Views of the Human Rights Committee dated November 8, 2019 in the case "Ramil Kaliev v. the Russian Federation" (communication No. 2977/2017).
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
Summary: The Committee has taken note of the author's claim that he was not provided with a lawyer during the proceedings before the Court of cassation. The Committee considered that article 14, paragraph 3 (d), of the Covenant is applicable to the present communication, since the regional court examined the factual and legal side of the author's criminal case and assessed the issue of guilt in a new way (See: Dorofeev v. the Russian Federation (CCPR/C/111/D/2041/2011) 10.6; and "Y.M. v. the Russian Federation" (CCPR/C/116/D/2059/2011), paragraph 9.6.).
The Committee's legal position: article 14, paragraph 3 (d), of the Covenant contains three separate guarantees in respect of a person accused of committing a criminal offence: (a) to be tried in his presence; (b) to defend himself personally or through a lawyer of his own choosing, and if he does not have a lawyer, to be notified about this right; c) to have a lawyer assigned to him in any case, when the interests of justice require it, free of charge for him in the event that he does not have sufficient funds to pay for this lawyer. Therefore, the Committee considered that it was up to the State party to prove that the author, who was sentenced by the court to 16 years in prison and had no legal assistance after the verdict by the court of first instance, was duly informed of his right under article 14, paragraph 3 (d), of the Covenant to have a lawyer during the cassation proceedings ... (paragraph 9.3 Considerations).
In order for a person to refuse to exercise a particular right, that person must be initially aware of the existence of such a right (paragraph 9.3 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the regional court reviewed the materials of the author's criminal case and the arguments presented in his cassation appeal in order to make a final decision. In such circumstances, the regional court was obliged to inform the author of his right to require the presence of a lawyer during the cassation proceedings. The Committee also noted that Sh.'s lawyer, who was allegedly informed of the date of the cassation hearing but decided not to attend it, could not be considered as the lawyer chosen by the author. Nor can it be said that the author waived his right to a lawyer during the consideration of his complaint in the cassation instance only on the grounds that he did not make a specific request for legal assistance. In addition, the Committee stressed that the author was forced to prepare and submit his cassation appeal without any legal assistance. In these circumstances, the Committee considered that the State party had failed to prove that it had taken the necessary measures to inform the author of his right to be represented by a lawyer in the court of cassation (paragraph 9.3 of the Views).
The Committee's conclusions: The facts presented indicated a violation by the State party of the author's right under article 14, paragraph 3 (d), of the Covenant.