On March 31, 2016, the case was won in the UN Human Rights Committee.

Заголовок: On March 31, 2016, the case was won in the UN Human Rights Committee. Сведения: 2024-05-22 05:08:05

The case of Y.M. v. the Russian Federation. Communication No. 2059/2011..

In 2011, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.

As can be seen from the text of the Considerations, the author claimed that from the first day of the trial he complained to the court that he was not given sufficient opportunities to familiarize himself with the case materials and that his requests were entered into the minutes of the court session many times; he was denied the right to be represented by a lawyer of his own choosing during the trial court hearings in the first instance; contrary to what was entered in the court record, the proceedings were not open because the court did not summon his mother and sons so that they could attend the court hearings; He repeatedly objected to the "closed" nature of the trial; during the first court hearing, he applied for the subpoena and interrogation of one expert witness and six additional witnesses, including Mr. C.A.S., but the court rejected his request.

The Committee's legal position: Referring to its general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, the Committee stated that all criminal trials should, in principle, be conducted orally and be open to the public, except in cases where the court decides not to to admit all or part of the public for reasons of morality, public order (ordre public) or State security, or if this is required by the interests of protecting the privacy of the parties. Even in cases where the public is denied access to the trial, the court decision, including the main conclusions, evidence and legal arguments, must be made public (paragraph 9.2 of the Considerations).

The Committee refers to its general comment No. 32, in which it indicates that the definition of "sufficient time" depends on the circumstances of each case and that "sufficient opportunities" should include access to all materials that the prosecution plans to present at trial against the accused (paragraph 9.3 of the Considerations). By virtue of subparagraph "b" of paragraph 3 of article 14 of the International Covenant on Civil and Political Rights."..[k]Everyone has the right, when considering any criminal charge against him, to at least the following guarantees on the basis of full equality:.... to have sufficient time and opportunities to prepare his defense and communicate with the defender chosen by himself ...".

The Covenant guarantees the right of a person "to defend himself personally or through a lawyer of his own choosing." This right entails the freedom of the accused not only to choose, but also to replace a lawyer, and this right should not be limited, except if it is absolutely necessary for the administration of justice, for example, if the accused abuses the right to replace a lawyer. The Covenant guarantees the right of the accused to replace a lawyer who, in his opinion, is not suitable for the case, or who, as he suspects, is acting contrary to his interests (paragraph 9.4 of the Considerations).

It is the responsibility of the State party to demonstrate that the author, who has been brought to trial for serious crimes punishable by up to 25 years in prison, was properly informed of his right to a lawyer and that he deliberately refused to exercise this right (paragraph 9.7 of the Views).

Although the right to involve witnesses in the trial is not absolute, the accused or their defense counsel should have the right to admit witnesses whose testimony may be significant for the defense, as well as to provide an appropriate opportunity to interview and challenge the statements of witnesses against them at one stage of the proceedings (paragraph 9.9 of the Considerations).

The Committee's assessment of the factual circumstances of the case: the State party did not explain why it was necessary to close the entire trial, including hearings of facts and evidence related to charges of murder, robbery and illegal possession of weapons, instead of closing only part of the meeting in order to protect the rights of minors and prevent the disclosure of information about intimate and personal parties the lives of the persons involved in the case. The Committee considered that the State party had not justified the denial of public access to the entire trial of the author for any of the reasons set out in article 14, paragraph 1, of the Covenant (paragraph 9.2 of the Views).

The Committee found that the author had the opportunity to study the case file from January 25, 2002 to March 12, 2002. In addition, on 11 and 18 February 2002, the author was warned that his conduct in order to delay familiarization with the case file was unacceptable. The Committee took note of the time limits for reviewing the case, however, given that the applicant had about one and a half months to study the case, the Committee was not convinced that the allocated time was insufficient. Based on the above, the Committee concluded that the author's rights under article 14, paragraph 3 (b), of the Covenant had not been violated (paragraph 9.3 of the Views).

As seen from the minutes of the court session, the author asked to be provided with "any other lawyer" and insisted that he wanted to "consult with his family in choosing a lawyer". On page 44 of the said protocol, it is recorded that the author raised this issue again and asked to invite a "public defender". The Committee drew attention to the fact that, as it followed from the explanations of the author and the State party, as well as the minutes of the court session, the courts of the Russian Federation did not grant the applicant's request to appoint any other lawyer or public defender and imposed an obligation on him to substantiate his request. The Committee noted that the lawyer, Mr. B., was initially invited by relatives of one of the co-accused in the author's case, whose interests did not coincide with the interests of the author. Having established that there was no indication in the case file that the author had abused his right to choose or replace a lawyer, the Committee concluded that the State party had not justified the need to limit the author's right to replace a lawyer for the administration of justice and the inability to appoint a public defender for him (paragraph 9.5 of the Views).

As the Committee found, the court of cassation considered it appropriate to hear the author's arguments in order to make its conclusion. In such circumstances, in the Committee's opinion, the court was obliged to inform the accused of his right to require the presence of a lawyer during the hearing. The Committee also noted that Mr. B., who was allegedly informed about the cassation procedure but decided not to attend the hearing, could not be considered as a lawyer chosen by the author himself. It also could not be assumed that the author had waived his right to be represented by a lawyer during the cassation procedure. In addition, the Committee stressed that, due to the decision of the court of first instance, the author was forced to prepare for the consideration of his cassation appeal without a lawyer of his own choosing. The Committee concluded that the facts at its disposal indicated a violation of the author's rights under article 14, paragraph 3 (d), of the Covenant (paragraph 9.7 of the Views).

With regard to the author's claim that he was not granted the right to cross-examine in court an important witness, C.A.S., and that only his initial statements read out in court were included in the record, the Committee noted, according to the State party, C.A.S. was in hospital treatment at that time and did not I was able to attend. At the same time, nothing in the State party's submissions indicated that the absence of C.A.S. was permanent. Moreover, since the author's wife refused to testify, citing her rights under article 51 of the Constitution of the Russian Federation, her testimony obtained by the police was read out in court and entered into the protocol, and she was not subject to cross-examination by the author. The Committee also noted that the author's six additional witnesses had not been subpoenaed to testify in his defense. The State party did not provide any specific information regarding these witnesses, it only noted that the court decides on such petitions. The Court of First Instance did not provide any arguments as to why it refused the author's request to invite additional witnesses and why, in fact, the hearing was not postponed to ensure the presence of C.A.S. or other witnesses, especially given the gravity of the charges against the author. In view of the totality of these circumstances, and in particular the author's lack of opportunity to question an important witness, the Committee concluded that the State party had violated the author's rights under article 14, paragraph 3 (e) (paragraph 9.9 of the Views).

The Committee's conclusions: The facts presented indicated a violation of the author's rights under paragraphs 1, 3 "d" and "e" of article 14 of the Covenant.



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