ICCPR Case Digest

CCPR/C/129/D/2337/2014

Communication

2337/2014

Submission: 2013.11.29

View Adopted: 2020.07.23

Oleg Volchek v. Belarus

Substantive Issues
  • Arbitrary arrest
  • Exhaustion of domestic remedies
  • Fair trial
Relevant Articles
  • Article 14.1
  • Article 14.3 (b)
  • Article 14.5
  • Article 26
  • Article 9.1
  • Article 9.3
Full Text

Facts

The author is a national of Belarus who claims that the State party has violated his rights under articles 9 (1) and (3), 14 (1), (3) (b) and (5) of the Covenant. The author is a human rights activist at the head of a human rights centre providing legal assistance to the public.

On 27 January 2012, the author was stopped by two plain-clothed police officers who requested to see his passport. Upon his failure to produce his passport, he was taken to the police department. The author was followingly searched and his personal belongings were taken away. Subsequently, the author was charged, on the basis with the arresting officers’ statement, with disturbing people on the street by shouting loudly and using offensive language. He was detained on the same day before the court hearing. Although he requested that his relative and lawyers were notified, these actions were not taken. In addition, the author claims that he was not informed of the charges before him. During this time in detention, his passport disappeared from the office, and his key was used to enter his office. The author only received a new passport two months later, instead of the customary 15 days.

On 30 January 2012, the author’s case was heard and he was sentenced to four days of administrative detention. The decision was based solely on the testimony of the two police officers – who stated that in response to their request to see his passport, the author had started shouting and using offensive language. The author followingly submitted appeals until all the domestic remedies available to him were exhausted without success.

The author claims that his detention by the police and his subsequent arrest amounted to a violation of article 9 (1) of the Covenant. He also claims that the failure of authorities to notify him of the charges against him, and to inform his family and his lawyer of his arrest, and to bring him promptly before a judge violated article 9 (3) of the Covenant. He claims a further violation of article 9 (3) as the head of the police department, not a judge, authorized his detention. The author also submits that the biased and accusatory approach of the judge violated article 14 of the Covenant. In addition, the author argues that the lack of adequate time and facilities to prepare his defence violated his rights under article 14 (3) (b). Finally, the author further alleges that the failure of the appeal court to duly access the facts of his case was in violation of article 14 (5), and the authorities' refusal to issue his new passport under the 15-day emergency procedure was politically motivated and in therein in violation of article 26 fo the Covenant.

Admissibility

  • The Committee ascertained that the same matter is not being examined under another procedure of international investigation or settlement.
  • The Committee also noted that the trial transcript available on file contains no complaint by the author or his lawyer concerning a lack of time for preparation of a defence or a request to adjourn the hearing. In light of this information, the Committee found that the author had failed to exhaust domestic remedies regarding this part of the communication.
  • From the information on file, the Committee also could not conclude that the court acted arbitrarily or lacked impartiality. It, therefore, found the related claims under article 9 (1) to be insufficiently unsubstantiated and therefore inadmissible.
  • Concerning the lack of independence of the court and its assessment of evidence, the Committee was not able to conclude that the court proceedings suffered from any failure that was clearly arbitrary or amounted to a denial of injustice. On this basis, it found that the author’s claim under article 14 (1) was insufficiently substantiated and therefore inadmissible.
  • The Committee also found that the author’s claims under article 14 (5) were insufficiently substantiated for the purposes of admissibility, and therefore declared this part of the communication inadmissible.
  • The information on the file, relatedly, did not sufficiently substantiate the author’s claims that his arrest was politically motivated and the Committee, therefore, declared this part of the complaint inadmissible.
  • The Committee considered the remained of the author’s claims under article 9 (1) and (3) concerning his three-day administrative detention to be sufficiently substantiated for the purposes of admissibility and proceeded to the consideration of merits.

Merits

The Committee noted the author’s claim that his rights under article 9 (1) and 9 (3) of the Covenant were violated when he was detained on 27 January 2012 on charges of an administrative offence and kept in detention until he was taken to court. Herein, it observed that the author’s detention from 27 to 30 January was not reasonable, necessary or proportionate to the alleged misconduct and was therefore arbitrary in violation of article 9 (1) of the Covenant. In reference to the author’s claim that he was not promptly brought before a judge, the Committee recalled its earlier jurisprudence suggesting that 48 hours is ordinarily sufficient. In light of the absence of information from the State party on the existence of any exceptional circumstances to justify the present delay, the Committee therefore also found a violation of article 9 (3) of the Covenant.

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