6.3 Counsel further notes that the body of the
executed prisoner is transferred at night-time to one
of the Minsk cemeteries and buried there by soldiers,
without leaving any recognizable sign of the name of
the prisoner or the exact location of his burial site.
by executing a person who has submitted a
communication to the Committee, not only from the
perspective whether the Committee had explicitly
requested interim measures of protection but also on
the basis of the irreversible nature of capital
punishment. However, in the circumstances of the
current communication and in light of the fact that
the first case in which the Committee established a
breach of the Optional Protocol for the execution of
a person whose case was pending before the
Committee10 was decided and published subsequent
to the execution of Mr. Bondarenko, the Committee
cannot hold the State party responsible for a breach
of the Optional Protocol due to the execution of
Mr. Bondarenko after the submission of the
communication, but prior to its registration.11
6.4 Counsel states that once the court which
pronounced the death sentence is informed of the
execution, that court then informs a member of the
family of the executed prisoner. The family is
thereafter issued a death certificate by the municipal
civil status service, where the court decision is
referred to as the cause of death.
6.5 Counsel asserts, without giving any further
detail, that Mrs. Schedko had informed her son’s
lawyer, the Supreme Court and the prison authorities
that she had submitted a communication to the
Human Rights Committee before her son’s actual
execution.
Admissibility considerations
9.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is
admissible under the Optional Protocol to the
Covenant.
7.1 On 12 September 2002 the State party replied
to the Committee’s request9 concerning the date of
the execution of the author’s son, and the exact
moment from which the State party was aware of the
existence of the communication. It asserts that
Mr. Bondarenko was executed on 16 July 1999,
further to the decision of the Minsk Regional Court
of 22 June 1998. It underlines that the Note of the
Office of the United Nations High Commissioner for
Human Rights concerning the registration of the
communication was dated 28 October 1999, i.e. that
the execution took place three months before the
State party was informed about the registration of the
communication under the Optional Protocol.
9.2 The Committee notes that the same matter is
not being examined under any other international
procedure and that domestic remedies have been
exhausted.
The
conditions set
forth
in
paragraphs 2 (a) and (b) of article 5 of the Optional
Protocol are therefore satisfied.
9.3 The Committee has noted the author’s
allegations that the courts did not have clear,
convincing and unambiguous evidence, proving her
son’s guilt of the murders, and that the President of
the Supreme Court ignored the testimony of her
son’s co-defendant given after the trial and refused
to include evidence which could have mitigated her
son’s guilt. In the author’s opinion, this shows
conclusively that the court had a preordained attitude
as far as her son’s guilt was concerned, and displays
the lack of independence and impartiality of the
courts, in violation of articles 6 and 14 of the
Covenant. These allegations therefore challenge the
evaluation of facts and evidence by the State party’s
courts. The Committee recalls that it is generally for
the courts of States parties to the Covenant to review
facts and evidence in a particular case, unless it can
be shown that the evaluation of evidence was clearly
arbitrary or amounted to a denial of justice, or that
7.2 The State party did not offer further
observations on the author’s allegations.
Issues and proceedings before the Committee
Alleged breach of the Optional Protocol
8.
The author has alleged that the State party
breached its obligations under the Optional Protocol
by executing her son despite the fact that a
communication had been sent to the Committee and
the author had informed her son’s lawyer, the prison
authorities and the Supreme Court of this measure,
prior to her son’s execution and the formal
registration of her communication under the
Optional Protocol. The State party does not
explicitly refute the author’s claim, stating rather that
it was appraised of the registration of the author’s
communication under the Optional Protocol by note
verbale of 28 October 1999, i.e., three months after
the execution. In its earlier case law the Committee
had addressed the issue of a State party acting in
breach of its obligations under the Optional Protocol
9
10
Communication No. 869/1999, Piandiong et al. v.
The Philippines.
11
Communications Nos. 839/1998, 840/1998, and
841/1998, Mansaraj et al. v. Sierra Leone, Gborie et al. v.
Sierra Leone, and Sesay et al. v. Sierra Leone,
paragraph 5.1 et seq.; communication No. 869/1999,
Piandiong et al. v. The Philippines, paragraph 5.1 et seq.
See endnote No. 2.
139
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents