CCPR/C/112/D/1989/2010
2.2
During the trial before the Zavodskoy District Court, the two police officers who
had arrested the author on 25 March 2008 testified to having detained him during the
demonstration. According to the author, neither of them could testify that they actually saw
him participating in the demonstration, but only that he had been “handed over” to them by
other police officers to be brought to the police station. Nevertheless, on 26 March 2008,
the District Court found him guilty of having committed an administrative offence under
article 23.34, paragraph 1, of the Code of Administrative Offences for participating in an
unsanctioned mass event and fined him in the amount of 700,000 Belarusian roubles.2
2.3
The author claims that he had requested the district court to ensure the participation
of a representative, as he was a student and could not afford one. The court declined his
request, invoking article 4.3 of the Procedural-Executive Code of Administrative Offences,
as the author did not fall within the category of persons who, under the law, were to be
represented by a “lawful representative”. 3 The author also requested the court to question a
particular witness, but his request was rejected with the explanation that the witness in
question was detained on the basis of the same offence.
2.4
On 3 April 2008, the author appealed the judgment of 26 March 2008 of the District
Court to the Minsk City Court, claiming that the judgement of the District Court was
unlawful, noting, inter alia, that the presence of his representative had not been assured
during the hearing. His appeal was dismissed on 15 April 2008. The Minsk City Court
ruled that the author’s guilt was established on the basis of the corroborating evidence
gathered and on the witnesses’ testimonies. It also concluded that under article 4.3 of the
Procedural-Executive Code of Administrative Offences, the author did not fall under those
categories of persons who, under the law, were to be provided with a lawful representative,
and noted that he had not requested the participation of his legal representative, i.e. a
lawyer, in line with the requirements as set out in article 4.5 of the Code.4 The author
explains that he did not avail himself of the possibility to appeal that decision within the
supervisory review procedure, as in Belarus such a review is conducted by a single official,
who does not even examine the case file, and therefore the procedure is not an effective
remedy.
The complaint
3.1
The author claims to be a victim of a violation by the State party of his rights under
article 10, paragraph 1, of the Covenant, on account of the fact that he was apprehended and
detained without food and water for 19 hours.
3.2
He also claims to be a victim of a violation of his rights under article 14,
paragraph 1, of the Covenant, since the first instance court dismissed his request to ensure
the participation of a “representative” and to question a particular witness who could testify
in the author’s defence.
2
3
4
Pursuant to article 23.34 of the Code of Administrative Offences, a person may be issued a warning,
fined in an amount of up to 50 minimum monthly wages or an administrative arrest (i.e. detention)
may be imposed.
Art. 4.3 provides for, among others, that lawful representation within administrative proceedings must
be ensured to special category of persons such as to minors and persons with restricted legal capacity.
Article 4.5 of the same Code regulates access to a defence lawyer, to be differentiated from the
“lawful representative” as mentioned above.
Art. 4.5 states that a counsel or a representative of a natural person within administrative proceedings
may be, inter alia, a legal counsel, who is a citizen of Belarus, or a close relative and s/he is
authorized to act on behalf of that person by a power of attorney written in a free form and, in the case
of a counsel, also has a legal counsel’s certificate.
3