EHRM, 11-12-2008, nr. 4268/04

The Government maintained that the police had drawn the applicant's attention to his right to remain silent on three occasions: at the time of his arrest, when he was taken for questioning and before his written statement was taken. In particular, the applicant had been warned in accordance with the wording of Rule II of the Judges' Rules which apply in Cyprus by virtue of section 8 of the Criminal Procedure Law.

The Government stated that the testimony of the witnesses for the prosecution concerning the events at the pre-trial stage of the proceedings had been accepted by the Assize Court both in the trial within a trial and in the main proceedings. They noted that in the trial within a trial the prosecution had succeeded in proving beyond all reasonable doubt that the applicant's confession, given shortly after his arrest, had been voluntary.

Although the applicant's father, who was acting at the time as the applicant's guardian, had been made fully aware of the seriousness of the case and had been prompted to appoint a lawyer immediately after the applicant was taken for questioning, the father did not appoint a lawyer and preferred not to be present when the applicant gave his written statement to the police. Moreover, neither the applicant nor his father had requested the assistance of a lawyer to which they were entitled from the initial stages of the investigation in accordance with domestic law. Had they requested such services, access to a lawyer would have been granted. There had therefore been no denial of the applicant's rights in this respect and he had benefited from the assistance of a lawyer from the day following his arrest and throughout the proceedings.

In the light of the entirety of the proceedings, the absence of legal assistance on the day of the applicant's arrest had not deprived him of a fair hearing. The applicant had had every opportunity under domestic law to challenge the voluntary nature and admissibility of his written statement in the subsequent proceedings. He had been represented by counsel and had the witnesses of the prosecution cross-examined, whereas the burden of satisfying the court as to the voluntary character of the confession, to the requisite criminal standard of proof, had remained with the prosecution.

The applicant's father, being at the time the applicant's guardian, had by his conduct unequivocally waived the applicant's right to have the assistance of a lawyer at the pre-trial stage of the proceedings. The Government could not be held accountable in the present circumstances for the applicant's failure to exercise his right in this respect.

The applicant maintained that he had not been advised to find a lawyer before he was taken for questioning, and that his father had only been advised to do so while the applicant was being questioned. The applicant, being underage at the time, had been unable to comprehend the seriousness of the matter and was totally unaware of the fact that had he asked for a lawyer the police questioning could have been deferred pending the lawyer's arrival. Moreover, his father had been unable to respond and request a lawyer for his son immediately as according to the testimonies of the police officers he had been ‘stunned, shocked and unable to speak’.

Moreover, due respect by the State of the applicant's rights required that he himself be advised of his right to consult a lawyer upon his arrest. If the police considered him mature enough to be arrested, taken for questioning alone, and able to make a statement to the police without the presence of his father or a lawyer, it was their duty to explain directly to the applicant that he had the right to consult a lawyer upon his arrest and that he was entitled to legal aid.

At the outset the Court observes that, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a ‘tribunal’ competent to determine ‘any criminal charge’, it does not follow that the Article has no application to pre-trial proceedings. Article 6 — especially paragraph 3 — may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005-IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 — a fair trial — has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (Imbrioscia, cited above, § 38).

Moreover, the Court reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996-I, and Funke v. France, 25 February 1993, § 44, Series A no. 256-A). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996-VI; Heaney and McGuinness v. Ireland, no. 34720/97, § 40, ECHR 2000-XII; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan, cited above, § 44). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention.

As regards the applicant's complaints which concern the lack of legal consultation at the pre-trial stage of the proceedings, the Court observes that the concept of fairness enshrined in Article 6 requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation. The lack of legal assistance during an applicant's interrogation would constitute a restriction of his defence rights in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.

The Court notes that the applicant was 17 years old at the material time. In its case-law on Article 6 the Court has held that when criminal charges are brought against a child, it is essential that he be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings (see T. v. the United Kingdom [GC], no. 24724/94, 16 December 1999, § 84). The right of an accused minor to effective participation in his or her criminal trial requires that he be dealt with with due regard to his vulnerability and capacities from the first stages of his involvement in a criminal investigation and, in particular, during any questioning by the police. The authorities must take steps to reduce as far as possible his feelings of intimidation and inhibition (see, mutatis mutandis, T. v. the United Kingdom, cited above, § 85) and ensure that the accused minor has a broad understanding of the nature of the investigation, of what is at stake for him or her, including the significance of any penalty which may be imposed as well as of his rights of defence and, in particular, of his right to remain silent (mutatis mutandis, S.C. v. the United Kingdom, no. 60958/00, § 29, ECHR 2004-IV). It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said by the arresting officer and during his questioning by the police (ibid).

The Court reiterates that a waiver of a right guaranteed by the Convention — in so far as it is permissible — must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance (Håkansson and Sturesson v. Sweden, 21 February 1990, Series A No. 171, § 66, and most recently Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-…). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 32432/96, 27 March 2007, § 59, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). The Court considers that given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of an important right under Article 6 can only be accepted where it is expressed in an unequivocal manner after the authorities have taken all reasonable steps to ensure that he or she is fully aware of his rights of defence and can appreciate, as far as possible, the consequence of his conduct.

Having examined all the material submitted by the parties and, in particular, the testimonies submitted in the first-instance proceedings as recorded in the relevant transcript, the Court makes the following findings as to the sequence of events concerning the applicant's confession. The applicant, who was a minor at the relevant time, visited the Police Director's office together with his father. The Police Director explained to the father, in the applicant's presence, that the police were investigating a murder and robbery, that there was evidence linking the applicant with the commission of these crimes and that an arrest warrant had been issued against him. The arresting officer then entered the Director's office, showed the arrest warrant and arrested the applicant. During his arrest, the applicant was ‘cautioned’ within the meaning of the relevant Judges Rules (see paragraph 44 above). He was therefore told that he was not obliged to say anything and that anything he did say could be used in subsequent court proceedings. The applicant was then taken into a separate room for questioning. The applicant's father was concerned that the police might use force against the applicant and the Director reassured him that no such practices would be used. He explained that the case was serious and that they should seek the assistance of a lawyer. A few minutes later and while the applicant was already being questioned, they were informed that the applicant had confessed his guilt. The Director suggested that the applicant's father join the applicant in the interview room so that he could hear himself what the applicant had admitted. The applicant's father preferred to wait outside. The applicant was cautioned before his written statement confessing his guilt was taken by a police officer.

The Court observes that the Government did not dispute the fact that the applicant was not offered legal assistance and that the suggestion to find a lawyer was only put to the applicant's father while the applicant was being interrogated. The Court considers that the authorities' treatment of the applicant ranged from treating him as a minor and, as such, addressing his father to explain the seriousness of the case and describe the evidence existing against the applicant, to approaching him as a person capable of being questioned in the absence of his guardian, without informing him of his right to consult a lawyer before proceeding to make any statement. Neither the applicant nor his father were adequately informed of the applicant's rights to legal representation before the applicant's questioning. Moreover, the applicant's father was not invited to accompany the applicant during his initial questioning nor was any other person who would be in a position to assist the applicant to understand the proceedings. The applicant himself was not advised that he could see a lawyer before saying anything to the police and before he had his written statement taken.

In view of the above the Court considers that it was unlikely, given the applicant's age, that he was aware that he was entitled to legal representation before making any statement to the police. Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the investigation of a murder (see Talat Tunç, cited above, § 60).

The Court takes note of the Government's argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.

Accordingly, the Court finds that the lack of provision of sufficient information on the applicant's right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant's defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant's right to receive legal representation prior to his interrogation in an explicit and unequivocal manner.

Concerning the applicant's complaint as to his right to remain silent, the Court notes that the Government maintained that the applicant had been cautioned in accordance with domestic law both at the time of his arrest and before his written statement had been taken. The applicant did not dispute this. The Court notes that in accordance with domestic law the applicant was told that he was not obliged to say anything unless he wished to do so and that what he said could be put into writing and given in evidence in subsequent proceedings (see paragraph 44 above). The Court finds, given the circumstances of the present case, in which the applicant had been underage and was taken for questioning without his legal guardian and without being informed of his right to seek and obtain legal representation before he was questioned, that it was unlikely that a mere caution in the words provided for in the domestic law would be enough to enable him to sufficiently comprehend the nature of his rights.

Lastly, the Court considers that although the applicant had the benefit of adversarial proceedings in which he was represented by the lawyer of his choice, the nature of the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings, in which his confession was treated as voluntary and was therefore held to be admissible as evidence.

In this connection the Court notes that despite the fact that the voluntariness of the applicant's statement taken shortly after his arrest was challenged and formed the subject of a separate trial within the main trial, and although it was not the sole evidence on which the applicant's conviction was based, it was nevertheless decisive for the prospects of the applicant's defence and constituted a significant element on which his conviction was based. It is indicative in this respect that the Supreme Court found that throughout the course of the first-instance proceedings the applicant had consistently tried to negate his initial statement, an approach which had a great impact on the court's assessment of his credibility.

In the light of the above considerations the Court concludes that there has been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention on account of the lack of legal assistance to the applicant in the initial stages of police questioning.

The applicant complained about the use made of his confession in the proceedings before the Assize Court resulting in his conviction which was upheld on appeal.

The Government did not make any submissions on this point.

The Court notes that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94, ECHR 2006-…, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998-IV).

It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the ‘unlawfulness’ in question and the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; and Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX). The severity of the sentence that may be imposed upon the conclusion of the criminal proceedings would increase the level of due diligence that is required from the domestic authorities in this respect.

In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35, 37, and Allan, cited above, § 43).

As for the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterates that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see paragraph 65 above).

Turning to the facts of the present case, the Court repeats its findings of a violation of the applicant's rights of defence at the pre-trial stage of the proceedings due to the fact that, whilst being a minor, his questioning had taken place in the absence of his guardian and without him being sufficiently informed of his right to receive legal representation or of his right to remain silent. The Court notes that the applicant's confession obtained in the above circumstances constituted a decisive element of the prosecution's case against him that substantially inhibited the prospects of his defence at trial and which was not remedied by the subsequent proceedings.

The Court notes that in addition to the applicant's confession his conviction was supported by his second statement admitting that he had kicked the victim, a testimony reporting the applicant's statement that he had been involved in a serious fight with the victim and various testimonies confirming that the applicant had been drinking with the victim on the evening the victim died and that his clothes had been covered in mud in the early hours of the following morning. There was also medical evidence confirming that the cause of the victim's death was multiple and violent blows. While it is not the Court's role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based to a decisive extent on the applicant's confession, corroborated largely by his second statement. It considers that the extent to which the second statement made by the applicant was tainted by the breach of his rights of defence due to the circumstances in which the confession had been taken was not addressed by the trial court and remains unclear. Moreover, the Court observes that having regard to the Assize Court's acceptance of the applicant's first statement, it appears that it would have been futile for him to contest the admissibility of his second statement.

In the light of the above considerations, the Court concludes that there has been a violation of Article 6 of the Convention because of the use in trial of the applicant's confession obtained in circumstances which breached his rights to due process and thus irreparably undermined his rights of defence.

The applicant also complained that he had not received a fair trial given the admission in the main trial of evidence attempting to show his ‘bad character’ and concerning his involvement in other criminal investigations.

The Court considers that the applicant's submission was left undeveloped and unsubstantiated. Hence, it concludes that there has been no violation of Article 6 § 1 in this respect.

The Government submitted that the applicant's trial taken as a whole had been fair and in conformity with the Convention. They maintained that the Assize Court had been impartial towards the applicant throughout the criminal proceedings from both an objective and a subjective standpoint. The dispute between the applicant's counsel and the court concerning certain behaviour of the counsel had been an isolated incident that had not had any impact on the objective examination of the case or on its outcome. Moreover, the applicant's counsel had not applied to withdraw from the case following his conviction for contempt of court.

There was no evidence of bias against the applicant on the part of the Assize Court. The applicant had not submitted anything before the Court indicating any factor that could objectively raise a legitimate fear as to the impartiality of the judges in relation to the conduct of the proceedings and their findings.

The Assize Court had delivered a detailed and reasoned judgment with a thorough evaluation of the evidence put before it together with the position of the defence. Its interventions in the proceedings had not exceeded what was permissible in the circumstances. The Supreme Court had confirmed the findings of the Assize Court and found that the trial had been fair and the conviction and the sentence justified.

The applicant submitted that his case could not be distinguished from the case that his lawyer had lodged with the Court and in which a violation of his lawyer's rights under Articles 6 §§ 1, 2 and 3 and 10 of the Convention had been found by this Court's Grand Chamber (see Kyprianou v. Cyprus, cited above). He stated that his trial had been a continuous confrontation between the bench and his lawyer; a confrontation which had reached its climax with his lawyer's trial, conviction for contempt of court and imprisonment. During the trial the Assize Court had made continual and clearly inappropriate interferences in the proceedings. It was indicative that his lawyer had requested permission to withdraw from the case since he felt unable to defend the applicant as a result of the court's approach towards him; a request which was refused thus compelling him to continue defending the applicant against his will. Moreover, the applicant's faith in his lawyer had been seriously undermined as a result of the contempt proceedings.

Following the contempt proceedings, his lawyer had felt unable to repeat the same request to withdraw from the case as the matter had already been decided upon by the Assize Court. He had nevertheless requested that the court withdraw from the further examination of the case in view of the events that had occurred. The request had again been refused and the trial had resumed in a climate which did not coincide with the requirements of a democratic society.

The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused (see Kyprianou v. Cyprus, cited above, § 118, and Padovani v. Italy, 26 February 1993, § 27, Series A no. 257-B).

The central question raised under this head of the applicant's complaint is whether the nature of the Assize Court's interferences with the defence counsel's exercise of his duties, combined with the deficiencies found by the Grand Chamber of this Court as to the trial judges' treatment of the applicant's lawyer, were such as to cast doubt on the fairness of the trial.

The Court notes that the applicant's lawyer and the judges of the Assize Court engaged in various disagreements over the course of the applicant's trial, and that the applicant's lawyer had felt the need to request leave to withdraw from the proceedings due to the court's interferences with his conduct of the applicant's defence. His request was refused and he continued to represent the applicant.

The Court further notes that upon the resumption of the main trial following the contempt proceedings Mr Kyprianou felt that it was necessary for another lawyer to represent the applicant and request the court itself to withdraw from the further examination of the case. The request was refused as the Assize Court considered that no reasonable person could conclude that the applicant could have been prejudiced in any way by the contempt proceedings.

While the Court does not doubt that the judges of the Assize Court were determined to exercise their functions in an impartial manner, it reiterates that in its judgment in the Kyprianou case (cited above, § 133) it concluded that the judges' personal conduct had breached the subjective test of impartiality. In particular, the Court concluded from the manner in which the contempt proceedings were conducted, together with the decision and sentencing of Mr Kyprianou, that the court had failed to sufficiently detach itself from the facts of the case as the judges had been personally insulted by Mr Kyprianou's comments. The Court considers that the personal conduct of the judges in the case undermined the applicant's confidence that his trial would be conducted in a fair manner. Although the contempt proceedings were separate from the applicant's main trial, the fact that the judges were offended by the applicant's lawyer when he complained about the manner in which his cross-examination was received by the bench undermined the conduct of the applicant's defence.

The Court also reiterates that in its judgment in the Kyprianou case (cited above, § 179) it found that although the conduct of the applicant's lawyer could be regarded as disrespectful for the judges of the Assize Court, his comments were aimed at and were limited to the manner in which the judges were trying the case and, in particular, their allegedly insufficient attention to his cross-examination of a witness carried out in the course of defending the applicant. In this respect, the interference with the freedom of expression of the applicant's lawyer in conducting the applicant's defence, had breached Article 10 of the Convention (ibid., § 183). Moreover, the Court held that the sentence imposed on the applicant's lawyer had been capable of having a ‘chilling effect’ on the performance of the duties attached to lawyers when acting as defence counsel.

The Court finds that the refusal of Mr Kyprianou's request for leave to withdraw from the proceedings due to the fact that he felt unable to continue defending the applicant in an effective manner exceeded, in the present circumstances, the limits of a proportionate response given the impact on the applicant's rights of defence. Further, in the view of the Court, the Assize Court's response to Mr Kyprianou's discourteous criticism of the manner in which they were trying the case, which was to convict him immediately of contempt of court and impose a sentence of imprisonment on him, was also disproportionate. It further considers that the ‘chilling effect’ on Mr Kyprianou's performance of his duties as defence counsel was demonstrated by his insistence, upon the resumption of the proceedings, that another lawyer should address the court in respect of the request for the continuation of the proceedings before a different bench.

In these circumstances, the Court concludes that the Assize Court's handling of the confrontation with the applicant's defence counsel rendered the trial unfair. It follows that there has been a violation of Article 6 § 1 in this respect.