Yevgeni Reshetnikov v. Russian Federation

March – 3 April 2009

The author of the communication is Mr. Yevgeni Reshetnikov, a Russian citizen, born in 1965, currently imprisoned in the . He claims to be a victim of violations by the of article 9, paragraphs 2, 3, and 4; and article 14, paragraphs 1, 2 and 3 (a), of the Covenant. He is represented by Ms. Karina Moskalenko.

The author was arrested on 21 August 1999 in connection with an investigation into ammunition cartridges which the police discovered in his garage in . On 24 August 1999, the prosecutor (prokuror) ordered that the author be remanded in custody. Under article 96 of the old Code of Criminal Procedure of the , in force at the time of the author’s arrest, the prosecutor was responsible for endorsing or approving arrests.

The author states that, when he was questioned by the police, and for a period of six months following his arrest, he thought that he was under investigation only in relation to the ammunition cartridges found in his garage, and that he was unaware that he was in fact being investigated for attempted murder. He was finally charged with attempted murder on 14 February 2000. Only on that day was he advised that on the day of his arrest, 24 August 1999, an order had been issued for the investigation into his case to be joined to an investigation into the attempted murder of the manager of an oil company in in 1998.

On 16 September 1999, he was placed on an identification parade for the attempted murder. He was told that his participation in the parade was as a witness and not as a person accused of the crime in question. Accordingly, he was not entitled to have his lawyer present. He claims that the parade did not meet the legal requirements according to which the participants have to bear some resemblance. In fact, the other participants did not look like him. Some of them later admitted that the police had provided them with artificial beards in order to make them resemble the author, who did have a beard. Not knowing that he was under investigation for attempted murder, and without his lawyer present, he had no opportunity to file a complaint in that respect. As a result, the evidence obtained by the police through the parade was used to declare him guilty in first instance and was not challenged later on appeal.

On 13 November 2000, the author was sentenced to 11 years’ imprisonment for attempted murder by the city court. He was acquitted of the charge of unlawfully possessing ammunition cartridges. On 17 January 2001, his appeal to the Supreme Court was dismissed, and a further appeal to the Presidium of the Supreme Court was dismissed on 15 August 2001.

The author claims that irregularities during the pre-trial detention, investigation and court proceedings constitute violations by the Russian Federation of article 9, paragraphs 2, 3, and 4, and article 14, paragraphs 1, 2, and 3 (a), of the Covenant.

He argues that his arrest was authorized by a prosecutor, and thus violated his right under article 9, paragraph 3, of the Covenant. He invokes the Committee’s decision in Zheludkov v Ukraine, where the Committee concluded that the State party had not provided sufficient information showing that the prosecutor has the institutional objectivity and impartiality necessary to be considered an officer authorized to exercise judicial power within the meaning of article 9, paragraph 3, of the Covenant. He adds that, in any event, he was not ‘brought before’ a prosecutor and contends that he was not informed of his right to appeal the prosecutor’s decision to remand him in custody, and that his right under article 9, paragraph 4, of the Covenant was violated.

The author further claims that he was not informed of the reasons for his arrest for six months after his arrest and submits that this fact amounts to a violation of his rights under article 9, paragraph 2, and article 14 paragraph 3 (a), of the Covenant.

The author finally submits that the evidence relied on for his conviction was obtained through procedural violations during the identification parade. This is said to amount to a violation of his right to a fair trial under article 14, paragraph 1, of the Covenant.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.

The Committee has ascertained, as required under article 5, paragraph 2, of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement and notes that the State party did not contest that domestic remedies in the present communication have been exhausted.

In relation to the alleged violation of article 9, paragraph 2, and article 14, paragraph 3 (a), the Committee notes the author’s claim that he was not presented with the decision to remand him in custody and that for six months after his arrest, he was unaware that he was under investigation for attempted murder. It also notes the State party’s argument that the author did not complain in court that his detention was illegal or ungrounded and unreasonably prolonged. The Committee notes that the author has not refuted this argument of the State party. In the circumstances, the Committee considers that this part of the communication is insufficiently substantiated, for purposes of admissibility, and declares it inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s allegation that he was not informed of his right to appeal the prosecutor’s decision to remand him in custody. The author does not however provide, nor does the case file contain information to this effect that he ever addressed this specific claim to the State party authorities. In the absence of any other information, the Committee concludes that this part of the communication is insufficiently substantiated, for purposes of admissibility, and is therefore inadmissible under article 2, of the Optional Protocol.

The Committee notes the author’s allegations under article 14, paragraph 1, that his trial was unfair and biased as the sentence was based on the evidence obtained with procedural violations. The Committee also notes the State party’s position refuting this claim as not sufficiently corroborated. It further notes that the author's allegations relate to the evaluation of evidences and reiterates that it is generally for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case, unless it can be ascertained that the evaluation was clearly arbitrary or amounted to a denial of justice. The material before the Committee does not show that the trial indeed suffered from such defects. Accordingly, this part of the communication is inadmissible as incompatible with the provisions of the Covenant, pursuant to article 2 of the Optional Protocol.

On the alleged violation of article 14, paragraph 2, the Committee notes that the author has not corroborated this claim in any manner. Therefore, he has failed to substantiate his claims. In the absence of any further information, the Committee decides that this part of the communication is inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claim that the arrest warrant was issued by a prosecutor contrary to the provisions of article 9, paragraph 3, of the Covenant. This claim was uncontested by the State party. Accordingly, the Committee declares this part of the communication admissible, as raising issues under article 9, paragraph 3, of the Covenant.

The Human Rights Committee has considered the communication in light of all the information made available to it by the parties as provided for under article 5, paragraph 1, of the Optional Protocol.

The Committee notes that in the present case, the author claims that he was arrested and placed in custody by decision of a prosecutor. The State party has not refuted this, and has explained that this was done in accordance with the law then into force. The Committee notes that the State party has not provided sufficient information, showing that the prosecutor had the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" within the meaning of article 9, paragraph 3, of the Covenant. In the circumstances, the Committee concludes that the facts as submitted reveal a violation of the author’s rights under paragraph 3 of article 9 of the Covenant.

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 9, paragraph 3, of the International Covenant on Civil and Political Rights.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including appropriate compensation. The Committee reiterates that the State party should ensure that all persons enjoy both equality before the law and equal protection of the law.

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 or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, 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. [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.]