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1. The author is Andrei
Platonov, a Russian citizen born in 1955, currently imprisoned in
Chelyabinsk, Russian Federation. He claims to be a victim of violations by
the Russian Federation of articles 2; 7; 9, paragraphs 2, 3 and 4; 10; and
14, paragraph 3(e) and (g), of the International Covenant on Civil and
Political Rights. He is not represented by counsel.
FACTUAL BACKGROUND
2.1 On 22 February 1999, the author was arrested on suspicion of murder and
placed in detention. His arrest and detention were approved by the
Procurator on 24 February 1999. Between 22 and 24 February 1999, the author
allegedly was beaten by policemen in order to force him to confess. Unable
to withstand the beatings, he confessed. The author sought and was provided
with medical assistance; he adds that the medical history file records the
fact that he had sustained injuries. He also states that, when he wrote out
his confession, he was still bleeding from a head wound sustained during the
beatings, and that traces of his blood can be seen on the confession
document. He contends that, although he filed a complaint about being
subjected to beatings in detention, the Office of the Procurator General
refused to open a criminal case to investigate the allegations of torture by
the policemen.
2.2 The author contends that following his arrest, he was not given an
opportunity to consult a lawyer, and was not brought before a judge or other
officer authorized by law to exercise judicial power to allow him to
challenge the legality of his detention.
2.3 On 31 January 2000, the Moscow City Court convicted the author on two
counts of murder and one count of robbery, and sentenced him to 20 years'
imprisonment.
2.4 The author claims that during his trial, he retracted his confession,
but the judge did not react to his retraction and proceeded to base her
findings in large part on his confession. The request of his lawyer for a
forensic analysis of the stains on the confession document was denied by the
court. The decision of the Moscow City Court indicates that the judge
considered Platonov's retraction of his confession to be a "defence
strategy" aimed at escaping responsibility for the crimes committed. She
noted that Platonov's complaint about the "unlawful methods of
investigation" was looked into during the preliminary investigation and was
found to be unsubstantiated. In these circumstances, the judge admitted
Platonov's confession into evidence.
2.5 The author alleges that he did not receive a fair trail. He contends
that the court relied on circumstantial evidence and largely contradictory
testimony from various prosecution witnesses. Despite the failure of one
important defence witness, Gashin, to appear in court and give evidence, the
judge failed to take steps to ascertain his whereabouts and compel his
appearance.
2.6 The author submits that his forced confession and the circumstantial and
contradictory testimony of various witnesses were not corroborated by other
evidence. The murder weapon was never found and the court did not properly
investigate alternative versions of how the crime was committed. In its
decision, the court relied on forensic analysis of blood found on the
author's clothes, which found it to be of the same blood type as the two
murder victims. The Court ignored the fact that the author has the same
blood type.
2.7 The author appealed on cassation against his conviction in the Supreme
Court. On 19 July 2000, the Supreme Court rejected the appeal and upheld the
verdict of the Moscow City Court. The Court found that there was no basis to
challenge the factual findings of the Moscow City Court, and that there was
no basis to conclude that the author had been subjected to 'unlawful
investigatory methods by the police'.
THE COMPLAINT
3. The author claims that his arrest, ill-treatment in custody, and the
manner his trial was conducted, amount to violations of articles 7; 9,
paragraphs 2, 3 and 4; 10; and 14, paragraphs 3 (e) and (g), of the
Covenant. He adds that he was not afforded a remedy for the violation of his
Covenant rights, in breach of article 2, paragraph 3, of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 By note verbale of 23 March 2004, the State party submits that the
communication should be declared inadmissible with regard to the alleged
violation of article 7 in conjunction with article 14, paragraph 3(g), and
that in any event the communication does not reveal violations of the
relevant provisions of the Covenant.
4.2 In relation to the author's claims under article 7, the State party
submits that the author failed to exhaust domestic remedies, as he did not
appeal against the refusal of the Office of the Procurator General to open a
criminal case to investigate the author's allegations of torture.
4.3 As to the alleged violation of article 14, paragraph 3(e), the State
party submits that it has not been substantiated. The author did not have
the opportunity to examine the witness Gashin because his whereabouts were
unknown, but the prosecution was also deprived of the opportunity to examine
this witness. Thus, the procedural opportunities available to the defence
and the prosecution were equal. The defence never applied to have Gashin
summoned to court; his testimony during the preliminary investigation was
not relied upon, and the court did not refer to it in its judgment. It
follows that the allegation of a violation of article 14, paragraph 3(e),
has not been substantiated and is inadmissible.
4.4 The State party also submits that the communication does not reveal a
violation of article 9, paragraphs 2 to 4. It notes that the author's arrest
was made in accordance with the procedural requirements of the legislation
in force at the time of the arrest. The arrest was made with the approval of
the Procurator and within the relevant time limits allowed for detention.
The author had a right to appeal his detention in court and subsequently
file a complaint in cassation; he chose not to do so. Accordingly, the State
party submits that the author did not exhaust domestic remedies available to
him to challenge the legality of his detention, and his complaint related to
article 9 should is also inadmissible.
4.5 The State party does not comment on the alleged violations of articles
10 and 2, paragraph 3, of the Covenant.
AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 In his comments on the State party's submission dated 31 May 2004, the
author concedes that, in relation to the alleged violation of article 7 read
together with article 14, paragraph 3 (g), he did not directly appeal the
refusal of the Office of the Procurator General to open a criminal
investigation into the allegations of torture; he claims, nonetheless, that
he did in fact "raise the question" of beatings and a forced confession in
the course of his appeal before the Supreme Court. The Court dismissed the
claim without giving reasons.
5.2 The author contends that, although neither prosecution nor defence had
an opportunity to examine Mr. Gashin in court, his rights under article 14
paragraph (3) (e), were nonetheless violated. He alleges that the Procurator
General did not insist on having Mr. Gashin's whereabouts ascertained and
his appearance secured because his testimony would have jeopardized the
prosecution's case.
5.3 Finally, he argues that the Constitution of the Russian Federation
stipulates that international obligations are part of, and take precedence
over, domestic legal norms in force at the time. Thus, even if his arrest
and detention were made in accordance with the requirements of the Code of
Criminal Procedure then in force, this is not a defence to the claim that
the author's rights under article 9 were violated.
5.4. On 24 November 2004, the State party reiterated that the author's
allegations are either inadmissible or do not disclose a violation of the
Covenant.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not the case is admissible under the Optional Protocol to
the Covenant.
6.2 The Committee has ascertained, as required under article 5, paragraph
2(a), of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
6.3 Concerning the author's claim of a violation of article 7, the Committee
notes that after the Office of the Procurator General refused to open a
criminal case and to investigate the allegations of torture against the
policemen allegedly involved in his arrest, the author did not appeal to
court the above refusal to investigate his claim. As a result, the Committee
concludes that the author has failed to exhaust domestic remedies with
respect to his claim under article 7. It further transpires that the
author's claim under article 10 is based on much the same facts presented in
connection with the claim under article 7; the Committee thus considers it
unnecessary to examine it, in light of its conclusion on the article 7
claim.
6.4 The Committee takes note of the fact that the author was informed, upon
his arrest on 22 February 1999, of the reasons for the arrest and the
charges against him. Therefore, his allegation relating to article 9,
paragraph 2, is unsubstantiated, and accordingly inadmissible under article
2 of the Optional Protocol.
6.5 With regard to the author's allegations under article 9, paragraph 4, of
the Covenant, the Committee notes that the author failed to appeal the
detention order and did not raise the issue of unlawful detention at any
point during his trial. Accordingly, this claim in inadmissible pursuant to
article 5, paragraph 2(b), of the Optional Protocol.
6.6 In relation to the author's claim of a violation of article 14,
paragraph 3 (e), in that the court failed to take action to establish the
whereabouts of Mr. Gashin and secure his attendance, the Committee has noted
the State party's contention that the author did not apply to have that
particular witness summoned to appear in court. The trial records indicate
that the court continued proceedings after the failure of Mr. Gashin to
appear in court, with agreement of both the Prosecutor and the accused.
Accordingly, the author has failed to exhaust domestic remedies in relation
to these claims and they are accordingly inadmissible under article 5,
paragraph 2(b), of the Optional Protocol.
6.7 In relation to the author claims that, in violation of article 14,
paragraph 3 (g), he was forced to testify against himself and was further
convicted largely on the basis of this confession, the Committee notes that
the Moscow City Court and the Supreme Court concluded that his allegations
of the use of unlawful investigatory methods by the police were
unsubstantiated. The Committee observes that, in substance, this part of the
communication relates to an evaluation of elements of facts and evidence. It
refers to its prior jurisprudence and reiterates that it is generally for
the appellate courts of States parties to the Covenant to evaluate facts and
evidence in a particular case, unless it can be ascertained that this
evaluation was clearly arbitrary or amounted to a denial of justice. [FN2]
The material before the Committee does not show that the courts' examination
of the above allegations suffered from such defects. Accordingly, this part
of the communication is inadmissible as incompatible with the provisions of
the Covenant, pursuant to article 2 of the Optional Protocol.
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[FN2] See, for example, Errol Simms v. Jamaica, Communication No. 541/1993,
Inadmissibility decision adopted on 3 April 1995.
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6.8 The Committee decides that the remaining claim of the author is
sufficiently substantiated, as far as it raise issues under article 9,
paragraph 3, and proceeds to its examination on the merits.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
7.2 The Committee notes that, after his arrest on 22 February 1999, the
author's pre-trial detention was approved by the public prosecutor, until
the author was brought before a court and convicted on 31 January 2000. The
Committee observes that article 9, paragraph 3, is intended to bring the
detention of a person charged with a criminal offense under judicial control
and recalls that it is inherent to the proper exercise of judicial power,
that it be exercised by an authority which is independent, objective and
impartial in relation to the issues dealt with. [FN3] In the circumstances
of the instant case, the Committee is not satisfied that the public
prosecutor could be characterized as having the institutional objectivity
and impartiality necessary to be considered an "officer authorized to
exercise judicial power" within the meaning of article 9, paragraph 3. The
Committee therefore concludes that there has been a violation of this
Covenant provision.
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[FN3] See, for example, Communication No. 521/1992, Vladmir Kulomin v.
Hungary, Views adopted on 22 March 1996.
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8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
article 9, paragraph 3, of the International Covenant on Civil and Political
Rights.
9. Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee
considers that the author is entitled to an effective remedy, including
appropriate compensation. The State party is also under an obligation to
take effective measures to ensure that similar violations do not recur.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognised 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 recognised in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the Committee's
views.
______________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
The Optional Protocol entered into force for the Russian Federation on 1
January 1992 |
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