Message: Olga Kozulina v. the Republic of Belarus. Message N 2000/2010. The Views were adopted by the Human Rights Committee on April 1, 2015.
In 2010, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Belarus.
Subject matter: ill-treatment, arbitrary arrest; conditions of detention; presumption of innocence; guarantees of a fair trial; right to defense; freedom of assembly.
Substantive issue: human freedom and security; conditions of detention; fair trial; right to participate in peaceful assemblies.
The Committee's legal position: The Committee recalls that the State party is responsible for the safety of any person it has placed in custody, and that in cases where a person claims to have suffered bodily harm while in custody, it is the State party that must provide evidence to refute these allegations (See communication No. 1412/2005, Butovenko v. Ukraine, Views adopted on July 19, 2011, paragraph 7.5.). In addition, in the case of a complaint of ill-treatment in violation of art. 7 The State party should immediately conduct an impartial investigation (See communication No. 1589/2007, Gapirdzhanov v. Uzbekistan, Views adopted on 18 March 2010, paragraph 8.3.). The Committee considers that, given the submissions of the State party and the decisions of its courts, as well as the limited amount of information and documents submitted by the author, and In particular, given the limited amount of information concerning the investigations conducted by the State party, he cannot conclude that the treatment of Mr. Kozulin by the authorities of the State party, whether on 2 March 2006 or on March 25, 2006, contrary to the provisions of article 7 of the Covenant (paragraph 9.3 of the decision).
The Committee recalls that the decision on pretrial detention should be taken on a case-by-case basis, taking into account how necessary and appropriate it is in the circumstances, including in order to prevent escape, prevent interference with the collection of evidence or prevent a new crime, and that the courts should determine on a case-by-case basis whether there are whether there are alternatives to pretrial detention that make this measure of restraint unnecessary (paragraph 9.7 of the decision) (See communications No. 1369/2010, Kulov v. Kyrgyzstan, Views adopted on July 26, 2010, para. 8.3; N 1940/2010, Cedeno v. Bolivarian Republic of Venezuela, Views adopted on October 29, 2012, paragraph 7.10; N 1178/2003, Smanzer v. Belarus, Views adopted on October 23, 2008, paragraph 10.3.).
The Committee recalls that the presumption of innocence, which is fundamental to the protection of human rights, means that the burden of proof lies with the prosecution, that guilt must be unconditionally proven and cannot be imputed, that all doubts must be interpreted in favor of the accused, and that persons accused of committing criminal offences should be treated in court according to this principle. All State bodies are obliged to refrain from any actions or statements prejudging the outcome of the trial, including public statements about the guilt of the accused <1>. During court proceedings, defendants, as a rule, should not be handcuffed or behind bars, or otherwise appear in court in an appearance indicating that they may be dangerous criminals (See communications No. 1405/2005, Pustovoit v. Ukraine, Considerations adopted on March 20, 2014, paragraph 9.2 and 9.3; No. 2120/2011, Kovaleva and Kozyar v. Belarus, Views adopted on October 29, 2012, paragraph 11.4.). The way news is presented in the media should also not undermine the principle of presumption of innocence <3> (paragraph 9.8 of the decision).
The Committee's assessment of the factual circumstances of the case: the author claims that on March 2 and 26, 2006, her father was beaten and otherwise ill-treated by police officers and representatives of special forces when, respectively, he tried to register as a delegate of the All-Belarusian People's Assembly and participated in a rally in support of arrested protesters. She reports that on March 3, 2006, her father was examined by a doctor, who found abrasions and bruises on his body. She claims that all complaints filed in this regard on behalf of her father were rejected and that law enforcement officials stated in court that he had inflicted bodily injuries on himself. The Committee notes that the State party has rejected the author's allegations as unfounded, stating that police officers and special forces soldiers used physical force against Mr. Kazulin lawfully because he refused to comply with their demands. The State party also reported that these allegations had been verified by its competent authorities and had not been confirmed (paragraph 9.2 of the decision).
For the same reasons, the Committee cannot conclude that the circumstances of Mr. Kazulin's arrest indicate a violation of his right to peaceful assembly under article 21 of the Covenant (paragraph 9.4 of the decision).
The Committee takes note of the author's allegations regarding the conditions in which Mr. Kozulin was held after the sentencing. The Committee notes that, although the State party rejects some of these allegations, it acknowledges that the prison administration denied Mr. Kazulin access to his lawyer and independent doctors, despite his requests, during his 53-day hunger strike, when he was in particular need of their help. The State party claims that this was due to his state of health, but does not provide any arguments or facts to support this. In the light of the specific circumstances of the case, the Committee considers that the administration of the colony did not ensure humane treatment of Mr. Kozulin, and therefore concludes that the State party violated article 10 of the Covenant (paragraph 9.5 of the decision).
The author also claims that Mr. Kazulin's arrest on 25 March 2006 was unlawful, that his family was informed of his whereabouts only 19 hours after his arrest instead of the 12 hours required by law, and that his detention pending trial was unjustified and was authorized by the prosecutor, while the judge confirmed the legality the preventive measure chosen for him only 18 days later, which is a violation of paragraphs 1 and 3 of article 9 of the Covenant. The Committee notes that the State party reported that on 12 April 2006, the Court of the Central District of Minsk confirmed the legality of Mr. Kazulin's arrest on March 25, 2006, and that it considers the above-mentioned author's allegations to be baseless (paragraph 9.6 of the decision).
The Committee notes that the State party has not explained why, in the light of the circumstances of the present case, it was necessary to detain Mr. Kazulin before and during the trial. The Committee also notes that Mr. Kozulin was placed in custody on March 25, 2006 by a decision of the prosecutor and that the legality of this decision was confirmed by the court only on April 12, 2006. The Committee refers to its previous decisions, which state that according to paragraph 3 of art. 9 A detained person accused of committing a criminal offence must be urgently brought before a judge and has the right to judicial control over the legality of his detention (See communications No. 521/1992, Kulomin v. Hungary, Views adopted on March 22, 1996, paragraph 11.3; No. 1218/2003, Platonov v. the Russian Federation, Views adopted on November 1, 2005, paragraph 7.2; N 1348/2005, Ashurov v. Tajikistan, Views adopted on March 20, 2007, paragraph 6.5; N 1769/2008, Ismailov v. Uzbekistan, Views adopted on March 25, 2011, paragraph 7.3; and No. 1787/2008, Kovsh v. Belarus, Views adopted on March 27, 2013, paragraph 7.3.). The proper exercise of judicial power presupposes its exercise by an independent, objective and impartial body in terms of the issues under consideration. The Committee is not convinced that the Public Prosecutor can be considered an official who is characterized by institutional objectivity and impartiality and who is therefore competent to exercise judicial power within the meaning of paragraph 3 of article 9. In this regard, the Committee concludes that the facts presented indicate a violation of paragraphs 1 and 3 of articles 9 of the Covenant (paragraph 9.7 decisions).
The author claims that her father was behind bars during the trial and therefore could not communicate freely with his lawyers, and that his right to the presumption of innocence was violated, since immediately after his arrest, the Minister of the Interior, speaking on State television, called him a criminal and the Prosecutor General's Office made a similar statement on the same day. The State party raised these issues only in passing, confining itself to stating that Mr. Kazulin's rights to defense were not violated during the trial. ...In view of the above and in view of the absence of any other relevant information in the case file, the Committee has no choice but to pay due attention to the author's allegations, therefore it concludes that the facts presented to it indicate a violation of Mr. Kazulin's right to a fair trial under paragraphs 1 and 2 of article 14 of the Covenant. Having reached this conclusion, the Committee decides not to consider separately the author's remaining allegations concerning violations of paragraphs 1 and 3 (b) of article 14 of the Covenant (paragraph 9.8 of the decision).
In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is obliged to ensure the effective restoration of Mr. Kazulin's rights, including providing him with adequate compensation for the violations found and reimbursing him for any legal expenses he incurred. In addition, the State party is obliged to prevent similar violations in the future (paragraph 11 of the decision).