In "Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
The issue of early access to counsel is one which has been examined in detail by the European Court of Human Rights over the past few years, especially since the landmark decision in Salduz v Turkey, as a result of which a number of European states have reformed their law and practice to grant suspects a lawyer from the moment they are detained. Unfortunately, the UN Human Rights Committee passed up an "opportunity to affirm these same standards globally, in its recent decision in Torobekov v Kyrgyzstan.
Torobekov was arrested, interrogated, charged with robbery and placed in custody in the absence of a lawyer. No lawyer was present at his critical first interrogation, and subsequent interviews that his privately hired lawyer was able to attend were repeatedly postponed. Curiously, however, when his lawyer was suddenly hospitalized, the interrogation was held as scheduled and he was again interrogated without legal assistance, despite the fact that his lawyer explicitly asked the investigator for a substitute attorney. As a result, the first time Torobekov was interrogated in the presence of his lawyer was two months after his arrest and just a few days before the investigation was declared to be completed.
Torobekov argued that he was suspected of involvement in the crime from the moment of his arrest, and therefore he should have been provided with legal assistance from that time, especially given that he was charged with a serious crime which entailed a potential 7-12 years imprisonment. He claimed that the failure to provide access to a lawyer amounted to a violation of his rights under article 14(3)(b) and (d) (legal assistance, adequate time and facilities) of the International Covenant on Civil and Political Rights.
The committee rejected this argument. Despite the fact that the lawyer had been hospitalized, and had asked that a replacement participate in the questioning, it considered that “the absence of the lawyer [could] at least in part be attributed to the lawyer himself.” Furthermore, it considered that because Torobekov was subsequently interrogated by a new investigator in the presence of his lawyer, these claims were insufficiently substantiated.
Torobekov also complained about systemic barriers to him accessing a lawyer, specifically that new Kyrgyz legislation required that a defence counsel present written authorization from the prosecutor or investigator in order to meet with a detained suspect or accused violated article 14 (3)(b) of the ICCPR. However, the Committee rejected this claim too, considering that that Torobekov had not explained how this affected adversely the determination of the criminal charges against him.
Eventually the only admissible claim Torobekov made was based on the fact that his placement in custody was authorized by a prosecutor. The committee stressed that the public prosecutor cannot be characterized as having the institutional objectivity and impartiality necessary to be considered an "officer authorized to exercise judicial power" within the meaning of article 9 (3), and therefore there has been a violation of this provision. This followed an earlier case, Kaldarov v Kyrgyzstan, in which the committee found Kyrgyzstan in violation on the same grounds.
In a comparative perspective, the committee’s rejection of Torobekov’s claims regarding early access to counsel as inadmissible indicates that the HRC is yet to raise its early access standards to ensure the level of protection enforced by the European Court of Human Rights since 2008, when it delivered its seminal Salduz v Turkey decision. In that decision, the European Court stated that “access to a lawyer should be provided as from the first interrogation of a suspect by the police” (at para. 55), and indicated that this requirement was absolute, as “neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody” (at para. 58). Since then, a muscular post-Salduz ECtHR jurisprudence has been developed which reaffirmed the fundamental importance of early access to legal assistance. The Torobekov decision demonstrates that the HRC is yet to join the Europe-wide “Salduz Fever”.
A summary of this case, along with all others decided by the Human Rights Committee during its 103rd Session in October 2011, is now available on the Justice Initiative’s website. The Justice Initiative prepares these summaries of human rights decisions to assist in bringing recent case law of global human rights tribunals to the widest possible audience, lawyers of the Justice Initiative produced summaries of all decisions on both admissibility and merits coming out from the session.
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