Advance unedited version CCPR/C/132/D/3038/2017
3.2
The author further claims that the trial was held in an accusatory manner, in violation
of article 14(1) of the Covenant. In court, he claimed in vain that his arrest has been unlawful
and that he had been forced under duress and psychological pressure to confess guilt in a very
serious crime. According to the author, the judgment of 5 May 2015 is unlawful and the trial
had been unfair, in particular given that the court retained 17 December as the date of his
apprehension.
3.3
The author next claims a violation of his rights under article 14 (3)(e), read together
with article 7of the Covenant. He asked the Tynda City Court to compensate the damages he
suffered in connection to his unlawful arrest, the impossibility to meet with his relatives, the
fact that the cell was not equipped with any chair or table, and had insufficient light or
ventilation, with toilets which were not separated. He also asked the court to examine his
claim in his presence. However, on 24 May 2016, in his absence, the court rejected his appeal.
The author claims that this decision was unlawful. Without further substantiation, the author
claims that in addition, the court failed to interrogate direct witnesses who would have been
able to confirm the violation of the author’s procedural rights, contrary to article 14 (3)(e) of
the Covenant.
State party’s observations on admissibility and merits
4.1
The State party presented its observations on admissibility and merits on 27 August
2018. Regarding the alleged violation of article 9 of the Covenant, the State party notes that
the author claims that he had been detained unlawfully from 12 to 20 December 2013; no
reasons for the arrest were given to him and he was not charged; he was not brought promptly
before a judge to verify the reason for his detention; and he was under impossibility to appeal
against his placement in detention or to get compensation.
4.2
The State party submits that under article 108 (11) of the Criminal Procedure Code
(CPC), court rulings on restraint measure (custody) can be appealed within three days after
the decision was adopted. The court must decide within three days after receiving appeal. A
decision to annul a restraint measure enters into force immediately. Decisions on restraint
measures are subject to cassation appeals under article 47 of the CPC. The material on file
shows that the author has not filed any appeal nor a cassation appeal against the decision to
have him placed in custody. Thus, the author has failed to exhaust the available domestic
remedies and his claims under article 9 of the Covenant should be deemed inadmissible.
4.3
Regarding the allegations under article 14 (1) of the Covenant, the State party notes
that the author claims that his trial has been unfair as he had been physically apprehended on
12 December 2013, a record of his arrest has been prepared only on 20 December 2013, but
the sentence mentions 17 December as a date of actual arrest. In the author’s opinion, the
incorrect calculation of the time of arrest shows that the trial had been carried in an accusatory
manner and that it has been unfair.
4.4
The State party notes that under article 3 of the Optional Protocol, the Committee may
declare that a communication is incompatible with the Covenant’s provisions and refers to
the Committee’s general comment No 32 on article 14, right to equality before courts and
tribunals and to fair trial. 2
4.5
The European Court of Human Rights has repeatedly affirmed that respect of the
requirements of fair trial must be assessed in each case taking into account the developments
of trial in its entirety, and not by focusing on a single aspect or episode. However, at the same
time, a single episode may have such an important significance which could allow to evaluate
the fairness of the trial at the early stages of the procedure. This principle is not only fair for
the application of the concept of fair trial as such, as prescribed under article 6 of the
European Convention, but also for the application of particular guarantees under article 6(3)3.
4.6
The State party believes that the author’s allegations about the calculation of the date
of his arrest may raise issues under article 9 of the Covenant but not under article 14. In
2
3
The State party refers to general comment No 32 on article 14, Right to equality before courts and
tribunals and to fair trial, 23 August 2007, CCPR/C/GC/32 and V.K. v Russian Federation.
See, for example, ECtHR, Application of Pishchalnikov v Russian Federation, ruling of 24
September 2009.
3