Views of the Human Rights Committee of November 7, 2017 in the case of Vladislav Chelakh v. Kazakhstan (communication No. 2645/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
Subject matter: The trial of the author and his conviction to life imprisonment.
Substantive issues: arbitrary detention; fair trial; the right to a lawyer of one's own choice; the right to sufficient time and opportunity to prepare a defense in a criminal case; the right not to plead guilty.
Legal positions of the Committee: The Committee recalls that accused persons should have sufficient time and opportunities to prepare their defense and communicate with their own chosen defenders. This provision is an important element of the guarantee of a fair trial and the application of the principle of equality of arms. There is an obligation to grant reasonable requests for postponement of court hearings, in particular in cases where the accused is charged with a serious criminal offence and additional time is required to prepare the defense (paragraph 9.3 of the Views) (See communications No. 282/1988, Smith v. Jamaica, Views adopted on March 31, 1993, paragraph 10.4; No. 226/1987 and 256/1987, Sawyers, McLean and McLean v. Jamaica, Views adopted on 11 April 1991, paragraph 13.6; N 913/2000, Chan v. Guyana, Views adopted on 31 October 2005, paragraph 6.3; No. 594/1992, Phillip v. Trinidad and Tobago, Views adopted on October 20, 1998, paragraph 7.2; and No. 2304/2013, Dzhakishev v. Kazakhstan, Views adopted on November 6, 2015, paragraph 7.5.).
The Committee's assessment of the factual circumstances of the case: [h] With regard to the author's statements under article 14, paragraph 3 (b), of the Covenant, the Committee takes note of his claim that his only privately hired lawyer, Mr. Sarsenov, was not provided with copies of certain procedural documents, and that the author was forced to participate in some court hearings in the absence of a lawyer chosen by himself. The Committee... Takes note of the author's claim that he did not have sufficient time and opportunities to prepare his defense together with a lawyer of his own choosing, since they were given only 10 working (or 15 calendar) days to familiarize themselves with the case materials, which amounted to 56 volumes of 250 pages each (paragraph 9.2 of the Considerations).
The Committee accepts... Take note of the author's statement, according to which his lawyer was forced to stay abroad for a certain period of time to undergo treatment. The Committee takes note of the State party's contention that a timetable was set for reviewing the case file, that Mr. Sarsenov received written notification of a timetable for reviewing the case file several times and did not notify the court of his absence for health reasons, and that the author had the opportunity to study various parts of the case file with his the public defender, since the author and his lawyer B. started studying the case materials on October 3 and did not ask for additional time. The Committee also notes that due to a hypertensive crisis, Mr. Sarsenov was unable to participate in the afternoon court session on November 29, 2012, and S.E.'s defense lawyer applied to the court for a break in the court session, since he could not provide the author with the necessary qualified legal assistance, since he did not have the opportunity to familiarize himself with all the case materials. The newly appointed defender, J.S., had only two days to study the case materials... In the absence of other relevant comments from the State party, the Committee considers that, since the author's new defender, J.S., was not given the opportunity to study all the case materials and have more time at his disposal to familiarize himself with them by postponing the court hearings, the author's rights under article 14, paragraph 3 (b), of the Covenant, have been violated (paragraph 9.3 of the Considerations).
The Committee's conclusions: The information provided indicates a violation by the State party of article 14, paragraph 3 (b), of the Covenant (paragraph 10 of the Views).