I United Nations
| Author | Ineke Boerefijn |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1177/016934410502300105 |
| Subject Matter | Part B: Human Rights News |
I UNITED NATIONS
INEKE BOEREFIJN
1. HUMAN RIGHTS COMMITTEE
The Human Rights Committee held its 82
nd
session from 18 October – 5 November
2004 in Geneva. It considered reports submitted by Albania, Benin, Finland,
Morocco and Poland. The Committee concluded the consideration of 16 cases, 12
of which had been made public at the time of writing.
Communication No. 851/1999, Zhurin vs Russian Federation, inadmissibility decision of
2 November 2004 (inadmissible under Article 1 OP)
The author submitted the communication on behalf of his son, who at the time of
submission of the communication was under sentence of death following a
judgement given in 1990. In 1993 the death sentence was commuted to life
imprisonment. The author claimed that his son was a victim of violations of
Articles 6, 7, 10 and 14 of the Covenant.
The Committee observed that the Covenant entered into force for the Russian
Federation on 23 March 1976, and the Optional Protocol on 1 January 1992. It
noted that the final judicial decision in the case was handed down by the Supreme
Court of the Russian Federation on 11 May 1990, i.e. before the entry into force of
the Optional Protocol for the State party. The Committee recalled that it could not
consider, under the Optional Protocol procedure, alleged violations of the
Covenant which occurred before the entry into force of the Optional Protocol for
the State party concerned, unless the violations complained of continued after the
entry into force of the Optional Protocol. It stated that a continuing violation was to
be interpreted as an affirmation, after the entry into force of the Optional Protocol,
by act or by clear implication, of the previous violations of the State party.
The Committee noted that the author’s claims under Articles 7, 10, and 14 of the
Covenant all related to events which occurred before the State party formally
recognised the Committee’s competence under the Optional Protocol. It recalled its
jurisprudence that a term of imprisonment, without the involvement of additional
factors, did not amount per se to a ‘continuing effect’, in violation of the Covenant,
sufficient to bring the original circumstances giving rise to the imprisonment ratione
temporis within the Committee’s jurisdiction. It concluded that this part of the
communication was inadmissible ratione temporis, pursuant to Article 1 OP. In the
circumstances, and given that the author’s sentence to death was commuted in 1993,
the Committee did not examine the author’s remaining claim under Article 6. It
therefore declared the communication inadmissible under Article 1 OP.
Communication No. 903/2000, Van Hulst vs the Netherlands, views of 1 November 2004
(partly inadmissible under Articles 2 and 3 OP; no violation of Article 17)
The author of the communication was convicted for various offences and sentenced
to six years’ imprisonment. He claimed to be the victim of violations of Articles 14
and 17.
PART B: HUMAN RIGHTS NEWS
Netherlands Quarterly of Human Rights, Vol. 23/1, 85-132, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 85
86
During a preliminary inquiry against Mr. A.T.M.M., the author’s lawyer,
telephone conversations between A.T.M.M. and the author were intercepted and
recorded. On the basis of the information obtained by this operation, a preliminary
inquiry was opened against the author himself, and the interception of his own
telephone line was authorised. During the criminal proceedings at the domestic
level, author’s counsel submitted that the prosecution’s case should not be
admitted, because it contained a number of reports on telephone calls between the
author and his lawyer, and was unlawful to receive in evidence. The District Court
held that the records of the telephone calls between the author and Mr. A.T.M.M.
could not be used as evidence against the author, insofar as Mr. A.T.M.M. acted as
the author’s lawyer and not as a suspect. Nevertheless, the Court rejected the
author’s challenge against the prosecution’s case, noting that the prosecutor had
not relied on the telephone conversations in establishing the author’s guilt. The
Court ordered their removal from the evidence, but admitted and used as evidence
other telephone conversations, that did not concern the lawyer-client relationship
with the author. On appeal, author’s counsel argued that not all telephone records
had in fact been destroyed, as should have been done pursuant to Section 125(h) of
the Code of Criminal Procedure. This argument was rejected by the Court of Appeal
and later also by the Supreme Court. The case was referred back to the Court of
Appeal on other grounds. The judgement rendered by the Court of Appeal was also
submitted to the Supreme Court, which dismissed the case without reasons, under
Section 101a of the Judiciary Act. According to the author, the question of the
destruction of the records of the telephone conversation had not been dealt with.
The author claimed that the judgement of the Supreme Court without reasons
prevented him from adequately preparing his case for submission to the European
Court and the Human Rights Committee. The Committee observed that the
guarantees of Article 14(3)(b) and (5) applied to domestic criminal proceedings
and did not extend to the examination of individual complaints before
international instances of investigation or settlement. This part of the communica-
tion was therefore declared inadmissible under Article 3 OP.
The author further claimed that his right under Article 14(5) had been violated,
because the judgements did not provide sufficient reasons for the courts’ dismissal
of his defence challenging the lawfulness of the evidence obtained. The Committee
noted that the judgements of the District Court and the Court of Appeal that at first
examined the author’s case gave reasons for the dismissal of the author’s defence, as
did the Supreme Court when it first ruled on the author’s case. The Committee
recalled that it was generally for the national tribunals, and not for the Committee,
to evaluate the facts and evidence in a particular case, unless it could be ascertained
that the proceedings before these tribunals were clearly arbitrary or amounted to a
denial of justice. It considered that the author had not substantiated, for purposes of
admissibility, that the reasons given by the Dutch courts for rejecting his challenge
to the admissibility of the prosecution’s case were arbitrary or amounted to a denial
of justice. It therefore concluded that this part of the communication was
inadmissible under Article 2 OP.
The author further submitted that the admission as evidence of certain tapped
telephone conversations between the author and A.T.M.M., and their use during the
criminal proceedings in general, violated his right to a fair trial. The Committee
stated that it did not consider that the differentiation between records of tapped
telephone calls that could be used as evidence, and records of conversations, in
Human Rights News
To continue reading
Request your trial