CCPR/C/112/D/1989/2010 Appendix [Original: English] Joint opinion of Committee members Yuval Shany, Dheerujlall B. Seetulsingh and Fabian Salvioli (dissenting) 1. We believe that the majority on the Committee erred in finding the communication inadmissible with respect to the author’s claim that he was denied the right to summon a defence witness for the following reasons. 2. The author was arrested on 25 March 2008 and convicted on the following day for committing an administrative offence (participation in an unauthorized demonstration), which falls within the ambit of the determination of a criminal charge under article 4, paragraph 1, of the Covenant. He claimed in his defence that he did not participate in the demonstration, but merely passed by it. He was precluded from summoning a witness that could have testified in his defence. The first instance court explained the decision not to allow the author to summon his defence witness by noting that the witness was detained on the same offence. The second instance court explained that summoning the witness was not necessary, since the author’s guilt was established by the testimonies of the two police officers who had detained him (who did not actually see him participating in the demonstration) and by corroborating evidence. 3. Under article 14, paragraph 3 (e), of the Covenant, everyone has the right to “obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. Although this right is not absolute and is restricted to witnesses whose testimony is “relevant for the defence”,a nothing in the case file suggests that the courts in the State party have denied the author’s request to summon witnesses for lack of relevance. Instead, the two courts invoked other reasons for their decisions – namely, the detention of the witness on the same offence and the strong evidence against the author – reasons that cannot be justified under the Covenant. 4. The majority based its decision to dismiss the communication on the inability of the author to substantiate his claim of a violation of article 14, paragraph 3 (e), of the Covenant, because he “has not provided any further explanations regarding the relevance of the witness to his case. In particular, the author has not provided any information as to how and what exactly this witness could have affirmed in his defence, as well as how the questioning of that witness in court could have affected the final finding of the court concerning the author’s guilt.” We disagree with that approach, since we are of the view that, except where a defendant seeks to summon a clearly irrelevant witness, it is for the State party to invoke valid reasons for preventing the summoning of defence witnesses. That latter burden was not met in the present case. Instead, the aforementioned reasons cited by the reviewing courts for denying the author’s request, strongly suggest that the decision was not based on lack of relevance, but on other considerations. 5. Even if one were to accept the majority approach that the author carries an initial burden of showing the relevance of the requested witness to his defence, the Committee could have resorted to its power under rule 86, paragraph 1 (e), of its rules of procedure, to seek from the author a clarification of the facts of the claim (whatever the punishment meted out for the offence might be). We believe such a procedural move would have been particularly justified, since the author was not represented by counsel in the present proceedings. a 8 See the Committee’s general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 39.