International Covenant on Civil and Political Rights

Human Rights Committee

Communication No. 1795/2008

Views adopted by the Committee at its 109th session (14 October–1 November 2013)

CCPR/C/109/D/1795/2008

2 December 2013

 

Submitted by: Oleg Anatolevich Zhirnov (not represented by counsel)

Alleged victim: The author

State party: Russian Federation

Date of communication: 3 September 2004 (initial submission)

Document references: Special Rapporteur’s rule 97 decision, transmitted to the State party on 1 July 2008 (not issued in document form)

Date of adoption of Views: 28 October 2013

Subject matter: Unfair trial

Substantive issues: Right to have adequate time and facilities for the preparation of a criminal defence, to communicate with a counsel of his own choosing and to have legal assistance assigned to him, in any case where the interests of justice so require

Procedural issues: None

Articles of the Covenant: 14, paragraphs 3 (b) and (d)

Articles of the Optional Protocol: None

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights (109th session)

concerning

Communication No. 1795/2008*

Submitted by: Oleg Anatolevich Zhirnov (not represented by counsel)

Alleged victim: The author

State party: Russian Federation

Date of communication: 3 September 2004 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 28 October 2013,

Having concluded its consideration of communication No. 1795/2008, submitted to the Human Rights Committee by Mr. Oleg Anatolevich Zhinov under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol

1. The author of the communication is Mr. Oleg Anatolevich Zhirnov, a Russian citizen born in 1972, in prison in the Russian Federation at the time of the submission. He alleges that he is a victim of violations by the State party1 of his rights under article 14, paragraphs 3 (b) and (d), of the International Covenant on Civil and Political Rights. The author is unrepresented.

Factual background

2.1 The author submits that, on an unspecified date, he was arrested and charged with murder, extortion and kidnapping. He claims that when in July 2000 an investigator from the Volzhskaya Prosecutor’s Office of Samara region, Mr. Vasyaev, formally presented him with the evidence against him (the so-called process of “familiarization with the criminal case”), this occurred in the absence of his first lawyer, Ms. Gordeeva. He submits that he and his lawyer were separately acquainted with the criminal file, despite the author having expressly requested that familiarization be carried out together with his lawyer. He states that this contravened article 49, part 5, of the Code of Criminal Procedure, as then in force, which made it obligatory for a lawyer to participate in the criminal proceedings in any case where the accused was charged with an offence for which the death penalty could be imposed. The author was charged inter alia with having committed a crime under article 102 of the Criminal Code (premeditated murder under aggravated circumstances), which was at the time punishable by the death penalty.

2.2 On an unspecified date, the author, together with other co-accused, complained about the above matter to the Criminal Division of the Saratov Regional Court and requested that his criminal case be returned for a supplementary investigation.2 He also requested, inter alia, that he and his second lawyer, Ms. Abramova, be acquainted with all the case file materials, since Ms. Abramova had been retained by him only on 6 May 2000. On 12 May 2000, the Criminal Division of the Saratov Regional Court concluded that substantial violations of the criminal procedure law had been committed by the investigation authorities and that the case should be returned for a supplementary investigation to rectify the procedural deficiencies identified. The court specifically stated that in cases where a lawyer participates in criminal proceedings, the investigator should present all case file materials to the accused and his lawyer, unless the accused or his lawyer request to be acquainted with the case file separately.

2.3 The supplementary investigation was completed on 20 June 2000. The author submits that, contrary to the 12 May 2000 decision of the Criminal Division of the Saratov Regional Court, he was again familiarized with part of the case file materials in the absence of his lawyer. On an unspecified date in July 2000, the author’s second lawyer, Ms. Abramova, successfully passed an examination to become a magistrate judge and could no longer act as defence attorney. Despite the author’s numerous oral motions either to assign a new lawyer to him or to adjourn the familiarization with the case file,3 the investigator in charge continued to formally present him with the case file in the absence of a lawyer. Specifically, on 18, 19, 20 and 21 July, the author was presented with parts of volumes 6 and 7, and with volumes 12, 13 and 14, of his case file in the absence of a lawyer. On 21 July 2000, the author’s third lawyer, Mr. Nekhoroshev, was retained. On 24 July 2000, the author was familiarized with volume 15 of his case file separately from Mr. Nekhoroshev. In addition, the investigator did not present certain video evidence to the author, despite his numerous oral motions to view this together with his lawyer. Consequently, the author saw the said video evidence for the first time only during the court proceedings. Transcripts of the video were admitted by the court as evidence.

2.4 On 29 August 2000, during a trial hearing, the author complained about this matter to the Criminal Division of the Saratov Regional Court.4 The author’s third lawyer, Mr. Nekhoroshev, added that each of the preceding lawyers had represented his client at different stages of the proceedings and that he had acquainted himself with all case file materials, whereas the author had been presented only with part of the case file, in Mr. Nekhoroshev’s absence. The author explained to the court that there should be a certificate dated 13 August 2000 in his case file confirming that his previous lawyer Ms. Abramova had successfully passed an examination to become a magistrate judge and that he had subsequently retained Mr. Nekhoroshev as his new defence counsel. The public prosecutor commented on the author’s intervention and stated that there was no data confirming that the lawyer Ms. Abramova had indeed been appointed as a magistrate judge. The court adjourned the author’s motion to be familiarized with the case file together with Mr. Nekhoroshev, pending verification of the information provided with regard to Ms. Abramova. Ultimately, the matter was never decided by the Criminal Division of the Saratov Regional Court.5

2.5 On 1 November 2000, the author was found guilty of premeditated murder under aggravated circumstances (art. 102 of the Criminal Code) and of three other charges under article 146 (2 and 3); article 126 (2), and article 148 (2), of the Criminal Code by the Saratov Regional Court and sentenced to 11 years’ imprisonment. The author’s cassation appeal was dismissed by the Criminal Division of the Supreme Court on 25 April 2001. His request for a review in the order of supervision to the Supreme Court was dismissed on 17 July 2003. The Supreme Court stated that it had not identified any violations of the procedural law which would provide grounds for altering the sentence handed down by the first instance court. The author’s appeal of the 17 July 2003 decision of the Supreme Court was dismissed by the Deputy Chair of the Supreme Court on 12 November 2003.

The complaint

3.1 The author claims a violation of his rights under article 14, paragraph 3 (b) and (d), to have adequate time and facilities for the preparation of his defence, to communicate with counsel of his own choosing, and to have legal assistance assigned to him in any case where the interests of justice so require. The entire case file consisted of 19 volumes, many of which were over 200 pages. Pursuant to article 201, part 6, of the Criminal Procedure Code, as then in force, the investigator established a tight schedule, according to which the author was allocated only one day (four to five working hours a day) to familiarize himself with one of the volumes of the case file. After his second lawyer withdrew from the case, the author had to review certain volumes of the case file himself on 18, 19, 20, 21 and 24 July 2000. When the author subsequently retained another defence lawyer, he requested to be allowed to familiarize himself with the same case file materials once again in the presence of his lawyer, but this request was refused.

3.2 The author maintains that, in the absence of a lawyer, he could not obtain expert legal advice on the content of the case file materials immediately after familiarizing himself with them. Additionally, the author was unable to meet the tight schedule imposed by the investigator as he was not allowed to make copies of the case file but had to take notes by hand and, on 2 August 2000, had to sign a protocol for “completion of familiarization with the case file” without, in fact, having familiarized himself in full with all the prosecution evidence. The author noted in this protocol the number of volumes that he had reviewed in the lawyer’s presence and the number of volumes that he had not seen at all. He claims that he was deprived of the right to obtain expert legal advice on the content of certain case file material prior to trial and of the opportunity to, jointly with his lawyer, in a timely manner, file motions on matters vital for his defence and for the determination of the case at trial (for example, requesting to summon additional witnesses and appoint additional forensic experts). The author concludes that the violation of his right to defence had a negative impact on the legality and validity of his sentence, as he was denied the possibility to defend himself by all lawful means and methods.

State party’s observations on merits

4.1 On 29 October 2008, the State party submits that the author’s complaints regarding violations of his procedural rights to defence had been reviewed on numerous occasions by the Prosecutor General’s Office and that no violations had been found. The State party also submits that his case had been reviewed by all court instances, including the Constitutional Court, and that neither of them had found a violation of his rights. It further submits that the author’s contention that he had to acquaint himself with the case file in the absence of his lawyer is not consistent with the facts. According to a protocol of 21 June 2000, the accused was informed of the termination of the preliminary investigation and had his right to review the case file personally and together with his attorney explained to him in the presence of his lawyer, Ms. Abramova. The review of the case file by the author and his lawyer started on 22 June 2000. On 30 June 2000, the author was warned in writing by the investigating officer that it was unacceptable to protract the review of the case file. Since the investigating officer considered that the author was deliberately protracting the review, the investigating officer issued an order on 6 July 2000 giving the author a deadline of 28 July 2000 to acquaint himself with the case file. On 18 July 2000, the author requested to be represented by another lawyer, Mr. Nekhoroshev, and the review of the file continued accordingly with the participation of the above lawyer.

4.2 The State party further submits that on 29 August 2000 the court rejected the author’s motion to return the case for additional investigation on the ground that his right to familiarize himself with the case file had been violated. Accordingly the State party maintains that there was no violation of the author’s rights under article 14, paragraph 3 (d), of the Covenant.

Author’s comments on the State party’s observations

5. On 28 November 2008, the author submits that he started reviewing the case file and preparing his defence together with his lawyer Ms. Abramova on 22 June 2000. By way of preparation, they were making notes and copying the addresses of the prosecution witnesses and the interrogation protocols. On 30 June 2000, the investigator warned the author that it was unacceptable to protract the review of the case file. The author explained that he suffers from myopia and that a doctor had advised him to take 15-minute breaks from reading every hour, that copying protocols took time and that he had had no intention of protracting the case file review. Regardless of his explanations, on 6 July 2000, the investigator imposed a deadline of 28 July 2000 for reviewing the file. The author reiterates that he had one day to review, on average, 200 pages and that he could not manage to adequately prepare his defence in the short time allocated. He also reiterates that, on 29 August 2000, during the court hearing, he submitted a motion claiming that his right to acquaint himself with the case file in the presence of his lawyer had been violated, but that the court never ruled on that motion.

State party’s further observations on the merits

6.1 On 9 June 2009, the State party submits that the author’s submission of 28 November 2008 does not contain any new information. It further submits that the author’s criminal case had been examined by the court and returned for additional investigation on two occasions and that the author had had two opportunities to familiarize himself with the case file, once between 1 February and 12 April 1999 and again between 6 January and 7 April 2000. The author was presented with the case file for a third time between 22 June 2000 and 28 July 2000. On that occasion the review of the case file began with one defence attorney and was completed with another, because the author refused the services of Ms. Abramova. The State party submits that the author’s argument that on 13, 20, 21 and 24 July 2000 he reviewed case file materials without his lawyer(s) are contrary to the information contained in the schedule for review of the case file.6

6.2 Concerning the author’s allegation that he was not given sufficient time to acquaint himself with the case file, the State party submits that according to article 201 of the Criminal Procedure Code that was in force at the time, the investigator had the right to issue a ruling, approved by the prosecutor, establishing a deadline for review of the case file should the accused and his counsel conspicuously protract the review. The State party maintains that the accused conspicuously protracted the review of the case file,7 and that contrary to his submission on 29 August 2000 the court reviewed and rejected his motion that his right to familiarize himself with the case file had been violated.

Author’s further submission

7. On 6 December 2009, the author presented to the Committee copies of the last page of the protocol on the completion of the review of the case file, parts of the schedule for case file review established by the investigator and parts of the investigator’s ruling giving the author a deadline for review of the case file. The copy of the protocol presented by the author includes a note from him to the effect that he had not fully acquainted himself with the case file, that on 13, 20 and 21 July 2000 his defence attorney was not present and that he would like to review the video evidence together with his lawyer. A note from the lawyer, Mr. Nekhoroshev, reads that he had read the entire case file.

State party’s further observations on the merits

8. On 13 August 2010, the State party reiterates its previous observations and submits that the schedule for review of the case file bears the signatures of both the author and his attorneys and that the above contradicts the note that he made at the end of the protocol on the completion of the review.

Issues and proceedings before the Committee

Consideration of admissibility

9.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

9.2 The Committee notes, as required by article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under any other procedure of international investigation or settlement.

9.3 The Committee notes that the State party did not raise any objections to the admissibility of the communication. The Committee declares the communication admissible insofar as it appears to raise issues under article 14, paragraphs 3 (b) and (d), of the Covenant, and proceeds to its consideration on the merits.

Consideration of the merits

10.1 The Human Rights Committee has considered this communication in the light of all the information received, in accordance with article 5, paragraph 1, of the Optional Protocol.

10.2 The Committee takes note of the author’s allegations that he did not have adequate time and facilities for the preparation of his defence and could not communicate with counsel of his own choosing, since he was mandated to review the entire case file, consisting of 19 volumes (over 4,000 pages), in 37 days, did not manage to review all case materials and was not allowed to familiarize himself with certain case file materials in the presence of his attorney(s). The Committee also notes the State party’s observation that the author’s allegations that he had to review parts of the case file in the absence of his defence attorney were contradicted by his and his lawyer’s signatures on the case file review schedule. The Committee, however, observes that the author had made a note stating that he had not managed to review the entire case file at the end of the case file review schedule. The Committee also observes that from the transcript of the trial hearing of 29 August 2000 in the Saratov Regional court it transpires that the author’s lawyer confirmed the author’s allegations that the latter had not had sufficient time to review the entire case file.

10.3 The Committee recalls that paragraph 3 (b) of article 14 provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms.8 The Committee further notes that, in its 12 May 2000 decision, the State party’s Saratov Regional Court had ruled that the fact that the author was presented with certain case materials in the absence of his defence lawyer constituted a violation of the domestic criminal procedure and for that reason returned the case for additional investigation. The Committee also notes that from the transcript of the subsequent trial it appears that the same court had failed to rule on an identical motion and proceeded to convict the author. The Committee further notes the State party’s submission that the court had rejected the above motion, but did not submit documentary evidence in support of its contention.

10.4 The Committee observes that the author was not provided with the opportunity to make copies of the case file materials and that the limited time granted for review did not allow him to take notes by hand. Furthermore, he did not have the opportunity to review parts of the case file at all, including video evidence that he saw for the first time during the trial. The Committee also notes that on 13, 20 and 21 July 2000, the author was denied the opportunity to review certain case files in the presence of his lawyer, as he was entitled to under domestic procedure law. Taking into consideration the seriousness of the charges against the author, one of which was punishable by death at the time of the proceedings, the Committee considers that the author was not provided with adequate time and facilities for the preparation of his defence and that his rights under article 14, paragraph 3 (b) of the Covenant have thus been violated.

10.5 In the light of the above finding, the Committee decides not to examine the author’s claim of a violation of article 14, paragraph 3 (d), of the Covenant.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation by the State party of the author’s rights under article 14, paragraph 3 (b), of the Covenant.

12. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including adequate and appropriate compensation. The State party is also under an obligation to take steps to prevent similar violations occurring in the future.

13. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]

 

Notes_______________________

* The following Committee members participated in the examination of the present communication: Mr. Yadh Ben Achour, Mr. Ahmad Amin Fathalla, Mr. Kheshoe Parsad Matadeen, Sir Nigel Rodley, Mr. Fabián Omar Salvioli, Mr. Yuval Shany, Mr. Konstantine Vardzelashvili, Mr. Lazhari Bouzid, Mr. Walter Kälin, Mr.Yuji Iwasawa, Mr. Cornelis Flinterman, Ms. Zonke Zanele Majodina, Mr. Gerald L. Neuman, Mr. Victor Manuel Rodríguez-Rescia, Ms. Anja Seibert-Fohr and Ms. Margo Waterval.

1 The Optional Protocol entered into force for the Russian Federation on 1 January 1992.

2  It transpires from the procedural decision of the Criminal Division of the Saratov Regional Court that the author’s request was supported by the public prosecutor.

3  Reference is made to article 49, part 4, of the Criminal Procedure Code.

4  It transpires from the trial transcript that the composition of the Criminal Division of the Saratov Regional Court on 29 August 2000 was different from that of 12 May 2000.

5 The information in this paragraph, including the fact that the motion was never decided by the court, is supported by the trial transcript presented by the author as evidence.

6  The State party maintains that according to the schedule on 13 July 2000 the author and his first lawyer reviewed volume 11 of the case file, that on 20, 21 and 24 July 2000 the author and his second lawyer reviewed volumes 12, 14 and 15 of the case file and that the above was evidenced by the signatures of the author and his lawyers. No copy of the schedule is presented by the State party.

7  The State party submits that on 26, 27, 28, 29 and 30 June the author reviewed 22, 9, 16 and 31 pages respectively and that over the next four days he reviewed 26, 68, 18 and 2 pages respectively.

8 Human Rights Committee general comment No. 32 on the right to equality before courts and tribunals and to a fair trial, para. 32, Official Records of the General Assembly, Sixty-second Session, Supplement No. 40, vol. I (A/62/40 (Vol. I)), annex VI.