Andrei Mikhalenya (the author) v. Belarus

The author of the communication is Andrei Mikhalenya, on behalf of his son, Aleksei Mikhalenya, a national of Belarus, born in 1984, who was at the material time detained on death row awaiting execution, following the imposition of a death sentence by a court. The author claims that the State party has violated his son’s rights under articles 6 (1) and (2), 7, 9 (1)–(4) and 14 (1), (2) and (3) (a), (b), (d), (g) and (e) of the Covenant. In addition, the author claims that the State party violated his own rights under article 7 of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The author is represented by counsel.

On 1 February 2018, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to grant interim measures under rule 94 of its rules of procedure and requested the State party not to carry out the death sentence of the author’s son while his case was under examination by the Committee.

On 17 July 2018, the Committee received information to the effect that the author’s son had been executed despite the request for interim measures. On 19 July 2018, the Committee, also acting through its Special Rapporteur on new communications and interim measures, requested urgent clarification of the matter from the State party, drawing the State party’s attention to the fact that failure to respect interim measures constituted a violation by States parties of their obligations to cooperate in good faith under the Optional Protocol. No response to this request has been received to date from the State party.

On 17 March 2017, the author’s son was sentenced to the capital punishment by the Gomel regional court for the murder of two people. The court took into account that he had three previous criminal convictions, including for a murder committed when he was a juvenile. According to the verdict of the court, on 4 March 2016, the author’s son, while being intoxicated by alcohol, killed an elderly couple who were his neighbours. Although the author’s son confessed to the killings, he argued that it was done in self-defence, as they attacked him first when he went to their house to ask for scissors.

On 27 March 2017, the author’s son submitted an appeal to the Supreme Court of Belarus. On 6 and 16 June 2017, he supplemented his appeal with additional filings. On 30 June 2017, the Supreme Court of Belarus confirmed the decision of the trial court. On 19 July 2017, the author submitted an appeal for a supervisory review to the first deputy Chair of the Supreme Court of Belarus, which was denied on 8 August 2017. The author notes that the same deputy Chair of the Supreme Court was a member of the appellate court, which rejected the author’s appeal on 30 June 2017.

On 16 August 2017, the author’s son submitted another appeal for a supervisory review to the Chair of the Supreme Court. On 15 September 2017, a different deputy Chair of the Supreme Court referred to the decision dated 8 August 2017 and denied the appeal as well. The author’s son has also submitted an appeal for a presidential pardon; without much hope that it would bring relief, because there has been only one case in the history of modern Belarus when the president pardoned someone sentenced to death.

The author claims that in addition to the above-mentioned appeals, his son submitted numerous other appeals to the Investigation Department of Belarus, Supreme Court and the General Prosecutor’s Office, but to no avail. The author claims that all the available domestic remedies have been exhausted.

The author claims that the rights of his son under article 6 of the Covenant were violated because he was sentenced to death as a result of an unfair trial.

The author claims that the rights of his son under article 7 of the Covenant were violated because during the time between his arrest and his first interrogation, the author’s son was subjected to torture and psychological pressure, as a result of which he confessed to the charges against him⁴. He also claims that the fact that his son is sentenced to death constitutes a torture by itself, and it causes suffering to his family and close ones, in violation of article 7 of the Covenant.

4. The author does not provide any details as to how the defendant was tortured, when, or any other details. These claims are also absent from any of the complaints to courts in Belarus. The torture claims are first raised in the complaint to the Committee, and they focus on the claim that the mere fact of sentencing the author to death penalty constitutes torture. ↩

The author claims that his son’s rights under article 9 of the Covenant were violated because he was arrested unlawfully and without cause. The bodies of the victims were reported to the police at 11:15 am on 5 March 2016, and the author’s son was detained at the same time, which means that the police could not obtain any evidence of his involvement in the crime before his arrest. The author claims that all evidence, including his son’s confession, were obtained after his arrest at 11:15 and before his interrogation at 21:59. Finally, the author claims that the warrant for his son’s arrest was issued by the prosecutor on 10 March 2016, and he was taken before a judge only 11 months after his arrest, on 8 February 2017.⁵

5. In Belarus, a prosecutor has a right to issue an arrest warrant. ↩

The author claims that his son’s rights under article 14 (1) of the Covenant were violated because the judge was biased against him and did not stop the prosecutor from expressing his personal negative opinion about the author’s son during the trial.3.5 The author claims that his son’s rights under article 14 (2) of the Covenant were violated because during the trial he was held in a metal cage and in handcuffs. Furthermore, before even his sentence entered into force⁶, his son had to wear a jail uniform that said “death row inmate”. During the trial, several mass media reported on his son’s case calling him a murderer and cited some details of the case with reference to the press secretary of the Gomel regional court.

6. Right after the verdict and sentence, the convicted is given a short window of time – usually ten days - to file an appeal, and during this time, the verdict and sentence are still pending, i.e. have not become enforceable – though the convicted person is remanded to prison, if the sentence involves confinement. ↩

The author claims that his son’s rights under articles 14 (3) (a) (b) (d) (g) (e) of the Covenant were violated because he was not informed about his rights when he was detained. The author’s son was arrested at 11:15 am on 5 March 2016, however his interrogation took place between 21:59 and 23:59 later on the same day, but the court was not interested to know what happened between the time of his arrest and his first official interrogation. The author claims that his son was interrogated for two and a half hours at the local police station, however there is no official record of the interrogation. The author’s son was not provided with a lawyer during that time (between arrest and interrogation), even if the law requires that in all cases of crimes of especially grave nature, a lawyer must be provided from the moment of detention (the author claims that his son could not afford to hire his own lawyer). When the author’s son was finally provided with a lawyer, he was not able to meet with him confidentially. The author also claims that his son was not able to study some of the case files before his trial, and was not allowed to call and cross-examine several witnesses, such as experts who provided examination results on 22 March 2016 (DNA analysis), 4 April 2016 (autopsy results), 16 May 2016 (examination of blood spots) and others. A psychiatric examination of the author’s son revealed that he had a light mental disability with behavioural disorders and an addiction to alcohol.

In a note verbale dated 27 March 2018, the State party presented its observations on admissibility and the merits. The State party submits that Mr. Mikhalenya⁷ was found guilty of the double murder committed in 2016. He was convicted and sentenced to death. He appealed to the Supreme Court of Belarus, and on 30 June 2017, the court upheld the lower court’s decision. In its decision, the Supreme Court stated that the verdict and sentence “lawful, justified, and fair”. On this date, the verdict and sentence became enforceable.

7. The State party is referring to the author’s son. ↩

The Supreme Court’s decision of 30 June 2017 was appealed under supervisory review procedure. These appeal requests were rejected on 8 August and 15 September 2017. Counsel for Mr. Mikhalenya further filed additional appeal requests under supervisory review procedure, which were also rejected on 28 November 2017, and 15 February and 15 March 2018. Under articles 404, 407, and 408 of the Criminal Procedure Code of Belarus, Mr. Mikhalenya had a right to file a supervisory review request with the Prosecutor General and the Chair and deputy chairs of the Supreme Court of Belarus. The Office of the Prosecutor General rejected Mr. Mikhalenya’s request for intervention on 22 September 2017 and 8 January 2018.

The State party submits that Mr. Mikhalenya also applied for a Presidential pardon, which was still pending at the time of the submission of the communication. In accordance with article 175 of the Criminal Code, the execution of the sentence against a person sentenced to death is to be suspended while the request for pardon is examined.

Regarding the claims made under article 14 of the Covenant, the State party submits that these complaints are unjustified, and are not supported by the factual circumstances of the case. Mr. Mikhalenya was provided with access to a fair, competent, and independent tribunal, and his appeal was considered with participation of his lawyers, and his rights were explained to him. The rights were also explained to the defendant when he was arrested, which he acknowledged by signing a relevant statement on 5 March 2016. He was also told that he has a right to appeal his arrest and detention, but such an appeal was never filed. After the completion of the investigation, Mr. Mikhalenya and his lawyer studied the investigative case file, and did not file any objections or petitions.

During the trial, both the prosecution and defense had a chance to exercise their rights under the Criminal Procedure Code. Mr. Mikhalenya was represented by two professional lawyers.

The State party further submits that the claims made under article 6 of the Covenant are equally unpersuasive. This article protects the right to life, and nobody can be deprived of his life arbitrarily. However, in countries where the death penalty is not abolished, it can be imposed only in particularly grave crimes. This penalty can be imposed only as a result of a final verdict by a competent court. Article 24 of the Belarus Constitution similarly stipulates that the death penalty can be imposed until its abolition, as an “exceptional measure” in most serious crimes. The court considered the totality of all circumstances when imposing this penalty, such as concerns for public safety, purposes of the actions of the defendant, the consequences, character and personal traits of the defendant. The court also considered the aggravating factors such as the fact that the defendant was under the influence of alcohol during the commission of crime.

Concerning the claims of unlawful arrest and detention, the State party submits that these procedures were carried out in accordance with provisions and time limits imposed by the Criminal Procedure Code.

In the light of the above-mentioned, the State party considered Mr. Mikhalenya’s communication to the Committee as “unjustified” in its entirety.

In a submission dated 12 July 2018, the author submits that the State party failed to provide any specific rebuttal to his claims. The supervisory review procedure that the State party refers to, is not considered to be an effective remedy and does not need to be exhausted for the purposes of the present communication. The author’s son and his counsel, however, used all possible appeals hoping to defend his rights. The supervisory review procedure is discretionary, depends on the will of the court or prosecutor to bring a protest. The hearing, if granted, is not open to the public. The Committee has long considered this remedy to be ineffective. The Committee also considered that requests for pardons directed at the president of the country to be an ineffective remedy as well.

In addition, the defendant and his/her lawyers are not informed about the results of these appeals. In some cases, the defendant learns about the fact that the appeal was denied right before the sentence is carried out. The death penalty itself is carried out in secret, the defendant himself, his lawyers or family are not informed about the time and date.

The Committee notes that the State party failed to respect the Committee’s request for interim measures by executing the author’s son before the Committee had concluded its consideration of the communication.

The Committee recalls that under article 39 (2) of the Covenant, it is empowered to establish its own rules of procedure, which the States parties have agreed to recognize. The Committee further observes that, 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 subject to its jurisdiction who claim to be victims of a violation of any of the rights set forth in the Covenant (Optional Protocol, preamble and art. 1). Implicit in the adherence of a State to the Optional Protocol is the undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination thereof, to forward its Views to the State party and to the individual concerned (art. 5 (1) and (4)). It is incompatible with its obligations under article 1 of the Optional Protocol for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of communications and in the expression of its Views.⁸

8. See, inter alia, Piandiong v. Philippines (CCPR/C/70/D/869/1999 and Corr.1), para. 5.1; Maksudov v. Kyrgyzstan (CCPR/C/93/D/1461, 1462, 1476 and 1477/2006), paras. 10.1–10.3; and Yuzepchuk v. Belarus (CCPR/C/112/D/1906/2009), para. 6.2. ↩

In the present case, the Committee observes that, when the author submitted the communication, on 31 January 2018, he informed the Committee that his son had been sentenced to death and that the sentence could be carried out at any time. On 1 February 2018, the Committee transmitted to the State party a request not to carry out the death sentence while the case was under examination by the Committee. In July 2018, the Committee received information that the author’s son had been executed, despite the request for interim measures of protection. The Committee observes that it is uncontested that the execution in question took place, in total disregard of the request for interim measures of protection addressed to the State party.

The Committee reiterates that, apart from any violation of the Covenant found against a State party in a communication, a State party commits serious violations of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views concerning the implementation of the obligations of the State party under the Covenant nugatory and futile.⁹ In the present case, the author alleged that his son’s rights under various provisions of the Covenant had been violated in a manner that directly reflected on the legality of his death sentence. Having been notified of the communication and the request by the Committee for interim measures of protection, the State party committed a serious violation of its obligations under the Optional Protocol by executing the alleged victim before the Committee had concluded its consideration of the present communication.

9. See, inter alia, Idieva v. Tajikistan (CCPR/C/95/D/1276/2004), para. 7.3, and Kovaleva and Kozyar v. Belarus (CCPR/C/106/D/2120/2011), para. 9.4. ↩

The Committee recalls that interim measures under rule 94 of its rules of procedure, adopted in accordance with article 39 of the Covenant, are essential to the Committee’s role under the Optional Protocol, in order to avoid irreparable damage to the victim of an alleged violation. Violation of that rule, especially by irreversible measures, such as, in the present case, the execution of the author’s son, undermines the protection of Covenant rights through the Optional Protocol.¹⁰

10. See, inter alia, Saidova v. Tajikistan (CCPR/C/81/D/964/2001), para. 4.4; Tolipkhuzhaev v. Uzbekistan (CCPR/C/96/D/1280/2004), para. 6.4; and Kovaleva and Kozyar v. Belarus, para. 9.5. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with article 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

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.

The Committee notes the State party’s contention that the author’s son failed to exhaust all domestic remedies available to him by not filing himself a supervisory review request with the Prosecutor General and the Supreme Court. The Committee observes that counsel for the author’s son filed a number of such requests which were all rejected (para 4.2). The Committee recalls its jurisprudence according to which a petition for supervisory review to a prosecutor’s office, dependent on the discretionary power of the prosecutor, against a judgment having the force of res judicata does not constitute an effective remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.¹¹ It also considers that filing requests for supervisory review with the president of a court directed against court decisions that have entered into force and depend on the discretionary power of a judge constitutes an extraordinary remedy and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case.¹² In this case, the State party has not shown, however, whether and in how many cases the petition to the president of the Supreme Court for supervisory review procedures were applied successfully in cases concerning the right to a fair trial. In such circumstancesand with regard to the supervisory review procedures, the Committee finds that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication.¹³

11. Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para 8.4. ↩
12. Gelazauskas v. Lithuania, para 7.4; Sekerko v. Belarus (CCPR/C/109/DR/1851/2008), para. 8.3; Protsko and Tolchin v. Belarus (CCPR/C/109/D/1919-1920/2009), para. 6.5; Schumilin v. Belarus (CCPR/C/105/D/1784/2008), para. 8.3; and P.L. v. Belarus, para. 6.2. ↩
13. See, among others, Kostenko v. Russian Federation (CCPR/C/115/D/2141/2012), para. 6.3; and Dorofeev v. Russian Federation (CCPR/C/111/D/2041/2011), para. 9.6. ↩

With regard to the requirements laid down in article 5 (2) (b) of the Optional Protocol, the Committee also takes note of the State party’s argument that the author had not exhausted all domestic remedies at the time of submission of the communication, in particular in view of the fact that his application for a presidential pardon was still pending. In this regard, and in the light of the information regarding the execution of the author’s son, the Committee reiterates its previous jurisprudence, according to which the presidential pardon is an extraordinary and extrajudicial remedy,¹⁴ and as such does not constitute an effective remedy for the purposes of article 5 (2) (b) of the Optional Protocol. Furthermore, in the present case, the pardon could not have constituted on its own a sufficient remedy for the violations alleged. Therefore, the Committee considers that, with regard to the presidential pardon, it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the communication.

14. Singarasa v. Sri Lanka, para. 6.4; Chisanga v. Zambia, para. 6.3; Kovaleva and Kozyar v. Belarus, para. 10.4; and Selyun v. Belarus (CCPR/C/115/D/2289/2013), para. 6.3. ↩

The Committee has noted the author’s claims under articles 7 , 14(3)(g), and 14(1) of the Covenant. In the absence of any further pertinent information on file, and due to general nature of claims brought forward by the author, however, the Committee considers that the author has failed to sufficiently substantiate these allegations, for purposes of admissibility. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.

The Committee further takes note of the author’s allegations the State party violated rights of his son under articles 9 (1), (2) and (4), 14 (3) (a), (b) and (d) of the Covenant. In the absence of further information, however, the Committee is unable to establish whether domestic remedies have been exhausted with regard to these particular claims, and therefore considers that it is precluded by article 5 (2) (b) of the Optional Protocol from considering this part of the communication.

The Committee considers that the author’s remaining claims, raising issues under articles 6 (1) and (2), 9 (3) and 14 (2), and 14(3)(e) of the Covenant, have been sufficiently substantiated for the purposes of admissibility and proceeds to their examination on the merits.

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.

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.¹⁵ 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 pre-trial 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) on liberty and security of person, 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).¹⁶ 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.

15. See the Committee’s general comment No. 35 (2014) on liberty and security of person, para. 33. ↩
16. Ibid., para. 32. ↩

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, that 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) on the right to equality before courts and tribunals and to a fair trial, 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, and 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.¹⁷ 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.

17. See also Pustovoit v. Ukraine (CCPR/C/110/D/1405/2005), para. 9.2. ↩

In addition, the Committee considers the author’s claims that his son’s right to call, obtain attendance of and examine witnesses were violated by the fact that several forensic experts provided testimonies during the investigation, but were not called 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 its general comments No. 32 that this guarantee is important for ensuring an effective defense by the accused and their counsel. However, the right of the accused to obtain the examination of witnesses on his on her behalf is not absolute. It is only a right to have witnesses admitted that are relevant for the defense, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings.¹⁸

18. See Allaberdiev v. Uzbekistan, 2555/2015, para. 8.8. ↩

In the present case, the Committee notes that the submissions from the author, including the initial sentence and verdict, reveal that all of the experts that provided multiple examination results, such as reports dated 22 March 2016 (DNA analysis), 4 April 2016 (autopsy results), 16 May 2016 (examination of blood spots) and others, were not called to testify in court, and therefore, counsel for the author’s son were unable to question or cross-examine them. The Committee notes that the State party does not provide pertinent explanations on the unavailability of the expert witnesses during the court hearings, who provided important forensic information. The Committee therefore considers that in the circumstances of the present case, and in the absence of pertinent explanations from the State party, the State party violated the rights of the author’s son under article 14 (3) (e).¹⁹

19. See also communications No. 815/1998, Dugin v. the Russian Federation, Views adopted on 5 July 2004, para. 9.3; and No. 1082/2002, Rouse v. Philippines, Views adopted on 25 July 2005, para. 7.5. ↩

The Committee notes the statement by the State party that the death penalty is not prohibited when imposed for the most serious crimes (see para. 4.6 above). This is provided for in article 6 (2) of the Covenant. The Committee recalls its general comment No. 36 (2018) on the right to life, in which the Committee states that the term “most serious crimes” refers to intentional killing. The author’s son was sentenced to death after a conviction for murder, which qualifies as one of the most serious crimes. However, the Covenant also provides that stringent fair trial requirements must be met before the death penalty may be imposed, to comply with article 6 of the Covenant.²⁰

20. General comment No. 36, paras. 35 and 41. ↩

The author claims that his son’s right to life under article 6 of the Covenant was violated, since he was sentenced to death after an unfair trial. In that respect, the Committee recalls its jurisprudence that the imposition of a sentence of death upon the conclusion of a trial in which the provisions of article 14 of the Covenant have not been respected constitutes a violation of article 6 of the Covenant.²¹ Referring to its general comment No. 32, the Committee recalls that in cases of trials leading to the imposition of the death penalty scrupulous respect of the guarantees of fair trial is particularly important.²² In addition, in its general comment No. 36, the Committee also noted that violation of the fair trial guarantees provided for in article 14 of the Covenant in proceedings resulting in the imposition of the death penalty would render the sentence arbitrary in nature, and in violation of article 6 of the Covenant. Such violations might involve failure to respect the presumption of innocence, which may manifest itself in the accused being placed in a cage or handcuffed during the trial.²³ In the light of the Committee’s findings of a violation of articles 14 (2) and 14 (3) (e), of the Covenant, with respect to failure to respect the presumption of innocence, and inability of Mr. Mikhalenya to cross-examine expert witnesses, the Committee concludes that the final sentence of death and the subsequent execution of the author’s son did not meet the requirements of article 14 and that, as a result, his right to life under article 6 of the Covenant was also violated.

21. General comment No. 32, para. 59. See also Levy v. Jamaica (CCPR/C/64/D/719/1996), para. 7.3; Kurbanov v. Tajikistan (CCPR/C/79/D/1096/2002), para. 7.7; Shukurova v. Tajikistan (CCPR/C/86/D/1044/2002), para. 8.6; Idieva v. Tajikistan, para. 9.7; Khoroshenko v. Russian Federation (CCPR/C/101/D/1304/2004), para. 9.11; Gunan v. Kyrgyzstan (CCPR/C/102/D/1545/2007), para. 6.5; and Grunov and Grunova v. Belarus (CCPR/C/123/D/2375/2014-CCPR/C/123/D/2690/2015), para. 8.6. ↩
22. General comment No. 32, para. 59. ↩
23. General comment No. 36, para. 41. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the rights of the author’s son under articles 6, 9 (3), 14(2), and 14(3)(e), of the Covenant. The Committee also concludes that by not respecting its request for interim measures, the State party violated its obligations under article 1 of the Optional Protocol.

Pursuant to 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 the obligation to provide adequate compensation to the author for the violations that his son suffered. The State party is also obligated, inter alia, to take all steps necessary to prevent similar violations from occurring in the future.

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 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 and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.

While we fully concur with the position of the Committee on the substance of the claims and its conclusion as stated in para. 9, i.e. that the facts disclose a violation of the right to life, the right to individual liberty and the right to a fair trial, we would like to express our discomfort on a procedural and critical aspect of the case regarding the non-implementation by Belarus of the interim measures (IMs) issued by the Committee and the lack of cooperation of the State all along the process.

In February 2018, the Committee “requested the State Party not to carry out the death sentence of the author’s son while his case was under examination by the Committee” (para. 1.2 of the current Views). However, a couple of months after the request, the Committee was informed that the author’s son was executed (para. 1.3). Belarus provided no clarification for such a blatant violation of the IMs and its duty to cooperate with the Committee.

Our discomfort is based on the fact that this wrongful behavior of Belarus is not well-captured by the Committee in this decision - as in other decisions actually - and it is time to modify and clarify its position. Indeed, in a section titled “Lack of cooperation of the State Party” and located before the “Issues and proceedings before the Committee” section, the State’s acts are analyzed. In para. 6.4, the Committee uses strong language to qualify these acts and reiterates that “a State party commits serious violations of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its Views concerning the implementation of the obligations of the State party under the Covenant nugatory and futile.” This is in line with its previous jurisprudence and the position of other international courts, tribunals and bodies when addressing the States’ international obligation to respect interim/precautionary measures.²⁴

24. As stressed by the European Court of Human Rights Grand Chamber in Mamatkulov et al. v. Turkey, Judgment of 4 February 2005, Appl. 46827/99 et al. paras. 99 and f. See also the Nijmegen Principles and Guidelines on Interim Measures for the Protection of Human Rights, drafted by a group of scholars in 2021: https://www.ru.nl/law/ster/research/nijmegen-principles-and-guidelines-on-interim/read-the-nijmegen-principles-2021/ ↩

Therefore, there is no legal justification for separating the “Lack of cooperation” part from the “Issues and proceedings” section. On the contrary, this blurs the legal reasoning of the Committee and the message sent to the States Parties. At the end of para. 9, the Committee “also concludes that by not respecting its request for interim measures, the State party violated its obligations under article 1 of the Optional Protocol.” This clearly means that for the Committee, there is indeed a violation of an international procedural obligation, i.e. the obligation to provide an effective access to the individual complaints mechanism for States that have ratified the Opinion Protocol. Consequently, the IMs non-implementation should be addressed in the “Issues and proceedings” section.²⁵ Procedural obligations are still international obligations and when they are breached by the States, they trigger their international responsibility.

25. And actually, in other Views adopted during the same session, the Committee adopted a different approach and included the paragraphs on the lack of cooperation and non-implementation of IMs in the “Issues and proceedings before the Committee” section. See CCPR/3238/2018, 8 July 2021, paras. 16.1 and 16.2. ↩

In the Nijmegen Principles and Guidelines on Interim Measures (2021), some scholars call for the improvement of “judicial practices” and especially, stress that “International adjudicators should indicate legal consequences of non-compliance and the type of remedy required for such breach.”²⁶ Considering the grave and irreversible consequences of the IMs breach in such a death penalty case, it is time for the Committee to adopt a clear, consistent and legally reasoned position on that critical issue.

26. Principle 3(s) of the Principles referred to in note 1. ↩

We therefore consider that in the present case, such a critical issue should have been included in a specific paragraph under the Section of “Issues and proceeding”, as well as in the remedies part. The Committee should have clearly spelled out the consequences of such a violation of the State’s obligation under the Optional Protocol.