Views of the UN Human Rights Committee (hereinafter referred to as the Committee) dated March 26, 2018 in the case of Alexander Tyvanchuk and Others v. the Republic of Belarus (communication No. 2201/2012).
In 2012, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Belarus.
Subject matter: lack of a fair trial
Substantive issues: competent, independent and impartial court; fair trial; facts and evidence; right to appeal.
The Committee's legal position: The Committee recalls that article 14, paragraph 5, of the International Covenant on Civil and Political Rights imposes on the State party the obligation to review substantially, simultaneously on the basis of sufficient evidence and the rules of law, the conviction and sentence so that the procedure allows due consideration of the nature of the case <33> (paragraph 6.5 of the Views).
Although the Covenant does not prohibit the trial of civilians in military courts, it does not provide for such a practice. The Committee notes that the conduct of trials of civilians in military courts poses serious challenges to the fair, impartial and independent administration of justice. In this regard, in order to ensure the right to a fair trial, States parties generally have an obligation to take all necessary measures to prohibit the trial of civilians in military courts (paragraph 7.2 of the Views) (See, inter alia, CCPR/C/RWA/CO/4, paragraph 34; CCPR/C/VEN/CO/4, paragraph 16; CCPR/C/KGZ/CO/4, paragraph 20; CAT/C/PAK/CO/1, paragraphs 10-13; CAT/C/LBN/CO/1, paragraphs 32 and 35; CAT/C/COL/CO/5, paragraph 11; CED/C/CUB/CO/1, paragraphs 19-20; CED/C/CO/CO/1, paragraph 21; and E/CN.4/Sub.2/2005/9, Principle No. 9. See, inter alia, the European Court of Human Rights, Ergin v. Turkey (No. 6) (application No. 47533/99), decision of 4 May 2006, paragraphs 47-49, and Mikhno v. Ukraine (application No. 32514/12), decision of 1 September 2016, paragraphs 164-165; Inter-American Court of Human Rights, Durand and Ugaret v. Peru, judgment of 16 August 2010, paragraph 117, and Cantoral-Benavides v. Peru, judgment of 18 August 2000, paragraph 113; as well as the African Commission on Human and Peoples' Rights, Principles and Guidelines on Human and Peoples' Rights in the context of combating terrorism in Africa, part 4 (B).).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the authors' claim that on October 26, 2004 and August 5, 2005, they were tried and found guilty under the Criminal Code by the Minsk Military Court after the decision of the Chairman of the Supreme Court to transfer their case to a military court, even though no one He was not a military man... In the present case, the State party does not dispute that the authors were civilians. The Committee concludes that there has been a violation of article 14, paragraph 1, of the Covenant as a result of the trial and conviction of the authors by a Military Court (paragraph 7.2 of the Views).
The Committee takes note of Mr. Tyvanchuk's complaint that, due to excessive court fees, the Brest Regional Court was unable to consider his appeal of 5 May 2006 against the decision of the civil court, as a result of which he was denied access to the court in violation of article 14, paragraph 1, of the Covenant. The Committee... Notes that the author had to pay court fees in the amount of 5% of the amount of damage that he had to pay in accordance with the sentence imposed on him in the criminal case. The amount of damage amounted to 904,773,450 rubles (approximately $421,000). Accordingly, the court fees were calculated in the amount of 45,238,675 rubles (approximately $21,000). The Committee... Notes that the author provided the court with evidence of his salary and that his monthly income amounted to 297,600 rubles (approximately $128). The author also reported that his property had been confiscated in pursuance of the verdict of the Minsk Military Court. The Committee notes that the Court of the Moskovsky District of Brest, acting as the Court of Cassation, and the Supreme Court, as the supervisory court, rejected the author's request to cancel the court fees, and also refused to satisfy his appeal due to the fact that he did not pay the fees mentioned, without taking into account the author's arguments about that such fees were excessively high and he was unable to pay them. The Committee notes that, by law, the courts have the right to cancel such fees. By arbitrarily rejecting the author's request for the cancellation of court fees without taking into account the individual circumstances of his case, they denied the author access to the courts and, accordingly, the possibility of reviewing his case under the judicial procedure established in accordance with national law (See, mutatis mutandis, Erel and Nyakkalyajärvi v. Finland (CCPR/C/73/D/779/1997), paragraph 7.2.). The Committee concludes that this part of the communication also reveals a violation of article 14, paragraph 1, of the Covenant (paragraph 7.4 of the Views).
The Committee.... Considers that the State party has violated article 14, paragraph 1, of the Covenant in respect of all the authors with regard to the proceedings before the Minsk Military Court and in respect of Mr. Tyvanchuk with regard to the refusal of civil courts to cancel court fees. The Committee recalls its conclusion that the State party has also violated its obligations under article 1 of the Optional Protocol (paragraph 8 of the Views). "The Committee takes note of the State party's claim that there is no legal basis for considering the authors' communication due to the fact that it was registered in violation of the provisions of the Optional Protocol, and also takes into account its statement that it will not cooperate with the Committee in connection with the Views adopted on the present communication" (paragraph 5.1 of the Views).