Message: Vyacheslav Berezhnoy v. the Russian Federation. Message No. 2107/2011. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) October 28, 2016
In 2011, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Russian Federation.
Subject matter: Illegal detention of a minor and unfair trial.
Substantive issue: juvenile justice; guardian/guardianship; fair trial - legal assistance, fair trial - unjustified delay, coercion to testify.
The Committee's legal position: The Committee recalls that, 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. In the Committee's opinion, 48 hours is usually sufficient to transport a person and prepare for a court hearing; any delay beyond 48 hours should 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, according to article 9, paragraph 4, of the Covenant and its long-standing decisions, a detained person 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 recalls 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 its decisions stating that accused minors have the right to be tried as soon as possible within the framework of a fair trial. Article 10, paragraph 2 (b), of the Covenant strengthens for minors the requirements of article 9, paragraph 3, 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, subparagraph 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 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 Committee takes note of the author's unconfirmed allegations 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 of the start of the trial. The Committee recalls that a mandatory element of the proper exercise of judicial power 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. Accordingly, the Committee concludes that the above facts reveal a violation of the author's rights under article 9, paragraph 3, of the Covenant (paragraph 9.2 of the Views).
The Committee notes the author's allegations, which have not been refuted, that he was unlawfully detained from 18 May 1995 until the start of the court hearings on 5 March 1996. The Committee also notes that the State party did not provide any information regarding the author's whereabouts during this 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 concludes that the author's unlawful detention violated his rights under article 9, paragraph 4, of the Covenant. In view of this finding, the Committee decides not to consider the author's complaints under article 9, paragraphs 1 and 2, of the Covenant separately (paragraph 9.3 of the Views).
The Committee notes that the author was arrested on 16 February 1995 and that his case was not examined until 25 March 1996. The Committee also notes that, according to the State party, the criminal investigation was completed and the case was transferred to the Krasnoarmeysky City Court on 27 April 1995, i.e. almost a year before the final verdict a 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 considers that the author's rights to a prompt trial under article 10, paragraph 2 (b), [of the Covenant] have been violated. Following the finding of a violation of the author's rights to a speedy judicial decision, as provided for in article 10, paragraph 2 (b), of the Covenant, and for the same reasons as indicated above, the Committee considers that the facts before it reveal 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 have a lawyer, the Committee takes note of the author's allegations that he requested to meet with his mother in order for her to help him choose a lawyer. The Committee also notes 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 considers that the author was not 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 were thereby 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 takes note of the State party's observation that the author's parents They were informed "verbally" at the time of his arrest, but at the same time notes that the author's mother was appointed as his legal representative only on April 8, 1995, i.e. almost two months after his arrest. The Committee considers that in this case, 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 European Court of Human Rights, Blokhin v. Russia (application No. 47152/06), decision 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. Given that the information provided by the parties indicates that the State party has not taken any special measures to protect the author because of his age, the Committee considers that the State party has violated the author's rights under article 14, paragraph 4, of the Covenant, read in conjunction with article 24, paragraph 1, of the Covenant (para. 9.7 Considerations).
The Committee's conclusions: The facts presented reveal violations by the State party 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], read in conjunction with article 24, paragraph 1, of the Covenant (paragraph 10 of the Opinion).