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1. The author of the
communication is Alexander Alexandrovitch Dugin, a Russian citizen, born in
1968, who at the time of submission of the communication was imprisoned in
the Orel region of Russia. [FN1] He claims to be a victim of a violation by
the Russian Federation of articles 14, paragraphs 1, 2, 3(a), (e) and (g),
5, and article 9, paragraphs 2 and 3 of the Covenant. He is represented by
counsel.
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[FN1] The Optional Protocol entered into force in relation to the Russian
Federation on 1 January 1992
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The facts as submitted
2.1 On the evening of 21 October 1994, the author and his friend Yuri
Egurnov were standing near a bus stop when two adolescents carrying beer
bottles passed by. The author and his friend, both of whom were drunk,
verbally provoked Aleksei Naumkin and Dimitrii Chikin in order to start a
fight. When Naumkin tried to defend himself with a piece of glass and
injured the author's hand, the author and his accomplice hit him on the head
and, when he fell down, they kicked him in the head and on his body. Naumkin
died half an hour later.
2.2 On 30 June 1995, Dugin and Egurnov were found guilty by the Orlov
oblastnoi (regional) court of premeditated murder with aggravating
circumstances. The judgment was based on the testimony of the author, his
accomplice, several eyewitnesses and the victim, Chikin, several forensic
reports and the crime scene report. Dugin and Egurnov were each sentenced to
12 years' imprisonment in a correctional labor colony.
2.3 During the Orlov court hearing, the author did not admit his guilt,
while Egurnov did so partially. In his appeal to the Supreme Court of the
Russian Federation on 12 September 1995, Dugin requested that the judgment
be overturned. He claimed that he hit Naumkin only a few times and only
after Naumkin had struck him with a broken bottle. He also contended that he
had approached Egurnov and Naumkin only to stop them from fighting. His
sentence was disproportionate and his punishment particularly harsh, having
been handed down without regard for his age, his positive character
witnesses, the fact that he has a young child, and the lack of
premeditation.
2.4 On 12 September 1995, the Supreme Court of the Russian Federation
dismissed the author's appeal from his conviction, and on 6 August 1996 the
same court denied the author's appeal against his sentence.
THE COMPLAINT
3.1 The author's counsel states that the surviving victim, Chikin, was not
present during the proceedings in the Orlov court, even though the Court
took into account the statement he had made during the investigation.
According to counsel, Chikin gave contradictory testimony in his statements,
but as Chikin did not appear in Court, Dugin could not cross-examine him on
these matters, and was thus deprived of his rights under article 14,
paragraph 3 (e), of the Covenant.
3.2 Counsel further claims that the presumption of innocence under article
14, paragraph 2, of the Covenant was not respected in the author's case. He
bases this statement on the forensic expert's reports and conclusions of 22
and 26 October, 9 November, 20 December 1994 and 7 February 1995, which
were, in his opinion, vague and not objective. He states, without further
explanation, that he had posed questions to which the court had had no
answer. He therefore requested the court to have the forensic expert appear
to provide clarification and comments, and to allow him to lead additional
evidence. The court denied his request.
3.3 Counsel refers to serious irregularities in relation to the application
of the Code of Criminal Procedure, since the preliminary inquiry and
investigation were partial and incomplete, criminal law was improperly
applied, and the court's conclusions did not correspond to the facts of the
case as presented in Court. The court did not take all necessary measures to
guarantee respect for the legal requirement that there should be an
impartial, full and objective examination of all of the circumstances of the
case.
3.4 Counsel also claims that the author was notified of his indictment for
murder only seven days after he was placed in detention and that article 14,
paragraph 3 (a), and article 9, paragraphs 2 and 3, of the Covenant were
thus violated.
3.5 Counsel alleges that, while Dugin was in detention, he was subjected to
pressure by the investigator on several occasions, in an attempt to force
him to give false statements in exchange for a reduction in the charges
against him. He claims that the investigator threatened that, if he did not
do so, his indictment, which had originally been for premeditated murder,
would be replaced by an indictment for a more serious offence, namely murder
with aggravating circumstances. The author did not give in to the threats
and, as had been threatened, the investigator changed the indictment.
According to the author, that constituted a violation of article 14,
paragraph 3 (g).
3.6 With regard to the allegation of a violation of article 14, paragraph 5,
the author states, without further providing details, that his case was not
properly reviewed.
3.7 The author also claims that the crime scene report should not have been
taken into account during the proceedings because it contained neither the
date nor the time of the completion of the investigation, and did not
contain enough information about the investigation report. The prosecution
witnesses said that there had been a metal pipe present during the fight,
however the crime scene report did not refer to such a pipe. The
investigator did not examine any such item and the file contains no further
information on it.
THE STATE PARTY'S SUBMISSION
4.1 In its submission of 28 December 1998, the State party states that the
Office of the Procurator General of the Russian Federation had carried out
an investigation into the matters raised in the communication. The
prosecution's investigation had found that, on 21 October 1994, Dugin and
Egurnov, who were both drunk and behaving like 'hooligans', beat up Naumkin,
a minor, kicking and punching him in the head and on his body. Naumkin tried
to escape, but was caught by Dugin, who knocked him to the ground and beat
his head against a metal pipe. He and Egurnov then started beating the minor
again, also kicking him in the head. Naumkin subsequently died of head and
brain injuries.
4.2 According to the State party, the author's guilt was established by the
fact that he did not deny having beaten up Naumkin, and by detailed
statements given by eyewitnesses with no interest in the outcome of the
case, as well as the testimony of Chikin.
4.3 The cause of Naumkin's death and the nature of the injuries were
established by the court on the basis of many forensic medical reports,
according to which Naumkin's death was caused by skull and brain injuries
resulting from blows to the head.
4.4 The State party maintains that the author's punishment was proportionate
to the seriousness of the offence, information about his character and all
the evidence in the case. The Office of the Procurator-General concluded
that the present case did not involve any violations likely to lead to any
change or overturning of the courts' decisions, and that the proceedings
against Dugin had been lawful and well-founded.
COMMENTS BY COUNSEL ON THE STATE PARTY'S SUBMISSIONS
5.1 In his undated comments, counsel contends that the State party did not
address the main allegations contained in the communication, particularly
with regard to the violation of the right to request that witnesses able to
provide information on behalf of the accused should be heard and summoned by
the court. Secondly, the court heard the case in the absence of Chikin, who
was both a victim and a witness in the case.
5.2 Counsel also refers to the fact that the court did not respect the
principle that any doubt should be interpreted in favour of the accused. Nor
had it responded to the author's claims that: the author had requested a
forensic expert to be summoned to appear in court but that, without even
meeting in chambers, the judges dismissed his request; and the author had
had no opportunity to look at the records of the proceedings, (although he
does not specify when, i.e. before the cassation appeal or during the
initial proceedings.)
5.3 Finally, Counsel maintains that the author was not informed of the
content of article 51 of the Constitution of the Russian Federation, which
states that "no one shall be obliged to give evidence against himself, his
spouse or his close relatives".
ADMISSIBILITY DECISION
6.1 During its seventy-second session, the Human Rights Committee examined
the admissibility of the communication. It observed that the State party had
not objected to the admissibility of the communication, and ascertained that
the requirements of article 5, paragraph 2(b), of the Optional Protocol had
been satisfied.
6.2 The Committee ascertained that the same matter was not already being
examined under another procedure of international investigation or
settlement. In this respect it had been established that, after the case had
been submitted to the Committee in December 1997, an identical claim was
submitted to the European Court of Human Rights in August 1999, however this
claim was declared inadmissible ratione temporis on 6 April 2001. The
Committee therefore concluded that it was not prevented from considering the
communication under article 5, paragraph 2(a), of the Optional Protocol.
6.3 With regard to the author's allegation under article 9, paragraph 2, of
the Covenant, the Committee concluded that the author had been aware of the
grounds for his arrest. As to the allegation under article 9, paragraph 3,
of the Covenant, the Committee noted that the author had failed to
substantiate his claim, and, in accordance with article 2 of the Optional
Protocol, declared this part of the communication inadmissible.
6.4 However, the Committee considered that the author's allegations of
violations of article 14 of the Covenant could raise issues under this
provision. Accordingly, on 12 July 2001, the Committee declared the
communication admissible in so far as it appeared to raise issues under
article 14 of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
7.1 By note dated 10 December 2001, the State party submitted its comments
on the merits of the communication. It stated that on 11 March 1998, the
Presidium of the Supreme Court had reviewed the proceedings against the
author in both the Orlov Court (30 June 1995) and the Supreme Court (12
September 1995). It reduced the sentence imposed on the author from 12 to 11
years imprisonment, excluding from the consideration of aggravating
circumstances the fact that the author had been intoxicated at the time of
the offence. In all other respects the decisions were confirmed.
7.2 In relation to the author's claim that he had no opportunity to cross
examine Chikin, the State party noted that the witness had been summonsed to
Court from 23 to 26 June 1995, but had not appeared. A warrant was issued to
have him brought before the Court, but the authorities could not locate him.
Under articles 286 and 287 of the Code of Criminal Procedure, the evidence
of witnesses is admissible even in their absence, in circumstances where
their appearance in Court is not possible. The Court decided to admit the
written statement of Chikin into evidence, after hearing argument from the
parties as to whether this should occur. According to the transcript of
proceedings, no questions were asked by counsel after the statement was read
into evidence. The State party notes that the author did not object to the
trial starting in the absence of Chikin.
7.3 The State party denies that the evidence of the forensic expert was not
objective, and states that, after the first forensic opinion was considered
incomplete, four additional opinions from the same expert were obtained by
the investigator. The conclusions of the expert were consistent with the
testimony of other witnesses, namely that the author had punched and kicked
the deceased, and hit him with a metal pipe. The Court refused the author's
request to cross-examine the expert and to summon additional witnesses to
support his opinion that the deceased had been involved in another fight
shortly before his death. In this regard, Russian law did not require courts
to summons expert witnesses. Further, the opinions of the expert had been
examined and verified in the Republican Centre for Forensic Medical
Examination.
7.4 As to the author's claims regarding his detention without charge for 7
days, the State party notes that the Code of Criminal Procedure allows a
suspect to be detained without being charged for a period of up to 10 days
in exceptional circumstances. In the author's case, criminal proceedings
were initiated on 22 October 1994, the author was arrested the same day, and
he was charged on 29 October 1994, within the 10 day limit imposed by law.
7.5 The State party refutes the author's claims that the investigator
threatened to charge him with a more serious offence if he did not
cooperate, and states that, in response to a question by the presiding judge
during the proceedings, the author had confirmed that the investigators had
not threatened him, but that he had given his statements 'without thinking.'
7.6 The State party rejects the author's claims that the crime scene report
did not bear a date or refer to the metal pipe against which the deceased
was said to have hit his head; on the contrary, the report states that it
was compiled on 22 October 1994, and that there is a reference to the metal
pipe, together with a photograph in which the pipe can actually be seen.
7.7 The State party contends that there is no basis to conclude that the
proceedings against the author were biased or incomplete, and notes that the
author made no such complaints to the Russian Courts or authorities. It
states that the author was questioned in the presence of a lawyer of his
choosing, and during the period of his arrest he stated that he did not
require a lawyer. Finally, the State party notes that the reason why the
author was not informed about his rights under article 51 of the
Constitution, which provides that an accused is not required to testify
against oneself, was because the Supreme Court only introduced such a
requirement by judgment of 31 October 1995 � the author's trial was held in
June 1995. In any event, the author was informed about his rights under
article 46 of the Code of Criminal Procedure, which states that an accused
has the right to testify, or not to testify, on the charges against him.
COMMENTS OF THE AUTHOR ON THE STATE PARTY'S OBSERVATIONS
8. In his comments on the State party's observations dated 5 February 2002,
the author contends that the witness Chikin could have been located and
brought to court for cross examination, with a minimum of 'goodwill' from
the State party. He states that the court's refusal to grant his request to
adduce further medical evidence violated his rights under article 14,
paragraph 3(e), of the Covenant, and that the 7 day delay in his being
charged was incompatible with article 14, paragraph 3(a), which requires
that an accused is promptly informed of the charges against him. The author
reiterates his claims about the alleged threat made by the investigator, and
about the trial not being objective. He also notes article 51 of the
Constitution had had direct legal force and effect since 12 December 1993.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
9.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
required by article 5, paragraph 1, of the Optional Protocol. The Committee
is mindful that, although it has already considered the admissibility of the
communication, it must take into account any information subsequently
received from the parties which may bear on the issue of the admissibility
of the author's outstanding claims.
9.2 Firstly, the Committee notes that the author's submission of 5 February
2002, regarding the alleged violations of article 14, paragraph 3(a), is
substantively identical to that advanced by the author under article 9,
paragraph 2 (see paragraph 3.4 above), which was declared inadmissible.
Further, the allegation, although invoking article 14, paragraph 3(a), does
not relate to this provision factually. In the circumstances, the Committee
considers that the author has failed sufficiently to substantiate this
particular claim, for the purposes of admissibility. Accordingly, the
author's claim under article 14, paragraph 3(a), of the Covenant is
inadmissible under article 2 of the Optional Protocol.
9.3 The author claims that his rights under article 14 were violated because
he did not have the opportunity to cross-examine Chikin on his evidence,
summon the expert and call additional witnesses. While efforts to locate
Chikin proved to be ineffective for reasons not explained by the State
party, very considerable weight was given to his statement, although the
author was unable to cross-examine this witness. Furthermore, the Orlov
Court did not give any reasons as to why it refused the author's request to
summon the expert and call additional witnesses. These factors, taken
together, lead the Committee to the conclusion that the courts did not
respect the requirement of equality between prosecution and defence in
producing evidence and that this amounted to a denial of justice.
Consequently, the Committee concludes that the author's rights under article
14 have been violated.
9.4 In light of the Committee's views above, it is not necessary to consider
the author's claims regarding the objectivity of the evidence produced in
court.
9.5 On the basis of the material before it, the Committee cannot resolve the
factual question of whether the investigator in fact threatened the author
with a view to extracting statements from him. In any event, according to
the State party, the author did not complain about the alleged threats, and
in fact told the Court that he had not been threatened. In the
circumstances, the Committee considers that the author did not exhaust
domestic remedies in relation to these allegations, and declares this claim
inadmissible under article 5, paragraph 2(b), of the Optional Protocol.
9.6 As regards the author's claims that he was not advised of his rights
under article 51 of the Constitution, the Committee notes the State party's
submission that the author was informed of his rights under article 46 of
the Code of Criminal Procedure, which guarantees the right of an accused to
testify, or not to testify on the charges against him. In the circumstances,
and in particular taking into account that the author did not challenge the
State party's above argument, the Committee considers that the information
before it does not disclose a violation of article 14, paragraph 3(g).
9.7 As far as the claim under article 14, paragraph 5, is concerned, the
Committee notes that it transpires from the documents before it that the
author's sentence and conviction have been reviewed by the State party's
Supreme Court. The Committee therefore concludes that the facts before it do
not reveal a violation of the above article.
10. The Human Rights Committee, acting under article 5(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 14 of the
Covenant.
11. Pursuant to article 2, paragraph 3(a) of the Covenant, the Committee
considers that the author is entitled to an appropriate remedy, including
compensation and his immediate release.
12. By becoming a State party to the Optional Protocol, the State party has
recognized 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 all individuals
within its territory or subject to its jurisdiction the rights recognized in
the Covenant, and to provide an effective and enforceable remedy in cases
where a violation has been established. The Committee wishes to receive from
the State party, within 90 day, information about the measures taken to give
effect to the Committee's views. The State party is also requested to
publish the Committee's views.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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