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1. The author of the
communication is Yelena Pavlovna Smirnova, a Russian citizen, born in 1967.
[FN1] She claims to be a victim of a violation by the Russian Federation of
articles 9 and 14 of the Covenant. She 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 PRESENTED BY THE AUTHOR
2.1 On 5 February 1993, criminal proceedings were initiated against the
author under article 93(a) of the Russian Criminal Code, in relation to
allegations that she had defrauded a Moscow bank by seeking to obtain credit
on security of an apartment that did not belong to her. The author did not
learn of the criminal proceedings against her until 14 September 1994, when
she was arrested by officers of the Moscow police. She was released after 36
hours.
2.2 On 26 August 1995, the author was again arrested and detained in the
pre-trial detention centre of Moscow's Butyrskaya prison. She was not
officially advised of any charges against her until 31 August 1995, and was
not promptly provided with the assistance of legal counsel. It appears from
the enclosures that despite several requests, counsel was not allowed to see
the author until 2 November 1995.
2.3 According to the author, her arrest and detention were unlawful because
she was taken into custody after the expiration of the designated period for
the completion of a preliminary investigation. She explains that under
Russian criminal procedure, a suspect can be arrested only pursuant to an
official investigation. In the author's case the investigation began on 5
February 1993 and expired on 5 April 1993, pursuant to article 133(1) of the
Code of Criminal Procedure. Article 133 (4) of the code allows for a one
month extension of suspended and resumed investigations. Pursuant to this
article, the preliminary investigation in the author's case was extended six
times, three of which illegally, as acknowledged by the Municipal
Prosecutor.
2.4 On 27 August 1995, the author submitted a complaint to the police
investigator contesting the legality of her arrest and detention pursuant to
article 220(1) of the Code of Criminal Procedure. The investigator did not
refer the complaint to the Tver inter-municipal Court until 1 September
1995, in violation of the requirement that such complaints be submitted to a
court within one day. The author states that the Court dismissed the
complaint on 13 September 1995 without having heard any argument from the
parties, on the ground that it was not competent to review the legality of
the arrest and detention since the investigation in the case had been
completed. Yet this was the basis of the author's claim that her arrest had
been unlawful. The author submits that the Court should have heard her case,
because in reality the investigation had been extended and was ongoing,
albeit, as the author contends, unlawfully. The author was unable to appeal
against the decision of the Court, as article 331 of the Code of Criminal
Procedure did not allow for an appeal against a decision in relation to a
claim brought under article 220.
2.5 The author states that, as of the date of her first communication, no
trial date had been set and that the Court had announced that her case would
not be scheduled until September 1996. According to the author, this
constituted a violation of article 223 of the Code of Criminal Procedure,
which guarantees the designation of a trial date within 14 days of the
commencement of an action in Court.
2.6 The author further submits that she suffers from a serious skin disease,
haemorrhoidal vasculitis and that the conditions of the prison in which she
was detained aggravated her medical condition. In this context, she states
that there was no adequate food or medication in the prison, that the cells,
designed for 24 persons, held 60, and that she was detained together with
serious criminals. The author submits that, given she did not have any
previous criminal record, and had not been charged with a serious or violent
offence, she should not have been remanded in custody. With regard to the
prison conditions in the Butyrskaya prison, reference is made to the report
of the Special Rapporteur on Torture of the Commission on Human Rights,
dated 16 November 1994. [FN2] In March 1996, the author was transferred to a
hospital ward, where she stayed until 17 May 1996, before being transferred
back to her cell.
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[FN2] E/CN.4/1995/34/Add.1, paragraphs 70 and 71.
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2.7 As to the exhaustion of domestic remedies, the author contends that the
Code of Criminal Procedure did not allow appeals from decisions under
article 220. In the absence of the possibility of judicial review, the
author complained about the unlawfulness of the judge's decision to a number
of bodies, including the Moscow Municipal Prosecutor, the Moscow District
Prosecutor, the General Prosecutor of the Russian Federation, the Moscow
Municipal Department of Justice, the Moscow Municipal Court, and the Moscow
Collegium of Judicial Qualification. These bodies confirmed that the judge's
decision was not subject to review. Moreover, the Ministry of Justice
acknowledged that the judge's decision was erroneous, but that it was unable
to take any action in the absence of proof of criminal misconduct by the
judge. The Municipal Prosecutor acknowledged bureaucratic delays in the
investigation of the author's case, but nevertheless did not allow her to be
released. No further remedies were said to exist.
THE COMPLAINT
3. The author contends that her pre-trial detention contravened articles 9,
10 and 14 (3) of the Covenant, as she was deprived of her liberty in
contravention of Russian law on criminal procedure, she was not informed
promptly of the grounds of her arrest or of any of the charges against her,
she was not brought promptly before a judge or judicial officer, and was
detained awaiting trial despite the fact that she had no criminal record.
She also alleges that the crime she was charged with was not a serious
offence, and that there was no reason to believe that she would not appear
for investigation or trial. Further, she claims that she was denied the
right to take proceedings before the court for a decision on the lawfulness
of her arrest. She also invokes the rights contained in articles 7 and 10 of
the Covenant in respect of the conditions of detention and lack of medical
treatment.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4. By noted dated 4 April 1997, the State party submitted an 'interim reply'
to the communication. It contended that criminal proceedings against the
author had been instituted on charges of large scale fraudulent
misappropriation of money. It explained that, in view of the serious nature
of the charges, she was arrested and taken into custody, and that the
investigations had now been completed. The State party advised that criminal
proceedings had been instituted against the author on 8 April 1996 in the
Tver inter-municipal Court, and that they remained on foot. As the
proceedings had not yet concluded, it submitted that the communication was
inadmissible on the basis that domestic remedies had not been exhausted.
COMMENTS OF THE AUTHOR ON THE STATE PARTY'S OBSERVATIONS
5. In her comments on the State party's observations dated 24 April 1997,
the author contended that the State party had not addressed her claims about
the unlawfulness of her arrest, and denial of access to a Court to review
the lawfulness of her detention, in violation of articles 9 and 14,
paragraph 3, of the Covenant. She acknowledged that the trial against her
had commenced on 8 April 1996, but stated that it had gone on for over a
year without granting due process, and that the court intended to send the
case back for further investigation. The author submitted that the State
party's response dealt with the underlying criminal case against her, which
was not the subject of her communication to the Committee. She reiterated
that domestic remedies had been exhausted in relation to claims of unlawful
arrest and denial of access to a Court to challenge the lawfulness of her
detention. She further argued that the Courts had continued to refuse her
requests to examine the question of whether her arrest was lawful, and that
it was not possible to appeal the original decision of the Tver
inter-municipal Court.
DECISION ON ADMISSIBILITY
6. At its sixty-second session, the Committee determined that the
communication was admissible, noting that the State party had not addressed
the admissibility of the author's claim concerning the circumstances of her
detention, and that the author's claims did not relate to her current trial,
but to her arrest and detention, which, according to her, were unlawful and
with respect to which domestic remedies had been exhausted. The Committee
noted that the communication may raise issues under articles 7, 9, 10 and
14(3) which should be examined on their merits. It invited the State party
to submit written explanations or statements clarifying the matters raised
in the communication. The decision was transmitted to the State party on 27
April 1998.
FURTHER COMMUNICATION FROM THE AUTHOR AND OBSERVATIONS FROM THE STATE PARTY
7.1 On 17 August 1998, the author submitted a further communication,
requesting that the Committee examine additional alleged violations by the
State party of her Covenant rights. The communication did not address the
matters raised in the original communication, but rather events which had
occurred subsequently. The author stated that on 21 March 1997, the Tver
inter-municipal Court had ordered that she continue to be held in custody
pending a further investigation into the charges against her. She submitted
that a decision of the Constitutional Court on 2 July 1998 had found article
331 of the Criminal Code invalid, the implication of which was that she had
the right to appeal the former Court's decision to conduct a further
investigation into her case; however, despite this, based on a very narrow
reading of the Constitutional Court's decision, the Tver inter-municipal
Court had refused to refer the author's matter to appeal. It transpires from
the file that the author was released from prison on 9 December 1997,
although the circumstances are not explained.
7.2 By note dated 29 March 1999, the State Party contended that on 5
February 1993, a criminal investigation had been commenced into the author's
suspected involvement in large scale fraud, and that, under Russian law,
this was considered a serious offence. It stated that, because the author
had evaded the investigating authorities, a warrant had been issued for her
arrest, that the investigation was suspended during the search, and
reinstated after her eventual arrest. The State party argued that the
investigation was extended in accordance with the article 133(3) of the Code
of Criminal Procedure, and that the process of extending the period of
investigation involved no violations of Russian law. It noted that criminal
procedure laws made no provision for a person in police custody to be
brought before a judge or other judicial officer. The State party submitted
that during the arrest the author had been informed of the reasons for her
arrest in 1995 and the charges against her, and the reasons for the decision
to place her in preventive detention. This process was reviewed, following a
complaint by the author to the Prosecutor's office, and no violations of
domestic law were found to have occurred. The State party notes that in
December 1997 the author was released from preventive detention and in lieu
thereof an order was issued for her to remain at her permanent address. It
further noted that proceedings before the Tver inter-municipal court
remained underway, and that a decision was still pending owing to the
author's failure to appear before the Court.
7.3 In her comments on the State party's observations, undated, counsel
reiterated that the author's detention in 1995 had taken place after the
legal expiry of the investigation period, and that the Courts had refused to
consider her petition about the lawfulness of her arrest. Details are then
provided about the continuing passage of her case through the State party's
court system, claiming further violations of the Covenant by the State party
over the period from December 1997 until May 1999, in relation to the length
of the ongoing trial process, and her arrest and detention for a second time
by the Russian authorities on 30 March 1999 (it transpired that she was
released on 4 October 1999). She also claims that her illness, should have
qualified her for release from detention on medical grounds.
7.4 On 16 March 2000, the author submitted information to the Committee
about her third arrest by the authorities on 10 November 1999, alleging
further violations of the Covenant by the State party in relation to the
continuing and protracted Court proceedings against her, and the decision of
the Court to remand her in custody. It transpires from the file that she was
released on 25 April 2000.
7.5 By note dated 23 November 2000, the State party reiterated that the
author tried to evade the initial inquiry and the charge was presented to
her in absentia on 5 April 1993. While she was being sought, the
investigation was suspended in accordance with relevant provisions of the
code of criminal procedure. The State party submitted that the author had
been interrogated as an accused on 9 March 1995. At that time she was handed
a decision on charges against her and appended a hand written note stating
that she was familiar with the text of the decision and that she is
contesting the charge. The State party argues that the arrest of the author
on 26 August 1995 had been appropriate in view of the seriousness of the
fraud charges against her and the fact that she had evaded the initial
inquiry into the alleged fraud. The State party claims that on 27 August
1995, the author was advised of her right to appeal to the courts against
her detention, and that the author did have access to a court to challenge
the lawfulness of her detention - her complaint dated 27 August 1995 reached
the Tver inter-municipal court in Moscow on 1 September 1995, but the judge
declined to entertain it. A second petition regarding her detention was
heard by the Lyubinsky inter-municipal court on 9 December 1997, and by
order of a Federal judge the preventive measure against the author was
changed from detention to an order not to leave the area. The State party
also contends that, whilst the author was in detention, she was given the
necessary medical care. It stated that her illness could constitute a ground
for releasing a prisoner, but only where it was in an advanced state. The
State party noted that it could not verify whether in August 1995 the author
was held in a cell with convicted criminals - the relevant documentation had
been destroyed in accordance with the usual deadlines. It also noted that
the author had now been detained for a fourth time, on 28 August 2000,
following her failure to appear in Court.
7.6 On 22 May 2002, the author submitted a further communication, insisting
that the State party had not explained why she was not provided with genuine
access to a court on 13 September 1995, namely why the Court had failed to
entertain her petition, and affirming that the physical conditions of her
detention were inhuman. The author advised that on 9 April 2002 the
proceedings against her had finally been closed.
AUTHOR'S PROCEEDINGS BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS
8.1 Although the matter was not raised in the submissions of the author or
the State party, the Committee is aware that, on 9 November 1998, after its
decision on the admissibility of her communication on 2 April 1998, the
author submitted a complaint to the European Court of Human Rights (European
Court), which was registered as case no 46133/99. The European Court
considered the admissibility of the author's complaint on 3 October 2002. In
its decision, the European Court examined, for the purposes of its own
admissibility requirements, the fact that the author had submitted a
communication to the Committee. The European Court noted the author's
arguments in defense of the admissibility of her complaint before the Court,
stating:
�(The complainant) asserts that her application to Geneva in 1995 (sic)
[FN3] concerned only the events that predated the application, namely the
impossibility to obtain a judicial review of her arrest on 26 August 1995
and therefore could not touch upon the facts which happened afterwards and
were submitted to the Court in November 1998.� [FN4] (emphasis added)
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[FN3] The application was made on 19 June 1996.
[FN4] Page 10 of the decision.
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8.2 The Court noted that the author's communication to the Human Rights
Committee was:
�directed against her arrest on 26 August 1995, and, in particular, the
question whether this arrest was justified, the impossibility to challenge
it in the courts, and the alleged inadequate conditions of detention. The
scope of the factual basis for (her) application to the Court, although
going back to the arrest of 26 August 1995, is significantly wider. It
extends to the whole of the proceedings which terminated in 2002, and
includes (her) arrest on three more occasions since 26 August 1995. It
follows that (her) application is not substantially the same as the petition
pending before the Human Rights Committee �� [FN5]
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[FN5] Page 11 of the decision.
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8.3 The Committee is also aware that, by its decision dated 24 July 2003,
the European Court found violations of articles 5, 6 and 8 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (European
Convention), and ordered the State party to pay to the author compensation
in the amount of 6,500 Euros.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
9.1 The Committee's decision on the admissibility of the author's
communication necessarily related only to matters presented to the Committee
in the initial complaint. It transpires that, following this decision, the
author has submitted information about events which occurred subsequently
(after 2 April 1996), and accordingly, before considering these further
claims, the Human Rights Committee must, in accordance with rule 87 of its
Rules of Procedure, decide whether or not they are admissible under the
Optional Protocol to the Covenant.
9.2 There are several considerations bearing on the admissibility of these
additional communications. First, the fact that the author has submitted a
complaint to the European Court requires the Committee to consider the issue
of article 5, paragraph (2)(a) of the Protocol, namely whether 'the same
matter' is 'being examined under another procedure of international
investigation or settlement'. Insofar as the matters raised in the authors'
communications to the Committee relate to circumstances occurring after the
date of her initial communication to the Committee, these matters appear to
the Committee to be the 'same' as matter which were before the European
Court. So much appears from the judgment of the European Court, which
described the factual circumstances submitted to it by the author in some
detail. According to the Court, these cover the author's arrest and
detention by the authorities of the State party on four separate occasions.
The author's claim before the European Court invoked article 5 of the
European Convention (the right to liberty and security of the person) and
article 6 (determination of criminal charges within a reasonable time).
[FN6] However, the author's case before the European Court has now been
determined, and therefore the same matter is not currently 'being examined'
under another international procedure. The Committee notes that, at the time
the author submitted her additional communications dated 17 August 1998, 16
March 2000, 22 May 2002, and her undated communication of 1999, the same
matter was before the European Court. Nevertheless, the wording of article
5(2)(a) of the Protocol requires the Committee to consider whether, at the
time it considers the question of admissibility, the matter is under another
international procedure. [FN7] The declaration issued by the State party in
relation to the Optional Protocol does not, unlike the reservations of some
States parties, preclude the Committee from considering communications where
the same matter has been the subject of another international procedure.
[FN8] Accordingly, the Committee considers that article 5, paragraph 2(a)
poses no obstacle to admissibility in the present circumstances.
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[FN6] It also invoked article 8 (freedom from interference in private life).
[FN7] Communication No 349/1988 (Wright v Jamaica).
[FN8] The declaration reads, relevantly: 'The Soviet Union also proceeds
from the understanding that the Committee shall not consider any
communications unless it has been ascertained that the same matter is not
being examined under another procedure of international investigation or
settlement and that the individual in question has exhausted all available
domestic remedies.'
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9.3 The fact that the European Court has considered the author's case
remains relevant to the question of admissibility in other respects. In
accordance with article 1 of the Protocol, the Committee can only consider
communications from individuals who claim to be victims of a violation by a
State party of rights contained in the Covenant. The Committee has
previously recognized that a person's status as a victim for the purposes of
the Protocol can change over time, and that post admissibility developments
can remedy a violation. [FN9] In this instance, it transpires that the
author is not currently in detention, and it would appear that the principal
form of redress which could be provided by the State party to remedy any
relevant violations of her rights would be an award of compensation. The
European Court has ordered payment of compensation in relation to matters
arising after 19 June 1998 (the date of the author's first communication to
the Committee). Under article 41 of the European Convention, such
compensation is directed at affording 'just satisfaction to the injured
party'. These circumstances lead the Committee to the view that the author
can no longer be considered a 'victim', for the purposes of article 1 of the
Protocol, of violations of the Covenant said to have arisen after 19 June
1998.
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[FN9] Communication 50/1979 (Van Duzen v Canada).
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9.4 Accordingly, the Committee considers that, to the extent that the
author's communications relates to events occurring after 19 June 1998, they
are inadmissible under article 1 of the Protocol. It now proceeds to
consider the merits of the remainder of the author's communication.
CONSIDERATION OF THE MERITS
10.1 With regard to the author's claim that she was denied access to a Court
to challenge the lawfulness of her detention on 27 August 1995, the
Committee notes that the State party, in its observations dated 23 November
2000, refers only to the fact that the author's complaint about the
lawfulness of her detention dated 27 August 1995 reached the Tver
inter-municipal court in Moscow on 1 September 1995 (although it was not
considered until 13 September), and that the judge declined to entertain it.
It transpires from the submissions that the trial judge did not entertain
the complaint on the basis that the investigation had been completed, and
that therefore the Court was not competent to hear the author's petition.
The right of a person deprived of her liberty to take proceedings before a
court to challenge the lawfulness of her detention is a substantive right,
and entails more than the right to file a petition - it contemplates a right
for a proper review by a court of the lawfulness of the detention.
Accordingly, the Committee finds a violation by the State party of article
9(4). Similarly, given that the decision of the judge not to entertain the
author's petition on 13 September was made ex parte, the Committee is of the
view that the author was not brought promptly before a judge, in violation
of article 9(3). In this regard, the Committee notes with concern the State
party's submission of 29 March 1999 that its criminal procedure laws, at
least at that time, made no provision for a person in police custody to be
brought before a judge or other judicial officer.
10.2 The author's submission that she should not have been detained pending
trial invokes article 9(3), which states that it shall not be the general
rule that persons awaiting trial shall be detained in custody. However, in
light of its finding of a violation of article 9(3) above, the Committee
considers it unnecessary to consider these allegations.
10.3 With regard to the author's claim that she was not informed promptly of
the charges against her, the Committee does not consider there to have been
a violation by the State party of articles 9(2) or 14(3) of the Covenant.
Upon her arrest on 26 August 1995, it appears that she was not formally
advised of the charges against her until 31 August 1995. However, it appears
that she had been previously advised of the charges against her when she was
interrogated in September 1994. The State party contends that the author was
advised of the reasons for her arrest and why she was being placed in
preventive detention. In these circumstances, the Committee considers that
it is not in a position to establish any violation of the State party's
obligations under article 9(2) and 14(3) (a) of the Covenant.
10.4 In relation to the author's claim that she was not tried without undue
delay, the Committee notes that is has to limit its examination to the
period between the initiation of criminal proceedings against the author in
February 1993 and the date of her communication to the Committee on 19 June
1996 (see paragraph 9.3 above). This period exceeds three years. However,
the author has not contested the submission of the State party that she had
evaded the authorities for much of this time. In these circumstances, the
Committee considers that there has not been a violation of article 14(3)(c)
of the Covenant.
10.5 The author's original communication raised issues under article 7, 10,
paragraph 1 of the Covenant as so far as the she claims that the physical
circumstances of her detention amounted to cruel, inhuman or degrading
treatment or punishment. The author has provided a detailed account of the
circumstances of her detention. In response, the State party submitted that
the author was provided with medical assistance during her detention. It did
not provide details of the physical conditions in which the author was
detained. Accordingly, the Committee cannot do otherwise than afford due
weight to the author's claims. The Committee, in accordance with its
jurisprudence, considers that the burden of proof cannot rest solely with
the author of the communication, considering that the author and that State
party do not always have equal access to the evidence. In the circumstances,
the Committee is of the view that the conditions of the author's detention
as described in her complaint were incompatible with the State party's
obligations under article 10, paragraph 1 of the Convention. In light of
this finding in respect of article 10, a provision of the Covenant dealing
specifically with the situation of persons deprived of their liberty and
encompassing for such persons the elements set out generally in article 7,
it is not necessary separately to consider the claims arising under article
7 of the Covenant.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, finds that the State party violated articles 9, paragraph 3 and 4,
and article 10(1) of the Covenant.
12. 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 for the violations suffered. The State party is
also under an obligation to take effective measures to ensure that similar
violations do not recur.
13. 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 days, 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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