United Nations ccpr/C/122/D/2201/2012



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United Nations

CCPR/C/122/D/2201/2012

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International Covenant on
Civil and Political Rights



Distr.: Restricted General

28 March 2018


Original: English



Human Rights Committee

Views adopted by the Committee under article 5 (4)
of the Optional Protocol, concerning communication No. 2201/2012*,**


Communication submitted by: Aleksandr Tyvanchuk et al. (represented by counsel Roman Kisliak)

Alleged victims: Aleksandr Tyvanchuk and 28 others

State party: Belarus

Date of communication: 23 February 2012 (initial submission)

Document references: Special Rapporteur’s rule 97 decision, transmitted to the State party on 24 October 2012 (not issued in document form)

Date of adoption of Views: 26 March 2018

Subject matter: lack of fair trial

Procedural issues: Substantiation of claims; exhaustion of domestic remedies

Substantive issues: competent, independent, impartial tribunal; fair trial; facts and evidence; right to appeal

Articles of the Covenant: 14 (1), (2), (3) (b), (3) (e), (5) and (6)

Articles of the Optional Protocol: 1, 2 and 5 (2)

1. The authors of the communication are Tyvanchuk Aleksandr, Tartsan Yuliya, Uskhopchik Aleksandr, Kondratenko Valery, Pobozhny Oleg, Goldyuk Viktor, Pavlov Vyacheslav, Sheshuk Viktor, Rybakov Vitaly, Gruzinsky Valery, Zhuravel Vladimir, Bliznyuk Sergei, Pasyuk Igor, Bannikov Aleksei, Golubkin Anatoly, Buyak Vladimir, Timchenko Dmitry, Kuchits Stanislav, Nikolaev Yury, Okhrimuk Yury, Andreichikov Viktor, Maryakov Aleksandr, Demidyuk Viktor, Overchuk Yury, Osipuk Anatoly, Lyashkevich Nikolay, Selivonets Vladimir, Azhaev Aleksandr, and Chumichev Aleksei.1 The authors are citizens of Belarus. They claim that Belarus violated their rights under article 14 (1), (2), (3) (b), (3) (e), (5) and (6) of the Covenant. The authors are represented by counsel Roman Kisliak. The Optional Protocol entered into force for the State party on 30 September 1992.



Facts as presented by the authors

2.1 In 2002, the Belarusian customs checkpoint “Zapadny Bug” (Brest, Belarus) carried out a comparative check of electronic databases (entry-exit of trucks) with the Polish Customs Service. This verification disclosed that 82 trucks that had been registered at the customs terminal “Vestavto” of the “Zapadny Bug” customs have never entered Poland from Belarus, contrary to their route, indicated in the customs record. At the beginning of 2003, a criminal investigation was opened against the customs officers and mechanics of the customs terminal that had registered those trucks. The authors were among the accused. In April 2004, the criminal case against the authors was transferred to the Brest District Court of the Brest region with allegations of assisting in the import of goods into the territory of Belarus without payment of customs duties. The authors were accused of violating article 16 (6) (aiding and abetting), article 231 (2) (aiding in customs duties avoidance) and article 424 (3) (abuse of power) of the Criminal Code of Belarus.

2.2 On 14 April 2004, upon the request of the President of the Supreme Court, the criminal case was split in two, case No. 02018000177 and case No. 04018000020, and transferred to the Military Court in Minsk. The authors note that they unsuccessfully opposed, this decision, as none of them was a military personnel. On 26 October 2004 and on 5 August 2005, respectively, the Military Court found the authors guilty under articles 16 (6), 231 (2), and 424 (3) of the Criminal Code, and sentenced them to different prison terms with the confiscation of property. The authors submit that during the court hearings, the Military Court rejected repeatedly their counsel’s request to present witnesses of the defence, without providing any reasons. The authors filed a cassation appeal against the two decisions to the Military Panel of the Supreme Court, which maintained the decisions of the Military Court of Minsk on 4 March 2005 and on 21 October 2005, respectively.

2.3 The authors submit that during 2005 and 2006 they filed numerous complaints about lack of effective investigation and fair trial with the President of Belarus, the Prosecutor’s Office, the Supreme Court, the Ministry of Justice and other government agencies and, as a result, a new investigation team was created by the General Prosecutor’s Office to investigate the circumstances of the case. In 2007, the investigation team concluded that the authors were not aware of the criminal activity going on at the customs, and that they were “used” by the organizers of the crime without their knowledge or consent. On 4 September 2008, the General Prosecutor requested the Supreme Court to initiate new criminal proceedings in the light of newly discovered circumstances and to quash the decisions of the Military Court. This request was rejected by the Supreme Court on 26 September 2008, without any grounds provided for its decision.

2.4 The authors appealed on various occasions the decision of the Supreme Court under the supervisory review procedure to the Prosecutor General’s Office, and complained to the President of Belarus and the Security Council of Belarus. However, none of these authorities addressed the substance of their appeals.

2.5 On 27 February 2006, the Military Prosecutor filed a civil suit against the authors for substantial material damage arising from the breach of customs regulations. On 27 March and 25 April 2006, the Moscow District Court in Brest ordered the authors to pay different sums in damages (varying from 80 million to 2 billion Belarusian roubles).2 The authors also submit that the Moscow District Court based its decision solely on the criminal court verdicts in their cases and did not address any of their arguments and objections. The authors contend that they attempted to file appeals to the Brest Regional Court (on 5 May 2006) and to the Supreme Court (28 July 2006), but the appeals were rejected for failure to pay the court fees on 6 May 2006 and 25 August 2006, respectively. According to the authors, in order to be able to pay the fees, they would have to work for 10 years without paying a rent or buying food. Their requests to lift the excessively high fees were rejected by the Moscow District Court and the Brest Regional Court.



The complaint

3.1 The authors claim that, despite the fact that none of them was a military personnel, their criminal cases were examined by the Military Court. They also claim that the Military Court suffered from bias and that the evaluation of facts and evidence in their cases and the interpretation of domestic legislation, were arbitrary. They claim that the above facts disclose a violation of their rights under article 14 (1) of the Covenant.

3.2 The authors allege a violation of article 14 (1) of the Covenant, in relation to the civil proceeding regarding damages, on the grounds that the Moscow District Court was biased, because the presiding judge was recently appointed from a different district court, and because the court based its decision solely on the criminal court verdicts in their cases and did not address any of their arguments and objections. They also claim that the refusal of the Brest Regional Court and the Supreme Court to lift the high court fees for submission of their cassation appeals amounts to a violation of article 14 (1) of the Covenant.

3.3 The authors further claim that their right to defence under article 14 (3) (b) of the Covenant has been violated, since they were not provided adequate time for the preparation of their defence. The authors explain that when the criminal cases were transferred from Brest to Minsk, they had to move 350 kilometres away from home and hire new counsels to represent them. Consequently, their lawyers had to prepare their defence in a very short period of time, which influenced the quality of the defence.3

3.4 The authors claim that articles 14 (1) and 14 (3) (e) of the Covenant have been violated because the Military Court refused the request of three authors to summon four defence witnesses who could confirm the arguments of the defence.

3.5 The authors claim a violation of article 14 (2) of the Covenant without further clarification.

3.5 The authors contend that according to the criminal procedure, cassation courts can review the first-instance court decisions on points of law only. During the consideration of their cassation appeals, the Military Panel of the Supreme Court failed to proceed to a full review of their cases,4 but limited itself to a review of the manner lower courts applied the law, thus violating their rights under article 14 (5) of the Covenant.

3.6 The authors claim to be victims of a violation of article 14 (6) of the Covenant. Despite the fact that the new investigation initiated in 2007 had collected new exculpatory evidence, and that the General Prosecutor’s Office therefore requested the Supreme Court to reinitiate the criminal proceedings, the Court failed to quash the previous decisions and to refer the case for a new review.



State party’s observations on admissibility

4. In a note verbale dated 12 November 2012, the State party challenges the admissibility of the communication under article 1 of the Optional Protocol. It notes the communication was submitted on behalf of the authors by third parties, in particular by Mr. S.V. from Ukraine and Ms. A.K. from Poland, who are not subject to the jurisdiction of the State party. In this light, the State party considers that the communication was registered in breach of the Optional Protocol. It therefore has discontinued proceedings regarding the present communication and would disassociate itself from the Views that might be adopted by the Committee in this case.



Issues and proceedings before the Committee

The lack of cooperation from the State party

5.1 The Committee notes the State party’s assertion that there are no legal grounds for the consideration of the author’s communication, insofar as it is registered in violation of the provisions of the Optional Protocol and that it will not cooperate with the Committee in regard of the Views adopted in the present communication.

5.2 The Committee recalls that article 39 (2) of the Covenant authorizes it to establish its own rules of procedure, which the States parties have agreed to recognize. By adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (Preamble and article 1). The Committee recalls its practice, as reflected in rule 96 (b) of its rules of procedure, that individuals may be represented by a person of their choice, provided that the representative is duly authorized. Implicit in a State’s adherence to the Optional Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications, and after examination to forward its views to the State party and to the individual (article 5 (1) and (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of a communication and in the expression of its Views.5 It is up to the Committee to determine whether a case should be registered. The Committee observes that, by refusing the right of an individual to be represented, by failing to accept the competence of the Committee to determine whether a communication shall be registered and by declaring outright that it will not accept the Committee’s determination of the admissibility and merits of the communications, the State party has violated its obligations under article 1 of the Optional Protocol.

Consideration of admissibility

6.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

6.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. In the absence of objections of the State party concerning the exhaustion of domestic remedies by the authors, the Committee considers that the requirements of article 5 (2) of the Optional Protocol have been met.

6.3 The Committee notes that the authors have not clarified how the presumption of innocence under article 14 (2) of the Covenant has been violated and finds this part of the claim inadmissible under article 2 of the Optional Protocol.

6.4 The Committee notes the authors’ complaint that their rights under article 14 (3) (b) were violated because the Military Court was located 350 km from their place of residence and because they had to hire new lawyers, which did not leave enough time for preparation of the defence.6 In this regard, the Committee notes from the material before it, that the authors have not sufficiently substantiated this claim and finds it inadmissible under article 2 of the Optional Protocol.

6.5 The Committee notes the authors’ allegation that article 14 (5) of the Covenant was violated because the Military Panel of the Supreme Court, acting as a cassation instance, reviewed their appeals on matters of law only and did not carry out a substantive review of the facts and evidence of the case. It also notes the authors’ allegation that according to domestic law, the cassation instance can address the first-instance court decision on points of law only. In this regard the Committee recalls that article 14 (5) imposes on the State party a duty to review substantively, both on the basis of sufficiency of the evidence and of the law, the conviction and sentence, such that the procedure allows for due consideration of the nature of the case.7 In the present case, the Committee observes that the authors do not specify which substantive claims they were not able to raise before the Military Panel of the Supreme Court or which claims raised in their appeal were not addressed by the court. The Committee also observes that the Supreme Court did engage into evaluation of facts and evidence and did not limit the review to the points of law. In the absence of specific claims from the authors, the Committee finds their allegations under article 14 (5) of the Covenant to be of general nature and insufficiently substantiated. It considers this part of complaint inadmissible under article 2 of the Optional Protocol.

6.6 The Committee notes the allegations by the authors that the refusal of the Supreme Court to reopen the proceedings on the basis of newly discovered circumstances violated their rights under article 14 (6) of the Covenant. The authors claim that the court failed to provide justification for such refusal. From the Supreme Court decision in question, the Committee notes, however, the following reasons for the decision reached by the court. The Supreme Court found that the Prosecutor General’s conclusion about the newly discovered circumstances was based on testimonies of seven persons convicted in case No. 02018000177, who altered their testimonies during the investigation in a new criminal case No. 05018000044. The Court found that the guilt of the authors was established on the basis of evidence collected in case No. 02018000177, which was studied by the first-instance court. The Supreme Court concluded that altering of their testimonies by the persons convicted by a court decision which became final, does not in itself indicate the establishment of new circumstances leading to the reopening of a criminal case. The Committee recalls that it is generally for State party’s courts to evaluate the facts and the evidence, or the application of domestic legislation, in a particular case, unless it can be ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice, or that the court failed in its duty to maintain independence and impartiality.8 In absence of other specific allegations from the authors that the Supreme Court ruling was clearly arbitrary or amounted to a manifest error or denial of justice, or that the court otherwise violated its obligation of independence and impartiality, the Committee finds the claim under article 14 (6) of the Covenant insufficiently substantiated for the purpose of admissibility under article 2 of the Optional Protocol.

6.7 The Committee notes that the authors’ claim that the trial by Military Court although none of them was a military personnel, raises issues under article 14 (1) of the Covenant. The Committee also notes that the authors’ further claims under article 14 (1), concerning the proceedings before the Military Court and the civil proceedings before the Moscow District Court in Brest in the suit for damages, as well the claim under article 14 (3) (e) are closely related to the proceedings in the Military Court. In the absence of the State party’s arguments regarding admissibility of these claims, the Committee finds them admissible and proceeds to their consideration on the merits.

6.8 The Committee also notes the authors’ claim that the excessive court fees in civil proceedings and the refusal of the cassation courts to lift the fees prevented them from accessing the cassation courts and violated article 14 (1) of the Covenant. The Committee notes that the relevant documents on file concern the appeals submitted against the civil court decision dated 25 April 2006 by only one author, Mr. Tyvanchuk. There is no information on file that the rest of the authors appealed the civil court decision in their case. The Committee thus finds this claim under article 14 (1) of the Covenant admissible in regard of Mr. Tyvanchuk and proceeds to its consideration on the merits. The Committee finds this claim insufficiently substantiated and inadmissible under article 2 of the Optional Protocol for the rest of the authors.

Considerations of the merits

7.1 The Committee has considered the present communication in light of all the information submitted by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2 The Committee notes the authors' allegation that on 26 October 2004 and 5 August 2005, they were tried and found guilty under the Criminal Code by the Military Court of Minsk, following the decision by the President of the Supreme Court to transmit their case to a military court, even though none of them was military personnel. While the Covenant does not explicitly prohibit the trial of civilians in military courts, it does not provide for it either. The Committee notes that the trial of civilians in military courts raises serious problems as far as the equitable, impartial and independent administration of justice is concerned.9 Therefore, in order to guarantee the right to fair trial, State parties in general have the obligation to take all necessary measures to prohibit the trial of civilians in military courts.10 In the present case, the State party has not contested the fact that the authors were civilian personnel. The Committee concludes that the trial and sentencing of the authors by a military court violated article 14 (1) of the Covenant.

7.3 In view of this finding and because of their inseparable link to the trial by the Military Court, the Committee decides not to examine separately the authors’ remaining claims under articles 14 (1) and 14 (3) (e) in relation to proceedings before the Military Court of Minsk and their claim under article 14 (1) of the Covenant, in relation to the civil proceedings before the Moscow District Court in Brest.

7.4 The Committee further notes the claim of Mr. Tyvanchuk that the excessive court fees rendered impossible consideration of his cassation appeal dated 5 May 2006 by the Brest Regional Court against the civil court decision, thus denying him access to court in violation of article 14 (1) of the Covenant. The Committee notes that the author was supposed to pay the court fees, which amounted to 5% of the damage he was supposed to pay in accordance with his criminal sentence. The amount of the damage was 904 773 450 Belorussian Rubles, 11 and the court fees, accordingly, where calculated at 45 238 675 Rubles. 12 The Committee notes that the author submitted evidence of his salary to the court and that his monthly income amounted to 297 600 Rubles. 13 The author also pointed out that his property was confiscated in accordance with the sentence of the Military Court. The Committee notes, that the Moscow District Court in Brest, acting as a cassation court, and the Supreme Court, acting as a supervisory court, refused the author’s request for lifting of the court fees and rejected his appeals because of his failure to pay the fees, without considering the author’s arguments that the fees were excessive and impossible to pay. The Committee observes, that the courts have, by law, the power to waive the fees. By summarily rejecting the author’s request to lift the court fees without consideration of individual circumstances of his case, they denied the author access to the court and thus to a possibility of having his case reviewed through the judicial procedure established in national legislation.14 The Committee concludes that this part of the communication also reveals a violation of article 14 (1) of the Covenant.

8. The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the State party violated article 14 (1) of the Covenant in respect of all the authors concerning the trial by the Military Court and in respect of Mr. Tyvanchuk concerning the refusal of the civil courts to lift the court fees. The Committee reiterates its conclusion that the State party has also violated its obligations under article 1 of the Optional Protocol.

9. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. In the present case, the State party is under an obligation, inter alia, to quash the decisions of the Military Court in Minsk dated 26 October 2004 and 5 August 2015, and subsequent court decisions based on them, and to provide them with a new trial, offering all guarantees set out in article 14 of the Covenant. The State party is also under an obligation to take steps to prevent similar violations in the future.

10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the present Views, and to have them translated in the official language of the State party and widely distributed.






* * Adopted by the Committee at its 122nd session (12 March-6 April 2018).

** ** The following members of the Committee participated in the examination of the present communication: Yadh Ben Achour, Ilze Brands Kehris, Sarah Cleveland, Olivier de Frouville, Christof Heyns, Ivana Jeli

, Bamariam Koita, Marcia V.J. Kran, Dunkan Laki Muhumuza, Photini Pazartzis, Mauro Politi, José Manuel Santos Pais, Yuval Shany and Margo Waterval.




1  Authors are listed in the same order as in the submission.

2  Between 37 000 and 930 000 USD.

3  The criminal case was transferred from the Brest District Court to the Military Court in Minsk on 14 April 2004, and hearings in the first case took place from June to September 2004.

4  In the cassation appeal the authors raised issues of evaluation of evidence, in particular conclusions of the expert commission in their case and witness statements, and insufficient proof of their guilt. They claimed that the conclusion of the lower court did not correspond to the factual circumstances of the case. The Military Panel of the Supreme Court addressed all the claims by the authors and found that the lower court duly evaluated all the evidence in the case and correctly established the guilt of each of the authors. The Military Panel of the Supreme Court ‘considered the materials of the case and the cassation claims’. It refers to the investigation and expert conclusions, the witness statements and the lower court decision and the minutes of the lower court hearing.

5  See, e.g., communications Nos. 1867/2009, 1936/2010, 1975/2010, 1977/2010, 1978/2010, 1979/2010, 1980/2010, 1981/2010 and 2010/2010, Pavel Levinov v. Belarus, Views adopted on 19 July 2012, para. 8.2; and communication No. 869/1999, Piandiong et al. v. the Philippines, Views adopted on 19 October 2000, para. 5.1.

6  See footnote 3.

7  General comment No. 32, CCPR/C/GC/32, para. 48.

8  See, inter alia, communications No. 1188/2003, Riedl-Riedenstein et al. v. Germany, decision of inadmissibility adopted on 2 November 2004, para. 7.3; and No. 1138/2002, Arenz et al. v. Germany, decision of inadmissibility adopted on 24 March 2004, para. 8.6.

9  General comment No. 32, CCPR/C/GC/32, para. 22.

10  See inter alia, Human Rights Committee, concluding observations on Rwanda, CCPR/C/RWA/CO/4, adopted on 24 March 2016, para 34; concluding observations on Venezuela, CCPR/C/VEN/CO/4, adopted on 21 July 2015, para 16; concluding observations on Kyrgyzstan, CCPR/C/KGZ/CO/4, adopted on 25 March 2014, para. 20. See also, Committee against Torture, concluding observations on Pakistan, CAT/C/PAK/CO/1, adopted on 5 May 2017, paras 10-13; concluding observations on Lebanon, CAT/C/LBN/CO/1, adopted on 8 May 2017, paras 32 and 35; concluding observations on Colombia, CAT/C/COL/CO/5, adopted on 12 May 2015, para. 11; Committee on Enforced Disappearances, concluding observations on Cuba, CED/C/CUB/CO/1, adopted on 14 March 2017, paras. 19 and 20; concluding observations on Colombia, CED/C/COL/CO/1, adopted on 12 October 2016, para. 21; Report by the Special Rapporteur Emmanuel Decaux, Administration of justice, rule of law and democracy. Issue of administration of justice through military tribunals, , published on 2 June 2005, principle 9. Cf., inter alia, European Court of Human Rights, application No. 47533/99, Ergin v. Turkey, judgment of 4 May 2006, paras 47-49; application No. 32514/12, Mikhno v. Ukraine, judgment of 1 September 2016, paras 164 and 165; Inter-American Court of Human Rights, Durand y Ugarte v. Peru, judgment of 16 August 2010, para 117; Cantoral Benavides v. Peru, judgment of 18 August 2000, para. 113; African Commission on Human and Peoples’ Rights, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, Part 4 (B).

11  Approximately 421 000 USD.

12  Approximately 21 000 USD.

13  Approximately 21 000 USD.

14  See, mutatis mutandis, communication No. 779/1997, Äärelä and Näkkäläjärvi v Finland, Views adopted on 4 November 1997, para. 7.2.




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