CCPR/C/127/D/2719/2016
7.5
Regarding the author’s claims under article 14 (3) (e), the Committee notes that the
author has brought this issue to the attention of the domestic courts in the course of the
criminal proceedings conducted against him. The Committee further observes that the State
party has not objected to the admissibility of this part of the communication under article 5
(2) (b) of the Optional Protocol. Accordingly, the Committee considers that the
requirements of article 5 (2) (b) of the Optional Protocol have been met as concerns the
alleged claims under article 14 (3) (e) of the Covenant.
7.6
Finally, the Committee notes the State party’s challenge to admissibility in relation
to the author’s claims due to non-substantiation. However, the Committee considers that,
for the purposes of admissibility, the author has adequately explained the reasons
concerning his complaints not only under article 14 (3) (e) but also under articles 7 and 14
(2) of the Covenant. Therefore, the Committee declares the communication admissible and
proceeds with its consideration of the merits.
Consideration of the merits
8.1
The Committee has considered the present communication in the light of all the
information submitted to it by the parties, as required under article 5 (1) of the Optional
Protocol.
8.2
As regards the author’s claim under article 14 (3) (e) of the Covenant, the
Committee notes that the author had the opportunity to question the victim once in the
course of the criminal proceedings but that, despite his repeated requests, he was not
granted access to the pretrial investigation materials at the time and could not therefore
effectively exercise his right to examine the witness against him. The Committee also notes
the author’s claim that he should have had the opportunity to cross-examine the victim one
more time, especially given the inconsistencies in the statements made by her, in the
author’s absence, during the pretrial phase, inconsistencies that should have been clarified.
8.3
The Committee notes the State party’s claim in this respect that the author and his
counsel were allowed to cross-examine the victim during the hearing before Vilnius District
Court and that both asked her questions. The Committee is also mindful of the State party’s
submission that the domestic courts thoroughly examined the request of the author in this
respect and provided reasoned decisions for refusing it and that, therefore, the author’s right
to examine the witness against him was respected.
8.4
The Committee recalls paragraph 39 of its general comment No. 32, according to
which article 14 (3) (e):
Guarantees the right of the accused person to examine, or have examined, the
witnesses against them and to obtain the attendance and examination of witnesses on
their behalf under the same conditions as witnesses against them. As an application
of the principle of equality of arms, this guarantee is important for ensuring an
effective defence by the accused and their counsel and thus guarantees the accused
the same legal powers of compelling the attendance of witnesses and of examining
or cross-examining any witnesses as are available to the prosecution. It does not,
however, provide an unlimited right to obtain the attendance of any witness
requested by the accused or their counsel, but only a right to have witnesses
admitted that are relevant for the defence, and to be given a proper opportunity to
question and challenge witnesses against them at some stage of the proceedings.
Within these limits, and subject to the limitations on the use of statements,
confessions and other evidence obtained in violation of article 7, it is primarily for
the domestic legislatures of States parties to determine the admissibility of evidence
and how their courts assess it.
8.5
The Committee further recalls its jurisprudence, according to which considerable
weight should be given to the assessment conducted by the State party, and that it is
generally for the organs of the States parties to the Covenant to review and evaluate facts
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