EHRM, 09-11-2018, nr. 71409/10

Where a person has been taken into custody, the starting-point for the right of access to a lawyer is not in doubt. The right becomes applicable as soon as there is a ‘criminal charge’ within the meaning given to that concept by the Court's case-law (see paragraph 119 above) and, in particular, from the time of the suspect's arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period (see Simeonovi, cited above, §§ 111, 114 and 121).

Access to a lawyer at the pre-trial stage of the proceedings also contributes to the prevention of miscarriages of justice and, above all, to the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53–54; Blokhin, cited above, § 198; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112).

The Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Salduz, cited above, § 54; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112).

The Court has also recognised that the vulnerability of suspects may be amplified by increasingly complex legislation on criminal procedure, particularly with regard to the rules governing the gathering and use of evidence (see Salduz, cited above, § 54, and Ibrahim and Others, cited above, § 253).

Lastly, one of the lawyer's main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself (see Salduz, cited above, § 54; Dvorski, cited above, § 77; and Blokhin, cited above, § 198) and for his right to remain silent.

In this connection, the Court has considered it to be inherent in the privilege against self-incrimination, the right to remain silent and the right to legal assistance that a person ‘charged with a criminal offence’, within the meaning of Article 6, should have the right to be informed of these rights, without which the protection thus guaranteed would not be practical and effective (see Ibrahim and Others, cited above, § 272, and Simeonovi, cited above, § 119; the complementarity of these rights had already been emphasised in John Murray v. the United Kingdom, 8 February 1996, § 66, Reports of Judgments and Decisions 1996-I; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Navone and Others, cited above, §§ 73-74). Consequently, Article 6 § 3 (c) of the Convention must be interpreted as safeguarding the right of persons charged with an offence to be informed immediately of the content of the right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing (see Simeonovi, cited above, § 119).

In the light of the nature of the privilege against self-incrimination and the right to remain silent, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. Where a suspect has not, however, been so notified, the Court must examine whether, notwithstanding this failure, the proceedings as a whole were fair. Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against self-incrimination takes on particular importance (see Ibrahim and Others, cited above, § 273, and case-law cited therein).

Article 6 § 3 (c) does not specify the manner of exercising the right of access to a lawyer or its content. While it leaves to the States the choice of the means of ensuring that it is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the Convention, namely to guarantee rights that are practical and effective (see Öcalan v. Turkey [GC], no. 46221/99, § 135, ECHR 2005-IV; Salduz, cited above, § 51; Dvorski, cited above, § 80; and Ibrahim and Others, cited above, § 272).

Assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Öcalan, cited above, § 135; Sakhnovskiy v. Russia [GC], no. 21272/03, § 95, 2 November 2010; and M v. the Netherlands, no. 2156/10, § 82, 25 July 2017), and to that end, the following minimum requirements must be met.

First, as the Court has already stated above (see paragraph 124), suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview (see Brusco, cited above, § 54, and A.T. v. Luxembourg, cited above, §§ 86–87), or even where there is no interview (see Simeonovi, cited above, §§ 111 and 121). The lawyer must be able to confer with his or her client in private and receive confidential instructions (see Lanz v. Austria, no. 24430/94, § 50, 31 January 2002; Öcalan, cited above, § 135; Rybacki v. Poland, no. 52479/99, § 56, 13 January 2009; Sakhnovskiy, cited above, § 97; and M v. the Netherlands, cited above, § 85).

Secondly, the Court has found in a number of cases that suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings (see Adamkiewicz v. Poland, no. 54729/00, § 87, 2 March 2010; Brusco, cited above, § 54; Mađer v. Croatia, no. 56185/07, §§ 151 and 153, 21 June 2011; Šebalj v. Croatia, no. 4429/09, §§ 256–57, 28 June 2011; and Erkapić v. Croatia, no. 51198/08, § 80, 25 April 2013). Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract (see A.T. v. Luxembourg, cited above, § 87), and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (see John Murray, cited above, § 66, and Öcalan, cited above, § 131).

The Court has found, for example, that depending on the specific circumstances of each case and the legal system concerned, the following restrictions may undermine the fairness of the proceedings:

In addition to the above-mentioned aspects, which play a crucial role in determining whether access to a lawyer during the pre-trial phase has been practical and effective, the Court has indicated that account must be taken, on a case-by-case basis, in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance: discussion of the case, organisation of the defence, collection of exculpatory evidence, preparation for questioning, support for an accused in distress, and verification of the conditions of detention (see Hovanesian v. Bulgaria, no. 31814/03, § 34, 21 December 2010; Simons, cited above, § 30; A.T. v. Luxembourg, cited above, § 64; Adamkiewicz, cited above, § 84; and Dvorski, cited above, §§ 78 and 108).

The criterion of ‘compelling reasons’ is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the suspect's first police interview, restrictions on access to a lawyer are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Salduz, cited above, §§ 54 in fine and 55, and Ibrahim and Others, cited above, § 258). A finding of compelling reasons cannot stem from the mere existence of legislation precluding the presence of a lawyer. The fact that there is a general and mandatory restriction on the right of access to a lawyer, having a statutory basis, does not remove the need for the national authorities to ascertain, through an individual and case-specific assessment, whether there are any compelling reasons.

The Court has also explained that where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to a compelling reason to restrict access to legal advice for the purposes of Article 6 of the Convention (see Ibrahim and Others, cited above, § 259, and Simeonovi, cited above, § 117).

In Ibrahim and Others the Court also confirmed that the absence of compelling reasons did not lead in itself to a finding of a violation of Article 6. Whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole (see Ibrahim and Others, cited above, § 262). That latter point is of particular importance in the present case, since the applicant relied on a certain interpretation of the Court's case-law on the right of access to a lawyer (see paragraph 97 above) to the effect that the statutory and systematic origin of a restriction on that right sufficed, in the absence of compelling reasons, for the requirements of Article 6 to have been breached. However, as can be seen from the Ibrahim and Others judgment, followed by the Simeonovi judgment, the Court rejected the argument of the applicants in those cases that Salduz had laid down an absolute rule of that nature. The Court has thus departed from the principle that was set out, in particular, in the Dayanan case and other judgments against Turkey (see paragraph 140 above).

Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265).

The Court further emphasises that where access to a lawyer was delayed, and where the suspect was not notified of the right to legal assistance, the privilege against self-incrimination or the right to remain silent, it will be even more difficult for the Government to show that the proceedings as a whole were fair (ibid., § 273 in fine).

Lastly, it must be pointed out that the principle of placing the overall fairness of the proceedings at the heart of the assessment is not limited to the right of access to a lawyer under Article 6 § 3 (c) but is inherent in the broader case-law on defence rights enshrined in Article 6 § 1 of the Convention (see the case-law on Article 6 § 1 cited in paragraph 120 above).

That emphasis, moreover, is consistent with the role of the Court, which is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused.

As the Court has already observed, subject to respect for the overall fairness of the proceedings, the conditions for the application of Article 6 §§ 1 and 3 (c) during police custody and the pre-trial proceedings will depend on the specific nature of those two phases and on the circumstances of the case.

When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court's case-law, should, where appropriate, be taken into account (see Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120):

The Government argued that the applicant had not been particularly vulnerable. The applicant, however, contended that he had been in a vulnerable state on account of his detention and that this vulnerability had been exacerbated by his low IQ and extremely poor verbal skills, as shown by a neuropsychological assessment carried out in April 2008 (see paragraph 29 above).

The Court notes that the above-mentioned assessment concluded that while the applicant had limited intellectual capacities, his reasoning was nevertheless within the norm. Moreover, the applicant has not pointed to any indication in the records of his interviews and examinations that he had difficulty expressing himself. In addition, no other particular circumstance can be noted which would indicate that the applicant was in a greater state of vulnerability than that in which persons interviewed by investigators would generally find themselves. The interviews conducted while he was in police custody and during the judicial pre-trial investigation were not unusual or excessively long.

The Court observes that the applicant did not allege, either before the domestic courts or before it, that the Belgian police had exerted any pressure on him. As to the allegation that he had been pressurised by the French gendarmes into subsequently accusing a minor at his first police interview in Belgium, this was dismissed by the Assize Court. That allegation was also contradicted by the applicant himself, as in a subsequent version of the events he gave a different explanation as to why he had made a false accusation (see paragraphs 30 and 40 above).

The Government relied on the general safeguards that, in their view, the applicant had enjoyed as a result of the legal framework governing pre-trial proceedings at the material time, and in particular on the fact that, except during questioning, the applicant had been entitled to communicate freely and in an unlimited manner with his lawyer from the end of the police custody period. Subsequently, except for the record of the police interview of 31 December 2007 — of which a copy was given to him at the end of his first appearance before the investigating judge — he systematically received a copy of all the interview and examination records, thus enabling him to discuss them with his lawyer and to mount his defence.

It is true that these safeguards enabled the applicant to benefit, during the judicial investigation phase, from the services of defence counsel and to prepare his defence strategy. In view of the fact, however, that Belgian law as applied in the proceedings against the applicant was not in conformity with the requirements of Article 6 § 3 (see, in particular, paragraphs 160 and 161 above), the overall fairness of the proceedings could not have been guaranteed merely by legislation providing for certain safeguards in the abstract. The Court must examine whether the application of these legal provisions in the present case had a compensatory effect in practical terms, rendering the proceedings fair as a whole. In the context of this examination, which lies at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments, the Court finds that the applicant's conduct during the police interviews and examinations by an investigating judge was capable of having such consequences for the prospects of his defence that there was no guarantee that either the assistance provided subsequently by a lawyer or the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the period of police custody (see, mutatis mutandis, Salduz, cited above, § 58). In addition, as mentioned in paragraph 157 above, the date from which the applicant began to receive legal assistance is not to be found in the case file. While it is clear that the applicant's defence counsel changed several times, it is not clear from the case file how frequent the consultations were, or whether the lawyer had been notified of the dates of the interviews and examinations. The applicant could not therefore prepare for his questioning beforehand with his lawyer, and he could only tell his lawyer later on how the interview or examination had gone, if need be with the help of the official record, and then draw the appropriate conclusions for the future.

The Government further pointed out that the judicial investigation had been conducted under the supervision of the Indictment Division, before which the applicant could have challenged its lawfulness or complained of procedural irregularities, with his lawyer's assistance, at any time (see paragraph 107 above). However, that safeguard did not play a major role in the present case. First, the applicant never raised, at that stage, the complaints that he later submitted to the Assize Court, the Court of Cassation and this Court, and secondly, the pre-trial courts did not address, as they could have done of their own motion, the procedural defects at issue in the present case.

As pointed out in the Ibrahim and Others judgment (cited above, § 254), complaints under Article 6 about the investigation stage tend to crystallise at the trial itself when the prosecution seeks to rely on evidence obtained during the pre-trial proceedings — the phase in which the restrictions on Article 6 rights applied — and the defence seeks its exclusion. In the present case, the question whether the applicant's statements should have been admitted in evidence was examined before the Assize Court at the opening of the trial on 1 February 2010. The applicant, assisted by his lawyer, filed pleadings seeking the nullity of the statements he had given when questioned without a lawyer and the dismissal of the prosecution case. Relying on the Salduz judgment, he argued that the systematic deprivation of his right of access to a lawyer from the time of his first police interview sufficed for a violation of Article 6 to be found. In a judgment given on the same day, the Assize Court rejected the applicant's plea and admitted in evidence all the records in question, finding that the applicant could still have a fair trial even though he had not been assisted by a lawyer during the police interviews and examinations by an investigating judge (see paragraph 41 above).

It should, however, be observed that the Assize Court did not carry out a more precise examination of either the official records or the circumstances in which the applicant had been questioned by — and had given statements to — the police and the investigating judge (contrast Ibrahim and Others, cited above, §§ 69–84 and 282). Thus there is no indication that the court engaged in the requisite analysis of the consequences of the lawyer's absence at crucial points in the proceedings. Such an omission is all the more significant as, on account of the oral nature of proceedings in the Assize Court and the fact that no detailed record of the hearing is kept, it is not possible to assess the impact of the oral argument in the presence of the jury.

As regards the subsequent assessment by the Court of Cassation, the Government explained that the settled case-law at the time, which consisted in the systematic quashing of convictions based on self-incriminating statements given in the absence of a lawyer, was tantamount to an exclusionary rule. Where interviews or examinations had been conducted without a lawyer, the Court of Cassation examined whether they had had an effect on the fairness of the trial and it had thus struck down judgments of trial courts which had taken account of self-incriminating statements given without legal assistance (see paragraphs 66–70 above).

The Court observes that the Court of Cassation quashed a judgment on those grounds for the first time on 15 December 2010, and therefore after the trial court judgment in the present case. In that judgment the Court of Cassation pointed out, for example, that it was necessary to assess the influence of improperly obtained evidence on the outcome of the prosecution. In the present case, it does not appear from the Court of Cassation's judgment that it carried out its assessment of the overall fairness of the proceedings from that perspective. Rather, in its examination of the proceedings, the Court of Cassation focused on a lack of self-incriminating statements during the interviews in police custody and, as regards the rest of the pre-trial investigation in which the applicant's right was also restricted, it merely stated that he had never been compelled to incriminate himself and that he had always expressed himself freely (see paragraph 48 above).

According to the Assize Court and the Court of Cassation, the statements given by the applicant during the interviews and examinations at issue were not self-incriminating and did not contain any confessions. The Government also relied on that position.

The Court reiterates, however, that the privilege against self-incrimination is not confined to actual confessions or to remarks which are directly incriminating; for statements to be regarded as self-incriminating it is sufficient for them to have substantially affected the accused's position (see Schmid-Laffer v. Switzerland, no. 41269/08, § 37, 16 June 2015; see also A.T. v. Luxembourg, cited above, § 72).

In the present case, while it is true that the applicant never confessed to the charges and therefore did not incriminate himself stricto sensu, he nevertheless gave detailed statements to the investigators which influenced the line of questioning. He thus admitted on 31 December 2007, while in police custody, that he had been present at the scene of the crime when M.B. was murdered and that he had threatened a witness, as confirmed by eyewitnesses (see paragraph 24 above). When he was interviewed on 25 March 2008 he further stated that C.L. had been pregnant, that he had been alone with her on 17 September 2007 and that he had struck her. Those particulars regarding C.L., which were not corroborated by any testimony other than that of the victim (see paragraph 28 above), must have affected the applicant's position. From that point onwards, the investigators' suspicions about the assault on C.L. could only be regarded, in their view, as well-founded. In addition, as the applicant changed his version of the facts several times in the course of the judicial investigation, thus undermining his general credibility, his first examination by the investigating judge was of crucial importance. Reiterating that very strict scrutiny is called for where there are no compelling reasons to justify the restrictions at issue, the Court finds that significant weight must be attached to the above factors in its assessment of the overall fairness of the proceedings.

The applicant complained that the investigators had obtained information from him on 31 December 2007 while he was in police custody, even though he had not consulted with a lawyer beforehand and had not been notified in a sufficiently explicit manner of his right to remain silent and the privilege against self-incrimination. The Court observes in that connection that at the start of his first police interview the applicant received express information that his statements could be used in evidence (see paragraph 14 above). That information, which he also received at the beginning of each of his subsequent interviews and examinations, was regarded as indirectly enshrining the right to remain silent in Belgian law, whereas the legislation at the time did not expressly provide for that right (see paragraph 54 above).

Having regard to the case-law set out above (see paragraphs 129-30), and since the applicant was not able to consult with a lawyer prior to questioning or to secure the presence of one while he was in police custody, the Court is not persuaded, in the circumstances of the present case, that the information thus given by the investigators was sufficiently clear to guarantee the effective exercise by the applicant of his right to remain silent and not to incriminate himself. In that connection, it cannot but note that the applicant made significant statements and fully availed himself of his freedom to select or conceal facts.

The trial took place in the Assize Court, a non-permanent court made up of professional judges assisted by a jury (see Taxquet v. Belgium, no. 926/05, §§ 18–21, 13 January 2009, and Castellino v. Belgium, no. 504/08, §§ 45–47, 25 July 2013, for the composition of the Assize Court and rules governing the selecting of the jury; see Taxquet, Chamber judgment cited above, §§ 25–31, and Lhermitte, cited above, §§ 40–44, for rules governing the trial itself).

The indictment was read out at the start of the trial, before the oral argument. It set out, in twenty-one pages, the applicant's family life and background, the facts and how they had occurred, the investigative acts and their results, and the content of the medical assessments. It mentioned the elements that the applicant had acknowledged and his different versions of the facts.

The Government challenged the applicant's argument that the indictment was largely based on his statements. The Court observes that the prosecution also relied on various material that was unrelated to and independent of his statements, namely witness statements, the investigators' findings, the real evidence collected before his arrest and the results of the medical and psychiatric assessments (see paragraph 43 above). Nevertheless, as noted above (paragraph 178), the statements given by the applicant from the time of his questioning in police custody contained a detailed account of the events which had occurred on the day of the murder, and were complemented or contradicted by equally detailed subsequent statements, and he never denied being present at the scene of the crime or threatening a witness. He also spontaneously gave information about C.L. which tended to incriminate him. Those statements provided the investigators with a framework which must have influenced the indictment, even though they had already obtained certain evidence prior to the applicant's first interview.

As to whether those elements influenced the deliberation and the decision ultimately reached by the jury, the Court takes account of the fact that the indictment is of limited value for an understanding of the jury's verdict, because it is read out before the oral argument, which will necessarily serve as the basis for the jurors' personal conviction (see Taxquet [GC], cited above, § 95, and Lhermitte, cited above, § 77).

That being said, in the present case the jury concluded that the attempted murder of C.L. had been premeditated, as could be established in particular from the applicant's statements (see paragraphs 45 and 179 above). The Court attaches considerable weight to this point, as it demonstrates that the statements given by the applicant without a lawyer being present were an integral part of the evidence upon which the verdict on this count was reached.

As to the other counts of the indictment, and in particular the principal one concerning the murder of M.B., the Court agrees with the Government that the jury relied on evidence other than the applicant's statements, namely the consistent and mutually corroborative witness statements of youngsters who had seen only the accused and his victim at the scene, without anyone else being present, the threats that the accused had previously made against his victim and the various steps he had taken in preparing to commit the crime (see paragraph 45 above).

Nevertheless, the Court notes from an examination of the record of the 1 February 2010 hearing that the President of the Assize Court did not give any warning to the jury as to the weight to be attached in their deliberations to the applicant's numerous statements. While it is necessary to take account of the special procedural features of trials in assize courts sitting with a lay jury, which decides independently whether or not the defendant is guilty, the Court would point out that, in the context of cases concerning the accused's comprehension of the reasoning behind the verdict, it has emphasised the importance of any directions or guidance given by the president to the jurors as to the legal issues arising or the evidence given (see Taxquet [GC], cited above, § 92, and Lhermitte, cited above, § 68). Such directions or guidance may be of particular importance in order to enable the jurors to assess the consequences, for the fairness of the trial, of any procedural defects that may have arisen at the investigation stage (see Ibrahim and Others, cited above, §§ 274, 292 and 310). In spite of its efforts to assess the overall fairness of the proceedings having regard to the Court's recent case-law (see paragraph 48 above), the Court of Cassation does not seem to have taken into account, in its review, the impact on the jury's decision of the fact that the jurors had not been informed of particulars which could have guided them in assessing the significance of the statements that had been given by the applicant without legal assistance.

The Court therefore takes the view that the total absence, in the present case, of any directions or guidance as to how the jury should assess the applicant's statements in relation to the other evidence in the file and their evidential value, even though they had been taken without a lawyer being present, and, for those given in police custody, without the applicant having received sufficiently clear information on his right to remain silent, is a major defect.

There is no doubt that sound public-interest considerations justified prosecuting the applicant, as he was indicted in particular on one count of murder and two counts of attempted murder.

The Court observes that the Belgian Court of Cassation, at the relevant time, took account of a series of procedural safeguards under Belgian law in order to assess the conformity with the Convention of the statutory restrictions on access to a lawyer in police custody (see paragraphs 48 and 67).

As the Court has emphasised in paragraph 171 above, the overall fairness of the proceedings is not guaranteed merely by legislation providing for certain safeguards in the abstract. Only through an examination of their application to the case at hand can it be determined whether the proceedings were fair as a whole. In any event, all the safeguards referred to by the Court of Cassation have been taken into account by the Court in its examination of the present case (see paragraphs 165-90 above).

In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant:

The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance (see Schatschaschwili, cited above, § 124). In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole.