Right to defence and legal assistance

Facts

The authors are nationals of the Russian Federation and given the substantial factual and legal similarity, the Committee under rule 97(3) of the Committee’s rules of procedure decided to join the communication. A.K. was sentenced to life imprisonment for several murders and assaults by the Supreme Court whereas, M.K. was sentenced to 17 years and 6 months imprisonment by a Regional Court for murder and burglary. Both authors lodged separate cassation appeals before the Supreme Court of the Russian Federation. During the hearing, A.K. claims that he had a counsel appointed who did not appear for the hearing whereas M.K. had no counsel appointed on his behalf. Both the authors filed separate supervisory reviews appeal complaining the violation of their right to defence. In both the cases, the supervisory appeals were rejected.

Another review for a supervisory appeal was found inadmissible. With respect to the inadmissibility of the supervisory review, A.K. complained to the Constitutional Court on the obligatory presence of a counsel in criminal proceedings i.e., the presence of the counsel was only required when the convict requested it. The Constitutional Court rendered A.K.’s claim as inadmissible. Post this, A.K. also requested for his criminal proceedings to be reopened which was rejected by the District Court and the City Court refused to admit A.K.’s cassation appeal against these decisions. The authors claim a violation of their right to legal assistance under article 14 (3) (d) of the Covenant. Additionally, M.K. also claimed a violation of his right to an effective remedy, and fair trial rights under articles 2 (3) and 14 (1) of the Covenant due to absence of legal assistance at the cassation hearing.

Admissibility

The Committee noted that there was a delay at the national level between the alleged violations claimed by the authors and the submission of the communication. Despite there being no fixed time limit for submission of the communication under the Optional Protocol, the Committee held that it expected a reasonable explanation justifying the delay. The Committee noted that as per rule 99(c) of its rules of procedure, a communication may constitute an abuse of the right of submission when it is submitted five years after the exhaustion of domestic remedies unless there are reasonable justifications for the delay, while noting that when time is of the essence, the author generally bears the burden of ensuring that the claims are raised in an expeditious manner. The Committee noted that in the instance of A.K. and M.K., the communications were submitted eleven and seven years after their final convictions respectfully.

While the Committee noted the authors justification for the delay with references to the supervisory review appeals that they filed, and in the case of A.K., the appeal made to the Constitutional Court and the Ombudsperson for Human Rights, the Committee did not consider these to be convincing justifications. Furthermore, the Committee noted that the authors also waited for a lengthy period before bringing their claims before the domestic authorities as well, and that the argument of A.K. on his legal illiteracy and lack of awareness about his rights were vague and general and to this extent also noted his ability to have prepared a cassation and a supervisory review appeal separate from that prepared by his lawyer. The Committee considered that the authors failed to provide convincing reasons to justify the lengthy delays in raising the alleged violations before the national courts as well as in raising the communication. For these reasons the Committee held that both the communications constitute an abuse of the right of submission and held them as inadmissible under article 3 of the Optional Protocol.