Tamara Ryzhova v. Belarus

The author of the communication, dated 15 December 2016, is Tamara Ryzhova, a national of Belarus born in 1938. She submits the communication on behalf of her son, Sergei Ryzhov, a national of Belarus born in 1964, who was serving a prison sentence at the time of the submission. She claims that the State party has violated the rights of her son under articles 2 (1) and (3) (a), 7, 8 (2), 9 (1), 10 (1), 12 (1), 14 (1), 17 (1), 19 (2), 25 and 26 of the Covenant. The Optional Protocol entered into force for the State party on 30 December 1992. The author is not represented by counsel.

The present communication was submitted for consideration before the State party’s denunciation of the Optional Protocol became effective on 8 February 2023. In accordance with article 12 (2) of the Optional Protocol and the Committee’s previous case law, the State party continues to be subject to the application of the Optional Protocol in respect of the present communication.⁴

4. See, for example, Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; and Lobban v. Jamaica (CCPR/C/80/D/797/1998), para. 11. ↩

The author’s son, Sergei Ryzhov, is an opposition figure in Belarus who unsuccessfully tried to run as a candidate in the 2010 presidential elections. On 16 November 2013, he was detained by the police in Vitebsk for being intoxicated in public and was taken to a local sobering-up centre (in Russian: vytrezvitel’). At the sobering-up centre, Mr. Ryzhov was tortured by several police officers, who tied him to a restraining chair, punched and kicked him in various parts of his head and body, applied strangulation with a bed sheet, and broke his finger. When the author arrived late at night on the same day to pick Mr. Ryzhov up from the sobering-up centre, she found him outside in freezing temperatures without his outer clothing. When the author asked for an explanation from the officers, she was informed that Mr. Ryzhov had got into a fight with another detainee who had caused his injuries, and that they had had to physically subdue him during his violent behaviour.

Between 17 and 21 November 2013, Mr. Ryzhov sought medical assistance on five occasions for head and chest pain, hand injuries, dizziness and nausea. He was diagnosed with numerous bruises on his head, chest and hands, and a possible concussion. Later X-rays revealed a fracture of one of his fingers. Due to the injuries sustained by Mr. Ryzhov, the Vitebsk City Investigation Committee opened an inquiry on 18 November 2013 into the beatings by the police. As part of the inquiry, investigators questioned all officers and staff involved in the detention and care of Mr. Ryzhov on 16 November 2013 and examined the video footage from the centre taken on the day of the incident.

On 9 December 2013, the Vitebsk City Investigation Committee refused to initiate a criminal investigation due to absence of corpus delicti in the actions of the police. On 7 February 2014, the deputy head of the Vitebsk City Investigation Committee quashed the refusal and returned the case for additional investigation. Between 2013 and 2017, the Vitebsk City Investigation Committee refused to initiate a criminal investigation into the beatings in nine instances, and each refusal, except for the last one, was later quashed by senior officers of the Vitebsk City Investigation Committee or the prosecutor’s office. All inquiries concluded that another detainee had punched and kicked Mr. Ryzhov in the chest and the back, while the police officers had had to twist Mr. Ryzhov’s arms behind his back and to place him in a restraining chair due to his violent behavior.

On 2 December 2013, Mr. Ryzhov was sentenced to an administrative fine in the amount of 1,040,000 roubles for public intoxication on 16 November 2013. On 11 January 2014, in a separate case, he was sentenced to 15 days of administrative arrest for petty hooliganism and failure to obey a lawful order, stemming from the episode at the soberingup centre. According to the court decision, Mr. Ryzhov cursed at the staff and other detainees, threatened them, and failed to obey the lawful orders of the police. In particular, after being ordered by the officers to stop cursing and disturbing public order, Mr. Ryzhov tried to grab the officers by their uniforms and initiate a fight, and attempted to destroy the documents concerning his administrative detention.

On 23 January 2015, Mr. Ryzhov was arrested on suspicion of hooliganism (art. 339 (1) of the Criminal Code) and committing acts of a sexual character by taking advantage of the victim’s helpless state (art. 167 (1) of the Criminal Code). In particular, he was accused of exposing his genitals near another detainee who was intoxicated and asleep at the sobering-up centre on 16 November 2013. According to the prosecution, this was witnessed by a second detainee, who tried to intervene and got into a fight with Mr. Ryzhov (see para. 2.1 above). The same witness submitted a complaint against Mr. Ryzhov in 2015, on the basis of which the latter was charged.

On 3 April 2015, Pervomaisky District Court in Vitebsk found Mr. Ryzhov guilty on both charges and sentenced him to six and a half years in prison. The trial was closed to the public and the court was not impartial as it based its findings on evidence that was based primarily on the testimony of the officers and staff of the sobering-up centre, against whom the victim had submitted his earlier complaints of torture. According to the author, instead of looking at the video footage from the sobering-up centre from the night of the incident, the court found it sufficient only to examine very poor-quality still shots from the video, of very poor quality, provided by the prosecution, where it was impossible to recognize people’s faces.

On 12 June 2015, the Vitebsk Regional Cassation Court upheld the decision of the first instance court. On 8 October 2015, the Chairperson of the Supreme Court denied Mr. Ryzhov’s request for a supervisory review of the verdict.

While incarcerated between 2015 and 2021, Mr. Ryzhov continued to complain to various ministries and organizations about the torture he suffered on 16 November 2013. The author claims that as a punishment for his complaints, her son was transferred to a penitentiary with a higher security regime in September 2016, under the pretext of numerous violations of the prison’s internal rules.

The author submits that her son exhausted all available domestic remedies.

The author brings claims under articles 2 (1) and (3) (a), 7, 8 (2), 9 (1), 10 (1), 12 (1), 14 (1), 17 (1), 19 (2), 25 and 26 of the Covenant. She claims that Mr. Ryzhov’s initial detention in the sobering-up centre was politically motivated, since he was a well-known opposition figure, and that he was subjected to severe beatings for protesting against his detention. The author also claims that the criminal charges against Mr. Ryzhov were brought in retaliation for his continued complaining about the torture he had suffered and his continued criticism of the current regime in Belarus. The author claims that in 2014, Mr. Ryzhov received two anonymous emails threatening him with criminal prosecution if he did not stop his political activity.

In a note verbale dated 22 February 2018, the State party submitted its observations on the admissibility and the merits of the communication. The State party notes that Mr. Ryzhov was sentenced by Pervomaisky District Court in Vitebsk to six and a half years in prison for hooliganism and committing acts of sexual character by taking advantage of the victim’s helpless state, and that his sentence was upheld by Vitebsk Regional Court. Furthermore, two requests for a supervisory review were denied by the Chairpersons of Vitebsk Regional Court and the Supreme Court respectively.

The State party notes that on 30 June 2015, Mr. Ryzhov was transferred to Correctional Facility No. 15, where, as a person suffering from alcoholism, he was subjected to mandatory treatment in accordance with article 107 of the Criminal Code. On 23 September 2016, Oktyabrsky District Court in Mogilev approved the transfer of Mr. Ryzhov from a penal colony for first-time offenders to a prison to serve three years of his sentence, for repeated violations of the incarceration regime.

According to the State party, all evidence presented during the trial, including video footage of the incident and witness testimonies, was analysed by the courts for admissibility and reliability. The inquiries conducted by the authorities revealed that the police officers and staff at the sobering-up centre did not exceed their powers when dealing with Mr. Ryzhov, and the only person who used physical force against him was another detainee who was trying to stop Mr. Ryzhov from committing a crime.

The State party notes that Mr. Ryzhov did not exercise his right to submit a request for a supervisory review of his verdict to the prosecutor’s office as provided for in article 408 of the Criminal Procedure Code. At the same time, while serving his sentence, Mr. Ryzhov has submitted over 50 appeals to various State bodies and organizations. Therefore, the State party considers that Mr. Ryzhov’s communication to the Committee should be found inadmissible for failure to exhaust all available domestic legal remedies.

With regard to the author’s claim under article 14 (1) that the trial was closed to the public, the State party notes that the press and the public may be excluded from all or parts of a trial for reasons of morals, public order or national security, or when the interests of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court, in special circumstances where publicity would prejudice the interests of justice. In accordance with article 23 of the Criminal Procedure Code, criminal cases may be heard in closed session in cases involving sex crimes and other cases to prevent the disclosure of information about intimate aspects of the lives of those involved or information that may affect their dignity. Thus, the trial of Mr. Ryzhov, who was accused of committing a crime of a sexual character, was carried out in courts of first and second instance in closed session in accordance with the prescribed procedure.

As to the other part of the author’s claim under article 14 (1) that the trial was unfair and prejudiced, the State party argues that the author’s allegations are not substantiated as they are not supported by the factual circumstances of the case. It notes that Vitebsk Regional Court did not establish any facts that could testify to biased, prejudicial or politically motivated conduct during the pretrial investigation and court proceedings. All motions made by the defence during the trial were resolved in accordance with the Criminal Procedure Code without violation of Mr. Ryzhov’s rights as a defendant.

With regard to Mr. Ryzhov’s transfer from penal colony to prison, the State party submits that in accordance with article 69 (5) (3) of the Penal Enforcement Code, prisoners convicted of violating the established procedure for serving their sentence may be transferred from a penal colony for first-time offenders to a prison for a period not exceeding three years, with the remainder of their sentence being served in a penal colony under the regime specified in the court sentence. On 23 September 2016, Oktyabrsky District Court in Mogilev transferred Mr. Ryzhov from Correctional Facility No. 15 to Prison No. 4 for a period of three years to continue serving his sentence. The court found that Mr. Ryzhov was a persistent violator of the penal regime, for which he was disciplined 51 times; 23 of those times he was placed in a punishment cell. In addition, Mr. Ryzhov had a careless attitude to work, did not respond to educational activities, and had a negative impact on other inmates. The State party notes that such transfer is not subject to appeal in accordance with the Criminal Procedure Code, however once the court judgment enters into force, it may be examined under the supervisory review procedure. Mr. Ryzhov’s request for a supervisory review was denied by the Chairperson of Mogilev Regional Court on 23 December 2016. Another request for a supervisory review was submitted later to the Chairperson of the Supreme Court and was also denied, on 9 March 2017. In its ruling, the Chairperson noted that Oktyabrsky District Court’s decision to transfer Mr. Ryzhov to continue serving his sentence in the prison regime for a period of three years was correct, and that the conclusions in the judgment on the need for such a transfer were lawful and justified.

On 19 November 2021, Mr. Ryzhov, who had been released from prison, himself submitted comments on the State party’s observations. Mr. Ryzhov asserts that in 2010, at the initiative of a local group of citizens, he announced his candidacy for the presidential elections in Belarus scheduled for December 2010. However, after he and some members of his initiative group came under pressure from public officials, he was forced to withdraw his candidacy in October 2010. As a result of his presidential campaign, in November 2010 he was fired from his job at a State-owned food processing factory. In 2010 and 2011, Mr. Ryzhov published two open letters criticizing the current regime, for which he received anonymous death threats.

Mr. Ryzhov submits that in June 2011, he was kidnapped by the police and taken to the Vitebsk Regional Prosecutor’s Office where he received a formal warning to refrain from organizing unauthorized public assemblies. Mr. Ryzhov submitted a complaint to the Office of the Prosecutor General against the unlawful actions of the police and the regional prosecutor’s office, however the Office of the Prosecutor General did not find any wrongdoing in the actions of the law enforcement authorities.

With regard to the events of 16 November 2013, Mr. Ryzhov submits that at the sobering-up centre, he was subjected to more than three hours of physical and mental torture as a result of which he suffered a broken finger on his right hand which required surgery. He notes that despite his numerous complaints and the evidence of torture, the authorities never opened a criminal investigation against the perpetrators. Mr. Ryzhov considers the criminal case against him to be politically motivated because it was initiated after he posted an open letter declaring his intention to participate in the 2015 presidential elections in Belarus. He claims that during his trial he was kept handcuffed in a cage, deprived of food and water, and denied emergency medical care. He submits that after he was convicted, his incarceration regime was twice changed on trumped-up charges from “medium” to “high security”, in 2016 and 2019 respectively.

Mr. Ryzhov further notes that after having served his sentence, he continues to be persecuted by the State party and has been placed under preventive supervision for a period of two years. He submits that the supervision entails a ban on leaving the country, including for work, and he has not been able to find any job in the State party.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 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 takes note of the State party’s argument that Mr. Ryzhov has failed to submit a request for a supervisory review of his verdict to the prosecutor’s office as provided for in article 408 of the Criminal Procedure Code. The Committee notes that Mr. Ryzhov made use of the supervisory review procedure and submitted a request to the Chairperson of the Supreme Court, which was denied on 8 October 2015. The Committee also recalls its jurisprudence according to which a petition to a prosecutor’s office, dependent on the discretionary power of the prosecutor, requesting a review of court decisions that have taken effect, does not constitute a remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.⁵ Accordingly, the Committee finds that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

5. See, for example, Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Zhagiparov v. Kazakhstan (CCPR/C/124/D/2441/2014), para. 12.3; and Poplavny and Sudalenko v. Belarus (CCPR/C/118/D/2139/2012), para. 7.3. ↩

The Committee notes the author’s claim that the State party violated Mr. Ryzhov’s rights under articles 2 (1) and (3) (a) of the Covenant. The Committee recalls its jurisprudence, which indicates that the provisions of article 2 of the Covenant lay down general obligations for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol.⁶ The Committee thus considers that the author’s claims under article 2 of the Covenant are inadmissible under article 3 of the Optional Protocol.

6. K.E.R. v. Canada (CCPR/C/120/D/2196/2012), para. 7.8. ↩

The Committee further notes the author’s claims in relation to the alleged lack of impartiality of domestic courts and unfair trial. In particular, it notes the author’s arguments that the criminal trial of Mr. Ryzhov was closed to the public, that the court was not impartial as it based its findings on evidence that was based primarily on the testimony of the officers and staff of the sobering-up centre, and that instead of the video footage only still shots were used by the court. It also notes the State party’s argument that criminal cases may be heard in closed session in cases involving sex crimes and other cases to prevent the disclosure of information about intimate aspects of the lives of those involved or information that may affect their dignity. The Committee recalls that it is generally for the courts of the State party to the Covenant to review facts and evidence or to apply domestic legislation, unless it can be shown that such evaluation or application is clearly arbitrary or amounts to a manifest error or denial of justice, or that the court has otherwise violated its obligation of independence and impartiality.⁷ In the present case, the Committee observes that the material before it does not allow it to conclude that the examination of the evidence and questioning of witnesses by the court reached the threshold for arbitrariness in the evaluation of the evidence or amounted to a denial of justice. According to the court documents, the trial court examined the video footage of the incident of 16 November 2013 and heard the testimony of all witnesses who were present at the sobering-up centre during the incident. The Committee also notes that Mr. Ryzhov has failed to substantiate his claims that during the trial he was kept handcuffed in a cage, deprived of food and water, and denied emergency medical care. Accordingly, the Committee considers that the author’s claim under article 14 (1) of the Covenant is insufficiently substantiated for the purposes of admissibility and is inadmissible under article 2 of the Optional Protocol.

7. See, inter alia, Tyan v. Kazakhstan (CCPR/C/119/D/2125/2011), para. 8.10. See also the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 26. ↩

The Committee notes the author’s claim that the State party violated Mr. Ryzhov’s rights under articles 8 (2), 9 (1), 10 (1), 12 (1), 17 (1), 19 (2), 25 and 26 of the Covenant. However, the Committee considers that the author has failed to provide any substantiation for those allegations for the purposes of admissibility and finds them inadmissible under article 2 of the Optional Protocol.

The Committee considers that the author has sufficiently substantiated the remaining claim under article 7 of the Covenant for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its consideration of the merits.

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

The Committee notes the author’s claim under article 7 of the Covenant that Mr. Ryzhov was subjected to beatings by the police at the sobering-up centre on 16 November 2013, as a result of which he suffered numerous bruises on his head, chest and hands, a broken finger and a possible concussion. The author submits that despite Mr. Ryzhov’s numerous complaints and the evidence of torture, the authorities never opened a criminal investigation against the perpetrators.

The Committee recalls that a State party is responsible for the security of any person it holds in detention, and that when an individual in detention shows signs of injury, it is incumbent upon the State party to produce evidence showing that it is not responsible for such injury.⁸ The Committee has held on several occasions that the burden of proof in such cases also cannot rest with the author of a communication alone, especially considering that frequently only the State party has access to the relevant information.⁹ In this regard, the Committee notes the State party’s argument that several inquiries conducted by the authorities revealed that the police officers and staff at the sobering-up centre did not exceed their powers when dealing with Mr. Ryzhov, and the only person who used physical force against Mr. Ryzhov was another detainee who was trying to stop him from committing a crime, namely committing acts of a sexual character by taking advantage of the victim’s helpless state.

8. See, for example, Eshonov v. Uzbekistan (CCPR/C/99/D/1225/2003), para. 9.8; Siragev v. Uzbekistan (CCPR/C/85/D/907/2000), para. 6.2; and Zheikov v. Russian Federation (CCPR/C/86/D/889/1999), para. 7.2. ↩
9. See, for example, Mukong v. Cameroon (CCPR/C/51/D/458/1991), para. 9.2; and Belier v. Uruguay, communication No. 30/1978, para. 13.3. ↩

From the documents made available to it, the Committee observes that the first inquiry into the alleged beatings of Mr. Ryzhov was launched by the Vitebsk City Investigation Committee on 18 November 2013, that is, almost immediately after Mr. Ryzhov sought medical assistance after his release from the sobering-up centre. The inquiry questioned all officers and staff involved in the detention and care of Mr. Ryzhov on 16 November 2013 and examined the video footage from the centre taken on the day of the incident. Following each inquiry conducted between 2013 and 2017, the Vitebsk City Investigation Committee came to the conclusion that there was not enough evidence to open a criminal investigation into the claim of torture. The Committee notes that the author has not provided any documentation regarding the quashing of these refusals by senior officers of the Vitebsk City Investigation Committee or the prosecutor’s office. The Committee also observes that on 11 January 2014, during the administrative trial of Mr. Ryzhov for petty hooliganism and failure to obey a lawful order, stemming from the episode at the sobering-up centre, the court examined the video footage from 16 November 2013 and was able to establish that when interacting with the officers, Mr. Ryzhov was flapping his hands, and tried to initiate a fight with police officers and to destroy documents concerning his administrative detention given to him to sign, and when forced into a restraining chair tried to kick out at the officers. Therefore, the Committee concludes that the facts as presented to it by the author do not allow it to find a violation of his rights under article 7 of the Covenant.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it does not disclose a violation by the State party of Mr. Ryzhov’s rights under article 7 of the Covenant.