Yekaterina Gerashchenko v. Belarus

From 2001 to April 2003, the author worked as a guard in a collective agricultural firm in (). During her work she witnessed repeatedly that staff from the administration of the firm was involved in stealing firm’s products.

On 29 July 2002, the author also witnessed the chief of the firm’s guards, Mr. Rakushevich severely beating a former employee. After she denounced the facts, she received threats to be fired from her job. On 14 April 2003, while the author was at work, she received a visit by Mr. Rakushevich. Ten minutes after he left, she was approached by two policemen, friends of Mr. Rakushevich, the deputy of Mr. Rakushevich and a cleaner named Ms. Kuzmenko. She claims that they accused her of being drunk and Ms. Kuzmenko tested her with an alcohol tester. The author claims that day she had not drunk and had only taken a medication for her heart, which contained alcohol. The author submits that Ms. Kuzmenko was not qualified to do the alcohol test and provided copy of a letter from the Ministry of Health in that regard. The author requested to be taken to a medical centre, but her request was ignored. She also asked the administration to be allowed to leave her post, so that she could go to a medical centre, but her request was rejected again. She claims that she could not leave her post without the administration’s permission as, in such case, she could be fired for being absent during working hours. After the incident she worked for three more consecutive days. She argues that if the allegations of her being drunk were true, she would have been immediately removed from her post. She was dismissed on 18 April 2003 and she claims that the trade union, which she belonged to, was not informed of her dismissal.

The author complained to the Gomel District Court about her dismissal. On 4 April 2003, the court rejected her complaint, confirming that her dismissal was lawful. The author claims that the court ignored the fact that Ms. Kuzmenko did not have a required medical qualification to do the alcohol test. It allegedly argued that she could have undergone another test at a medical establishment if she did not agree with the test results.

The author appealed the decision of the Gomel District Court to the . Separately from her appeal, on 9 September 2003, the Gomel District Prosecutor also introduced a cassation motion to the against the decision of the Gomel District Court, and requested her re-employment, and returning her case for further investigation. On 30 September 2003, the upheld the decision of the Gomel District Court. On an unspecified date, the author complained under a supervisory review procedure to the Supreme Court of Belarus. On 24 March 2004, the Court dismissed her appeal.

The author claims that the alcohol test was carried out in violation of established procedures, as it was made by a cleaner with no medical qualifications. This aspect was allegedly ignored by the court, which raises issues under article 14, paragraph 1, of the Covenant.

The author does not provide any information related to her allegations of violation of article 26 of the Covenant.

On 22 February 2007, the State submits, that the author has not exhausted domestic remedies, since, under section 436 of the Civil Procedure Code, a supervisory review appeal can be submitted within three years after the court’s decision enters into force. The author did not submit such an appeal to the Prosecutor’s office.

The State party reiterates that the author was fired from her job under section 42, paragraph 7, of the Labour Code for being drunk during her working hours. It contends that her state of inebriation was confirmed by evidence examined during the court proceedings, including witness statements and the result of an alcohol test. Therefore, no violation of the Covenant took place in connection with the termination of her employment contract.

The same arguments were reiterated by the State party in its submission of 10 June 2008.

On 23 June 2006, the author refutes the State party’s argument regarding non-exhaustion of domestic remedies and submits that she appealed under the supervisory review procedure to the Supreme Court, but the appeal was rejected. She argues that an appeal to the Prosecutor’s office under the supervisory review procedure is optional and not mandatory, as the Prosecutor’s office is not responsible for review or annulment of court decisions.

On 28 July 2008, the author submits that the court relied mainly on testimonies by the witnesses proposed by the defendant, namely the local policemen, friends of Mr. Rakushevich, and Ms. Kuzmenko. The author claims that the letter from the Ministry of Health, which states that such tests can be conducted only by medical personnel, was ignored by the court.

The author adds that the court materials included a document which confirms that the alcohol tester used to test her level of alcohol intake, did not undergo a technical examination to verify that it functioned properly. She claims that her case was fabricated.

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 communication is admissible under the Optional Protocol to the Covenant.

The Committee notes, as required by article 5, paragraph 2 (a) and (b), of the Optional Protocol, that the same matter is not being examined under any other international procedure of investigation or settlement.

The Committee notes the State party’s argument that the author failed to appeal to the Prosecutor’s office under the supervisory review procedure of section 436 of the Civil Procedure Code. The author contests this argument, stating that an appeal to the Prosecutor’s office under the supervisory review procedure is optional. The Committee recalls its previous jurisprudence, according to which supervisory review procedures against court decisions which have entered into force constitute an extraordinary mean of appeal which is dependent on the discretionary power of a judge or prosecutor. When such review takes place, it is limited to issues of law only and does not permit any review of facts and evidence. In such circumstances and also noting that the author has appealed to the Supreme Court, which has rejected her appeal, the Committee considers that, in the present case, it is not precluded, for purposes of admissibility, by article 5, paragraph 2 (b), from examining the communication.

The Committee notes the author's claim that her right under article 26 of the Covenant was violated. However, the author does not provide information to illustrate her claims in this respect. Accordingly, this part of the communication is deemed inadmissible, as insufficiently substantiated, under article 2 of the Optional Protocol.

With regard to the alleged violation of article 14, paragraph 1, the Committee notes the author’s claim that the court relied mainly on the testimonies of the witnesses invited by the defendant as well as her claim of irregularities in the manner in which the alcohol test was carried out. The Committee also notes the State party’s submission that her state of inebriation was confirmed by evidence examined during the court proceedings. The Committee observes, however, that the author’s claims relate to the evaluation of facts and evidence by the State party's courts. It recalls that it is generally for the courts of States parties 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 do not contain any elements to demonstrate that the court proceedings suffered from such defects. Accordingly, the Committee considers that the author has failed to substantiate her claims of a violation of article 14, paragraph 1, under article 2 of the Optional Protocol, and nor in this respect can the communication therefore be admitted.

The Human Rights Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;