CCPR/C/119/D/2586/2015
mandates are to examine and report publicly on human rights situations in specific
countries or territories, or cases of widespread human rights violations worldwide, do not
generally constitute an international procedure of investigation or settlement within the
meaning of article 5 (2) (a) of the Optional Protocol. 12 Accordingly, the Committee
considers that the examination of Mr. Zakharenko’s case by the Working Group on
Enforced or Involuntary Disappearances does not render the present communication
inadmissible under this provision.
6.3
As to the State party’s argument that the Committee cannot consider
communications submitted to it by a third party, the Committee notes that nothing in the
Optional Protocol prevents authors of communications from designating third parties as
recipients of the Committee’s correspondence on their behalf. It also notes that it has been
its longstanding practice that authors may designate representatives of their choice, not only
to receive correspondence, but to represent them before the Committee. Similarly, it has
been the long-standing practice of the Committee to allow relatives to bring proceedings for
alleged victims, who have died, disappeared or been prevented for other reasons from
bringing a communication or designating a representative. Both modes of representation are
reflected in rule 96 (b) of the rules of procedure. In the present case, the authors have
presented a duly signed power of attorney for the counsel to represent them and Mr.
Zakharenko — their son and father — before the Committee. The Committee therefore
considers that, for purposes of article 1 of the Optional Protocol, the communication has
been presented by the alleged victims, through their duly designated representative.
Accordingly, it is not precluded by virtue of article 1 of the Optional Protocol from
examining the present communication.
6.4
Regarding the State party’s argument that the authors have not exhausted the
domestic remedies available, the Committee takes note of the authors’ claim that they have
submitted a number of complaints regarding the disappearance of Mr. Zakharenko and that
the investigation has been ongoing since 1999 without any result owing to lack of
effectiveness of the investigation conducted by the Prosecutor’s Office. The Committee
takes note in that regard of the complaints filed by the authors on 26 January and 2 August
2004, 12 January 2005, 1 and 6 February 2009, 9 June and December 2010, an unspecified
date in February 2011, 30 April 2013 and others, to the Prosecutor of the city of Minsk, the
investigator of serious cases of the Minsk Prosecutor’s Office and the Prosecutor General.
The Committee also notes that the State party has not provided any details about the current
state of the investigation and has not demonstrated that the continuing investigation is
effective despite the apparent lack of any progress for many years, notwithstanding the
serious and grave nature of the authors’ allegations. A State party cannot avoid review of a
communication merely by relying on the existence of an ongoing investigation when such
an investigation is extremely prolonged and patently fruitless. Under these circumstances,
the Committee considers that domestic remedies have been unreasonably prolonged 13 and
ineffective. Accordingly, it finds that article 5 (2) (b) of the Optional Protocol does not
preclude it from considering the communication.
6.5
The Committee considers that the authors’ claims are sufficiently substantiated for
purposes of admissibility and therefore proceeds to their consideration on the merits.
Consideration of the merits
7.1
The Committee has considered the present communication in the light of all the
information made available to it by the parties, as provided in article 5 (1) of the Optional
Protocol.
7.2
The Committee notes the authors’ claim that articles 6, 7, 9, 10 and 26 of the
Covenant have been violated by the State party because of the enforced disappearance of
12
13
See communication No. 1811/2008, Djebbar and Chihoub v. Algeria, Views adopted on 31 October
2011, para. 7.2; see also communication No. 1820/2008 (see footnote 4 above), para. 7.2.
See, inter alia, communications No. 1560/2007, Marcellana and Gumanoy v. the Philippines, Views
adopted on 30 October 2008, para. 6.2; No. 1250/2004, Lalith Rajapakse v. Sri Lanka, Views adopted
on 14 July 2006, paras. 6.1-6.2; No. 992/2001 (see footnote 11 above), para. 8.3; and No. 1820/2008
(see footnote 4 above), para. 7.4.
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