Ukrainian Court sees no need to consider international obligations over the case of Viktor Shchetka
On 3 November 2011 the High Specialized Court of Ukraine issued its decision on an application to have the case of Viktor Shchetka reviewed following a damning judgement from the Human Rights Committee. The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, found at a meeting on 19 July 2011 that there had been violations of Article 7 of the International Covenant regarding the use of torture and the lack of investigation, as well as Article 14 with respect to the right to defence, the right to cross examine witnesses and falsification of evidence.
Four judges of the High Specialized Court - S. Dembovsky; S. Kravchenko; V. Kryzhanovsky and S. Slynko - having read the decision below found it in keeping with their understanding of the Ukrainian justice system to reject Viktor Shchetka’s application for a review of the case, and therefore his life sentence. Their argument is extraordinary:
: “In accordance with the requirements of Article 400-12 § 1.2 of the Criminal Procedure Code, the grounds for review by the Supreme Court of Ukraine of court rulings having entered into force, shall be the finding by an international court body whose jurisdiction is recognized by Ukraine of a violation by Ukraine of its international obligations in passing the court ruling”,
“From the analysis of the documents of international law cited, it is clear that the UN Human Rights Committee is not a court body, its judgement in form and substance is not a court ruling and from the legal point of view is not mandatory.”.
The information about the case is considerable. In the light of the Ukrainian judges’ ruling on 3 November, we first quote the Human Rights Committee’s decision on the merits of the case, and the obligations Ukraine took upon itself with regard to the International Covenant on Civil and Political Rights. Not to mention the constitutional right Viktor Shchetka has to a fair trial.
Consideration of merits
The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol.
The Committee notes the author's claim that her son was tortured by police officers and thus forced to confess guilt to the rape and murder of his wife's sister. He retracted his confession during an interrogation conducted by the investigative officer of the Prosecutor's Office with the use of video recording, claiming that he was tortured and coerced to take responsibility for the crimes. However, his allegations were ignored and the respective video materials were subsequently removed from his criminal file. The author provides details on the methods of ill-treatment used and contends that these allegations were raised by her son before the Prosecutor's Office, as well as in court. The Committee observes that Mr. Shchetka's lawyer submitted complaints to the Prosecutor's Office requesting, inter alia, for a medical examination and an investigation into his allegations of torture. In this regard, the Committee recalls that once a complaint about treatment contrary to article 7 has been filed, a State party must investigate it promptly and impartially. The Committee takes note of the State party's affirmation that Mr. Shchetka's allegations of torture were the object of an investigation conducted by the Prosecutor's Office of Minsk District and were also considered by the Supreme Court in cassation proceedings, but were dismissed as groundless. It further notes that the State party provided a written explanation from Mr. Shchetka (see para. 4.4 above) stating that he did not have any claims against the administration of the Kiev remand centre (No. 13) and the Zhitomir penitentiary institution (No. 8). The Committee observes that it is not clear from that explanation whether Mr. Shchetka referred to his detention following the arrest (when he was allegedly tortured) or to his detention following his conviction by the court. Given the fact that the explanation is dated 5 June 2006 and mentions none of the institutions where Mr. Shchetka alleged to have been tortured (the district police department and the temporary detention ward (KPZ-
23-GOM), see paras. 2.2 and 2.4 above), the Committee does not consider it relevant in connection with the author's claims under article 7.
The Committee also notes that Mr. Shchetka was allowed to see his lawyer only after seven days from the date of actual apprehension, when the marks of torture became less visible. It further notes the State party's argument that Mr. Shchetka confessed guilt of rape in the presence of a lawyer. However, the Committee observes that, while the State party has not provided any documentary evidence in support of its argument, Mr. Shchetka's claims are supported by the materials on file, inter alia by two complaints submitted to the prosecutor against the abuses committed by the investigative officer. In the absence of a thorough explanation from the State party regarding the investigation into the torture allegations, the reasons for refusing a medical examination of the author's son and the information provided by the author, such as the linguistic and graphologist examinations, the Committee considers that the State party's competent authorities did not give due and adequate consideration to Mr. Shchetka's complaints of torture made both during the pretrial investigation and in court. In these circumstances, the ommittee concludes that the facts before it disclose a violation of Mr. Shchetka's rights under articles 7 and 14, paragraph 3 (g), of the Covenant.
The Committee further notes the author's claim that the court ignored her son's request to call and examine several important witnesses that testified during the preliminary investigation and confirmed, inter alia, his alibi and the absence of injuries on his face after the commission of the crimes. The court also declined her son's motions for the conduct of additional forensic examinations. The Committee recalls that, as an application of the principle of equality of arms, the guarantee of article 14, paragraph 3(e), is important for ensuring an effective defence by the accused and their counsel and guaranteeing the accused the same legal power of compelling the attendance of witnesses relevant for the defence and of examining or cross-examining any witnesses as are available to the prosecution. In the present case, the Committee observes that the State party failed to respond to these allegations and to provide any information as to the reasons for refusing to examine the respective witnesses. In the absence of information from the State party in that respect, the Committee concludes that the facts, as reported, amount to a violation of Mr. Shchetka's rights under article 14, paragraph 3 (e), of the Covenant.
The author claims that her son's rights under article 14, paragraph 1, have been violated, as the court has failed to take into account exculpatory facts and evidence, to address the issue of fabrication and tampering with evidence by the investigation, as well as to verify the credibility of the main witness's testimony and, by doing so, it has given an unfair advantage to the prosecution's side. Her son was also referred to as the perpetrator in documents concerning the investigation. The Committee observes that the author's allegations refer primarily to the evaluation of facts and evidence and recalls its jurisprudence according to which it is generally not for itself, but for the courts of States parties, to review or to evaluate facts and evidence, unless it can be ascertained that the conduct of the trial or the evaluation of facts and evidence was manifestly arbitrary or amounted to a denial of justice. In the present case, the Committee notes that the State party has not addressed the substance of the author's respective claims, but merely affirmed, in general terms, that her son's guilt was duly established on the basis of corroborating testimonies and other evidence. Based on the materials on file, and given the Committee's findings of a violation of article 7, and article 14, paragraphs 3 (e) and (g), of the Covenant, the Committee is of the view that the consideration of Mr. Shchetka's case by courts did not observe the minimum guarantees of a fair hearing, in violation of article 14, paragraph of the Covenant.
Having reached the above conclusions, the Committee will not examine separately the author's claim under article 14, paragraph 2, of the Covenant.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party has violated article 7 and 14, paragraph 3 (g); article 14, paragraphs 1 and 3 (e), of the International Covenant on Civil and Political Rights.
Pursuant to article 2, paragraph 3 (a), of the Covenant, the Committee considers that
the State party is under an obligation to provide Mr. Shchetka with an effective remedy, including: carrying out an impartial, effective and thorough investigation into the allegations of torture and ill-treatment and initiating criminal proceedings against those responsible; considering his retrial in conformity with all guarantees enshrined in the Covenant or his release; and providing the victim with full reparation, including appropriate compensation. The State party is also under an obligation to take steps to prevent similar violations occurring in the future.
Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the Committee's Views
 See, e.g., Human Rights Committee, general comment No. 20 (1992) on the prohibition of torture and
cruel treatment or punishment), Official Records of the General Assembly, Forty-seventh Session,
Supplement No. 40 (A/47/40), annex VI, sect. A, para. 14.
 See Human Rights Committee general comment No. 32 on the right to equality before courts and
tribunals and to a fair trial, Official Records of the General Assembly, Sixty-second Session,
Supplement No. 40, vol. I (A/62/40 (Vol. I)), annex VI, para. 60; and communication No. 1401/2005,
Kirpo v. Tajikistan, Views adopted on 27 October 2009, para. 6.3.
 See Human Rights Committee general comment No. 32, para. 39.
 See, e.g., communication No. 1519/2006, Khostikoev v. Tajikistan, Views adopted on 22 October
2009, para. 7.3.