Valentin Ostroukhov v. Russian Federation

March – 1 April 2005

The author alleges that he is a victim of violations by the Russian Federation of his rights under articles 14, paragraph 1, and 15, paragraph 1, of the Covenant. He states that in 1996 he was charged with possession of a “small quantity” of marijuana, and in November 1997 was convicted and sentenced to a term of imprisonment. He alleges that his conviction was unlawful, because on 1 January 1997, a new Criminal Code had entered into force, which decriminalised the possession of small quantities of marijuana; under Russian law, legislation which decriminalises an offence should be applied retrospectively.

The author commented on the State party’s observations by letter of 14 November 2002. He argues that the Summary Tables of the Standing Committee on Drug Control of 1 August 1995 and of 4 June 1997 constitute, de facto, a source of law, because in any event they were used to qualify his acts in legal terms, and, according to him, they do not constitute mere scientific recommendations.

The Committee notes that the same matter is not being examined under any other international procedure of investigation and settlement, and that available domestic remedies have been exhausted. It thus considers that the conditions set forth in paragraphs 2 (a) and (b) of article 5 of the Optional Protocol have been met.

The Committee has noted the author’s claim that his rights under articles 14, paragraph 1 and 15, paragraph 1, were violated since he was convicted unlawfully by the Tagansky Inter-municipal Court of Moscow on 10 November 1997, under the provisions of the Criminal Code of 1960, for possession of 10 grams of marijuana (a quantity qualified at this time as a “small”), notwithstanding that on 1 January 1997, the State party’s new Criminal Code had entered into force, and that according to its provisions, the purchase and storage of “small” amounts of drugs was decriminalised. The Committee notes however that the Tagansky Inter-municipal Court of Moscow addressed the issue and based its judgment of 10 November 1997 on the old Criminal Code, arguing that the sanction for the illegal purchase and storage of 10 grams of marijuana was lighter than the sanction under the new Criminal Code. In appeal, the Moscow City Court determined that the possession of such an amount of drugs was a crime both under the old and the new Code.

In essence, the author’s main argument relates to the legal qualification of the purchase of the above amount of marijuana, considered as a "small" under the law in force in 1996, and “large” under the new Criminal Code of 1997. According to the author, the new Criminal Code decriminalised the purchase of "small" amounts of marijuana and therefore he should be acquitted, since the amount he possessed was “small” according to the Summary Table of the Drug Control Standing Committee of 17 April 1995. The Committee has noted that this argument was addressed by the Courts and was found to be groundless. The Committee notes that the author’s claim relates, in its nature, to an evaluation of facts and evidence and to interpretation of domestic legislation. It reiterates its jurisprudence that the evaluation of facts and evidence and interpretation of domestic legislation is in principle a matter to be decided by the courts of States parties, unless the evaluation of facts and evidence was clearly arbitrary or amounted to a denial of justice. As the author has provided no evidence to show that the appellate courts’ decisions suffered from such defects, the Committee considers this claim as unsubstantiated for purposes of admissibility and thus inadmissible under article 2 of the Optional Protocol.

The Human Rights Committee therefore decides: that the communication is inadmissible under article 2 of the Optional Protocol; that the present decision shall be communicated to the State party and to the author, for information. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]