relevant in interpreting article 6 (1), as noted in some of
the individual opinions.
death. No less than five members of the Committee
dissented from the Committee’s Views, precisely on the
nature, operation and interpretation of article 6 (1) of the
Covenant. The reasons which led those five members to
dissent were individually expressed in separate individual
opinions which are appended to this separate opinion as A,
B, C, D and E. In the case of the separate opinion at E,
only the fact that appears most relevant is reproduced
(paragraph 19 to 25).
It is also encouraging that the Supreme Court of
Canada has held that in similar cases assurances must, as
the Committee notes, be obtained, subject to exceptions. I
wonder to what extent these exceptions could conceptually
be envisaged given the autonomy of article 6 (1) and the
possible impact of article 5 (2) and also article 26 which
governs the legislative, executive and judicial behaviour of
States parties. That, however, is a bridge to be crossed by
the Committee in an appropriate case.
My second observation is that other provisions of the
Covenant, in particular, articles 5 (2) and 26, may be
Communication No. 836/1998
Submitted by: Kestutis Gelazauskas (represented by K. Stungys)
Alleged victim: The author
State party: Lithuania
Views: 17 March 2003
combination of blows to his body and stabs to his
eyes, heart and lungs. There were 27 injuries on the
victim's body and an attempt to saw off his leg.
Several witnesses alleged that they had been told by
the defendants that both of them had killed the
victim. Both defendants were found guilty as
charged and were sentenced to the same period of
imprisonment.
Subject matter: Impossibility for a convicted to file a
cassation appeal against his/her sentence/
conviction
Procedural issues: Incompatibility ratione materiae
with provisions of the Covenant
Substantive issues: Right to a fair trial -Right to have
his/her sentence reviewed by a higher tribunal
- Right not to be compelled to testify against
oneself
2.2 Applications for cassation motions were made
on behalf of the author on four occasions but a review
of the author’s case was always denied. On
28 September 1995, the author's mother made an
application for cassation motion.1 On the same day,
the author's counsel made a similar application for
cassation motion, which was rejected by the chairman
of the Division of Criminal Cases of the Supreme
Court on 8 December 1995. On 2 April 1996, the
author's counsel made another application for
cassation motion, which was also rejected by the
chairman of the Supreme Court. Finally, on 15 April
1996, the author's counsel made a last application for
cassation motion which was rejected on 12 June 1996.
Articles of the Covenant: 14, paragraphs 1, 3 (g),
and 5
Articles of the Optional Protocol: 3; 5, paragraph 2 (a)
Finding: Violation (article 14, paragraph 5)
1.
The author of the communication, dated 14
April 1997, is Mr. Kestutis Gelazauskas, a citizen of
Lithuania and currently serving a prison term of
13 years in Pravieniskes penitentiary No. 2,
Lithuania. He claims to be a victim of a violation by
Lithuania of article 14, paragraphs 1, 3 (g) and 5 of
the International Covenant on Civil and Political
Rights (the Covenant). He is represented by counsel.
The complaint
3.1 The author alleges a violation of article 14,
paragraph 5, of the Covenant on the grounds that he
had no possibility to make an appeal against the
judgement of 4 May 1994. In this case, the court of
first instance was the Supreme Court and, under the
State party's legislation, its judgements are not
subject to appeal. Such a judgement may be
reviewed by an application for cassation motion to
The facts as submitted by the author
2.1 On 4 May 1994, the author was sentenced,
together with a co-defendant, to 13 years'
imprisonment for the murder, on 20 March 1993, of
Mr. Michailas Litvinenka. According to the
judgement, the victim was murdered in his home by
both defendants after they had been drinking
together. The victim was found hidden in his sofa
and had died, in the opinion of medical experts, by a
1
The author claims that he has not received any answer
on this application.
101
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