CCPR/C/122/D/2181/2012
3.3
The author further alleges that the refusal to have his case duly considered by a court
amounted to a denial of his right of access to the courts, in violation of article 14 (1) of the
Covenant.
State party’s observations on admissibility
4.1
In notes verbales dated 13 August 2012 and 4 January 2013, the State party noted a
lack of legal grounds for consideration of the communication on both admissibility and the
merits. It argues that the author has not exhausted all available domestic remedies because
he did not submit appeals to the Chairperson of Minsk City Court or to the Chairperson of
the Supreme Court. Moreover, the author had the right to submit a complaint to the
Prosecutor General against the judicial decision under the supervisory review procedure,
which he did not do. Thus, his complaint was registered in violation of article 2 of the
Optional Protocol.
4.2
The State party further submits that it has discontinued the proceedings regarding
the communication and will disassociate itself from any Views that might be adopted by the
Committee.
Author’s comments on the State party’s observations on admissibility
5.1
In a letter dated 17 October 2012, the author commented on the observations of the
State party. He argues that in accordance with article 432 of the Civil Procedure Code, the
decision of a cassation court enters into force on the date of its adoption. Thus, the decision
of Minsk City Court of 11 February 2010 entered into force on the same day. The author
also explains that the court filing fees were returned to him, which meant that the
proceedings had de facto been terminated.3
5.2
The author further states that he did not make use of the supervisory review
procedure by lodging complaints to the Chairperson of Minsk City Court and the
Chairperson of the Supreme Court because that procedure would not have led to a review of
the case. He claims that consideration of a supervisory review application is dependent on
the discretionary power of a single official and that supervisory review cannot be regarded
as an effective remedy, for the following reasons:
(a)
It would not trigger a review of the case;
(b)
It would be considered by a single official;
(c)
official;
Case materials would be requested for review only at the discretion of that
(d)
The case would be considered in the absence of the parties, so the author
would not have an opportunity to submit any arguments, motions or requests.
5.3
Referring to the Committee’s established practice, the author points out that only
domestic remedies that are both available and effective must be exhausted. The Committee
in its jurisprudence has consistently considered that supervisory review procedures against
court decisions that have entered into force do not constitute a remedy that has to be
exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.4 The author also
submits that, for the reasons above, an appeal to the Prosecutor General’s Office under the
supervisory review procedure would not constitute an effective remedy.
Lack of cooperation by the State party
6.1
The Committee notes the State party’s assertion that there are no legal grounds for
consideration of the author’s communication, insofar as it was registered in violation of the
provisions of the Optional Protocol, and that if a decision is taken by the Committee on the
present communication, the State party will disassociate itself from the Committee’s Views.
3
4
In accordance with article 259 of the Tax Code, the court fee, paid to a court to file a lawsuit, is
returned to the plaintiff if the case is closed due to lack of jurisdiction of the court.
See Shumilin v. Belarus (CCPR/C/105/D/1784/2008), para. 8.3.
3