View Adopted: 2021.07.21
The author and his son, nationals of Belarus, claim that the State party has violated the son’s rights under articles 6 (1) (2), 7, 9 (1)-(4), 14 (1-2-3) (a-g) of the Covenant.
On 17 March 2017, the author’s son was sentenced to death by the Gomel regional court for murder of two people. The son appealed to the Supreme Court, which rejected and upheld the decision of the trial court. The author submitted an appeal for supervisory review to the first deputy chair of the Supreme Court. In this regard the author notes that the same deputy chair of the Supreme Court was a member of the appellate court that rejected his appeal. On 16 August 2017, the author’s son submitted another appeal and this time a different deputy Chair referred to the decision and denied the appeal as well. The author now claims that his son’s rights were violated because he was sentenced to death as a result of an unfair trial
The author applied for a presidential pardon, which was pending at the time of submission of communication. The Committee requested the State party not to carry out the death sentence, however on 17 July 2018, the author’s son was executed.
With regard to supervisory review procedures and presidential pardon, the Committee finds that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication. With regards to claims under 7 and 14 (1) and (3) (g), the author failed to substantiate his claim and thus, this part of the communication is inadmissible. The Committee is precluded from considering claims under articles 9 (1)- (2) and (4) and 14 (3) (a)-(b) and (d) of Covenant as it is unable to establish if the domestic remedies with regard to these claims have been exhausted. The remaining issues under articles 6 (1)- (2), 9 (3) and 14 (2) and (3) (e) of the Covenant have been sufficiently substantiated for the purposes of admissibility.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge must be brought promptly before a judge or other officer authorized by law to exercise judicial power. The Committee noted that first, by apprehending the author’s son on 5 March 2016 but not bringing him before a judge until 8 February 2017, a delay longer than 48 hours was not justified by the State party authorities. Second, since the son was not brought before an authorized personnel, the public prosecutor could not be considered as an officer authorized to exercise judicial power under the aforementioned article. Accordingly, this according to the Committee reveals a violation of article 9 (3) of the Covenant. Further, it noted that the principle of presumption of innocence was not respected since the author’s son was handcuffed, kept in a cage during court hearings and wore special clothing for death row inmates before the sentence had entered into force. Hence, his right to be presumed innocent, as guaranteed under article 14 (2) of the Covenant, was violated. Additionally, the son’s right to call, obtain attendance of and of examining and cross examining witnesses were violated since forensic experts were not called to or questioned in court in violation of article 14 (3) (e). The son’s right to life, protected under article 6 of the Covenant, was violated since he was sentenced to death after an unfair trial. Additionally, by not respecting the interim measures, the state party violated obligations under article 1 of the Optional Protocol.
The State party is under the obligation to:
provide adequate compensation to the author for the violations suffered by his son.
The State party is also obligated, inter alia, to take all steps necessary to prevent similar violations from occurring in the future.
Joint opinion of Members Ben Achour and Tigroudja- considering the grave and irreversible consequences of the breach of interim measures in cases involving the death penalty, the authors consider that such an issue should have been included in a specific paragraph in the section of the Views on issues and proceedings, as well as in part of remedies. The Committee should have clearly spelled out the consequences for the State violating this particular obligation under the Optional Protocol.
Deadline is 17th January 2022.
By Aakrishti Kumar