CCPR/C/132/D/3105/2018
substantiated for the purposes of admissibility and proceeds to their examination on the
merits.
Consideration of the merits
8.1
The Committee has considered the case in the light of all the information submitted
to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
8.2
Regarding the claims that the author’s son’s rights under article 9 (3) of the Covenant
were violated, the Committee recalls that, in accordance with article 9 (3), anyone arrested
or detained on a criminal charge must be brought promptly before a judge or other officer
authorized by law to exercise judicial power. The Committee also recalls that, while the exact
meaning of “promptly” may vary depending on objective circumstances, delays should not
exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily
sufficient to transport the individual and to prepare for the judicial hearing; any delay longer
than 48 hours must remain absolutely exceptional and be justified under the circumstances.11
The Committee takes note of the author’s unchallenged allegations that his son was
apprehended on 5 March 2016 and that he was officially notified of his placement in pretrial
detention by a prosecutor on 10 March 2016 but was not brought before a judge until 8
February 2017. The Committee recalls that, in its general comment No. 35 (2014), it stated
that it was inherent to the proper exercise of judicial power that such power should be
exercised by an authority that was independent, objective and impartial in relation to the
issues dealt with, and that a public prosecutor could not be considered as an officer authorized
to exercise judicial power within the meaning of article 9 (3).12 In these circumstances, the
Committee considers that the facts before it show that the author’s son was not brought
promptly before a judge or other officer authorized by law to exercise judicial power, as
required under article 9 (3) of the Covenant. Accordingly, the Committee concludes that the
above-mentioned facts reveal a violation of the rights of the author’s son under article 9 (3)
of the Covenant.
8.3
The Committee also notes the allegations that the principle of presumption of
innocence was not respected in the author’s son’s case, because he was handcuffed and kept
in a cage during the court hearings and because he wore special clothing for death row
inmates before the sentence had entered into force. In this respect, the Committee recalls its
jurisprudence, as also reflected in paragraph 30 of its general comment No. 32 (2007),
according to which the presumption of innocence, which is fundamental to the protection of
human rights, imposes on the prosecution the burden of proving the charge, the guarantees
that no guilt can be presumed until the charge has been proved beyond reasonable doubt,
ensures that the accused has the benefit of doubt and requires that persons accused of a
criminal act must be treated in accordance with that principle. In the same general comment,
the Committee also states that defendants should normally not be shackled or kept in cages
during trial, or otherwise presented to the court in a manner indicating that they may be
dangerous criminals, and that media should avoid news coverage undermining the
presumption of innocence.13 On the basis of the information before it and in the absence of
any other pertinent information or argumentation from the State party concerning the
prevalence of the practice of handcuffing and keeping in cages defenders charged with
criminal offences and its application in the present case, including the need to keep the
author’s son handcuffed and in a cage throughout the court trial, the Committee considers
that the facts as presented demonstrate that the right of the author’s son to be presumed
innocent, as guaranteed under article 14 (2) of the Covenant, was violated.
8.4
In addition, the Committee considers the author’s claims that his son’s rights to call,
obtain the attendance of and examine witnesses were violated by the fact that several forensic
experts provided testimonies during the investigation but were not called to or questioned in
court. Regarding the ability of a person to compel attendance of witnesses and of examining
and cross-examining them, the Committee recalls that this guarantee is important for ensuring
11
12
13
See the Committee’s general comment No. 35 (2014), para. 33.
Ibid., para. 32.
See also Pustovoit v. Ukraine (CCPR/C/110/D/1405/2005), para. 9.2.
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