EHRM, 12-05-2017, nr. 21980/04

The applicant was born in 1975 and is detained in Sofia Prison.

The Burgas Investigation Detention Facility was visited in 1999 by a CPT delegation. The relevant part of the report published after that visit was quoted in paragraph 54 of the Chamber judgment.

Burgas Prison was visited by a CPT delegation in April 2002. The relevant part of the report published by the delegation was quoted in paragraph 55 of the Chamber judgment.

Sofia Prison was visited by a CPT delegation in September 2006, December 2008, March and April 2014 and February 2015. The four visit reports were published. The relevant parts of the reports on the first three visits were quoted in paragraphs 57–59 of the Chamber judgment.

The relevant part of the last report on a visit to this prison, in 2015, reads as follows:

On 26 March 2015 the CPT issued a public statement on Bulgaria under Article 10 § 2 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The statement reads as follows (footnotes omitted):

In his memorial submitted to the Grand Chamber and in the course of the hearing, the applicant asked the Grand Chamber to reverse the decision given on 23 August 2011 by the Chamber declaring inadmissible his complaint under Article 3 of the Convention relating to his whole-life sentence.

The Government opposed that request. They submitted that it was contrary to the Court's case-law to the effect that the case which was referred to the Grand Chamber was the application as declared admissible by the Chamber.

The Court reiterates that the content and scope of the ‘case’ referred to the Grand Chamber are delimited by the Chamber's decision on admissibility (see, in particular, K. and T. v. Finland [GC], no. 25702/94, §§ 140 and 141, ECHR 2001-VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 235 and 236, ECHR 2012 (extracts); and Murray v. the Netherlands [GC], no. 10511/10, § 86, ECHR 2016). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from that principle in the present case.

Accordingly, in the framework of the present case, the Court has no jurisdiction to adjudicate on the complaint raised under Article 3 of the Convention concerning the imposition of a whole-life sentence on the applicant.

The applicant complained of the physical conditions of his detention and of the prison regime in the Burgas Investigation Detention Facility and in Burgas and Sofia Prisons. He relied on Article 3 of the Convention, which reads as follows:

The applicant alleged that he had not been assisted by a lawyer for the first few days of his detention. He relied on Article 6 §§ 1 and 3 (c), which reads as follows:

Article 6

The Government contested that argument.

The applicant invited the Court to indicate to the Government, as it had done in the case of Harakchiev and Tolumov (cited above, § 280), measures for the execution of a finding of violation of Article 3 of the Convention owing to the material conditions of detention and the regime applicable to life prisoners.

The Government did not state a position on that matter.

The relevant part of Article 46 of the Convention reads as follows:

Under Article 46 the Contracting Parties have undertaken to abide by the final judgments of the Court in cases to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or the Protocols thereto imposes on the respondent State the legal obligation not just to pay those concerned the sums awarded by way of just satisfaction pursuant to Article 41 of the Convention but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures which it considers appropriate to incorporate into domestic law in order to put an end to the violation found by the Court and to redress as far as possible the effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used under its domestic law to comply with that obligation. However, with a view to helping the respondent State in that task, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, §§ 254-255, ECHR 2012).

The Court reiterates that it set out the following recommendations in its Harakchiev and Tolumov judgment (cited above, § 280):

The Court observes that in the present case it found a violation of Article 3 of the Convention on account of the applicant's conditions of detention taken in conjunction with his restrictive prison regime and the length of his period of imprisonment (see paragraphs 90 and 91 above). Those circumstances, as well as the applicable domestic legislation, are identical to those which led the Court to find a violation of Article 3 on account of the material conditions of detention and the prison regime in the Harakchiev and Tolumov judgment, cited above. It therefore considers it appropriate to reiterate the recommendations which it set out in paragraph 280 of that judgment concerning: (a) removing the automatic application of the special prison regime to life prisoners, and (b) putting in place provisions permitting the imposition of that regime on the basis of an individual risk assessment.

Article 41 of the Convention provides:

The applicable standard as determined in the recent Ibrahim and Others judgment is very clear: where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment. The respondent Government's failure to show compelling reasons weighs heavily in the balance when assessing the overall fairness of the trial and may tip the scales in favour of finding a breach of Article 6 §§ 1 and 3 (c). Consequently, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, § 265).

The overarching purpose of Article 6 is to guarantee the procedural rights that secure a fair trial for each and every accused person. For Article 6 to remain both ‘practical and effective’ (see, among many other authorities, Salduz v. Turkey [GC], no. 36391/02, § 51, 27 November 2008, and Dvorski v. Croatia [GC], no. 25703/11, § 82, 20 October 2015), the minimum procedural rights guaranteed to each person cannot be restricted in the absence of compelling and convincing reasons.1.

The core issue in the present case is whether the Government have proved, in line with the standards of very strict scrutiny, that the overall fairness of the proceedings was not irretrievably prejudiced on account of the Bulgarian authorities' failure to:

Furthermore, in the light of the Bulgarian courts' failure to assess whether these numerous procedural violations irretrievably prejudiced the case, we are unable to agree with the majority's conclusion that the Government have proved that the overall fairness of the proceedings was not irretrievably prejudiced.

The applicant was arrested and detained on 6 October 1999. The Government have observed that the applicant was entitled to legal assistance as of the time of his arrest, and that it had been the police officers' duty to inform him of that right (see judgment, § 101). However, the only arrest order of 9 July 1999 that referenced his right to legal assistance was not signed by the applicant; it must therefore be assumed that the applicant was never properly served with this order (see judgment, §§ 60, 128). Moreover, the applicant was not provided with a lawyer at the time of his arrest or detention.

Thereafter, the applicant was kept in custody for three days. He was allegedly kept incommunicado during this time; the fact is that his parents were only informed about his arrest three days after he was taken into custody (see the applicant's submissions, § 56). The applicant's and the Government's testimonies diverge as to whether the applicant was interrogated during this period. The applicant alleges that he was repeatedly questioned on the occasion of informal invitations into the investigator's office to smoke. The Government allege that no ‘formal interrogation’ took place, without expressly rejecting the allegation that ‘informal’ questioning took place (see Oral Pleadings of the Government of Bulgaria, p. 6).

A public defender was appointed for the applicant on 6 October 1999, notwithstanding the applicant's claim that he had submitted four separate requests for a lawyer of his own choosing between 3 and 6 October 1999 which the authorities had ignored (see judgment, § 18). The applicant was officially charged and interrogated at noon on 6 October. He remained silent during this interrogation, as the interrogation record shows. On 7 October, the applicant's co-accused confessed to having been an accessory to the double murder and robbery and that the applicant had killed both victims. On 8 October, the applicant engaged a private lawyer practising in Burgas. This lawyer had not met the applicant before a second interrogation which was conducted on 12 October, when in the presence of the lawyer of his choice, he again chose to remain silent. On 21 October, the applicant confessed in the presence of his lawyer, with whom he had had no opportunity to have confidential or other conversation. He alleged at that time that his co-accused had killed the victims. Subsequently, on 22 December, the applicant hired a second lawyer practicing in Sofia. On 4 January 2000, the applicant and the co-accused, assisted by counsel, retracted their confessions, and their lawyers requested that their clients be questioned once again.

This Court has explained that where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons injured while in custody, strong presumptions of fact will arise. The burden of proof then falls upon the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Bouyid v. Belgium [GC], no. 23380/09, § 83, ECHR-2015; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Rivas v. France, no. 59584/00, § 38, 1 April 2004; see also, among other authorities, Turan Cakir v. Belgium, no. 44256/06, § 54, 10 March 2009; Mete and Others v. Turkey, no. 294/08, § 112, 4 October 2011; and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR- 2012). In the absence of such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El-Masri, cited above, § 152).

Placing the evidentiary burden upon the Government is justified by various considerations. First, persons in custody are in a vulnerable position, as this Court has repeatedly acknowledged, and the authorities are under a duty to protect them (see, among other authorities, Salman, cited above, § 99). The investigation stage may be particularly decisive as regards the course to be taken by the ensuing criminal proceedings (see John Murray v. United Kingdom, 8 February 1996, § 63, Reports of Judgments and Decisions 1996 I; Martin v. Estonia, no. 35985/09, § 79, 30 May 2013). The fact of isolating detainees and depriving them of information may be compounded by complex legislation on criminal procedure, notably with regard to the rules governing the gathering and use of evidence (see Salduz, cited above, §§ 52 and 54; Dvorski, cited above, § 77; and Ibrahim and Others, cited above, § 253). Detained persons cannot document evidence of their treatment short of what the State can provide (through medical examinations, written records, and so forth). Finally, because in this instance the applicant's defence rights were restricted (see judgment, § 128) without compelling reasons, the onus is on the Government to demonstrate convincingly why the overall fairness of the trial was not prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, § 265).

For these reasons, a proper application of the Ibrahim framework would compel the Bulgarian Government to prove that no coercion or compulsion was exerted upon the applicant during the three-day period that preceded his formal charging and interrogation.

It is well established that Article 6 guarantees the individual the right to be notified of his defence rights once he is the subject of a ‘criminal charge’2.; these rights include the right to remain silent and the right not to incriminate oneself (see Bykov v. Russia [GC], no. 4378/02, § 92, 10 March 2009; John Murray, cited above, § 45; and Serves v. France, 20 October 1997, § 47, Reports of Judgments and Decisions 1997-VI). Secondly, he has the right to legal assistance once he is subject to a criminal charge (see Deweer v. Belgium, 27 February 1980, §§ 42–46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; and McFarlane v. Ireland [GC], no. 31333/06, § 143, 10 September 2010). These rights are echoed in European Union law3.and the International Covenant on Civil and Political Rights.4.

The fairness of proceedings also generally requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, which include, without restriction, the fundamental aspects of that person's defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention (see Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009, and Bogumil v. Portugal, no. 35228/03, §§ 48–49, 7 October 2008). The defence rights protected under Article 6 serve to preserve the equality of arms between the State and individuals accused of criminal offences (see Foucher v. France, 18 March 1997, § 34, Reports of Judgments and Decisions 1997-II; Bulut v. Austria, 22 February 1996, § 47, Reports of Judgments and Decisions 1996-II; Bobek v. Poland, no. 68761/01, § 56, 17 July 2007; and Klimentyev v. Russia, no. 46503/99, § 95, 16 November 2006).

This Court has held that the vulnerability of detained persons during the investigative stage ‘can only be properly compensated by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself’ (see Salduz, cited above, § 54).

Where access to a lawyer is delayed, there is a greater need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and his privilege against self-incrimination. A fortiori, it is all the more important that persons in police custody be granted the assistance of a lawyer when they have not previously been informed by the authorities of their right to remain silent (see Brusco v. France, no. 1466/07, § 54, 14 October 2010, and Navone and Others v. Monaco, no. 62880/11 and two others, § 74, 24 October 2013).5.Moreover, a failure to notify an applicant of his defence rights is considered a particularly significant defect (see Ibrahim, cited above, § 303) and will make it even more difficult for the Government to rebut the high threshold of the presumption of unfairness that arises where there are no compelling reasons for delaying access to legal advice (see Ibrahim and Others, cited above, §§ 273 and 311).

In Bulgarian law legal assistance is a right from the time of arrest (see section 70 of the 1997 Ministry of the Interior Act and Articles 70 and 73 of the 1974 Code of Criminal Procedure). The right to legal counsel cannot be waived in cases involving offences carrying a sentence of over ten years imprisonment, as in the present case (see Article 70 of the 1974 Code of Criminal Procedure). Under the established case-law of the Bulgarian Supreme Court of Cassation, where the authorities have failed to formally charge a suspect in accordance with the requirements of the Code of Criminal Procedure, that omission amounts to a restriction of the rights of the defence and forces the court to refer the case back to the preliminary investigation stage (see judgment, § 66).

We cannot agree with the majority's conclusion that the overall fairness of the trial was convincingly established because the evidence on which the applicant was convicted was not affected by the absence of a lawyer when he was detained. The Government have provided little or no evidence concerning the applicant's pre-trial detention, during which the Government have acknowledged violating the applicant's rights under domestic and EU law and under this Convention (see judgment, §§ 59 and 101). The Government have not rebutted the applicant's allegations that he was informally questioned in detention, which information could have been used to charge him in the first place. Nor have the Government proved that the procedural violations which they committed, in combination, did not affect the voluntariness of the accused's confession, which he later retracted. Since the applicant has repeatedly alleged that he was questioned by the authorities when he was in custody, we cannot agree with the majority that no causal link was posited by the applicant before the domestic courts or this Court concerning the absence of a lawyer during his detention from 3 to 6 October and the confession he made on 21 October (see judgment, § 140). Nor can we agree with the majority's conclusion that consequently, the absence of a lawyer during the applicant's time in police custody in no way prejudiced his right against self-incrimination (see judgment, § 140).

This Court has traditionally acknowledged that restricting access to legal advice during the investigative stage, when the applicant is at his most vulnerable, can affect the overall fairness of the proceedings. Neither subsequent legal assistance nor the adversarial process of the ensuing proceedings will necessarily cure defects which occur during the applicant's pre-trial custody period (see Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011; Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010; Salduz, cited above, § 58; and Płonka v. Poland, no. 20310/02, §§ 39–41, 31 March 2009).6.

The approach of the majority concentrates solely on the evidence which was used to convict the applicant, which is inconsistent with the requirement to examine the proceedings as a whole and not on the basis of an isolated consideration (see Ibrahim, cited above, § 251). Moreover, such an approach permits the Government to focus only on evidence used to convict the applicant when discharging its burden to prove that overall fairness was maintained. This approach is, firstly, inconsistent with the requirements of Ibrahim, according to which the Court is required to take into account the cumulative effect of the procedural shortcomings when assessing whether or not the Government have proved that the overall fairness of the trial was not irretrievably prejudiced by the decision not to caution him and to restrict his access to legal advice (see Ibrahim, cited above, § 311).7.Secondly, this approach risks rendering the procedural rights protected under Article 6 theoretical and illusory by conflating the issue of proving that the applicant received a fair trial with that of the applicant's substantive guilt.

According to the well-established case-law of this Court, the prosecution must prove a case without resort to evidence obtained through coercion or in defiance of the will of the accused (see, among many authorities, Saunders v. the United Kingdom, 17 December 1996, § 68, Case-law Reports 1996-VI; Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-IX; and Schmid-Laffer v. Switzerland, no. 41269/08, § 38, 16 June 2015). The voluntariness and validity of the applicant's ensuing confession are called into question when, as here, the procedural rights of the applicant are violated during pre-trial detention (see, mutatis mutandi, Bouyid, cited above, § 83; John Murray, cited above, § 45; Mehmet Şerif Öner, cited above, § 21; Lopata, cited above, §§ 137, 140-44; and Averill, cited above, § 60).

In this case, a number of the applicant's rights under this Court's case-law and domestic law were violated by the Bulgarian investigating authorities, as the Court concedes (§ 122, 124, 127). The Government failed to present the applicant with his order of arrest and to inform him of his defence rights upon arrest (see judgment, § 127), to assign him a lawyer upon arrest (see judgment, § 101), to promptly notify his parents of his detention, and to keep proper records of his custody.8.Failure by a State to keep proper records in relation to the events surrounding an accused's detention, the reasons for it, and its duration, as well as regarding whether the accused was duly notified of his defence rights upon arrest has been held by this Court to constitute a violation of Article 5 (see Smolik v. Ukraine, no. 11778/05, § 45, 19 January 2012, and Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III).9.

The applicant, furthermore, was also initially assigned a court-appointed lawyer not of his own choosing and questioned almost immediately thereafter, such that it was impossible for him at this stage to confer with his defence counsel in order to prepare his defence. In this connection, the applicant's claim that he was unable to have confidential meetings with his lawyer, as an investigator always remained present during his legal consultations, is almost an afterthought. Without evidence from the Government to prove the contrary, these facts constitute a breach of the applicant's right to effective assistance of counsel (see Bogumil, cited above, § 48; Dvorski, cited above, § 79; Dayanan, cited above, § 32; Bonzi v. Switzerland, Commission decision, no. 7854/77, 12 July 1978; and Can v. Austria, Commission report, § 52, no. 9300/81, 30 September 1985).

This Court has consistently held that the national authorities must have regard to the defendant's wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorksi, cited above, § 79; see also Meftah and Others v. France [GC], no. 32911/96 and two others, § 45, ECHR 2002-VII; Mayzit v. Russia, no. 63378/00, § 66, 20 January 2005; Klimentyev, cited above, § 116; Vitan v. Romania, no. 42084/02, § 59, 25 March 2008; Pavlenko v. Russia, no. 42371/02, § 98, 1 April 2010; Zagorodniy v. Ukraine, no. 27004/06, § 52, 24 November 2011; and Martin, cited above, § 90). Where such grounds are lacking, as in the present case, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant's defence, regard being had to the proceedings as a whole (Dvorski, cited above, § 79 see also Meftah and Others, cited above, §§ 46–47; Vitan, cited above, §§ 58–64; Zagorodniy, cited above, §§ 53–55; and Martin, cited above, §§ 90–97). Taken together, these factors give reason to doubt that the applicant had effective access to legal counsel prior to his confession, especially as the applicant and his co-accused immediately retracted their confessions on engaging a different lawyer and obtaining access to their case files (judgment, § 27).

Beyond these clear-cut violations, the Government's own submissions are riddled with errors and omissions. The Government's contention that no interrogations of the applicant took place between 3 to 6 October is contradicted, not only by the Chamber judgment (‘During that time the officials … questioned [the applicant] about the robbery and the two murders committed in Burgas’ [see judgment, § 9]), but indeed, by their own pleadings (‘Mr President, it is possible that a conversation, or even questioning, took place between the applicant and police officers or an investigator in Sofia. This questioning, however, was not objectified in any form.’ (Oral Pleadings of the Government of Bulgaria, p. 6)). According to this Court, any conversation between a detained criminal suspect and the police must be treated as formal contact and cannot be characterised as ‘informal questioning,’ even if the authorities claim not to have relied on information provided by such questioning (see Martin, cited above, §§ 95–97, and Titarenko v. Ukraine, no. 31720/02, § 87, 20 September 2012).

Other established facts in this case give reason to doubt that the applicant freely exercised his privilege against self-incrimination. First, during the three days in question, interrogations were conducted of a witness to the crime and the applicant's co-accused, a signed confession from whom was entered into the case file on 3 October 1999 (see judgment, § 20). In the light of those interrogations, the applicant, who was being detained separately from his co-accused, would have been trapped in a classic Prisoner's Dilemma — a situation expressly designed to apply pressure upon a detainee with the aim of eliciting a confession or another incriminating admission. In this situation, the applicant's restricted access to legal representation was such as to leave him exposed to such pressure in a manner inconsistent with the right to be free from self-incrimination (see Brusco, cited above, § 54). The 1999 Report of the Committee for the Prevention of Torture (CPT) confirms that it was standard practice at the time for Bulgarian police officers to have an initial ‘talk’ with a person taken to the police station, lasting up to 3 hours.10.Detained persons were often not informed of their right of access to a lawyer, and such access ‘was rarely — if ever — granted to persons throughout their period of custody.’11.In 2015, the CPT updated this report, expressing concern for ‘persistent failure by the Bulgarian authorities to address most of the fundamental shortcomings in the treatment’ of detained persons. In particular, access to a lawyer during the initial phase of police custody was routinely denied prisoners (see judgment, § 79). This Court admits that ‘[i]t would appear that the events in the present case correspond to a practice on the part of the authorities which has been severely criticised’ (see judgment, § 130). It observes, further, that ‘such a practice on the part of the authorities would be difficult to reconcile with the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in all its Articles’ (see judgment, § 131), but goes no further than these brief comments.

The majority further relies on the contention that the applicant's conviction was not based exclusively on the confession made on 21 October 1999, but on a whole body of evidence (see judgment, § 142). The Court concludes that it is ‘unfortunate that the applicant's first three days in detention were not properly documented’ (see judgment, § 124) so as to avoid the evidentiary gaps with which this Court contends in the present case, but it summarily concludes that ‘no causal link’ (see judgment, § 140) exists between the absence of a lawyer and the applicant's confession two weeks later. It is far from clear that there is no causal link between this wider body of evidence, the applicant's confession, and the absence of a lawyer during the applicant's time in police custody. As mentioned above, the police had obtained a confession from the co-accused and a witness while the applicant was held in custody. Further, the police only gathered a larger body of evidence after the applicant had confessed on 21 October (see judgment, § 26). The Government have not demonstrated that this evidence was gathered independently from whatever knowledge or insights the police had gained from the applicant's confession.

Given the inadequacy of the information presented by the Government and the failure of the domestic courts to address any of these points satisfactorily in their respective judgments, the Court cannot determine that the confession was not decisive in convicting the applicant. This Court has emphasised that in determining whether the proceedings as a whole were fair, regard must also be had as to whether the rights of the defence have been respected. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. In this connection, the Court further attaches weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (see Gäfgen v. Germany [GC], no. 22978/05, §§ 164 and 165, ECHR 2010, and Khan v. the United Kingdom, no. 35394/97, §§ 35 and 37, ECHR 2005). Given that this Court has held that an accused's right to silence and privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of fair procedure under Article 6 (see Brusco, cited above, § 44; and John Murray, cited above, § 45), we cannot agree that the Government have proved the fairness of the trial, since they cannot prove that they did not violate the applicant's rights under Article 6 in obtaining the confession and subsequent evidence.

We emphasise that, notwithstanding serious doubts concerning the conduct of the investigation, we are not called upon to establish the bad faith of the investigative authorities. Yet in the light of the absence of reasons for delaying access to a lawyer, the Government's reliance on the absence of proof of a violation of the applicant's rights to effective counsel (see judgment, § 101) is insufficient to demonstrate that the applicant's right to a fair trial was not irretrievably prejudiced. This Court has held that a Government's failure to provide an explanation as to why an accused was denied legal assistance when being held in police custody constitutes a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 (see Galip Doğru v. Turkey, no. 36001/06, §§ 83–85, 28 April 2015).12. These omissions and equivocations are particularly serious in the light of the multiple procedural violations committed by the Bulgarian authorities during the applicant's period of pre-trial detention, as recognised by this Court.

The applicant's right to a fair trial under Article 6 was also prejudiced by the review conducted by Bulgarian courts, which failed to identify and assess a number of procedural violations. Firstly, the defence had raised several breaches of procedural rules under domestic law before the Regional Court, but these do not appear to have been addressed in its judgment (see judgment, §§ 37–41). Furthermore, in his appeal before the Supreme Court of Cassation, the applicant alleged that his right to a lawyer under domestic law and the Constitution had been violated, but this argument was not considered either (see judgment §§ 43–44). The Supreme Court of Cassation considered that the facts had been well-established and the relevant procedural legislation appropriately applied (see judgment, § 44). It is hard to conceive how it could have reasonably arrived at this conclusion given that the Government had provided no evidence to support the assertion that it had duly complied with all the procedure steps which it was legally obliged to conduct. Under Bulgarian law, where investigating authorities fail to comply with the obligation to inform the accused of the legal basis of the accusation in accordance with procedure, or fail to provide the accused with a defence lawyer, a trial court would have grounds to terminate the court proceedings and refer the case back to the investigation stage (see judgment, § 66). Thus, we cannot conclude with the majority that the domestic courts at all levels of jurisdiction duly assessed whether the applicant's procedural rights had been respected (see judgment, § 143).

Secondly, the Government offered no proof to rebut the applicant's allegations that he had been questioned without a lawyer before the police charged him with murder. In Martin, cited above, the Court held that there was nothing to prevent the use of pre-trial statements as ‘general knowledge’ to form the basis of the charge against an accused and the investigative measures that were subsequently carried out. Thus, the use of such statements to support a charge would necessarily compromise the overall fairness of the proceedings and render any subsequent evidence (such as the confession) inadmissible (see § 95). In light of the Government's admission of ‘informal questioning’, supported by the CPT Report's documentation of such systematic practices among investigators, we disagree with the majority that no evidence capable of being used against the applicant was obtained by the authorities during the three-day period at the start of the applicant's detention, even if there was no decisive reliance on said evidence in the final judgment (see judgment, § 137).

Thirdly, it is clear that the domestic courts did not deal with the matter of legal assistance in any meaningful sense, despite the fact that the applicant consistently raised this claim before the domestic courts, and both parties agree that the applicant was denied legal assistance during his time in custody. This Court has ruled, in similar factual circumstances, that where ‘the relevant [domestic] court decisions contain no meaningful ruling on the issue of legal assistance … the Court is not satisfied that the applicant's grievance received an appropriate response from the national courts and considers that fair procedures for making an assessment of the issue of legal assistance proved non-existent in the present case’ (see Vanfuli v. Russia, no. 24885/05, §§ 103–105, 3 November 2011, and Nechto v. Russia, no. 24893/05, §§ 111–113, 24 January 2012).

Accordingly, we conclude that the domestic courts failed to conduct an adequate review of the applicant's case under domestic law. Therefore, even in the absence of evidence from the Government that the confession was fully informed and voluntary, we maintain that they have failed to prove that the applicant's treatment at the hands of the Bulgarian authorities did not irretrievably prejudice the overall fairness of the trial.

In a very recent decision, this Court stressed ‘the need to look beyond appearances and the language used and to concentrate on the realities of the situation’ (see Blokhin v. Russia [GC], no. 47152/06, § 180, ECHR 2016). Today's judgment disregards the invitation to do just that, with deeply troubling implications. What, we might ask, are the incentives provided to police officers when, as today, this Court legitimates a potential legal black hole in which the applicant is detained for an unspecified length of time with no rights to information or legal counsel, so long as he is not officially questioned?

This Court acknowledges that the right to access to legal counsel, a ‘fundamental safeguard against ill-treatment,’ should be provided ‘as from the first interrogation of a suspect by the police’ (see Salduz, cited above, §§ 54, 55). However, as Judge Bratza wrote in a prescient concurrence in Salduz, ‘[i]t would be regrettable if the impression were to be left by the judgment that no issue could arise under Article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that Article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect.’13.To deny an accused person access to a lawyer from the beginning of their detention may irretrievably prejudice that person's rights of defence, whether or not such prejudice stems from the interrogation of the suspect.

The language of Article 6 § 3 is clear: everyone charged with a criminal offence has the right to be ‘informed promptly’ of the charges against him and to have ‘adequate time and facilities’ for the preparation of his defence. In Ibrahim, the UK government invoked ‘compelling reasons’ for delaying access to legal counsel, namely ‘an urgent need to avert serious adverse consequences for life, liberty or physical integrity’ (§§ 258–259). In that case, an ‘imminent’ threat, documented by a member State Government, led to an ‘exceptional’ relaxation of the right of four suspected terrorists to be questioned only in the presence of a lawyer. Here, we have no exceptional situation, no compelling public interest in limiting the applicant's fair-trial rights, and no Government explanation for why this departure from procedure was justified. The overall fairness analysis as applied in this case runs the risk of replacing the evaluation of the fairness of a trial with that of a plausibility of a conviction.

It is true, of course, that the absence of compelling reasons is not sufficient of itself to found a violation (see Heaney and McGuinness v. Ireland, no. 34720/97, § 47, ECHR 2000-XII; Weh v. Austria, no. 38544/97, § 46, 8 April 2004; O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 53, ECHR 2007-III; and Dvorski, cited above, § 79). However, as we have stated, the finding of a violation is over-determined in the present case, in the light of the vitiation of the accused's ‘practical and effective’ rights to legal assistance and the clear statutory violations committed by the Bulgarian police which passed unnoticed by the domestic courts.

In the present case, the applicant's fundamental rights of defence were violated without compelling reason and without counterbalancing elements. Pre-trial prisoners find themselves in one of the most vulnerable situations an individual can face during criminal proceedings, especially when they are denied access to legal assistance and information on their rights. We regret that today's judgment only serves to weaken that position further still.

Though I agree with the majority that there were no compelling reasons for restricting the applicant's right of access to a lawyer for three days, from 3 to 6 October 1999, I disagree, with all due respect to them, that the question of the need for an overall fairness assessment should be answered in the affirmative.

I will examine below the leading Grand Chamber judgments concerning this issue in chronological order.

In John Murray v. the United Kingdom (8 February 1996, Reports of Judgments and Decisions 1996-I) the accused was without a lawyer for two days (a shorter period than the time during which the applicant in the present case had no access to a lawyer) and chose to remain silent during his interrogation. The Court stated clearly (ibid., § 66, emphasis mine) that this was incompatible with the provisions of Article 6 of the Convention, ‘whatever the justification for such denial’ — that is, irrespective of whether or not there were compelling reasons for the restriction on access to a lawyer:

The Court added in the same judgment (ibid., § 68, emphasis mine):

In Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) the Court made it clear that it would proceed to evaluate the overall fairness only if the restriction was justified, or otherwise if there were compelling reasons for it.

The following passages from Salduz (ibid., §§ 52 and 55) are relevant, and in particular, the wording emphasised by me gives a clear illustration of what has been said above:

The phrases ‘if so’ (in the French text of the judgment ‘dans l’affirmative’) and ‘Even where compelling reasons …’ (in French ‘Même lorsque des raisons impérieuses …’) in the above statements from Salduz leave no doubt in my view that an overall assessment is required only when there are compelling reasons for the restriction. The phrases in question indicate when the door opens for proceeding to examine the overall fairness, which occurs only when there are compelling reasons for the restriction.

At the end of paragraph 56 of its judgment in Salduz, under the subheading ‘(b) Application of the above principles to the present case’, the Court stated the following, which is fully consistent with the principle it enunciated in paragraph 52 and repeated in paragraph 55 (emphasis mine):

However, instead of stopping at the end of paragraph 56 in view of the above — that is, after finding that there were no compelling reasons for the restriction and that this fell short of the requirements of Article 6 — the Court in Salduz nevertheless proceeded to examine the substance of the case. It is apparent that the very brief statements it made about the substance of the case were guided purely by excessive caution, ex abundanti cautela. This could be supported by the following arguments:

In Dvorski v. Croatia ([GC], no. 25703/11, ECHR 2015) the principle set forth in Salduz seems to have been reversed, without any explanation.

The principle established in Dvorski is that the Court examines the overall fairness only if there were not sufficient grounds for the restriction, and this is supported by the following passage from paragraph 82 of Dvorski (emphasis mine):

Dvorski, however, differs from Salduz and the present case, since the issue arising in the former was not a restriction of the applicant's right to a lawyer, but to a lawyer of his choosing.

In Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 263–65 and 301, ECHR 2016) the principle set forth was different from those principles set forth in the previous three cases, respectively. According to Ibrahim and Others, the overall fairness test must be examined in every case, irrespective of whether or not there were compelling reasons for the restriction. The only difference between cases where there were and where there were not compelling reasons for the restriction lies in the standard of evidential proof and which of the parties has to meet it.

The approach followed by the Court in Ibrahim and Others is clear from the following passages (emphasis mine):

That the burden of proof is shifted to the respondent State in the absence of compelling reasons is clear from paragraph 301 of Ibrahim and Others (cited above):

(emphasis mine)

Though the Court in Ibrahim and Others used neither the terminology of the standard of proof applied in civil cases, namely ‘on the balance of probabilities’, nor the terminology applied in criminal cases, namely ‘beyond reasonable doubt’, what it said, however, seems to be, to put it simply, that the former standard applies to the applicant when there were compelling reasons, and the latter standard to the respondent State where there were no compelling reasons.

With all due respect, however, the Court in Ibrahim and Others overlooked, inter alia, the clear literal meaning of the words ‘if so’ and ‘Even where compelling reasons’ in paragraphs 52 and 55 respectively of Salduz, as if this wording was not included in the relevant passages of that judgment. By bypassing this wording, it assuredly did not follow the Latin legal maxim of interpretation, namely ‘interpretatio fienda est ut res magis valeat quam pereat’ (that interpretation is to be made that the thing may stand rather than fall — see Jenkins, Centuries or Reports, 198), which usually applies in interpreting statutes and contracts but is also one of the manifestations of the principle of effectiveness, and therefore applies in interpreting a treaty and is itself embodied in Article 31 § 1 of the 1969 Vienna Convention on the Law of Treaties (see The Vienna Convention on the Law of Treaties — Travaux Préparatoires, Frankfurt, 1978, at pp. 239-40; see also, regarding the ‘règle de l'effet utile’ and the ‘règle de l'efficacité’, Georges Berlia, ‘Contribution à l'interpretation des traités’, in Collected Courses of the Hague Academy of International Law, 114 (1965-1), pp. 396 et seq.).

What better principle could one apply in understanding or interpreting words in a judgment which are absolutely clear than this principle, which gives full weight and meaning to every word used? Also quite pertinent are the following legal maxims of interpretation, which are based on common sense and which leave no doubt on the point at issue: ‘interpretatio cessat in claris’ (interpretation stops when the text is clear); ‘quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est’ (when there is no ambiguity in the words, then no exposition contrary to the words is to be made — see Coke, On Littleton, 147 a); ‘absoluta sententia expositione non indiget’ (an absolute sentence needs no exposition — see 2 Justinian, Institutes, 533, and Emer De Vattel, Law of Nations, Bk. 2, § 263: ‘it is not allowable to interpret what has no need of interpretation’); ‘expressio facit cessare tacitum’ (to state a thing expressly ends the possibility that something inconsistent with it is implied — see Coke, On Littleton, 210 a, and F.A.R. Bennion, Bennion on Statutory Interpretation: A Code, fifth edition, London, 2008, section 389, pp. 1249–50).

But it is not only the above wording in Salduz that is important: the Salduz judgment does not in any way say or suggest that the two stages of the test to which Ibrahim and Others refers are compulsory or indispensable in every case.

In the judgment in the present case, under the heading ‘(d) Temporary restriction on the access to a lawyer for ‘compelling reasons’’ (see paragraphs 116-18), the majority follow the approach adopted in Ibrahim and Others, by again citing (as that judgment does) the same passage from Salduz (§ 55), which, with all due respect, not only does not support the interpretation provided in Ibrahim and Others and followed in the present case, but in fact says something completely different.

The majority do not give any reason as to why they have departed from Salduz and this is probably because they simply followed Ibrahim and Others. With all due respect, they have repeated the incorrect reading of Salduz by referring to two compulsory stages of the assessment, whereas Salduz clearly indicates that stage two is required only if there are compelling reasons for the restriction.

It is to be noted that both Ibrahim and Others and Salduz are Grand Chamber judgments. Ibrahim and Others is subsequent to Salduz. However, Salduz was adopted unanimously on the relevant issue, whereas Ibrahim and Others was adopted by an overwhelming majority (fifteen votes to two).

Indeed, judgments of the Grand Chamber have a highly persuasive value and force, and the Court cannot depart from a previous judgment, unless good reasons are given in a subsequent case before the Grand Chamber. In the present case, which is a new Grand Chamber case, the Court, with all due respect, should have, firstly, acknowledged that Ibrahim and Others was based on an incorrect reading of Salduz; secondly, acknowledged that the approach in the two cases was different; and lastly, decided which of them, if any, to follow, by giving good reasons. If the Ibrahim and Others judgment was reached as a result of an incorrect reading of Salduz or per incuriam, it would have sufficed for the Court in the present case to explain this and to depart from Ibrahim and Others by applying the correct reading of Salduz, unless, irrespective of the incorrect interpretation of Salduz, the Court were to find the approach in Ibrahim and Others — that is, the two compulsory stages — more justifiable and legally correct, and to follow it by giving further reasons why not to follow Salduz and by applying a new approach.

In addition, the Court could have differentiated the present case from Ibrahim and Others on the facts and followed the proper reading of Salduz. The present case is more similar to Salduz than to Ibrahim and Others, since the Court decided that there were no compelling reasons for the restriction. The same was decided in Salduz, but not in Ibrahim and Others, where the Court found in respect of the first three applicants that there were compelling reasons for the restriction. As regards the fourth applicant in Ibrahim and Others, although there were no compelling reasons for the restriction, the case was different from the present one, since that applicant had not initially been interviewed by the police as a suspect, but as a witness. So, since in Ibrahim and Others there were compelling reasons for the restriction, what the Court said in that case in interpreting and applying Salduz, as to whether it should proceed to assess the overall fairness even in the event of finding that there were no compelling reasons for the restriction, was not the ratio decidendi of the judgment but was simply an obiter dictum. Therefore, even if the Court were to follow the strict common-law approach of stare decisis in the present case, it would not be bound to follow its principle in Ibrahim and Others in a case where, as in the present case, there were no compelling reasons for the restriction.

With all due respect, the answer to the above question, I believe, should be in the negative, for reasons which will be explained below.

If there are no compelling reasons for restricting a person's right to defend himself through legal assistance of his own choosing, which is one of the minimum rights under Article 6 § 3 (c) of the Convention for everyone charged with a criminal offence, this amounts to a serious violation of the said provision by itself and runs counter to the rule of law, and there is no need to examine anything else. That was the logic of Salduz and that is why a situation where there were compelling reasons for such a restriction must be distinguished from a situation where there were no compelling reasons. On the other hand, the Ibrahim approach, by requiring an overall fairness assessment even in cases where there were no compelling reasons for the restriction, makes no substantial distinction between these cases and cases where there were compelling reasons.

The Ibrahim approach, with all due respect, does not take into consideration, as it should, the fact that not only was the right to have a lawyer denied, but also that the respondent State violated the rule of law, one of the most significant principles of the Convention and of a democratic society. The endeavour of the Court in Ibrahim and Others to find a way to distinguish between the consequences of restrictions with no compelling reasons and with compelling reasons, other than finding a violation in the former case and proceeding to assess the overall fairness in the latter case, shows the difficulty of proceeding in a different way from the Salduz approach, ultimately reducing the issue from a matter of substance to a matter of evidential proof.

Though the right to be represented by a lawyer under Article 6 § 3 (c) of the Convention is a minimum right (and not just a relevant factor or consideration), being an intrinsic part or aspect of the right to a fair trial, which is an absolute right (apart from its aspect concerning the public delivery of judgments), and therefore should not be burdened by implied qualifications or restrictions, the case-law nevertheless considers that it is not an absolute right (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).

However, and rightly so, the case-law considers the right to have a lawyer ‘one of the fundamental features of a fair trial’. In Poitrimol (cited above, § 34) the Court held that ‘[a]lthough not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial’. In Panovits v. Cyprus (no. 4268/04, §§ 65 and 66, 11 December 2008) the Court held that the right to be assisted by a lawyer should be available from the initial stages of proceedings and was an issue of particular importance in assessing matters such as the protection against self-incrimination.

The importance of the role of a lawyer for the defence of an applicant in a criminal case was highlighted by the Court in the following passage from Artico v. Italy (13 May 1980, § 33, Series A no. 37), which has been reproduced in many other cases (see, for example, Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168, and Luchaninova v. Ukraine, no. 16347/02, § 63, 9 June 2011):

Furthermore, the necessity of having a lawyer from the initial stage of the preliminary investigation was highlighted by the former European Commission of Human Rights in Can v. Austria (no. 9300/81, Commission's report of 12 July 1984, § 55), where it also enumerated the tasks a lawyer should have at this preliminary stage:

Also, in A.T. v. Luxembourg (no. 30460/13, § 64, 9 April 2015) the Court very pertinently held:

That it is paramount for an accused to have a lawyer from the initial stages of the police investigation is also clear from the passage quoted above from John Murray (§§ 66 and 68 — see paragraph 4 above).

A very good overview of the importance of the right to legal assistance, the purpose of legal assistance and the role of the accused's lawyer is provided by Dr Stephanos Stavros in The Guarantees for Accused Persons Under Article 6 of the European Convention on Human Rights — An Analysis of the Application of the Convention and a Comparison with Other Instruments, Dordrecht/Boston/London, 1993 (International Studies in Human Rights, vol. 24), at pp. 201–202:

In view of the above, one should be very reluctant to alienate, or detract from the essence of, the right to have a lawyer. It is unfortunate, however, that, as emerges from the above analysis of Grand Chamber cases in chronological order, the level of protection of the right to have a lawyer has steadily declined.

Though Article 6 § 3 (c) of the Convention does not distinguish between compelling reasons and non-compelling reasons for restricting the right to be represented by a lawyer — and according to the Latin maxim ubi lex non distinguit, nec nos distinguere debemus (7 Coke's Reports, 5), the guarantees of that right should be applied in every case unconditionally, as the Court said in John Murray (cited above) — the principle set out in Ibrahim and Others that the fairness assessment must be carried out in all cases, irrespective of whether the reasons for the restriction were compelling or not, amounts to a severe qualification, or indeed restriction, of a right which, though not absolute, ‘is one of the fundamental features of a fair trial’. As indicated above, this qualification is severe, firstly, because it ignores the fact that the respondent State may have violated the rule of law, and, secondly, because it places a burden on the applicant to prove that overall his case was not fair, overlooking the fact that he may have been deprived of his right to have a lawyer.

It must also be acknowledged that the Salduz approach, to the extent that it requires the examination of overall fairness in cases where there are compelling reasons for a restriction, is a qualification or restriction of the right to have a lawyer, since all that matters in terms of strict literal compliance with Article 6 § 3 (c) of the Convention is access to a lawyer, without any exception, ‘whatever the justification’, as the Court rightly decided in John Murray (cited above in paragraph 4). It is true that there is no provision in Article 6 requiring the public interest to be balanced against private interests. In particular, there is no wording such as ‘necessary in a democratic society in the interests of national security, public safety, … for the prevention of disorder or crime, … for the protection of the rights and freedoms of others’, as is found in Article 8 § 2 of the Convention and similarly in Articles 9 § 2, 10 § 2 and 11 § 2, to justify limiting on any grounds the right to have a lawyer.

However, a judge alone cannot go back on the Salduz approach and follow John Murray, which is a relatively old case. Only the Grand Chamber could do so. But these are not just theoretical reflections. They may serve to explain and show that the right to be represented by a lawyer cannot be subject to another qualification. In Salduz the Court did not state who had the burden of proving the overall fairness — or otherwise — of proceedings where there were compelling reasons for the restriction. It could be argued that it is the applicant who has the general burden of proving his allegations, but it could also be argued that it is the respondent State which deprived the applicant of his right, irrespective of whether there were compelling reasons for such deprivation. In the case of deprivation of possessions, as in all property matters under Article 1 of Protocol No. 1, just satisfaction is required. It would run counter to the notion of fairness under Article 6 § 3 (c) of the Convention for an applicant who has been deprived of his right to have a lawyer for compelling reasons, instead of being in any way compensated for such deprivation, to have the burden of proving himself that the proceedings were not overall fair for him.

The fairness test can logically only be applied to definite facts and not to guesses or hypotheses. Any other approach, with all due respect, would water down the right guaranteed by Article 6 § 3 (c) of the Convention. So the approach in Ibrahim and Others, by insisting on the examination of fairness in every case, even if the applicant was without a lawyer for a certain period of time without any compelling reasons, is, with all due respect, precarious and not compatible with the scope of the above provision.

The notion of overall fairness should not mean fairness in general but presupposes that all the constituent parts of the proceedings should be fair, starting, as will be seen below, from the arrest. The period of time from the arrest of an accused up to the final judgment of the Court should be compact in terms of the applicant's protection, like the life of an embryo. Article 6 § 3 (c) of the Convention confers on an accused person the right to defend himself or herself with the assistance of a lawyer at all stages of proceedings from the time of the arrest, including the arrest itself, and, of course, the period of detention before interrogation, which forms a part of the proceedings by itself. If this protection stops for any time, the right ceases to have any life. Thus, the three days in detention during which the applicant was deprived of his right to have a lawyer should not be regarded simply as an independent moment or time or procedure and be detached from the rest of the time and procedure when the applicant did have a lawyer. During these three days, many things might have happened without a lawyer being present but cannot be proved, and many things should have happened if a lawyer had been present, but did not because of the lack of access to a lawyer. One cannot excuse the illegality of the lack of compelling reasons for the restriction by later adopting an overall fairness test ignoring the initial part of the proceedings. There is truth and wisdom in the Latin maxim ‘quod ab initio non valet, in tractu temporis non convalescet’ (what is not good in the beginning cannot be rendered good by time — see Coke, On Littleton, 35 a) and it seems that this applies in the present case. The importance of the ‘beginning’ is also depicted in the Latin maxims ‘quod non habet principium non habet finem’ (that which has no beginning has no end — see Coke, On Littleton, 345 a) and ‘cujusque rei potissima pars principium est’ (of everything the chief part is the beginning — see 10 Coke's Reports, 49). Also of relevance may be the Latin maxims ‘parte quacunque integrante sublata tollitur totum’ (an integral part being taken away, the whole is taken away — see 9 Coke's Reports, 41) and ‘sublato fundamento cadit opus’ (remove the foundation, the work falls — see Jenkins, Centuries or Reports, 106). Wisdom is also to be found in another Latin maxim which may apply in the present case, ‘quae mala sunt inchoata in principio vix bono peraguntur exitu’ (things bad in the commencement seldom end well — see 4 Coke's Reports 2).

As has been said above, the notion of fairness is associated with the rule of law, which is inherent in the Convention system, and it is also associated with the positive obligation of the respondent State to safeguard the right of the applicant not to be deprived of access to a lawyer without compelling reasons, an obligation which flows from the rule of law and from Article 1 and Article 6 § 3 (c) of the Convention. The idea of fairness and the rule of law must cover, and apply in, all the phases in which the safeguards set out in Article 6 of the Convention are applicable. In paragraph 121 of the judgment it is correctly stated that the date of the applicant's arrest is the ‘starting-point for the application of the safeguards set out in Article 6 of the Convention’. In other words, it is the arrest which triggers the protection of the right to have legal assistance. Otherwise, this right would not have a practical and effective meaning if a person who had been arrested and taken into custody was without a lawyer. If the crucial point in time for the beginning of the exercise of the right to be assisted by a lawyer was not the time of arrest but some subsequent time — let us say the time of bringing the charge or carrying out a formal interrogation — there would be no need for the existence of rules of criminal procedure governing arrest, and the police would be free to do anything they wanted on the issue, disregarding the provisions of Articles 3 and 5 of the Convention. Consequently, it is not possible to disconnect the notion of fairness and the rule of law from the requirement for justifiable reasons restricting the right, or to apply the fairness principle from any point other than the birth of the safeguards of the right, without a devastating impact on the case.

Since the safeguards set out in Article 6 applied from the moment of the applicant's arrest, it is apparent that his right to presumption of innocence also started from that moment, and it was therefore imperative for the applicant to have a lawyer to safeguard his presumption of innocence by advising him and determining his line of defence together with him.

The rules of criminal procedure apply to a suspect from the moment of his or her arrest. The applicant, who was without a lawyer for three whole days, was deprived of the opportunity to challenge the lawfulness of his detention, as provided for by Article 5 § 4 of the Convention. This point was also raised by the Association for the Prevention of Torture as a third party in the present case: ‘Legal assistance also helped guarantee the exercise of the other fundamental rights of the accused, such as those secured under Article 5 §§ 3 and 4 of the Convention’ (see paragraph 106 of the judgment).

The need to have a lawyer immediately after the arrest can also be understood in view of the fact that the proper preparation of the case is imperative for its success. Article 6 § 3 (b) of the Convention includes having adequate time for the preparation of one's defence as one of the minimum rights for everyone charged with a criminal offence. Nobody can be sure that without the assistance of a lawyer for the first three days of his detention, the applicant would be able to prepare properly for the trial at a later stage. These three days could have been crucial for the future course of his defence if he had had a lawyer immediately from the time of his arrest.

If the lack of compelling reasons for restricting this right does not by itself constitute a violation, this will encourage the authorities to restrict the right unjustifiably and to keep suspects in custody indefinitely without a lawyer.

The principle of effectiveness, which is inherent in the Convention system and underpins every provision of it, requires that the guarantees of Article 6 § 3 (c) of the Convention must be practical and effective and not theoretical and illusory. As stated above, in Salduz the Court referred to this manifestation of the principle of effectiveness, if I can describe it as such. The safeguards of the provision in question would not be practical and effective if, despite the lack of compelling reasons for the restriction, the Court nevertheless proceeded to examine the overall fairness of the proceedings. The effectiveness of Article 6 § 3 (c) of the Convention, as of any other provision of the Convention, is ensured by taking into account its object and purpose in good faith. As the International Law Commission pertinently explained in its 1966 report (Yearbook of the International Law Commission [YBILC], 1966, vol. II, p. 219, § 6):

In my view, good faith and the objects and purposes of Article 6 § 3 (c) of the Convention require that any restrictions on the right in question should not be unjustifiable. Mention should also be made in this connection of the very profound words by Professor Rudolf Bernhardt, a former President of the Court, in his article entitled ‘Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights’ (German Yearbook of International Law, vol. 42 (1999), 11 at p. 14):

So, even if, for the sake of hypothesis, one were to be faced with two equally valid or arguable interpretations of Article 6 § 3 (c) of the Convention, it would be preferable to opt for the one which favours the essence of the right (in dubio in favorem pro libertate) and, at the same time, does not limit its ambit and application. Any restrictive interpretation contradicts the principle of effectiveness and is not part of international law (see Hersch Lauterpacht, ‘Restrictive Interpretation and Effectiveness in the Interpretation of Treaties’, BYIL (1945), 48 at pp. 50-51, 69, and Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law, Oxford, 2008, repr. 2013, at p. 414). In the present case, if the Salduz principle were applied in its proper meaning, there would be a violation of Article 6 § 3 (c) of the Convention per se, since there was a lack of compelling reasons for the restriction. This interpretation would favour preserving the essence of the applicant's right. On the other hand, if the Ibrahim and Others approach were followed, with its incorrect reading of Salduz, the essence of the applicant's right would not be preserved, as the lack of compelling reasons for the restriction would not entail a violation per se and a finding of no violation would eventually be reached, as did in fact happen.

It should be observed that in any event it would not be fair to apply the principle set forth in Ibrahim and Others in an old pending case, such as the present one, in which, the applicable principle at all material times, apart from the time of the delivery of the judgment, was that of Salduz, considering also, with all due respect, that the Court should have acknowledged that the understanding of Salduz in Ibrahim and Others was wrong, and that it had the chance to review it.

In the judgment, the principle of effectiveness was rightly used and applied as regards the waiver of the applicant's right to a lawyer:

(see paragraph 115 of the judgment)

To be consistent all the way through the judgment, this principle of effectiveness should have also been used in finding a violation, given that there were no compelling reasons for the restriction of the right to have a lawyer, as the Court clearly held in Salduz.

Human dignity is behind almost every Convention right and the Court should take it into account when interpreting Convention provisions (see David Feldman, ‘Human Dignity as a Legal Value’ — part II, Public Law, Spring 2000, p. 75). Taking into account human dignity in interpreting Article 6 § 3 (c) of the Convention, the deprivation of the applicant's right for three whole days without compelling reasons would be considered a flagrant violation of the provision in question.

The Chamber judgment in the present case was delivered before the pronouncement on 13 September 2016 of the judgment in Ibrahim and Others. Also, the request for referral of the present case to the Grand Chamber and the written observations of all the parties, including the third party, were submitted before Ibrahim and Others was decided. Moreover, the oral hearing before the Grand Chamber in the present case on 6 July 2016 took place before the Ibrahim and Others judgment was delivered. As has already been explained, on the basis of Salduz the applicant would probably have won his case as regards his complaints of violations of Article 6 §§ 1 and 3 (c) of the Convention, whereas the majority decided, on the basis of Ibrahim and Others, to dismiss his complaints under those provisions. Of course, the Court usually applies its recent case-law which is applicable at the time of the delivery of the judgment. But, with all due respect, in the present case the following considerations make the application of this rule or practice unfair to the applicant: (a) a probable violation, by following Salduz in its proper interpretation, was — owing maybe to a delay in the processing of the case — eventually turned by the majority, following the Ibrahim approach, into a finding of no violation, without the principle of legal certainty being satisfied; (b) an interpretation of Salduz in a manner unfavourable to the applicant was followed by the majority in the light of Ibrahim and Others, without all parties having the chance to comment on Ibrahim and Others or even to urge a return to the proper interpretation of Salduz, by exercising their right under Article 6 of the Convention; and (c) consideration of all that has been said above regarding the contre-texte or per incuriam interpretation of Salduz in Ibrahim and Others.

By analogy with the above argument, which is based on the principle of legal certainty, Article 7 § 1 of the Convention, which provides that ‘no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed’ (emphasis mine) and that ‘[n]or shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed’ (emphasis mine), is also based on this principle of certainty, and is one of the most fundamental provisions of the Convention. It is to be noted that the dependence of the result of a case which concerned a criminal charge, and which led eventually to the sentencing of the applicant for life imprisonment, on whether there was a change in the case-law, with the effect that a probable violation was turned into to a finding of no violation of Article 6 §§ 1 and 3 (c) of the Convention, might not, in the final analysis, have very different repercussions from those prohibited by Article 7 of the Convention.

The preamble to the Convention states that the Council of Europe's aim is ‘the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms’. This consideration embodies the requisite dynamism and cultivates the idea of advancing human rights. Any lowering of the level of protection of human rights, or any setback of the kind characterised as ‘devolution’ (see Christian Djeffal, Static and Evolutive Treaty Interpretation — A Functional Reconstruction, Cambridge, 2016, p. 309), is not only undesirable but is, I believe, outside the scope of the Convention. Justice Oliver Wendell Holmes wisely said that ‘greatness is not where we stand but in what direction we are moving’. The same applies to the future of human rights. I believe that the Convention ship must move forward and not backwards and that every time a case comes before the Court, especially the Grand Chamber, such as the present case, a new voyage of the Convention ship begins, and the compass must always direct it effectively to its promised destination.

The Chamber and the majority of the Grand Chamber in this case gave a negative answer to the question as to whether an overall fairness assessment led to a violation of the above-mentioned provision.

In its judgment in the present case (Simeonovi v. Bulgaria, no. 21980/04, § 116, 20 October 2015) the Chamber unanimously concluded:

The majority in the present case concluded (see paragraph 144 of the judgment):

With all due respect, the answer to the above question should, in my view, have been in the affirmative.

The applicant's substantive and procedural rights cannot be said to have been respected when he was without a lawyer for three crucial days, as will be further explained later on.

May I emphasise at the outset that the overall fairness of a trial does not depend on its result. Otherwise, we would come to the unacceptable conclusion that there would be no violation of Article 6 § 3 (c) of the Convention in every case where an applicant was acquitted, even if he had been deprived of the right to have a lawyer during the whole of the pre-trial and trial proceedings. In such a hypothetical case, therefore, the fact that the prosecuting authority was unable to discharge its burden of proof effectively and the applicant was acquitted does not mean that the guarantees to which the applicant was entitled under Article 6 § 3 (c) of the Convention were satisfied.

The Court's task is to judge according to the facts before it and not to imagine facts, as a novelist has the right to do to make his story better. On this task of a court, see the following relevant legal Latin maxims: ‘judicis est judicare, secundum allegata et probata’ (it is the duty of a judge to decide according to the facts alleged and proved — Dyer's Reports, 12); ‘judex debet judicare secundum allegata et probate’ (the judge should decide according to the allegations and proofs — 2 Βouvier's Law Dictionary, 133); ‘nihil habet forum ex scena’ (the court has nothing to do with what is not before it — 2 Βοuvier's Law Dictionary, 141).

In the present case the Court was not in a position to make predictions as to how the result of the trial would have been affected if the applicant had had a lawyer during the first three days of his detention, because: (a) that was impossible; (b) that was not its role; and (c) that would amount in the abstract to negating or diminishing the role of every lawyer. That predictions of this sort are not within the role of the Court could not be put more clearly than in Salduz (cited above, § 58): ‘it is not for the Court to speculate on the impact which the applicant's access to a lawyer during police custody would have had on the ensuing proceedings’. Similarly, in John Murray (cited above, § 68) the Court held: ‘it is not for the Court to speculate on what the applicant's reaction, or his lawyer's advice, would have been had access not been denied during this initial period’.

In my view, predictions of this kind are not like the unknown variable x in a simple mathematical exercise where in the end the variable x can be determined or proved. In the present case, however, the unknown ‘variable x’ could not possibly be revealed or proved; so its unknown effect in itself must have had a certain negative impact on the assessment of the overall fairness of the trial.

Every additional minute of detention after the moment of arrest makes such an ex post facto prognosis or speculation not only more uncertain, but in the end totally impossible. I consider it pertinent to note the persuasive arguments put forward by the applicant at paragraphs 72–73 of his observations:

In a footnote relating to paragraph 73 of the applicant's observations, reference is made to paragraph 29 of the observations, where it is stated:

At paragraph 75 of his observations, the applicant rightly remarks in this connection that ‘… it is dangerous to link the question of whether or not there has been a violation of the right to the assistance of a lawyer during the initial interrogations to the ultimate conduct of the proceedings as this will encourage the disregard of the right to the assistance of a lawyer at this stage’. And he appropriately adds: ‘The resulting risk of this occurring has implications not only for the outcome of criminal proceedings but also for the effective protection of the right not to be subjected to torture and inhuman and degrading treatment’.

The judgment (see paragraphs 119 and 127–28, the first paragraph of which also refers to Ibrahim and Others, cited above, §§ 272–73) correctly highlights the importance of the right to be informed of the right to legal assistance. As is appropriately stated in paragraph 127 of the judgment:

The failure of the national authorities to keep a record regarding the first three days of the applicant's detention, from 3 to 6 October 1999, and to prove, that, as they alleged, they had indeed informed him of his right to have a lawyer of his choosing, negatively affects the fairness test. This is so because the authorities had a positive obligation to keep such a record. As has been said above, this obligation is derived from the rule of law and from Article 1 and Article 6 § 3 (c) of the Convention. In Panovits (cited above, §§ 72–73) the Court said the following on this issue:

It is clear that what was said above does not apply only to minors, but especially to minors, so it also applies to the applicant in the present case.

The applicant alleged that he had not been informed about his rights. Since the burden of proof was on the respondent State, which had the obligation to keep a record, the applicant's version is more tenable than that of the Government. Hence, the omission of the national authorities to inform the applicant of his right to have a lawyer of his choosing meant that the fairness test was failed from the outset. By analogy, the absence of a detention record is considered to entail a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, securing the right to liberty and security. It discloses a most grave violation of that provision and is incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III; Smolik v. Ukraine, no. 11778/05, § 45, 19 January 2012; and Kurt v. Turkey, 25 May 1998, § 125, Reports 1998-III). The lack of a proper record of an individual's arrest and detention is thus sufficient for the Court to find that there has been a violation of Article 5 § 1 (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV, and Menesheva, cited above, §§ 87–89). If this formality of keeping an official record is indispensable for guaranteeing a non-absolute right, as it is for the right under Article 5 § 1 of the Convention, one may wonder why such a formality should not be all the more indispensable for guaranteeing an absolute right, namely the right to a fair trial under Article 6 of the Convention.

When the authorities do not keep a record showing that they have informed the accused of his right to legal assistance, if they are not to be blamed for not doing so they must prove by other means, in accordance with the standard of proof beyond reasonable doubt, that they provided this information, but no such proof was forthcoming in the present case.

The fact that the applicant was without a lawyer for three days even though he allegedly asked to have one is a procedural defect. The national authorities denied that the applicant had asked for a lawyer. The judgment rightly supports the view that the applicant did not waive his right, and I absolutely agree with this finding. But I would proceed a step further and contend that since the respondent State did not keep a record despite having a positive obligation to do so, the applicant's version should not be ignored, also taking into account the fact that he was not provided with the services of a lawyer for the first three whole days of his detention.

To put it differently, how is it possible to consider that the Government have discharged their strict burden of proving that the trial was fair overall, since they failed to comply with their positive obligation to inform the applicant of his right to have a lawyer of his choosing, and since they were unable to produce a record in support of their allegation that they did provide this information?

The applicant alleged that during the three days when he had not had access to a lawyer, he had been interrogated. This allegation was denied by the respondent Government. It should not be forgotten that the applicant was in a vulnerable situation. He could not have been expected to have the means to produce any evidence, other than his word, that during the first three days of his detention: (a) he had asked for a lawyer and not been given one; (b) he had been informed of his right to have a lawyer of his own choosing; and (c) he had been interrogated. Only the respondent Government, in whose hands all the relevant machinery and evidence lay, could disprove the applicant's allegations and prove the opposite. As the Court held in Bouyid v. Belgium ([GC], no. 23380/09, § 83, ECHR 2015), referring also to its settled case-law on this issue:

What was said in the above statement in relation to allegations of ill-treatment violating Article 3 of the Convention could logically apply to all cases where an applicant is in detention and alleges a violation of any provision of the Convention — such as the applicant in the present case, who alleged a violation of Article 6 §§ 1 and 3 (c) of the Convention — and where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, who nevertheless have refrained from keeping a record of what happened, and thus are unable to disprove the applicant's allegations.

As has been said, the life of the protection afforded by the guarantees of Article 6 § 3 (c) of the Convention starts from the moment of the arrest. The three days during which the applicant was without a lawyer deprived him of the legal assistance provided for in Article 6 § 3 (c) of the Convention for a substantial period of time, which was needed for the preparation of his defence. The preparation of the defence from the initial time of the arrest is extremely important for the determination of the line of defence and its future course and exercise.

Since the Government violated their obligation to keep a record informing the applicant of his right to have a lawyer, why would they be expected to have kept a record of whether they had interrogated the applicant, since the same lack of diligence would also have been expected in this matter? Most importantly, it is highly improbable that the police investigating a case of murder and armed robbery would have arrested the applicant as a suspect and not rushed to ask him even one question during the first three days following his arrest and instead displayed total apathy, whereas before the applicant's arrest, as the Government alleged in paragraph 6 of their observations, they had carried out many interrogations and had collected evidence in a systematic matter:

Furthermore, the Government alleged at paragraph 11 of their observations that the applicant underwent two medical checks by two different doctors on 5 October 1999 and was subjected to a body search the same day, which indicates that it is very improbable that anything else was carried out in respect of the applicant and other witnesses, apart from asking him questions as to the robbery and the two killings.

The version presented in the Government's observations on the relevant issue is characterised by vagueness. Below are some examples: ‘No information was found as to when the applicant entered and left the detention facilities in Sofia’ (paragraph 10 of the observations), and ‘There is no trace in the investigation file that the applicant was interviewed by the police or by the investigator in the period between 3 October and 12.10 p.m. on 6 October 1999 …’ (paragraph 13 of the observations). A State governed by the rule of law should know when an arrested person entered and left the detention facilities, and should be able to prove by means of evidence what happened during those three days, rather than simply referring to the absence of any trace of interrogation of the person in the investigation file.

From the analysis performed so far, the applicant's version that he was interrogated is more tenable, or to be more accurate, the respondent State's version is not tenable at all. The Government alleged in paragraph 7 of their observations that during the period from 2 July until 3 October 1999 the applicant ‘was at large and in hiding’ and that he ‘was also declared wanted’. So it seems improbable and illogical that he was not subjected to any questioning following his arrest. The applicant alleged (see paragraph 64 of his observations) that Colonel X. had been assigned to conduct the investigative measures in his case on 3 October 1999. He also remarked (see paragraph 64 of his observations) that the approach taken by the authorities ‘does not seem consistent with normal police practice nor with the obligations arising under Article 5(3) of the Convention to ensure that there is still a reasonable suspicion justifying the continued deprivation of liberty following a person's arrest’. He added (see paragraph 65 of his observations) that ‘the suggestion that there was a complete absence of any interrogation for a period of three days following the applicant's arrest does not reflect the general practice in Bulgaria, as has been documented in the rulings of the Bulgarian Supreme Court and also in reports by the CPT and others, in which interrogation without a suspect's lawyer following his or her arrest has been found to be a frequent occurrence’. He further argued (see paragraph 66 of his observations) that ‘[t]he fact that there is no documentation of the interrogations in the case file is much more consistent with the exercise of pressure on a suspect to confess, as the Applicant has maintained was what occurred in his case, than with the absence of any interrogation’. And he concluded on this point (see paragraph 67 of his observations):

One of the questions put by the Court to the parties (question 5) was:

The applicant's answer to the above question was given in paragraphs 39–43 of his observations and is very important for the assessment of the overall fairness of the proceedings, if what he argues was true:

The Government's reply to the same question, amounting to a simple rebuttal and denial of knowledge, is to found at page 10 of their observations:

The Chamber judgment (cited above, § 9) clearly states the applicant's submission that he was questioned during the first three days of his detention:

At paragraphs 103 and 134 of the Grand Chamber judgment, reference is made to what the Government submitted at the oral hearing, namely that there was no evidence to support the applicant's allegation that he had been questioned in police custody before being charged. Reference is also made to a hypothesis put forward by the Government: ‘even supposing such a conversation or interrogation had taken place while the applicant was in police custody, it would have been conducted informally and could not have had any impact on the course of the criminal proceedings’ (see paragraph 103 of the judgment).

The Government's oral argument as to whether the applicant was interviewed, as is apparent from the webcast of the hearing available on the Court's Internet portal, is the following:

From the last statement, it is clear that the Government eventually admitted that it was possible that the applicant was questioned, a significant admission which, however, is omitted from the judgment.

What the Government's lawyer said, namely that ‘the questioning was not objectified in any form’, is totally immaterial and contrary to the case-law of the Court. In Titarenko v. Ukraine (no. 31720/02, § 87, 20 September 2012) the Court stated:

And the above applies no matter whether the authorities claim not to have relied on information given through what they regarded as ‘informal questioning’. In Martin v. Estonia (no. 35985/09, §§ 95–97, 30 May 2013) the Court stated:

There is no evidence that anything said by the applicant during the first three days was used at the trial and had an impact or influence on the result of it. Replying to question no. 6 put by the Court to the parties regarding the use made of the applicant's statements, the applicant gave this answer (see paragraphs 44–45 of his observations):

According to the applicant's version, he made statements implicating himself in respect of the crimes with which he was subsequently charged, and revealed information regarding these crimes, without being assisted by a lawyer. I am of the opinion that this, by itself, could have rendered the whole proceedings unfair. It was logical for him to think that these statements he made without a lawyer could be used later on during the trial proceedings. Probably having this in mind, he could not avoid making an official confession later on, even with his lawyer present. If the applicant's version is true, there is no doubt that he was entrapped into making the confession.

Consequently, the fact that the applicant was not assisted by a lawyer while in police custody for three days, starting from his arrest, and also that — if his allegations were true — he was interrogated, confessed to having participated in the robbery and gave other important information for the case, infected the whole procedure and therefore, undermined the fairness of the criminal proceedings.

As the Association for the Prevention of Torture, a third party in the present case, submitted: ‘Legal assistance at that early stage in criminal proceedings, even before the initial questioning, was essential in order to safeguard an arrested suspect's right not to incriminate himself where he had not been informed of the charges against him’ (see paragraph 106 of the judgment).

If it is true that, without a lawyer, the applicant gave, as he alleged, other information and details — besides his confession to having participated in the robbery — which might have assisted the police in building their case against him as regards the two killings as well, one could justifiably come to the opposite conclusion to the Chamber's finding that the right of the applicant ‘not to incriminate himself was respected’ and that ‘the fairness of the criminal proceedings was properly ensured’ (see paragraph 116 of the Chamber judgment). It is to be noted that the concluding paragraph of the Grand Chamber's judgment on the issue (paragraph 144) is phrased differently from the corresponding paragraph of the Chamber judgment, not stating specifically that the applicant's right ‘not to incriminate himself was respected’ as the Chamber did.

It should be made absolutely clear that what matters most, apart from the procedural guarantee of the applicant's right to a lawyer, is whether the proceedings as a whole were likely to have been infected because no lawyer was present when the applicant was interrogated, confessed and gave information which the Government used artfully against him later on during the trial. This of course is distinct from the question whether the result of the trial would have been different if the applicant had had a lawyer, which is immaterial.

In view of the above, one wonders whether the principle of equality of arms was respected and secured in the present case. The applicant was deprived of a substantial period for the preparation of his defence, and it is tenable to argue that a lot may have happened during that time, resulting in the use of material against him, as explained before.

Even if one assumes that no interrogations took place during the first three days of the applicant's detention, the absence of interrogations would not be of any substantial support for the Government's argument, since, according to the case-law of the Court, ‘whether interrogations take place or not’ is immaterial for the fairness of criminal proceedings under Article 6 of the Convention (see A.T. v. Luxembourg, cited above, § 64, relevant passage cited in paragraph 29 above; and see, similarly, Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009).

Almost all of the ten relevant factors listed in Ibrahim and Others for the assessment of the overall fairness of proceedings were either not taken into account or were not assessed properly by the majority in the present case.

Factor (a) of the Ibrahim list, concerning the vulnerability of an applicant, was not taken into account sufficiently. In Salduz (cited above, § 54) the Court clearly stated:

The Court also stated in Salman v. Turkey ([GC], no. 21986/93, § 99, ECHR 2000-VII):

Similarly, in Bouyid (cited above § 107) the Court held:

See also, on the vulnerability of detainees, Mehmet Şerif Öner v. Turkey no. 50356/08, 13 September 2011; Płonka v. Poland, no. 20310/02, §§ 39–41, 31 March 2009; and Leonid Lazarenko v. Ukraine, no. 22313/04, § 57, 28 October 2010.

Factor (b) of the Ibrahim list, concerning the legal framework governing the pre-trial proceedings, was also, with all due respect, not assessed and applied by the majority. With regard to this factor, serious consideration should have been given to the different reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (a recent one from 2015 was referred to by the applicant in paragraph 24 of his observations) showing that the realisation of the right of access to legal assistance during the interrogation phase remained problematic. Paragraph 130 of the judgment states that ‘… [i]t would appear that the events in the instant case correspond to a practice on the part of the authorities which has also been severely criticised by the CPT (see the CPT's 2015 public statement, paragraph 80 above)’. But most importantly, it could easily have been ascertained that the Bulgarian authorities did not abide by the rule of law in violating section 70(4) of the Ministry of the Interior Act 1997, which provides that ‘Detained persons shall be entitled to legal assistance as of the time of their arrest’ (see also paragraph 59 of the judgment for this provision and the relevant implementing regulations).

In addition, factor (d) of the Ibrahim list, namely ‘the quality of the evidence and whether the circumstance in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion’, if assessed and applied properly, would have led to a finding of a violation of Article 6 § 3 (c) of the Convention in the present case.

In assessing the overall fairness of the proceedings, the majority took into account the applicant's confession (as the national courts did), but they did not take into account either the withdrawal or retraction of the confession or any of the above-mentioned procedural defects regarding the applicant's defence during the first three days which might have influenced his confession in the first place. It may not be irrelevant in this respect to consider what the applicant said at paragraph 69 of his observations: ‘Indeed, any pressure that might have been applied on him by the investigators to confess could be expected to remain effective’. Although relevant factor (f) in the list drawn up by the Court in Ibrahim and Others for the assessment of the overall fairness of proceedings and adopted in the present judgment, namely ‘in the case of a statement, the nature of the statement and whether it was promptly retracted or modified’, should have been considered and applied in the present case by the Court, the majority did not do so. My view is that the applicant's confession and its subsequent retraction in the suspicious circumstances of the present case should have been taken into consideration under factor (f) of the Ibrahim list.

Another disagreement I have with the majority concerns the importance they attach to the applicant's confession in assessing the overall fairness of the proceedings, overlooking the fact, however, that, quite apart from the applicant's retraction of the confession: (a) he never confessed to having committed the two murders, his confession being confined to having committed the hold-up at the bureau de change; and (b) he was nevertheless found guilty of armed robbery resulting in the murder of two persons and was sentenced to life imprisonment.

Factor (g) of the Ibrahim list, namely ‘the use to which the evidence was put …’, is another factor which could have required a proper assessment, if one were to accept as tenable the applicant's version as to what happened during the first three days while he was without a lawyer. In other words, looking beyond the official confession given by the applicant, factor (g) might be relevant.

Furthermore, factor (i) of the Ibrahim list, namely ‘the weight of the public interest in the investigation and punishment of the particular offence in issue’, was not assessed by the majority. I believe that the public interest does not favour a trial where there was a breach of the rule of law at the start of the proceedings. It cannot tolerate the detention of a person for three whole days without a lawyer, during which time he allegedly incriminated himself and gave information to the police, despite having asked to have the services of his lawyer and having had his request refused.

The list of the ten relevant factors for the assessment of the overall fairness of the proceedings is not exhaustive (see Ibrahim and Others, cited above, § 124). In my view, the facts of the present case could have justified adding another factor to the Ibrahim list without contravening its spirit, namely the long duration of a person's detention without access to a lawyer, despite his or her wish to have one. It should be borne in mind that every minute in detention without legal assistance may make the defence poorer at a later stage, leading to unpredictable results. Of course, in the present case, this factor should have been taken into account together with the vulnerability of the applicant, which is one of the factors mentioned in the list, and the probability that he was interrogated during his detention without having a lawyer.

An applicant who did not have a lawyer for a substantial period starting from the time of his arrest, even though he later had one, may be regarded as an applicant with no defence at all. And proceedings concerning an applicant deprived of any defence at all, against his will, cannot result in a fair trial. This is why the overall fairness assessment may relate to all Article 6 issues, but not to the issue of depriving an applicant of his right to have a lawyer unless there are compelling reasons for the restriction (in accordance with the correct interpretation of Salduz). It should not be forgotten that the applicant's detention without a lawyer lasted for three days, that is, one day longer than the detention of the applicant in John Murray (cited above), where the Court found a violation of Article 6 § 3 (c) of the Convention.

In this opinion, mention is repeatedly made of the fact that the Government violated the rule of law and their positive obligations. I cannot see the notion of ‘fairness’ independently of the rule of law, and this is one major disagreement I have with the majority. ‘Fairness’ and ‘breach of the rule of law’ are contradictory issues. For me, the notion of ‘fairness’ implies observance of the rule of law and fulfilment of all the obligations of the Government under the Convention to respect and secure human rights, which did not happen in the present case.

It is clear from all the above that the Government have not discharged the strict burden of proof required by Ibrahim and Others.

In conclusion, in my view, the respondent State violated Article 6 §§ 1 and 3 (c) of the Convention, whatever approach we may follow: the Salduz approach (in its correct interpretation) involving the one compulsory test, or the Ibrahim approach with the two compulsory tests.

My findings set out above, to the effect that there have been violations of Article 6 §§ 1 and 3 (c) of the Convention, would have led to an increase in the amount of the award in respect of non-pecuniary damage and the legal costs, the determination of which, however, could only be theoretical, since I am in the minority.