the Committee recalled that anyone arrested or authorized must be brought promptly before a judge or other officer authorized by law to exercise judicial power. In its view, 48 hours is ordinarily sufficient to transport the individual and to prepare for a judicial hearing. In light of the circumstances of the present case, the Committee considered that it cannot conclude that the author’s father was brought promptly for a judge or other officer authorized by law to exercise judicial power. Accordingly, it found a violated of article 9 (3) of the Covenant.

The Committee also noted allegations that the principle of presumption of innocence was not respected in the author’s case, because he was handcuffed and kept in a cage during court hearings before the sentence was entered into force. In this respect, it recalled that defendants should normally not be shackled or kept in cages during the trial, or otherwise presented to the court in a manner indicating that they may be dangerous criminals, and that media should avoid news coverage undermining the presumption of innocence. In light of this, the Committee found that the right of the author’s father to be presumed innocent, as guaranteed by article 14 (2) was violated.

In addressing the author’s claims that her father’s rights to life under article 6, the committee recalled that in cases of trial leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important. It also noted that the violation of the fair trial guarantees provided for in article 14 of the Covenant in proceedings resulting in the imposition of the death penalty should render the sentence arbitrary in nature, and in violation of article 6 of the Covenant. In light of the above violation of article 14 (2), the Committee concluded that the final sentence of death and the subsequent execution did not meet the requirements of article 14 and that, as a result, his right to life was also violated.

Recommendations

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. The State party is also obligated, inter alia, to take all steps necessary to prevent similar violations from occurring in the future.

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