Communication No. 790/1997
by: Mr. Sergei Anatolievich Cheban et al(represented by
counsel, Ms. Elena Kozlova)
victims: The authors
party: The Russian Federation
communication: 12 March 1997 (initial submission)
Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
on 24 July 2001,
concluded its consideration of communication No. 790/1997 submitted
to the Human Rights Committee by Mr. Sergei Anatolievich Cheban et
al under the Optional Protocol to the International Covenant on
Civil and Political Rights,
taken into account all written information made available to it
by the authors of the communication, and the State party,
Views under article 5, paragraph 4, of the Optional Protocol
1.1 The authors of the communication, dated 12 March 1997, are Sergei
Anatolievich Cheban, born on 27 February 1977, Sergei Alexandrovich
Mishketkul, born on 20 February 1977, Vasili Ivanovich Philiptsevich,
born on 14 April 1978, and Stanislav Igoervich Timokhin, born on 22
November 1978. They claim to be victims of a violation by the Russian
Federation of article 14, paragraphs 1, 2 and 3 (e), and article 14,
paragraph 4 of the Covenant. They assert also that they were denied
a jury trial available to others, raising issues under article 26.
The authors are represented by counsel.
2.1 The authors
were convicted on 17 February 1995, by the Moscow City Court, of criminal
acts committed on 24 January 1994, consisting of rape of a minor (who
was aged 13 at the time of the incident), accompanied by violence
and threats, and of acting in concert by prior agreement to commit
the crimes. At the time of the offences of which they were convicted,
the authors were all aged between 15 and 16 years and were attending
a boarding school in Moscow. The Moscow City Court reached its verdict
on the basis of: the evidence given by the victim; written statements
from witnesses; written statements by the authors; the police report
on the arrest of the authors; and two forensic examinations which
had found that the victim had had sexual relations and that the authors
were capable of having sexual relations.
2.2 In passing
sentence, the Court said that it took account of the age of the accused
and of character references in their favour. Philiptsevich was sentenced
to six years' imprisonment and the other three accused to five years'
imprisonment each. On appeal in cassation, the Supreme Court upheld
the decision of the Moscow City Court and confirmed the sentences.
Subsequently, the Vice-President of the Supreme Court lodged with
the Presidium of that Court an objection to the sentences, pursuant
to the rules governing the supervision of the judiciary. On 10 April
1996 the Presidium of the Supreme Court reduced the sentences to four
and a half years imprisonment for Philiptsevich and four years each
for the other three accused.
3.1 The authors
assert that the Moscow City Court arrived unfairly at its conclusion,
giving too much weight to the account of the victim. They assert that,
since there were no eyewitnesses or other direct evidence of rape,
the judge based his conclusions chiefly on the victim's statements.
Counsel for the accused had called on the court to have the victim
undergo psychiatric and psychological examination, in order to assess
how well she was able to perceive and understand facts and circumstances,
but no such examination had been undertaken.
3.2 At trial,
the accused had also requested a reconstruction of the incident, and
the submission of a description of the scene of the alleged crime,
including photographs and diagrams, which, in the view of the authors,
would have determined whether or not they were guilty of the rape
alleged. These requests were denied. The authors argue that the denial
of their request constitutes a breach of articles 14, paragraphs 1,
2 and 3 (e), of the Covenant.
3.3 The facts
as stated by the authors may also imply claims that the State party
committed breaches of article 14, paragraph 4, and article 26 of the
Covenant. As regards article 14, paragraph 4, the facts as stated
by the authors suggest that the court did not take into account the
age of the accused. The authors sought on several occasions to invoke
article 20 of the Russian Constitution, 1993, which provides that
cases in which an accused subject to the death penalty may, at his
request, be tried before a jury. Denial of a jury trial to the authors
might also raise an issue under article 26 because of a difference
in treatment between them and other accused persons who received a
State party's response
4.1 The State
party responds that the claims of breach of constitutional rights;
the assertion that the author's guilt was not sufficiently proven
and that the pre-trial investigation and formalities were incomplete,
have been investigated several times by the appropriate judicial authorities
and have not been confirmed. The State party declares that throughout
the judicial hearings the prosecution and the accused enjoyed equal
4.2 The State
party asserts also that a jury trial could not have been given to
the accused since there was no provision in its law for trial by jury
within the city of Moscow at that time.
4.3 The authors
had the services of legal counsel from the moment of their arraignment,
and their procedural rights were explained to them several times,
in the presence of counsel.
by the authors on the State party's response
5. In their
comments on the State party's reply, the authors reiterate that their
trial was unfair because they were prevented from gathering and submitting
evidence of their innocence.
and proceedings before the Committee
considering claims in a communication, the Human Rights Committee,
in accordance with rule 87 of its rules of procedure, must decide
whether the claim is admissible under the Optional Protocol to the
6.2 The Committee
notes that the case is not being examined under another procedure
of international investigation, and that domestic remedies had been
exhausted. The requirements laid out in article 5, paragraph 2, of
the Optional Protocol are, therefore, satisfied.
6.3 The Committee
notes that the State party has raised no objections to the admissibility
of the communication.
regard to the authors' allegations of violation of the presumption
of innocence (article 14, paragraph 2, of the Covenant), the Committee
finds that this claim has not been sufficiently substantiated for
purposes of admissibility.
regard to the alleged violations of article 14, paragraphs 1, 3 (e),
and paragraph 4, the Committee notes that the author's claims essentially
relate to the evaluation of facts and evidence as well as to the implementation
of domestic law. The Committee recalls that it is in general for the
courts of State parties, and not for the Committee, to evaluate the
facts in a particular case and to interpret domestic legislation.
The information before the Committee and the arguments advanced by
the authors do not show that the Courts'evaluation of the facts and
their interpretation of the law were manifestly arbitrary or amounted
to a denial of justice. The Committee concludes that these claims
are therefore inadmissible under articles 2 and 3 of the Optional
6.6 The other
claims submitted are admissible and the Committee proceeds to consider
them on the merits.
on the merits
the authors do not cite article 26 of the Covenant, the Committee
is of the view that it must consider, in light of the submissions
of the authors, whether that article has been breached.
7.2 The claim
of discrimination made by the authors is that they were denied a jury
trial, while a jury trial was granted to some other accused persons
in courts of the State party. The Committee notes that while the Covenant
contains no provision asserting a right to a jury trial in criminal
cases, if such a right is provided under the domestic law of the State
party, and is granted to some persons charged with crimes, it must
be granted to others similarly situated on an equal basis. If distinctions
are made, they must be based on objective and reasonable grounds.
7.3 The authors
claim that they should have been afforded a trial by jury, afforded
to all accused persons liable to the death penalty. The Committee
notes, however, that in the present case the authors were juveniles
at the time the crimes were committed and thus they were not subject
to the death penalty according to domestic legislation.
possible claim of violation of article 26 is that trial by jury was
made available in trials in some parts of the country but not in Moscow
where the authors were tried and convicted. The Committee notes that
under the Constitution of the State party the availability of jury
trial is governed by federal law, but there was no federal law on
the subject. The fact that a State party that is a federal union permits
differences among the federal units in respect of jury trial does
not in itself constitute a violation of article 26 (2). As
the authors have provided no information on cases in which jury trials
have been held in non-capital cases in the city of Moscow, the Committee
cannot conclude that the State party violated article 26.
8. 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 facts before it do not reveal a breach of
any article of the Covenant.
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra
Natwarlal Bhagwati, Mr. Maurice Glèlè Ahanhanzo, Mr. Louis Henkin,
Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein, Mr. David Kretzmer, Mr.
Rajsoomer Lallah, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin
Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Mr. Patrick
Vella and Mr. Maxwell Yalden.
[Adopted in English, French and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General
1. The communication
contains no direct presentation of the facts by either the authors
The Russian Constitution provides in its Article 5 that
Regions, and cities with
federal status, are equal units ("subjects") of the Russian
Federation, have their own legislative authority, and can enact their
own legislation. (Article 65 enumerates the units of the Federation.
Moscow city and Moscow Region, are equal and separate "subjects" of the Russian Federation.) See also Core document, HRI/CORE/1/Add.52,25
October 1995, paragraphs 24 and 30.