The case of Vyacheslav Berezhnoy v. the Russian Federation. Views of the Human Rights Committee of 28 October 2016. Communication No. 2107/2011.
In 2011, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to the Russian Federation.
As seen from the text of the Views, the author indicated that by holding him in custody for 10 hours without an official arrest warrant, the State party violated his rights under article 9, paragraph 1, of the Covenant. During this time, he was forced to confess to crimes he did not commit.; The author also claimed that after his arrest, he was informed of the reasons for his arrest, but he was not provided with a copy of the detention order, he was not urgently brought before a judge and could not appeal his detention, which violated his rights under paragraphs 2, 3 and 4 of article 9 of the Covenant; the author further stressed that by ordering his detention without a court hearing, the prosecutor violated his rights under article 10, paragraph 2 (b), of the Covenant; The author also claimed that by using an accusatory approach during the trial, the judge violated his rights under article 14, paragraph 1, of the Covenant. He claimed that he had not been given sufficient time or opportunity to prepare his defence before the hearing, in violation of article 14, paragraph 3 (b), of the Covenant, as he had not been notified of the date of the case and had not been informed of his right to have a lawyer or to be represented by an ex officio lawyer in during the pre-trial proceedings. The author claimed that he was not brought to court as soon as possible, but was detained for more than a year despite being a minor, which was a violation of article 14, paragraph 3 (c), of the Covenant. He also noted that he had been interrogated in the absence of a lawyer and had not been informed that he was not obliged to testify against himself, which was a violation of article 14, paragraph 3 (g). The author claimed that his age had not been taken into account by the courts, in violation of article 14, paragraph 4, of the Covenant. In addition, he also drew attention to the fact that his right to appeal under article 14, paragraph 5, had been violated due to the fact that he had not been given the opportunity to consult with a lawyer after sentencing and, therefore, he was unable to file a cassation appeal (paragraphs 3.1 - 3.6 of the Considerations).
The Committee's legal position: in accordance with article 9, paragraph 3, of the Covenant, every person arrested or detained on criminal charges is "urgently brought before a judge or other official who has the right to exercise judicial power by law." The Committee recalls ... that although the exact meaning of the words "urgently" may vary depending on the actual circumstances, the delay should not exceed several days from the moment of arrest. According to the Committee, 48 hours is usually enough to transport a person and prepare for a court hearing; Any delay beyond 48 hours must be exceptional and justified by specific circumstances. A particularly strict standard of urgency, such as 24 hours, should be applied to minors (paragraph 9.2 of the Considerations).
The Committee recalls that an indispensable element of the proper administration of justice is the conduct of proceedings in the relevant case by an independent, objective and impartial court and that the prosecutor cannot be considered as an official authorized to exercise judicial power within the meaning of article 9, paragraph 3, of the Covenant (paragraph 9.2 of the Views).
The Committee recalls that, according to article 9, paragraph 4, of the Covenant and its earlier decisions, a person placed in custody has the right to have his case heard in court so that this court can rule on the legality of his detention. In the absence of legal grounds for further detention, the judge must decide on release (paragraph 9.3 of the Opinion).
The Committee refers to its general comment No. 17 (1989) on the rights of the child, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, and to its decisions, which state that accused minors have the right as soon as possible rather, to be brought to justice in a fair trial. Subparagraph (b) of paragraph 2 of article 10 [of the Covenant] strengthens for minors the requirements of paragraph 3 of article 9 [of the Covenant] with regard to the speedy trial of persons detained before trial (paragraph 9.4 of the Opinion).
The Committee recalls that article 14, paragraph 3 (b), [of the Covenant] provides that accused persons must have sufficient time and opportunity to prepare their defence and communicate with their own chosen defence counsel. This provision is an important element of the guarantee of a fair trial and the application of the principle of equality of arms (paragraph 9.5 of the Opinion).
With regard to the author's claims that his rights under article 14, paragraph 4, [of the Covenant] have been violated, the Committee refers to article 24 of the Covenant and points out that minors need special protection in criminal proceedings (paragraph 9.7 of the Views).
The Committee's assessment of the factual circumstances of the case: the author's claim that he was detained on February 16, 1995, officially placed in pre-trial detention on February 18, 1995, in accordance with the prosecutor's decision, but was brought before a judge only a few months later - on the day the trial began.... The Committee concluded that the above facts indicated a violation of the author's rights under article 9, paragraph 3, of the Covenant (paragraph 9.2 of the Views).
The Committee noted the author's allegations that he was unlawfully detained from 18 May 1995 until the start of the court hearings on 5 March 1996. The Committee also pointed out that the State party had not provided any information regarding the author's whereabouts during that time... In the present case, the author was not only not brought before a judge to issue an initial detention order, but also had no opportunity to participate in the trial of his case in court in order to challenge the legality of his detention, which is a direct violation of the provisions of article 9, paragraph 4, of the Covenant. In this regard, the Committee concluded that the author's unlawful detention violated his rights under article 9, paragraph 4, of the Covenant (paragraph 9.3 of the Views).
The Committee noted that the author was arrested on 16 February 1995 and that his case was not considered until 25 March 1996. The Committee also drew attention to the fact that, according to the State party to the Covenant, the criminal investigation was completed and the case was brought to court on 27 April 1995, that is, almost a year before the final court decision. In the absence of any relevant explanation from the State party regarding this significant delay in the consideration of the case concerning the detained minor, the Committee considered that the author's rights to a prompt trial in accordance with article 10, paragraph 2 (b), of the Covenant had been violated. Following the finding of a violation of the author's right to a speedy judicial decision, as provided for in article 10 of the Covenant, and for the same reasons as indicated above, the Committee concluded that the facts before it indicated a violation of the author's rights under article 14, paragraph 3 (c), of the Covenant (paragraph 9.4 of the Views).
With regard to the right to a lawyer, the Committee took note of the author's allegations that he had requested to meet with his mother in order for her to help him choose a lawyer. The Committee also noted that the author's mother, who, given the author's age, could have played an important role in finding him a lawyer, was appointed as his legal representative only on 8 April 1995, when the investigation was almost completed... Given the author's age at the time and his vulnerability, the Committee considered that the author had not been given sufficient time and opportunity to prepare his defence or communicate with a lawyer of his own choosing and that his rights under article 14, paragraph 3 (b), of the Covenant had thereby been violated (paragraph 9.5 of the Views).
The Committee has already stressed the importance of providing adequate assistance to minors during criminal proceedings, including through their parents or legal guardians (See communication No. 1390/2005, Koreba v. Belarus, Views adopted on 25 October 2010, paragraph 7.4.). The Committee has taken note of the State party's observation that that the author's parents were informed "verbally" at the time of his arrest, but noted that the author's mother was appointed as his legal representative only on April 8, 1995, that is, almost two months after his arrest. The Committee concluded that, given the author's age at that time, which placed him in a vulnerable position, unhindered access to his parents or legal guardian or legal representative could have played an important role in protecting his rights during criminal proceedings (See the case of Blokhin v. the Russian Federation (complaint No. 47152/06), the ruling of the European Court of Human Rights of March 23, 2016 (paragraph 183), in which the Court recognized that the interrogation of a minor in the absence of a guardian, defender or teacher is a measure of "psychological coercion".). These rights, in particular, include the right to the assistance of a lawyer of one's choice, the right to an urgent trial, as well as the right to have sufficient time and opportunity to prepare one's defense. In the Committee's view, the information provided by the parties indicated that the State party had not taken any special measures to protect the author because of his age. The Committee considered that the author's rights under article 14, paragraph 4, [of the Covenant], considered in conjunction with article 24, paragraph 1, of the Covenant, had been violated (paragraph 9.7 of the Views).
The Committee's conclusions: The facts presented revealed violations of article 9, paragraphs 3 and 4, article 10, paragraph 2 (b), article 14, paragraph 3 (b) and (c), and article 14, paragraph 4 [of the Covenant], considered in conjunction with article 24, paragraph 1, of the Covenant (paragraph 10 of the Opinion).