Facts

On 27 November 2008, the author was arrested by officers of the State Security Committee and brought to
the premises of the Prosecutor General’s Office, where he was informed by a senior investigator for
particularly serious cases of the Prosecutor General’s Office that criminal proceedings under article 16, parts
4 and 6, and article 431, part 1, of the Criminal Code of Belarus (criminal complicity in giving a bribe) had
been instituted against him. On the same day, the author’s remand in custody was endorsed, in absentia, by
the Deputy Prosecutor General as a measure of restraint.

On 5 December 2008, the author was informed that, on 4 December 2008, he had been charged under article
16, parts 4 and 6, and article 431, part 1, of the Criminal Code.

On 28 November 2008, 10 December 2008 and 15 January 2009, the author’s counsel submitted complaints
to the Prosecutor General about the unlawful actions of his subordinate officers in relation to the author’s
arbitrary arrest, detention and institution of criminal proceedings. In violation of the law, however, the
complaints were forwarded to the officers in question, who dismissed them.1

On 30 December 2008, the author’s counsel complained to the Court of the Central District in Minsk,
appealing the decision of the Deputy Prosecutor General of 27 November 2008 regarding the author’s
remand in custody. On 10 January 2009, the Court of the Central District in Minsk rejected the complaint on
the grounds that, under article 126, part 1, of the Criminal Procedure Code, remand in custody is applied to a
person suspected of having committed a crime punishable by more than two years of imprisonment. The
Court found that the author had been taken into custody on 27 November 2008 as he was suspected of
having committed a crime under article 16, parts 4 and 6, and article 431, part 1, of the Criminal Code. The
Court concluded that the author’s right to defence had not been violated, his remand in custody had been
endorsed by authorized officers (a prosecutor) in conformity with the law in force and the decision of the
Deputy Prosecutor General had provided reasons for the application of the chosen measure of restraint.

On 15 January 2009, the author’s counsel appealed the above ruling to the Minsk City Court. He specifically
argued that his client’s rights under article 9 (1), (3) and (4) of the Covenant had been violated. Furthermore,
counsel contended that his complaint of 30 December 2008, appealing the decision of the Deputy Prosecutor
General of 27 November 2008 on the author’s remand in custody, had been transmitted to the Court only on
9 January 2009, rather than within 72 hours, as envisaged under article 143, part 3, of the Criminal
Procedure Code.

On 20 January 2009, the Minsk City Court dismissed the appeal of 15 January 2009 on the same grounds as
those of the Court of the Central District in Minsk (see para. 2.4 above), without addressing counsel’s claims
under article 9 of the Covenant. The ruling reads, inter alia, that, under article 126, part 1, of the Belarus
Criminal Procedure Code, remand in custody is applied to a person suspected of having committed a crime
punishable by more than two years of imprisonment. On 4 December 2008, the author had been charged
with having committed a crime under article 16, parts 4 and 6, and article 431, part 1, of the Criminal Code,
punishable by up to five years in prison and, therefore, the charge “conformed to” the decision on the
author’s remand in custody. This ruling was final.

Issue

State party has violated his right under article 9 (3) of the Covenant, to be brought promptly before a judge
or other officer authorized by law to exercise judicial power.

Ruling
The Committee notes the State party’s assertion that there are no legal grounds for the consideration of the
author’s communication, insofar as it is registered in violation of the provisions of the Optional Protocol;
that it has no obligations regarding recognition of the Committee’s rules of procedure nor the Committee’s
interpretation of the provisions of the Optional Protocol; and that decisions taken by the Committee on the
present communication will be considered by its authorities as “invalid”. The Committee also notes State
party’s observation that registration of communications submitted by a third party (lawyers, other persons)
on behalf of individuals claiming a violation of their rights constitutes an abuse of the mandate of the
Committee and of the right to submit a communication.

The Committee notes that, after the author’s arrest on 27 November 2008, his remand in custody was
endorsed by the Deputy Prosecutor General on the same day. The Committee recalls that, in its general
comment No. 35, it stated that it is inherent to the proper exercise of judicial power that it be exercised by an
authority which is independent, objective and impartial in relation to the issues dealt with, 4 and that a public
prosecutor cannot be considered as an officer authorized to exercise judicial power within the meaning of
article 9 (3).5 Accordingly, the Committee concludes that, in the circumstances of the present case, the
author’s right under article 9 (3) of the Covenant to be promptly brought before a judge after his arrest on
criminal charges has been violated.

The Committee also notes that the author’s appeal to the Court of the Central District in Minsk concerning
the Deputy Prosecutor General’s decision to place him in custody was submitted to the Office of the
Prosecutor General on 30 December 2008. It further notes, as pointed out by the author, that, under the
provisions of the domestic law, 6 the Office of the Prosecutor General was obliged to transmit the author’s
appeal to court within 72 hours after reception. Nevertheless, the appeal in question was transmitted to the
court only on 9 January 2009. The Committee refers to its general comment No. 35, according to which the
right to bring proceedings before a court apply from the moment of arrest. 7 The adjudication of the case
should take place as expeditiously as possible. 8 In the light of this, the Committee considers that in the
circumstances of the present case, the delay of 10 days for the Office of the Prosecutor General to transmit
the author’s appeal to court constitutes a violation of the author’s rights under article 9 (4) of the Covenant.