CCPR/C/128/D/2367/2014 Annex Joint opinion of Committee members Vasilka Sancin, José Manuel Santos Pais and Gentian Zyberi (dissenting) 1. We regret not being able to join the majority of the Committee in finding a violation of Evgeny Bryukhanov’s rights under article 14 (3) (e) of the Covenant. 2. The facts of the case reveal that Mr. Bryukhanov was arrested in August 2010 on charges of sexual assault of his stepdaughter, a minor. Once in detention, he was also charged with eight other episodes of sexual assault (para. 2.1). The author had been previously convicted of another crime of rape (paras. 4.1 and 5.1). On the date of the sexual assault committed by the author, his stepdaughter was less than 14 years old. The author was ultimately convicted and sentenced to 13 years of imprisonment for repeated acts of sexual violence inflicted on the victim, who was a child (paras. 2.3 and 4.1). 3. The author acknowledges that he confessed his guilt but submits that his acceptance of guilt should not have been admitted as evidence by the court (para. 2.2). That notwithstanding, the author never provided any details on the alleged beatings he was subjected to in order to force him to confess. Furthermore, the cassation appeal court maintained that the author’s confession was voluntary (para. 2.3). Nor did the author rebut the argument adduced by the State party according to which on 21 August 2010, as attested by the records, a police officer on duty at police station No. 9 put together a statement from the author, who had come to the police station voluntarily and admitted that on 20 August 2010 he had picked up his stepdaughter from his mother-in-law’s house, had taken her to a forest and had raped her there (para. 6.2). 4. During the sexual assault, the only persons present were the author and the victim. No other persons witnessed the events. 5. The author claims that the victim was not questioned in court and that one of the main witnesses for the prosecution, L.M.A., was questioned during the investigation but did not appear in court to testify. Additionally, several experts were questioned and provided their expert conclusions during the investigation but were not called to court and their conclusions were simply read into the record (para. 3.5). 6. The Committee considered the author’s claims that his right to call, obtain attendance of and examine witnesses had been violated in that he could not question the main witness for the prosecution, in other words the victim, the victim’s teacher, L.M.A., and expert witnesses, all of whom provided information against the author during the investigation but were not called to court to testify or were otherwise not available for questioning by the defence (paras. 3.5 and 9.2). The Committee also rightly pointed out, however, that the right of the accused to obtain the examination of witnesses on his or her own behalf is not absolute. It is only the right to have those witnesses admitted who 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. 1 There can be certain restrictions on the author’s right to call witnesses that are justified by the need for protection of the victim’s rights,2 which in the present case is particularly pertinent considering the fact that the victim, a child under 14 years old and the stepdaughter of the author, was a minor. 7. The court hearings were not open to the public because the author was accused of crimes of a sexual nature against an underage person, but the author and his lawyer actively participated in the hearings, providing evidence and questioning the conclusions of the prosecution (para. 4.6), and were thus not prevented from presenting the arguments for the defence. 8. The victim herself was present at the court hearings on five occasions and the fact that she was not present on four other occasions did not harm the author’s position, since the defence neither requested postponement of the court hearings nor complained of the 1 2 10 See Allaberdiev v. Uzbekistan (CCPR/C/119/D/2555/2015), para. 8.8. See Stasaitis v. Lithuania (CCPR/C/127/D/2719/2016 and Corr.1), para. 8.6.