CCPR/C/143/D/2991/2017

GE.25-05876 (E) 300425 010525

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communication

No. 2991/2017, 

Communication submitted by:

Ulyana Zakharenko (represented by counsel,

Raisa Mikhailovskaya)

Alleged victim:

The author

State Party:

Belarus

Date of communication:

22 March 2017 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 13 June 2017 (not issued in

document form)

Date of adoption of Views:

14 March 2025

Subject matter:

Denial of right of access to courts

Procedural issue:

Exhaustion of domestic remedies

Substantive issue:

Fair trial

Article of the Covenant:

14 (1)

Articles of the Optional Protocol:

1, 2 and 5 (2) (b)

1.1

The author of the communication is Ulyana Zakharenko, a national of Belarus born in

1924. She claims that the State Party has violated her rights under article 14 (1) of the

Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The

author is represented by counsel.

1.2

The present communication was submitted for consideration before the State Party’s

denunciation of the Optional Protocol became effective, on 8 February 2023. In accordance

with article 12 (2) of the Optional Protocol and the Committee’s previous jurisprudence, the

State Party continues to be subject to the application of the Optional Protocol with regard to

the present communication.1

 Adopted by the Committee at its 143rd session (3–28 March 2025).

 The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia

Leinarte, Bacre Waly Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh

Changrok, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

1 For example, Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; Lobban v. Jamaica

(CCPR/C/80/D/797/1998), para. 11; and Shchiryakova et al. v. Belarus (CCPR/C/137/D/2911/2016,

3081/2017, 3137/2018 and 3150/2018), para. 10.

United Nations

CCPR/C/143/D/2991/2017

International Covenant on

Civil and Political Rights

Distr.: General

1 May 2025

Original: English

CCPR/C/143/D/2991/2017

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1.3

On 14 May 2018, the author died. In a letter dated 10 December 2018, her family

expressed interest in the Committee continuing its consideration of the communication. The

letter was signed by the author’s niece, Lubov Tokareva.

Facts as submitted by the author

2.1

The author’s son, Yuri Zakharenko, was kidnapped on 7 May 1999 and has been

missing ever since.2 The criminal investigation into his disappearance and possible killing,

initiated in September 1999, was still ongoing as at the date of submission of the present

communication. On 24 May 2016, the author requested the Oktyabrski District Court in

Minsk to declare her son dead so that she could enter into possession of her share of his assets.

She asked the court to consider the date of her son’s disappearance – 7 May 1999 – as the

date of his death.3 On 30 May 2016, the court suspended the case, without consideration of

the merits of the author’s request, and joined it to a similar case that had been submitted in

2002 by Mr. Zakharenko’s wife, Olga Zakharenko. The case of Olga Zakharenko had been

suspended on 9 September 2002 after the Oktyabrski District Court linked the declaration of

Mr. Zakharenko’s death to the outcome of the criminal investigation into his disappearance.

2.2

On 15 June 2016, the author appealed the suspension of her case to Minsk City Court.

She contested the District Court decision to link her civil claim to the criminal investigation.

She claimed that the fact that her son had been missing for 17 years was sufficient, under

article 41 of the Civil Code of Belarus, to declare him dead. On 1 August 2016, Minsk City

Court rejected the appeal. On 12 August 2016, the author submitted a supervisory review

appeal to the Chair of Minsk City Court, which was rejected on 12 September 2016. Her

supervisory review appeal of 7 October 2016, submitted to the Deputy Chair of the Supreme

Court, was rejected on 16 November 2017.

2.3

On 15 August 2016, the author submitted a clarification of her request to the

Oktyabrski District Court. She requested the court to declare her son dead because he had

been missing for more than three years, rather than on the basis of her previous claim to

consider him dead as at the date of his disappearance. On 7 October 2016, the author

requested the Deputy Chair of the Supreme Court to transmit her new claim to the first

instance court for consideration on the merits. On 16 November 2017, the Deputy Chair of

the Supreme Court rejected the author’s request, considering that the circumstances of the

court decision of 2002, by which the case requesting the declaration of Mr. Zakharenko’s

death was suspended, remained valid.

Complaint

3.1

The author claims a violation of article 14 (1) of the Covenant owing to the refusal of

the courts to consider her claim on the merits. She claims that the courts postponed

consideration of her claim for an indefinite period of time and put her in a situation of “legal

limbo” by linking her civil claim to the criminal investigation into her son’s disappearance,

which has been ongoing for 17 years. She claims that, by failing to apply national law, which

provides that a person can be declared dead after having been missing for three years, the

domestic courts created unjustified obstacles to the consideration of her claim and, hence, the

enjoyment of her right to benefit from her inheritance.

3.2

The author asks the Committee to urge the State Party to consider her claim on the

merits and to pay her compensation for the benefits lost during the period when she was

unable to dispose of her inherited property.

State Party’s observations on admissibility

4.1

In a note verbale dated 22 August 2017, the State Party contested the admissibility of

the communication on the basis of the author’s failure to exhaust domestic remedies.

2 See Zakharenko v. Belarus (CCPR/C/119/D/2586/2015).

3 According to article 41 of the Civil Code of Belarus, a person can be declared dead if, at the place of

the person’s residence, there has been no information on the person’s whereabouts for three years. If

the person disappeared under life-threatening circumstances, the respective period is six months.

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According to the State Party, the author failed to submit the supervisory review requests to

the Prosecutor General and the Chair of the Supreme Court.

4.2

On 23 April 2019, the State Party requested that the case be discontinued, since the

author had passed away. The State Party considered that the third parties, albeit the author’s

relatives, had no standing under article 2 of the Optional Protocol to continue representing

her interests in the case. The State Party emphasized that its position should in no way be

treated as a lack of cooperation.

4.3

On 29 December 2020, the State Party, referring to rule 99 (b) of the Committee’s

rules of procedure and article 2 of the Optional Protocol, challenged the continued

representation of the case by the author’s appointed counsel after the author’s death. The

State Party submits that the deceased author’s family members did not participate in the

relevant domestic proceedings and that they do not have standing to pursue the case in the

author’s stead or to authorize counsel to represent their interests.

Author’s comments on the State Party’s observations on admissibility

5.1

On 1 September 2017, the author challenged the State Party’s position, stating that

supervisory review requests to the Prosecutor General and the Chair of the Supreme Court

are not effective remedies for the purposes of article 5 (2) (b) of the Optional Protocol. The

decision on whether to initiate proceedings on the basis of such a request is entirely at the

discretion of public officials; the individual concerned cannot initiate the review directly. The

author asserted that she has exhausted all effective remedies, having submitted supervisory

review requests to the Chair of Minsk City Court and to the Deputy Chair of the Supreme

Court, and that it would be pointless to submit yet another supervisory review request.

5.2

On 30 January 2020, the deceased author’s family members – her granddaughter,

Elena Zakharenko, and her niece, Lubov Tokareva – submitted comments regarding the State

Party’s argument that they did not have standing to pursue the case after the author’s death.

Elena Zakharenko and Lubov Tokareva referred to the national legislation, which defines

family members as close and other relatives, unemployed dependents and other persons

living with a concerned person and running the household together. Elena Zakharenko is a

granddaughter of the deceased author. Lubov Tokareva cared for the elderly author for

20 years, resided with her after her son’s disappearance and was a lawful heir of the deceased

author. She inherited the author’s property after her death and was authorized by the deceased

author to represent her before the national authorities. Both Elena Zakharenko and Lubov

Tokareva have signed a power of attorney to be represented in the present communication by

the deceased author’s counsel.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

6.2

The Committee has ascertained, as required under article 5 (2) (a) of the Optional

Protocol, that the same matter is not being examined under another procedure of international

investigation or settlement.

6.3

The Committee notes the State Party’s argument that the author failed to file requests

for supervisory review with the Prosecutor General or the Chair of the Supreme Court. In this

context, the Committee considers that filing with a higher court a request for a supervisory

review of court decisions that have taken effect and depend on the discretionary power of a

judge constitutes an extraordinary remedy, and that the State Party must show that there is a

reasonable prospect that such a request would provide an effective remedy in the

circumstances of the case. The Committee recalls its jurisprudence, according to which a

petition for supervisory review submitted to a prosecutor’s office, dependent on the

discretionary power of the prosecutor, requesting a review of court decisions that have taken

effect does not constitute a remedy that must be exhausted for the purposes of article 5 (2) (b)

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of the Optional Protocol.4 The Committee notes that, in the present case, the author has

exhausted all effective domestic remedies. Accordingly, the Committee considers that it is

not precluded by article 5 (2) (b) of the Optional Protocol from examining the present

communication.

6.4

The Committee notes the State Party’s argument that third parties who did not

participate in the relevant domestic proceedings do not have grounds to continue the case

before the Committee. It has been the long-standing practice of the Committee to allow

relatives to bring proceedings for alleged victims who have died, disappeared or been

prevented for other reasons from bringing a communication or designating a representative.5

Both modes of representation are reflected in rule 99 (b) of the Committee’s rules of

procedure. In the present case, Elena Zakharenko and Lubov Tokareva are close relatives of

the deceased author and, as such, are entitled to represent the author’s interests by virtue of

rule 99 (b) of the rules of procedure. In addition, they are heirs of Mr. Zakharenko and of the

deceased author and thus have a personal interest in having the present communication

considered by the Committee. In view of the foregoing, the Committee considers that Elena

Zakharenko and Lubov Tokareva have valid grounds to pursue the proceedings initiated by

the deceased author.

6.5

Elena Zakharenko and Lubov Tokareva have presented a duly signed power of

attorney for the counsel to represent them before the Committee. The Committee therefore

considers that, for purposes of article 1 of the Optional Protocol, the communication has been

presented by the family of the alleged victim, through their duly designated representative.

Accordingly, it is not precluded by virtue of article 1 of the Optional Protocol from examining

the present communication.

6.6

The Committee considers that the author’s claim under article 14 (1) has been

sufficiently substantiated for the purposes of admissibility. It therefore declares the

communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

7.2

The Committee notes the author’s claim that her rights under article 14 (1) of the

Covenant were violated and that she was deprived of the possibility of inheriting her share

of her son’s property in a timely manner because the domestic courts had refused to consider

her request to declare her son, who had by then been missing for 17 years, dead. The

Committee reiterates its long-standing view that it is generally up to the courts of States

Parties to review the facts and evidence, or to apply the domestic legislation, in a particular

case, unless it can be shown that such evaluation or application was clearly arbitrary or

amounted to a manifest error or denial of justice, or that the court otherwise violated its

obligation of independence and impartiality.6

7.3

In the present case, the Committee notes the author’s submission that, under article

41 of the Civil Code, upon which she relied in the domestic courts, a person who has been

missing for more than three years can be declared dead by the courts. The Committee also

notes that, instead of considering her request under article 41 of the Civil Code on the merits,

the Oktyabrski District Court decided, on 30 May 2016, to join her case to a similar case that

had been filed by her daughter-in-law, in 2002. The latter case had been linked to the outcome

of the investigation into Mr. Zakharenko’s disappearance and its consideration had been

4 Gryk v. Belarus (CCPR/C/136/D/2961/2017), para. 6.3; Tolchin v. Belarus

(CCPR/C/135/D/3241/2018), para. 6.3; Shchukina v. Belarus (CCPR/C/134/D/3242/2018), para. 6.3;

Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; and Chebotareva v. Russian

Federation (CCPR/C/104/D/1866/2009), para. 8.3.

5 For example, Zakharenko v. Belarus, para. 6.3.

6 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and

tribunals and to a fair trial, para. 26; G.J. v. Lithuania (CCPR/C/110/D/1894/2009), para. 8.10; V.K. v

Russian Federation (CCPR/C/116/D/2411/2014), para. 6.6; and Akulich v. Belarus

(CCPR/C/140/D/2987/2017), para. 7.2.

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suspended for 14 years at that time. The Committee further notes that none of the domestic

courts provided the author with any reasoning as to why her case had to be linked to the

criminal investigation and why the domestic legislation on declaring a missing person dead

could not have been applied. In the Committee’s view, by refusing to consider on the merits

the author’s request to establish legally the fate of her missing son, the domestic courts have

denied her the right of access to courts under article 14 (1) of the Covenant.

8.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the information before it discloses a violation by the State Party of the author’s rights under

article 14 (1) of the Covenant.

9.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to

provide the author with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. Accordingly, the State Party is

obligated to take appropriate steps to guarantee expeditious access to courts to the author’s

heirs in the case of declaring Mr. Zakharenko dead and to pay them compensation for any

negative consequences caused by the lack of access to courts. The State Party is also under

an obligation to take all steps necessary to prevent similar violations from occurring in the

future.

10.

On becoming a party to the Optional Protocol, the State Party recognized the

competence of the Committee to determine whether there had been a violation of the

Covenant. The present communication was submitted for consideration before the State

Party’s denunciation of the Optional Protocol became effective, on 8 February 2023. In

accordance with article 12 (2) of the Optional Protocol and the Committee’s previous case

law, the State Party continues to be subject to the application of the Optional Protocol in

respect of the present communication.7 Since, 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 and to provide an effective and enforceable

remedy when it has been determined that a violation has occurred, the Committee wishes to

receive from the State Party, within 180 days, information about the measures taken to give

effect to the Committee’s Views. The State Party is also requested to publish the present

Views and to have them widely disseminated in the official languages of the State Party.

7 For example, Sextus v. Trinidad and Tobago, para. 10; Lobban v. Jamaica, para. 11; and

Shchiryakova et al. v. Belarus, para. 10.