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1.1 The author of the
communication is Vladimir S. Zhurin, a Russian national, on behalf of his
son Vladimir V. Zhurin, also a Russian born in 1966, who at the time of
submission of the communication, was under sentence of death following a
judgement given in 1990 by the Supreme Court of Bashkir Autonomous Soviet
Republic (today the Republic of Bashkortostan, Russian Federation). He
claims that his son is a victim of violations by the Russian Federation
[FN1] of his rights under articles 6, 7, 10, and 14, paragraphs 1, 2, and 3,
(b), (d), (e), and (g), of the Covenant. The author is not represented by
counsel.
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[FN1] The Covenant entered into force for the State party on 23 March 1976,
the Optional Protocol on 1 January 1992 (accession). Upon acceding to the
Optional Protocol, the State party made the following declaration:
"The Union of Soviet Socialist Republics, pursuant to article 1 of the
Optional Protocol, recognizes the competence of the Human Rights Committee
to receive and consider communications from individuals subject to the
jurisdiction of the Union of Soviet Socialist Republics, in respect of
situations or events occurring after the date on which the Protocol entered
into force for the USSR. 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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1.2 On 10 February 1999, the Human Rights Committee, acting through its
Special Rapporteur for New Communications and Interim Measures, requested
the State party under rule 86 of the Committee's rules of procedure not to
carry out the death sentence against Mr. Zhurin while his case was under
consideration by the Committee. From a subsequent submission of the author,
dated 10 March 1999, it transpired that Mr. Zhurin's death sentence was
commuted to life imprisonment by Presidential Decree of 23 September 1993.
THE FACTS AS SUBMITTED BY THE AUTHOR
2. The author notes that his son was sentenced to death on 12 January 1990
for premeditated murder involving the use of violence, a premeditated murder
in order to hide another crime, and for robbery involving the use of
violence. The Supreme Court of the Russian Socialist Federative Soviet
Republic (RSFSR) upheld the sentence on 11 May 1990. He was found guilty,
with four other persons (including his brother E. Zhurin) of having
committed different crimes including murders in Russia and the then Uzbek
Soviet Socialist Republic between 1984 and 1988.
THE CLAIM
3.1 The author contends that during the investigation, his son was
handcuffed to his chair and beaten to make him confess his guilt. For three
months after his arrest on 3 May 1988, he was unable to meet with his
family. Only in July 1988, after numerous interventions with the authorities
by the family, his son was "shown" to the family; according to the author,
his son's face was swollen and bruised, and he was depressed. Article 7 of
the Covenant is said to have been violated by reason of the treatment Mr.
Zhurin was subjected to.
3.2 Article 10 of the Covenant is said to have been violated during the
investigation, as Mr. Zhurin was beaten and deprived of food, thus violating
his human dignity; he was detained together with "criminal recidivists" who
threatened him with physical violence; and the investigators threatened to
hang him in his cell and to disguise his death as a suicide.
3.3 According to the author, his son's guilt was not proven by the
prosecution and the tribunal, in violation of the right to a fair trial
under article 14, paragraphs 1 and 2, and the sentence was devoid of any
legal basis. According to him, his son's conviction was based on the
testimonies of persons who had a particular interest in the outcome of the
case: his son's co-accused Mr. Kitsaev (who allegedly received a lighter
sentence) and Mr. Kayumov (who allegedly was obliged to testify under duress
during the investigation, and who retracted his testimony later in court).
3.4 Mr. Zhurin's rights under article 14, paragraph 3 (b), are said to have
been violated as his lawyer was allowed to see him only once the indictment
had been prepared by the investigation, i.e. when the case had already been
"fabricated". The author claims that on 24 May 1988, he requested the
Prosecutor of Chelyabinsk to allow him to retain a private lawyer for his
son, but he was not allowed to do so. Subsequent meetings with his lawyer
allegedly took place in the presence of an investigator, and the lawyer and
the author's son did not have sufficient time to acquaint themselves with
the charges. Mr. Zhurin allegedly prepared the cassation appeal himself, as
his lawyer was unwell, and there was neither any time nor any possibility to
hire another lawyer.
3.5 Article 14, paragraph 3 (d), of the Covenant, is said to have been
violated, as Mr. Zhurin was not represented by a lawyer from the beginning
of his detention and the author's requests to this effect were denied. The
author claims that not a single request made by the defence and by his son
were considered or granted by the court. According to him, his son should
have been tried by a jury, not a single judge.
3.6 The author claims that his son's rights under article 14, paragraph 3
(e), of the Covenant were violated, because the court denied his requests to
cross-examine different witnesses and to ask for the appearance of
additional expert witnesses.
3.7 According to the author, article 14, paragraph 3 (g) was violated in the
case of his son, as he was forced by the investigators to confess his guilt
on every charge.
3.8 Finally, the author claims that article 6 was violated with respect to
his son, because he was illegally sentenced to death after a procedurally
flawed trial, for murders that he did not commit.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 On 26 January 2000, the State party observed that Mr. Zhurin's death
sentence was upheld by the Supreme Court of the RSFSR on 11 May 1990. On 23
September 1993, he received a Presidential pardon, and the death sentence
was commuted to life imprisonment.
4.2 The State party contends that Mr. Zhurin's criminal case was examined,
on appeal, by the Supreme Court as well as on two occasions by the
Prosecutor's Office under a supervisory procedure, and the courts' rulings
in the case were found to be lawful and well-founded.
4.3 According to the State party, the circumstances of the case were
examined fully, thoroughly, and objectively. There were no breaches of
criminal or procedural law that would lead to an overturn of the conviction.
The issue of Mr. Zhurin's mental state was also investigated thoroughly,
including through an in-patient psychiatric test, which concluded that he
was of sound mind. According to the State party, the evidence was properly
assessed, and Mr. Zhurin's punishment was imposed in accordance with the law
in force at the time the offences were committed.
AUTHOR'S COMMENTS
5. On 21 July 2000, the author merely reiterated his initial claims and
dismissed the State party's submission as incorrect.
ISSUES BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee notes that the same matter is not being examined under any
other international procedure and that domestic remedies have been
exhausted. The requirements of article 5, paragraph 2 (a) and (b), of the
Optional Protocol have thus been met.
6.3 As to the ratione temporis requirement, the Committee has noted the
author's claims set out in paragraphs 3.1 to 3.8 above. It notes that the
Covenant entered into force for the Russian Federation on 23 March 1976, and
the Optional Protocol on 1 January 1992. In this case, the author was found
guilty of murder and other crimes, and sentenced to death by decision of the
Supreme Court of the Bashkir Republic on 12 January 1990. The final judicial
decision in his case was handed down by the Supreme Court of the Russian
Federation (RSFSR) on 11 May 1990, i.e. before the entry into force of the
Optional Protocol for the State party.
6.4 The Committee recalls its jurisprudence that a State party's obligations
under the Covenant apply as of the date of its entry into force for that
State party. [FN2] The Committee has also consistently held that it cannot
consider, under the Optional Protocol Procedure, alleged violations of the
Covenant which occurred before the entry into force of the Optional Protocol
for the State party concerned, unless the violations complained of continue
after the entry into force of the Optional Protocol. [FN3] A continuing
violation is to be interpreted as an affirmation, after the entry into force
of the Optional Protocol, by act or by clear implication, of the previous
violations of the State party.
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[FN2] See, for example Communication No. 520/1992, Könye and Könye v.
Hungary.
[FN3] Idem.
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6.5 In the present case, the author's claims under articles 7, 10, and 14 of
the Covenant (paragraphs 3.1 to 3.8 above), all relate to events which
occurred before the State party formally recognised the Committee's
competence under the Optional Protocol. The Committee recalls its
jurisprudence that a term of imprisonment, without the involvement of
additional factors, does not amount per se to a "continuing effect", in
violation of the Covenant, sufficient to bring the original circumstances
giving rise to the imprisonment ratione temporis within the Committee's
jurisdiction. [FN4] In the absence of any pertinent information about any
possible continuing effects of the alleged violations after the entry into
force of the Optional Protocol for the State party, i.e. 1 January 1992,
which would in themselves constitute a violation of the Covenant, the
Committee concludes that this part of the communication is inadmissible
ratione temporis, pursuant to article 1 of the Optional Protocol.
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[FN4] See, for example, Yong-Joo Kang v. Republic of Korea, Communication
No. 878/1999, and Baulin v. Russian Fedretaion, Communication No 771/1997.
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6.6 In the circumstances, and given that the author's sentence to death was
commuted in 1993, the Committee sees no need to examine the author's
remaining claim under article 6.
7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible pursuant article 1 of the
Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
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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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