The case of Yevgeny Bryukhanov v. the Russian Federation. Views of the Human Rights Committee of March 12, 2020. Communication No. 2367/2014.
In 2014, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to the Russian Federation.
As could be seen from the text of the Considerations, the author noted that the victim in the case had not been questioned in court and that one of the main witnesses for the prosecution, L.M.A., had testified during the preliminary investigation, but was not present at the court session. In addition, during the preliminary investigation, several experts were questioned, who were also not summoned to court, and their conclusions were simply read out and entered into the protocol (paragraph 3.5 of the Considerations).
Legal positions of the Committee: With regard to the right of a person to require the presence of witnesses and to interrogate or cross-examine them, the Committee drew attention to its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, in which it stressed that this guarantee is essential to ensure effective protection by the accused and their defenders. However, he also noted that the right of the accused to interrogate witnesses is not absolute. The accused has only the right to admit witnesses of importance to the defense, as well as to provide an appropriate opportunity to interview and challenge the statements of witnesses testifying against them at one stage of the proceedings (See the case "Allaberdiev v. Uzbekistan" (CCPR/C/119/D/2555/2015), paragraph 8.8.). The Committee referred to its practice, according to which there may be certain restrictions on the author's right to call witnesses due to the need to protect the rights of the victim, which is especially relevant in this case, given the fact that the victim was a minor (See the case "Stasaitis v. Lithuania" (CCPR/C/127/D/2719/2016 and Corr.1), clause 8.6.). In this regard, the Committee took into account the approach adopted by the European Court of Human Rights, which, in assessing whether a fair trial was conducted against an accused person, takes into account the rights of the alleged victim and the need to avoid re-victimization (paragraph 9.2 of the Views) (See the cases: S.N. v. Sweden, judgment of 2 July 2002 (complaint No. 34209/96), paragraph 47; Oyston v. the United Kingdom, Judgment of January 22, 2002 (complaint No. 42011/98); and v. Slovenia", Judgment of May 28, 2015 (complaint No. 41107/10), paragraphs 69-72 and 106.).
The Committee's assessment of the factual circumstances of the case: the victim, her teacher L.M.A. and experts during the preliminary investigation testified against the author, which were read out and recorded in the minutes of the court session, while the defense had no opportunity to challenge these statements, for example, by cross-examining these witnesses. The Committee drew attention to the fact that the State party to the Covenant did not provide appropriate explanations for the absence of witnesses at court sessions, including experts who provided important information of a medical and forensic nature. The Committee therefore considered that, in view of the circumstances of the present case and the lack of appropriate explanations from the State party, for example regarding alternatives to direct interrogation of victims in open court, the State party violated the author's rights under article 14, paragraph 3 (e), of the Covenant (paragraph 9.3 of the Views).
The Committee's conclusions: The facts presented indicated a violation of the author's rights under article 14, paragraph 3 (e), of the Covenant.