Bandajevsky v Belarus, UN Human Rights Committee (2002) (excerpts)

Bandajevsky v Belarus, UN Human Rights Committee Communication 1100/2002 (excerpts)


10.13 The author has claimed that his sentence was not susceptible of cassation appeal and became executory immediately. The State party affirms that the case was examined by the Supreme Court under a supervisory procedure which reviewed the first instance judgment, and that if the Supreme Court had detected violations of the law, the judgment would have been cancelled. The Committee notes, however, that the judgment stipulates that it could not be reviewed by a higher tribunal. The supervisory review invoked by the State party only applies to already executory decisions and thus constitutes an extraordinary mean of appeal which is dependent on the discretionary power of judge or prosecutor. When such review takes place, it is limited to issues of law only and does not permit any review of facts and evidence. The Committee recalls that even if a system of appeal may not be automatic, the right to appeal within the meaning of article 14, paragraph 5, imposes on States parties a duty substantially to review conviction and sentence, both as to sufficiency of the evidence and of the law. (7) In the circumstances, the Committee considers that the supervisory review cannot be characterized as an "appeal", for the purposes of article 14, paragraph 5, and that this provision has been violated.