Zheludkova v. Ukraine

Mrs. Tatiana Zheludkova v. Ukraine, Communication No. 726/1996, U.N. Doc. CCPR/C/75/D/726/1996 (2002).
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The applicant and her son were Ukrainian nationals of Russian origin. The applicant lodged a claim before the United Nations Human Rights Committee (the Committee) on behalf of her son who by then was detained in Ukraine as a result of his conviction on Rape by the district court. His appeals to the regional and supreme courts had been dismissed.   The applicant claimed that there had  been a violation of Articles 2, 7, 9, 10 and 14 of the International Covenant on Civil and Political Rights (the ICCPR).

The applicant claimed that her son was subjected to ill-treatment and inhuman conditions of detention as he was beaten and forced in to writing a self-incriminating confession by police officers, in particular by the father of the victim of the rape he allegedly committed. She alleged that her son’s health had been damaged due to the beatings and he hadn’t been provided with medical  treatments. She couldn’t present medical records before the Committee as her son had no access to his medical records but presented a medical report by a doctor who treated her son.  She stated that there had been shortage of food, medication and basic necessities in prison, and that she once was prevented from providing medication to her son for the methane poisoning he had at the time.

The applicant also stated that her son hadn’t been provided with access to his lawyer for 7 days after his arrest and hadn’t been charged for 50 days after his detention, in violation of Articles 9(2) and 14(3) of the ICCPR. Her son’s right to a fair trial guaranteed under Article 14 (1) of the ICCPR had been violated as he had made forced confession, was falsely charged to cover a crime the victim of the alleged rape and another person had committed against her son, and he was denied the chance to examine witness at trial. She further stated that she had exhausted all domestic remedies, that they had requested the prosecution to institute a proceeding against the assailants twice and prosecution was refused.

The government argued that the applicant’s complaints had been groundless as her son’s case had been correctly investigated and decided for the protection of the public’s safety.

 

 

 

The committee noted that the applicant's claim that her son's confession was forced and that he had been beaten was rejected by the domestic court as groundless. It also noted that the applicant's request for the prosecution of the assailants had been examined and dismissed by the prosecutors for lack of a basis for instituting proceedings. Because the applicant hadn't presented an evidence that showed unequal treatment by the authorities, the Committee decided not to examine the claim and held that it was inadmissible. The applicant's claim against the decision of the court that had falsely convicted her son had also been held inadmissible as she hadn't demonstrated a misconduct by the court. The Committee also held inadmissible the claim of the applicant in relation to her son's inability to examine a witness on the ground that she hadn't raised this issue on appeal. There had, therefore, been no violations of Article 14 or 14 (3) of the ICCPR.

The Committee noted that the applicant's son hadn't been informed of the charges against him or brought before court for 50 days and that the government hadn't shown that the procurator who decided on the detention of the applicant's son had "the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" within the meaning of article 9, paragraph 3" of the ICCPR.   [Para. 8.3] The Committee thus found a violation of Article 9(3) of the ICCPR.

The Committee noted that the applicant's son had been denied direct access to his medical records by the authorities despite his repeated requests without an explanation, constituting a violation of Article 10(1) of the ICCPR. The Committee decided for the applicant to be awarded compensation, and held that Ukraine had to "take effective measures to ensure that similar violations do not recur in the future, especially by taking immediate steps to ensure that the decisions concerning the extension of custody are taken by an authority, having the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" within the meaning of article 9, paragraph 3" of the ICCPR. [Para. 10]

 

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