CCPR/C/128/D/2789/2016
1). Implicit in the adherence of a State to the Optional Protocol is the undertaking to
cooperate with the Committee in good faith so as to permit and enable it to consider such
communications and, after examination thereof, to forward its Views to the State party and
to the individual concerned (art. 5 (1) and (4)). It is incompatible with its obligations under
article 1 of the Optional Protocol for a State party to take any action that would prevent or
frustrate the Committee in its consideration and examination of communications and in the
expression of its Views.13
6.3
In the present case, the Committee observes that, when the author submitted the
communication, on 15 July 2016, she informed the Committee that her father had been
sentenced to death and that the sentence could be carried out at any time. On 19 July 2016,
the Committee transmitted to the State party a request not to carry out the death sentence
while the case was under examination by the Committee. In November 2016, the
Committee received information that Mr. Yakovitsky had been executed, despite the
request for interim measures of protection. The Committee observes that it is uncontested
that the execution in question took place, in total disregard of the request for interim
measures of protection addressed to the State party.
6.4
The Committee reiterates that, apart from any violation of the Covenant found
against a State party in a communication, a State party commits serious violations of its
obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the
Committee of a communication alleging a violation of the Covenant, or to render
examination by the Committee moot and the expression of its Views concerning the
implementation of the obligations of the State party under the Covenant nugatory and
futile. 14 In the present case, the author alleged that her father’s rights under various
provisions of the Covenant had been violated in a manner that directly reflected on the
legality of his death sentence. Having been notified of the communication and the request
by the Committee for interim measures of protection, the State party committed a serious
violation of its obligations under the Optional Protocol by executing the alleged victim
before the Committee had concluded its consideration of the present communication.
6.5
The Committee recalls that interim measures under rule 94 of its rules of procedure,
adopted in accordance with article 39 of the Covenant, are essential to the Committee’s role
under the Optional Protocol, in order to avoid irreparable damage to the victim of an
alleged violation. Violation of that rule, especially by irreversible measures, such as, in the
present case, the execution of Mr. Yakovitsky, undermines the protection of Covenant
rights through the Optional Protocol.15
Issues and proceedings before the Committee
Consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with article 97 of its rules of procedure, whether the communication
is admissible under the Optional Protocol.
7.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
7.3
The Committee notes the State party’s contention that the author’s father failed to
exhaust all domestic remedies available to him by not filing himself a supervisory review
request with the Prosecutor General and the Supreme Court. The Committee observes that
his counsel, Mr. Kremko, filed such a request, which was rejected through decisions signed
by the Deputy General Prosecutor and the Deputy Chair of the Supreme Court. The
Committee recalls its jurisprudence according to which a petition for supervisory review to
13
14
15
6
See, inter alia, Piandiong v. Philippines (CCPR/C/70/D/869/1999 and Corr.1), para. 5.1; Maksudov v.
Kyrgyzstan (CCPR/C/93/D/1461, 1462, 1476 and 1477/2006), paras. 10.1–10.3; and Yuzepchuk v.
Belarus (CCPR/C/112/D/1906/2009), para. 6.2.
See, inter alia, Idieva v. Tajikistan (CCPR/C/95/D/1276/2004), para. 7.3, and Kovaleva and Kozyar v.
Belarus (CCPR/C/106/D/2120/2011), para. 9.4.
See, inter alia, Saidova v. Tajikistan (CCPR/C/81/D/964/2001), para. 4.4; Tolipkhuzhaev v.
Uzbekistan (CCPR/C/96/D/1280/2004), para. 6.4; and Kovaleva and Kozyar v. Belarus, para. 9.5.