CCPR/C/110/D/1983/2010

International Covenant on Civil and Political Rights

23 April 2014

Original: English

Human Rights Committee

Communication No. 1983/2010

Decision adopted by the Committee at its 110th session(10–28 March 2014)

Submitted by:Y.B. (not represented by counsel)

Alleged victim:The author

State party:Russian Federation

Date of communication:6 April 2010 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 27 September 2010 (not issued in document form)

Date of adoption of decision :25 March 2014

Subject matter:Prosecution and placement of the author in a psychiatric institution following his criticism of a prosecutor and prosecutor’s son

Substantive issues:Entitlement to a fair and public hearing by a competent, independent and impartial tribunal; arbitrary detention; inhuman and degrading treatment; conditions of detention; right to privacy; freedom of speech; discrimination

Procedural issue:Non-substantiation; non-exhaustion; abuse of submission

Articles of the Covenant: 7, 9, paragraph 1, 10, 14, paragraph 1, 17, paragraphs 1 and 2, 19, paragraphs 1 and 2, 26

Article of the Optional Protocol: 2, 3, 5 paragraph 3(b)

[Annex]

Annex

Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (110th session)

concerning

Communication No. 1983/2010 *

Submitted by:Y.B. (not represented by counsel)

Alleged victim:The author

State party:Russian Federation

Date of communication:6 April 2010 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 25 March 2014,

Adopts the following:

Decision on admissibility

1.1The author of the communication is Y.B., a Russian Federation national born in 1965, currently residing in Pskov. He claims to be a victim of a violation by the Russian Federation of his rights under article 7, article 9, paragraph 1, article 10, article 14, paragraph 1, article 17, paragraphs 1 and 2, article 19, paragraphs 1 and 2, and article 26 of the International Covenant on Civil and Political Rights. The author is unrepresented.

1.2On 5 September 2011, the Special Rapporteur on new communications decided that the admissibility of the communication should be considered separately from the merits.

The facts as presented by the author

2.1On 26 June 2006, the Prosecutor’s office in Velikie Luki, the town where the author resided, initiated criminal proceedings against him under article 319 of the Criminal Code (publicly offending a State agent).

2.2On 27 May 2008, the justice of the peace of the 33rd district of Velikie Luki issued a decision to terminate the court case against the author based on the absence of corpus delicti of the crime.

2.3On 10 September 2008, the criminal department of the Pskov regional court issued a cassation decision confirming the decision of 27 May 2008 of the justice of the peace to terminate the criminal prosecution against the author.

2.4On 1 July 2009, an article was published on the website of the town court of Velikie Luki in the public information section, which included information to the effect that there was an ongoing criminal case against the author and that he was being investigated. The author was mentioned by name and information damaging to his reputation was accessible to all.

2.5On 15 October 2009, the author filed an application with the town court of Velikie Luki seeking compensation for the moral damages inflicted to him by the public being wrongly informed that he was under investigation for criminal activity.

2.6On 23 October 2009, the town court of Velikie Luki issued a ruling returning the author’s claim for lack of jurisdiction. The author then appealed this ruling to the Pskov regional court, which, on 1 December 2009, issued a cassation decision confirming that the Velikie Luki town court had no jurisdiction and ruling that the claim should be filed with the Moscow city court. The author attempted to apply for a supervisory review of that decision, but his request was denied by the Pskov regional court on 18 January 2010.

The complaint

3.1The author contends that he has exhausted all available and effective domestic remedies.

3.2The author quotes article 29, paragraph 6, of the Civil Procedure Code of the Russian Federation,, which reads: “Claims for the restoration of the labour, pension and housing rights, for the return of the property or of the cost involved in the recompense of the losses inflicted upon a citizen by an unlawful conviction, by an unlawful bringing to criminal responsibility or by an unlawful application as a measure of restraint of taking into custody or of the recognisance not to leave, or by an unlawful imposition of an administrative punishment in the form of arrest, may also be instituted in the court at the place of the plaintiff’s residence.�? The author maintains that the provision of the domestic legislation cited above allows him to file a claim in the court of his place of residence, that, being a pensioner, he has no means to defend his rights in Moscow courts and that the refusal of the Velikie Luki town court to hear his case constitutes a denial of justice. Therefore, the author claims to be a victim of violations by the Russian Federation of his rights under article 14, paragraph 1 of the Covenant.

The State party’s observations on admissibility

4.1On 6 December 2010, the State party submitted that the communication did not meet the admissibility criteria under article 5, paragraph 2 (b) of the Optional Protocol, since the author had failed to exhaust all the available domestic legal remedies.

4.2The State party submits that the following information was published on the internet site of the Velikie Luki town court: “In three criminal cases the proceeding have been ongoing for more than one year, out of which two, under articles 119 and 157 of the Criminal Code, had been suspended in relation to the search for the accused; in relation to the case against [the author]., (art. 319 CC RF), because the case was returned to the prosecutor (twice) and linguistic expertise was scheduled in expert institutes in Moscow and Saint Petersburg (three times).�? That information concerned the activities of the court during the first quarter of the year 2008, i.e. it related to a point in time when the case against the author was still ongoing. The criminal case in question was discontinued on 10 September 2008.

4.3On 15 October 2009, before the town court of Velikie Luki, the author filed a lawsuit for moral damages against the Ministry of Finance of the Russian Federation, caused by the publication on the website of the court in Velikie Luki of information concerning his being subjected to criminal prosecution and because a number of procedural actions were conducted after the discontinuation of the criminal case. After the complaint from the author, his name was removed from the website and replaced with an initial and a reference was included stating that the case against the author had been discontinued and he had been rehabilitated following a finding of unlawful criminal prosecution. The author’s complaint was returned to him by the town court of Velikie Luki with a note dated 23 October 2009, that the court lacked jurisdiction over the case, based on article 135, paragraph 1, point 2, of the Criminal Procedure Code.

4.4The State party submits that the author filed a complaint with the town court of Velikie Luki on the ground of article 29, paragraph 6, of the Code and maintains that the complaint was based on a wrong interpretation by the author of the provision cited above. The State party quotes article 29, paragraph 6 of the Code and submits that the author’s complaint is not related to “an unlawful bringing to criminal responsibility or by an unlawful application as a measure of restraint of taking into custody or of the recognisance not to leave, or by an unlawful imposition of an administrative punishment in the form of arrest�? but to the publication on the website of the court in Velikie Luki of information revealing the name of the author. It was explained to the author that, since the respondent in his lawsuit was the Ministry of Finance, the jurisdiction in article 28 of the Code required that it should be filed at the location of the respondent, namely in the Tversk district court in Moscow. The Pskov regional court confirmed the ruling of the first instance court on 1 December 2009. On the same grounds, the Pskov regional court refused to transmit the author’s request for a supervisory review on 18 January 2010. In a ruling on 12 March 2010, a Supreme Court judge rejected the author’s request for a supervisory review by the Civil Cases Panel of the Supreme Court, because the judge did not consider that there were any serious violations of the law by the lower courts. That ruling also confirmed the lack of jurisdiction of the town court of Velikie Luki over the author’s complaint.

4.5The State party maintains that the court rulings mentioned above do not limit the access of the author to justice, but clarify the territorial jurisdiction of the courts over the case and that nothing prevents the author from addressing the Tversk district court in Moscow. Accordingly, the State party submits that the author’s rights under article 14, paragraph 1, of the Covenant have not been violated. It further submits that the author’s communication should be rejected in accordance with article 5, paragraph 2 (b), of the Optional Protocol for failure to exhaust all available domestic remedies.

Author’s comments on the State party’s observations

5.1On 10 January 2011, the author submitted that the State party was misleading the Committee in its submission. He maintained that all lawsuits filed in the Russian Federation by rehabilitated persons were reviewed at the places of residence of the plaintiffs in accordance with article 29, paragraph 6, of the Criminal Procedure Code. In support, he submitted a copy of a ruling by the Pskov regional court, dated 7 December 2000, in which the latter allegedly ruled in favour of the author on a similar issue. The author stated that he was only submitting one such ruling, but that the Pskov regional court had ruled in his favour in seven separate cases in which he had disputed the rulings of the town court of Velikie Luki in refusing to review his complaints based on article 28 of the Criminal Procedure Code. The ruling of 7 December 2010 by the Pskov regional court states that “from the petition it appears that [the author] claimed compensation of damages in the order of rehabilitation, which in accordance with article 29, paragraph 6, may be presented in the place of residence of the plaintiff�?.

5.2The author further rejectd the submission by the State party that the requirement for review of his complaint by the Moscow court, and not by the court in Velikie Luki, did not constitute a limitation of his access to justice. He submitted that he was a pensioner, received a pension equivalent to 200 euros per month and he was supporting his underage son. He was not financially able to travel to Moscow to represent himself or to hire a lawyer to represent him. He also made reference to the poor state of his health, which would not allow him to travel the 500 km to Moscow, so that he would be deprived of the opportunity to participate in the first instance hearing and to defend his interests.

5.3The author further made reference to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, points 3 (c) and 12 (c).The author regrets that rather than assisting him, as a victim of human rights violations, to gain access to justice, the State party is violating its obligations as outlined in the resolution.

Author’s further submissions

6.1On 10 October 2010, in addition to the allegations of violations of article 14, paragraph 1 of the Covenant, the author submitted that he was a victim of violations of his rights under article 9, paragraph 1, and article 17, paragraphs 1 and 2, of the Covenant.

6.2The author reiterated the facts related to the prosecution against him under article 319 of the Criminal Code. He made reference to paragraph 18 of General Assembly resolution 60/147, claimed that since he was subjected to prosecution for a period of two years and three month, he was a victim of human rights violations and maintained that the Russian Federation refused to fulfil its obligations towards him as a victim.

6.3The author submitted that, during the prosecution proceedings against him, he was forcibly placed in a psychiatric hospital for 30 days following the decision of a judge of the Velikie Luki town court dated 2 August 2006. The author submitted that the judge issued that decision because he had submitted 10 different motions during the pretrial proceedings. The author maintained that by submitting these motions he was attempting to defend his constitutional rights and that in response he was placed in a psychiatric hospital. No psychiatric condition was detected during his stay in the hospital. He also maintained that article 319 of the Criminal Code, under which he was prosecuted did not foresee imprisonment as a punishment if had been found guilty and that article 108 of the Criminal Procedure Code did not foresee detention of individuals charged with such crimes during the pretrial period. He submitted that, nonetheless, he was deprived of his liberty by being placed forcibly in a psychiatric hospital. He further maintained that article 29, part 2 of the Criminal Procedure Code, which allowed individuals accused of crimes that are not punishable by imprisonment, to be detained in psychiatric hospitals for psychiatric assessment, contradicted article 9 of the Covenant. The author submitted that, on 4 February 2010, he had addressed a petition to the justice of the peace in the 33rd district of Velikie Luki, requesting the court to recognize that he was a victim of violations of his rights under article 9 of the Covenant, based on the fact that he had been forcibly placed in a psychiatric hospital for a period of 30 days when he was not mentally ill. The justice of the peace had rejected the request on 9 April 2010. On 7 June 2010, the Velikie Luki town court had rejected the author’s appeal against the decision of 9 April 2010. On 4 August 2010, his further appeal to the judicial panel on criminal cases of the Pskov regional court had also been rejected.

6.4The author further submitted that during the pretrial investigation in 2006 a number of his medical records had been taken from medical establishments by investigating officers without a court order, in violation of his right to privacy under article 17, paragraph 1, of the Covenant. In that manner, confidential information regarding the state of the author’s health had become known to a large number of persons. On 15 March 2010, the author had addressed a petition to the justice of the peace in the 33rd district of Velikie Luki requesting the latter to recognize that the author’s rights under article 17 of the Covenant had been violated. The justice of the peace had rejected the request on 7 May 2010. On 29 July 2010, the Velikie Luki town court had rejected the author’s appeal against the decision of 7 May 2010. On 8 September 2010, his further appeal to the judicial panel on criminal cases of the Pskov regional court had also been rejected.

6.5The author submitted that during court hearings on 9 and 10 February 2010, a lawyer appointed for the author by the justice of the peace of the 33rd district of Velikie Luki, had supported the position of the prosecution, rather than supporting the position of the author. On 15 February 2010, the author had addressed a petition to the justice of the peace in the 33rd district of Velikie Luki, requesting the court to “restore his rights as a rehabilitated person�?, namely to recognize that the ex officio lawyer acted in violation of articles 1 and 4.3 of the law on advocacy and the legal profession in the Russian Federation. The justice of the peace had rejected his petition on 27 May 2010. On 13 July 2010, the Velikie Luki town court had rejected the author’s appeal against the decision of 27 May 2010. On 25 August 2010, his further appeal to the judicial panel on criminal cases of the Pskov regional court was also rejected. The author submitted that the justice of the peace had issued a decision without his participation in the proceedings and that he had not been properly informed of the date of the cassation hearing. He maintained that the above facts led to a violation of his rights under article 14, paragraph 1, of the Covenant.

6.6On 8 November 2010, the author submitted that on unspecified dates in 2009 and in 2010 he had submitted several complaints to the justice of the peace of the 33rd district in Velikie Luki, requesting that his rights as a rehabilitated person be reinstated, in accordance with article 138 of the Criminal Procedure Code. The author submitted that the judges of the Velikie Luki town court and the justice of the peace had deliberately scheduled court hearings on the same dates and at the same times in order to prevent him attending all the hearings and that this had violated his right to a fair trial. He further submitted that the courts had refused to appoint a defence attorney to represent him in those proceedings and that a hearing of the appellate instance had taken place in his absence in violation of article 364, paragraph 2, of the Criminal Procedure Code. The author maintained that this violated his rights under article 14, paragraph 1, of the Covenant.

6.7The author made further allegations related to violations of his right to a fair trial during the proceedings that he had initiated in an attempt to reinstate his rights following the dismissal of the criminal charges against him.

6.8On 17 November 2010, the author submitted that the original criminal charges were brought against him because he had publicly criticized the professional qualities of the son of a prosecutor and the abuse of power by the prosecutor himself. He maintained that bringing criminal charges against him, because he had expressed his opinion regarding those two individuals, violated his rights under article 19 of the Covenant. He further submitted that on 22 April 2010, he had addressed a complaint to the justice of the peace, requesting recognition that his rights under article 19 of the Covenant had been violated. The author further submitted that his involuntary placement in a psychiatric hospital because he had filed several motions trying to defend his rights during the criminal proceedings against him, amounted to inhuman and degrading treatment in violation of his rights under article 7 of the Covenant. On 3 March 2010, the author had addressed a complaint to the justice of the peace requesting recognition that his rights under article 7 of the Covenant had been violated. Subsequently the justice of the peace had combined the two cases and on 6 July 2010 had issued a decision rejecting the author’s complaints. The author’s appeals of that decision had been rejected by the town court of Velikie Luki on 17 September 2010 and the Pskov regional court on 7 October 2010. The author maintains that he has exhausted the available remedies. He further submits that his rights under article 14, paragraph 1, of the Covenant have been violated, because the first instance court in its decision did not mention the violation of article 19 and the appellate instance court discussed it, but in the absence of the author, despite the fact that he had submitted the appeal.

6.9The author further alleges violations of his rights under article 14, paragraph 1 of the Covenant, because the justice of the peace rejected his request to cover his expenses for mailing complaints to the Human Rights Committee and other international institutions.

6.10On 5 December 2010, the author alleged various violations of his rights under article 14, paragraph 1, of the Covenant in relation to court proceedings that had taken place between 1 March 2010 and 17 November 2010.

6.11On 10 January 2011, the author alleged violations of his and his minor son’s rights under article 14, paragraph 1, of the Covenant in relation to court proceedings in a criminal case regarding the theft of the mobile phone of the author’s son.

6.12On 17 March 2011, the author alleged various further violations of his rights under article 14, paragraph 1, of the Covenant in relation to court proceedings that had taken place between 30 October 2009 and 26 January 2011.

6.13On 22 March 2011, the author alleged that during his enforced placement in a psychiatric hospital in 2006, he had been subjected to medical examinations in violation of the established safety rules. Namely, that he had been subjected to X-rays and forced to stay in the radiology room while other detainees were subjected to X-rays, while the medical personnel left the room during the procedures. The author submitted that the above treatment was in violation of the sanitary rules, which forbade the presence of more than one patient in the radiology room during procedures, that he had experienced health problems as a result of being exposed to the radiation in the radiology room and that such treatment had violated his rights under article 7 of the Covenant. On 22 January 2011, the author had submitted to the Velikie Luki town court a claim for compensation for moral damages for being subjected to radiation in violation of the sanitary rules during his forced stay in the psychiatric hospital. On 24 January 2011, the court had refused to initiate a court case on the issue. The author’s appeal of that refusal had been rejected by the Pskov regional court on 1 March 2011. The author further alleged various violations of his rights under article 14, paragraph 1, and article 26 of the Covenant in relation to court proceedings that took place between 10 January and 1 March 2011.

6.14On 11 April 2011, the author submitted that in 2006, when he was forcibly placed in a psychiatric institution by the court, he was detained together with individuals who were already convicted of crimes and were undergoing psychiatric evaluations after their verdicts. He maintained that such treatment constituted a violation of his rights under article 10 of the Covenant. On 2 November 2009, the author addressed a complaint to the justice of the peace, requesting recognition that his rights under article 10 of the Covenant had been violated. On 26 April 2010, the justice of the peace rejected the author’s complaint. The author’s appeals of that decision were rejected respectively on 10 June 2010 by the Velikie Luki town court and on 11 August 2010 by the Pskov regional court. The author submits that the courts did not review his complaint on the merits since they did not verify whether the individuals detained together with the author were convicts.

6.15The author also submits that the bank, through which he was paid compensation for material damages for being subjected to criminal prosecution, is withholding commission on the payments and maintains that the above violates his rights under article 26 of the Covenant, since it constitutes discrimination against him as a victim of unlawful prosecution. The author further alleges various violations of his rights under article 14, paragraph 1, of the Covenant in relation to court proceedings that took place between 8 December 2009 and 2 June 2010.

6.16On 28 April 2011, the author reiterated his submission that his involuntary placement in a psychiatric hospital, because he filed several motions trying to defend his rights during the criminal proceedings against him, amounted to inhuman and degrading treatment and violated his rights under article 7 of the Covenant. The author also submitted that he was subjected to degrading treatment in violation of his rights under article 7 because, on 9 September 2010, during a court hearing in which he participated, the prosecutor violated the dress code for prosecutors. The author further submitted that he was subjected to degrading treatment in violation of his rights under article 7 because, on 15 January 2010, a judge held a trial hearing in a court room where a crest was displayed that did not correspond to the official crest of the Russian Federation.

6.17On 3 May 2011, the author alleged various violations of his rights under article 14, paragraph 1, of the Covenant in relation to court proceedings that took place between 27 January 2011 and 1 March 2011.

6.18On 30 May 2011, the author alleged various violations of his rights under article 14, paragraph 1, of the Covenant in relation to court proceedings that took place between 3 February 2010 and 29 September 2010.

State party’s further observations on admissibility

7.1On 19 August 2011, the State party submitted that the author’s submission of 10 January 2011 did not contain any arguments disproving the position of the State party, It further submitted that the author’s submission of 10 January 2011, bore no relation to the original communication by the author. It further submitted that, on 22 March 2011, it received four other submissions from the author, dated 10 October 2010, 8 November 2010, 17 November 2010 and 5 December 2010, which raised various allegations but did not disprove the position of the State party. The State party further submitted that the author’s submissions of 17 March 2011, 11 April 2011, 28 April 2011, 3 May 2011 and 30 May 2011 had no connection with the original complaint.

7.2The State party submits that it has been cooperating successfully with the Committee for a long time, including in relation to individual communications. It further submits that in the present case the correspondence process is practically blocked and, in the presence of the above numerous submissions registered under the same number, it is impossible to prepare substantive observations. It also submits that this is a unique situation.

7.3The State party maintains that the communication should be declared inadmissible under article 3 of the Optional Protocol since the author is abusing his right to submission to the Committee.

Further observations from the author

8.On 14 October 2011, the author submitted that despite the submission of the State party that it had successfully cooperated with the Committee with regard to the rehabilitation of individuals who had been unlawfully subjected to criminal prosecution, the State party had defiantly refused to implement its international obligations. Those obligations were determined in resolution 60/147. The author submitted that thus far the Russian Federation had not passed domestic legislation regulating the implementation of that resolution with regard to the restoration of the rights of individuals who had been unlawfully subjected to criminal prosecution. He pointed out that in its decision of 2 March 2010, the justice of the peace of the 33rd district of Velikie Luki stated that resolution 60/147 was only a recommendation and its implementation was not mandatory for the Russian Federation and the courts of the appellate and the cassation instances agreed with that statement. The author maintained that he was not abusing his right to submission, but merely attempting to reinstate all his rights, many of which had been violated during the unlawful prosecution against him, which lasted for more than two years.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before 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 case is admissible under the Optional Protocol to the Covenant.

9.2The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

9.3 With regard to the author’s initial complaint that he was a victim of violations by the Russian Federation of his rights under article 14, paragraph 1, of the Covenant, because the Velikie Luki court refused to process his law suit for moral damages caused by erroneous information that he was under investigation, posted on the website of the court, the Committee notes the submission of the State party that since the author’s complaint was related to compensation for moral damages, the respondent in this lawsuit was the Ministry of Finance; that the domestic jurisdiction rules required that such claims should be filed at the location of the respondent, namely in the Tversk district court in Moscow; and that the communication should be declared inadmissible for failure to exhaust the domestic remedies.

9.4The Committee also takes note of the author’s explanation that he does not have the funds to finance a law suit in Moscow. The Committee recalls that if the judicial authorities of a State party laid such a cost burden on an individual that his access to court de facto would be prevented, then this might give rise to issues under article 14, paragraph 1, of the Covenant. However, the Committee is of the opinion that, in the present case, the author has failed to substantiate such a claim for purposes of admissibility. Therefore, this part of the communication is inadmissible under article 2 of the Optional Protocol.

9.5The Committee observes that the author’s allegations of violations of his rights under article 7, article 9, paragraph 1, article 10, article 14, paragraph 1, article 17, paragraphs 1 and 2, article 19, paragraphs 1 and 2, and article 26 of the Covenant, contained in his subsequent submissions dated 10 October 2010, 8 November 2010, 5 December 2010, 10 January 2011, 17 March 2011, 22 March 2011, 11 April 2011, 28 April 2011, 3 May 2011 and 30 May 2011, are not substantiated in relation to the subject matter of his initial communication, namely that the refusal of the Velikie Luki town court to hear his case for moral damages caused by the publication of erroneous information on the court’s website, constituted a denial of justice. Therefore, the allegations in the above submissions are inadmissible under article 2 of the Optional Protocol. The finding above is without prejudice to the author’s ability to submit a separate communication with regard to any alleged violations of his rights under the Covenant that may have occurred.

10.The Committee therefore decides:

(a)That the communication is inadmissible pursuant to article 2 of the Optional Protocol; and

(b)That this decision shall be transmitted to the State party and to the author.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.]