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1. The author of the
communication is Vladimir Kulomin, a Russian citizen, born at St. Petersburg
in 1954, currently detained at Budapest, Hungary. He claims to be a victim
of violations of his human rights by Hungary. The Optional Protocol to the
International Covenant on Civil and Political Rights entered into force for
Hungary on 7 December 1988.
Facts as submitted by the author
2.1 The author lived in Budapest, Hungary, and was a neighbour of one D.T.
and the latter's girlfriend, K.G. On 25 July 1988, the author accompanied
D.T. and K.G. to her father's house; K.G. had said that they wanted to pick
up some documents and that they needed the author's protection because her
father was mentally disturbed. Upon arrival, K.G.'s father ran out of the
house and attacked the author. When the author pushed him away, he fell; K.G.
and D.T., who claimed that he was dangerous and capable of anything, then
tied him up. After K.G. had told him that she had telephoned the psychiatric
hospital and that they would pick up her father, the author left the scene.
2.2 On 8 August 1988, while he was in St. Peterburg, the author received a
phone call from D.T. and K.G. He states that he only learned at that moment
that K.G.'s father had died, but that they did not tell him about the
circumstances of his death.
2.3 On 16 August 1988, the author returned to Budapest by train. Two days
later, he was arrested at the Russian-Hungarian border by the Hungarian
police, charged with the murder of K.G.'s father, and brought to Budapest.
The author complains that he was not allowed to call his lawyer, or the
Russian consul. After three days of interrogation, in the presence of an
interpreter, he was given a form to sign. The police allegedly told him that
this was intended for the Russian consul; however, it was intended for an
extension by 30 days of his provisional custody.
2.4 The author was detained at the police station for five months. In this
context he states: "The last two months they did not lead me to
interrogation and I even thought everybody had forgotten about me. It was
terrible. I did not understand one word of Hungarian. In my baggage I had a
Hungarian grammar book and dictionaries but the police did not allow me to
study Hungarian. Staying in the police station, I asked for my lawyer and
Russian consul every day in written form, but without result (no answer).
Moreover, I could not write to anywhere for five months." It appears from
the author's submissions that a preliminary hearing was held in the first
three months after his arrest; he submits that he then learned that K.G.
(Who had been arrested on 15 August 1988) had implicated him in the crime,
that there was no evidence against him other than her testimony, and that
the hearing took place before a public prosecutor. [FN1] In January 1989,
the author was transferred to a prison where he was given the opportunity to
study Hungarian.
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It is not clear whether the author benefited from legal assistance during
the preliminary hearing. In one of his submissions, he states that: "four of
my lawyers were assigned to me by the judicial authorities, but not at the
same time; they came one after another." In view of the fact that the
author's English is poor, it has to be assumed that by "public prosecutor"
he means an examining magistrate.
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2.5 As to his legal representation and the preparation of his defence, the
author states that, prior to the trial, he wrote several letters to the
Public Prosecutor's office. In August 1989, he was allowed during six days
to examine the "protocol" (depositions) so as to be able to prepare his
defence. FN2 The author complains that his letters were not included and
that he had too little time to examine the file, which consisted of 600
pages. He submits that, after examining the documents, he met with his
lawyer for the first time. He complains that the lawyer was old and
incapable. In this context he submits that, although he met with the lawyer
five times prior to the trial, they had to review the file every time from
the start and that after the twelfth day of the trial, his lawyer asked him
who K.G. actually was.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
The author was assisted by an interpreter during these six days.
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2.6 On 26 September 1989, the trial began in the Municipal Court of
Budapest. The author was tried together with K.G. The hearing took place
during 14 days, spread over a period of four months. The author reiterates
that there was no evidence against him. Under cross-examination, K.G.
changed her testimony on six different occasions; according to the author,
her allegations against him thus became baseless. Furthermore, none of the
prosecution witnesses incriminated him.
2.7 The author further submits that during the trial the judge conceded that
D.T. together with K.G. had planned the murder. He complains that, despite
this finding, no effort was made to find D.T., nor was the latter sentenced
in absentia. Furthermore, the author alleges that when he complained to the
judge about his unfair treatment she replied that he should complain about
such matters in Siberia and that she wanted him to be the last Russian in
Hungary. [FN3] He submits that the judge's discriminatory remarks were
deleted from the trial transcript, but that they are recorded on tape. On 8
February 1990, the author was found guilty of homicide committed with great
cruelty and sentenced to 10 years' imprisonment, with subsequent expulsion
from Hungary.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
In this context, the author states that: "The judge is anti-Soviet but it is
not my fault that Hungary was on bad terms with the Soviet Union."
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2.8 The author subsequently appealed to the Supreme Court of Hungary, on the
following grounds:
(a) The trial judge ruled that the author had admitted his guilt, whereas
his statements to the police and depositions made at the preliminary hearing
proved otherwise;
(b) The judge ruled that the blood found on the victim belonged to the
author, whereas, according to the forensic expert, this evidence was highly
questionable;
(c) The pathologist testified that the deceased died sometime between 25 and
28 July 1988, after prolonged torture. The judge ruled that the deceased
died on 25 July 1988 (the day the author had accompanied D.T. and K.G. to
the deceased's house), thereby implicating the author in the crime.
2.9 On 30 October 1990, the Supreme Court dismissed the author's appeal and
sentenced him to another four years of imprisonment, as it qualified the act
for which the author had been convicted by the court of first instance as an
offence committed with the objective of financial gain. The author points
out that he had not been charged with robbery or theft and that there was no
such evidence against him. According to the author, the Supreme Court's
decision is further proof of discrimination against him. He further alleges
that his lawyer was denied the right to explain his case, and that the
Supreme Court simply ignored the many contradictions in the trial
transcript.
2.10 The author subsequently wrote to the Attorney-General, but received no
reply. Finally, he applied to the President of the Supreme Court for review
of his case. On 12 December 1991, the Supreme Court dismissed the author's
application. With this, it is submitted, all domestic remedies have been
exhausted.
Complaint
3. Although the author does not invoke any of the provisions of the
International Covenant on Civil and Political Rights, it appears from his
submissions that he claims to be a victim of violations by Hungary of
articles 9, 10, 14 and 26 of the Covenant.
State party's information and observations and author's comments
4.1 In its submission of 25 March 1993, the State party points out that the
Optional Protocol entered into force for Hungary on 7 December 1988, and
argues that, in view of the provisions of article 28 of the Vienna
Convention on the Law of Treaties, the Committee has no competence to
consider individual complaints that refer to events that occurred prior to
the date of entry into force of the Optional Protocol for Hungary. It
submits that, accordingly, the Committee is precluded ratione temporis from
considering the author's complaints in so far as they relate to his arrest
and the first few months of his detention. [FN4]
-------------------------------------------------------------------------------------------------------------------------------[FN4]
The State party specifies these complaints as: the circumstances of the
arrest, the level of interpretation provided to the author, the appointment
of a legal aid attorney, the obligation to bring the case to court,
maintaining contacts, etc.
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4.2 The State party further argues that the Committee is not competent to
consider alleged violations of rights that are not set forth in the
Covenant. It submits that the Covenant contains no provision preventing a
jury from freely considering the facts that were established during the
process of evaluation of the evidence drawing reasonable conclusions with
respect to the guilt of the accused and qualifying the act from the
established facts. It is submitted that, accordingly, the Committee cannot
consider the author's complaint ratione materiae.
4.3 The State party further submits that, similarly, the Committee has no
competence to consider the author's complaint that D.T., a Bulgarian
citizen, was not prosecuted or sentenced. It explains that D.T. disappeared
during the proceedings and that the court of first instance issued a warrant
of arrest against him. The State party further explains that it did not
request the Bulgarian authorities to extradite D.T. since, under
Hungarian-Bulgarian Extradition Treaty, extradition is not possible when the
person to be extradited is a citizen of the other Signatory Party.
4.4 The State party concedes that the author has exhausted available
domestic remedies in his case. It submits however that the author did not
exhaust domestic remedies in respect of his complaint that the prison
authorities obstructed his contacts with the outside. It contends that, in
accordance with paragraph 36, (f), section (1), of Decree 11 of 1979 on the
execution of penal measures, the author could have filed a complaint to the
competent authorities if he believed that he had been obstructed in
maintaining contacts with other persons. Furthermore, pursuant to paragraph
22 of Decree 8/1979 (VI.30) of the Ministry of Justice, any convict may
submit a complaint requesting a remedy against personal injury. The
competent authorities of the penitentiary institution are obliged to examine
the complaint and the request. If the convict is not satisfied with the
measures undertaken, he may submit a complaint to the officer in charge of
the institution, who must take a decision within 15 days. If the convict is
not satisfied with the officer's decision either, the headquarters of the
Hungarian penitentiary administration will examine the complaint. The State
party concludes that the author has not availed himself of his right to
submit a complaint, and therefore has not exhausted domestic remedies in
this respect.
5. In his reply dated 5 May 1993, the author challenges the State party's
contention that part of the communication is inadmissible ratione temporis;
he asks whether before the date of entry into force of the Optional Protocol
for Hungary there was a law in Hungary under which it was allowed to mislead
an accused with the help of an interpreter, or to sentence an innocent man
to 14 years' imprisonment without proof.
Issues and proceedings before the Committee
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must decide, in accordance with rule 87 of its rules of
procedure, whether or not it is admissible under the Optional Protocol to
the Covenant.
6.2 The Committee observes that the Optional Protocol entered into force for
Hungary on 7 December 1988. It recalls that the Optional Protocol cannot be
applied retroactively and that the Committee is precluded ratione temporis
from examining alleged violations of the Covenant in so far as the alleged
events occurred prior to the date of entry into force of the Optional
Protocol for the State party concerned. It notes that, in the instant case,
some part of the author's pre-trial detention, as well as his trial,
occurred after 7 December 1988. The Committee therefore is not precluded
from considering the author's claims under articles 9 and 10 in so far as
they related to that period of time.
6.3 With respect to the author's complaint that one of the suspects in the
case has not been prosecuted and convicted, the Committee observes that the
Covenant does not provide for the right to see another person criminally
prosecuted. Accordingly, it finds that this part of the communication is
inadmissible as incompatible with the provisions of the Covenant, pursuant
to article 3 of the Optional Protocol.
6.4 The State party submits that the Committee has no competence to examine
the author's claims relating to the judicial proceedings against him, as the
Covenant does not contain a provision dealing with a situation in which, in
a trial by jury, the jury does not have the possibility to consider freely
the facts and the evidence in a particular case. The Committee observes,
however, that the author claims that he did not have a fair trial, within
the meaning of article 14 of the Covenant. It is in principle for the courts
of States parties to the Covenant, and not for the Committee, to evaluate
facts and evidence in a particular case, unless it can be ascertained that
the proceedings were manifestly arbitrary or amounted to a denial of
justice, or that the judge manifestly violated his obligation of
impartiality. In this context, the Committee notes that the author claims
that he was discriminated against because of his nationality. The Committee
is of the opinion that these issues should be examined on them merits.
7. The Human Rights Committee therefore decides:
(a) That the communication is admissible inasmuch as it appears to raise
issues under articles 9, 10, 14 and 26 of the Covenant;
(b) That, in accordance with article 4, paragraph 2, of the Optional
Protocol, the State party shall be requested to submit to the Committee,
within six months of the date of transmittal to it of this decision, written
explanations or statements clarifying the matter and the measures, if any,
that may have been by it. The State party is further requested to provide
the Committee with a translation of the judgement of the court of first
instance and of the judgement of the Supreme Court in the case. It is also
requested to provide the Committee with the exact dates of the author's
detention at the police station and at the general penitentiary;
(c) That any explanations or statements received from the State party shall
be communicated by the Secretary-General, under rule 93, paragraph 3, of the
rules of procedure, to the author, with the request that any comments which
he may wish to make should reach the Human Rights Committee, in care of the
Centre for Human Rights, United Nations Office at Geneva, within six weeks
of the date of the transmittal;
(d) That this decision shall be communicated to the State party and to the
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