EHRM, 20-10-2015, nr. 25703/11

The case originated in an application (no. 25703/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Croatian national, Mr Ivan Dvorski (‘the applicant’), on 16 April 2011.

The applicant was represented by Ms S. Maroševac Čapko, a lawyer practising in Rijeka. The Croatian Government (‘the Government’) were represented by their Agent, Ms Š. Stažnik.

The applicant alleged, in particular, that he had not had a fair trial because he had not been allowed to be represented by a lawyer of his own choosing during police questioning and that incriminating statements he had made had been used to convict him.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 28 June 2011 the President of the First Section decided to give notice of the application to the Government. On 5 November 2013 a Chamber of that Section, composed of Isabelle Berro, President, Mirjana Lazarovska-Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković and Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, gave judgment. They unanimously declared the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible. They held by a majority that there had been no violation of Article 6 § 1 of the Convention. The joint dissenting opinion of Judges Berro and Laffranque was annexed to the judgment.

In a letter of 21 February 2014 the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. The panel of the Grand Chamber granted the request on 14 April 2014.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

Judge Işil Karakaş was subsequently prevented from taking part in the case and was replaced by the first substitute, Judge Ján Šikuta (Rule 28).

The applicant and the Government each filed further written observations on the merits (Rule 59 § 1).

A hearing took place in public in the Human Rights Building, Strasbourg, on 21 January 2015 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Ms Maroševac-Čapko and Ms Stažnik, as well as their replies to questions put by Judges Griţco, López Guerra, Vehabović, Hirvelä, Pinto de Albuquerque, Zupančič, Kalaydjieva and Šikuta.

Holds, by sixteen votes to one, that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

Holds, by sixteen votes to one,

Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 20 October 2015.

Lawrence Early

Jurisconsult

Dean Spielmann

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

D.S.

T.L.E.

I agree with the outcome in this case. Nevertheless, I would like to raise a point referring to the domestic enforcement of this judgment — in so far as it is, obviously, the trial de novo that is the natural remedy for the finding of the procedural violation by the European Court of Human Rights (ECtHR).

Article 502 of the Croatian Code of Criminal Procedure, as amended in 2011, provides that the reopening of the proceedings shall be applicable upon a request for a revision of any final domestic judgment due to the finding of a violation by the ECtHR. This request for a reopening may be lodged within a 30 day time limit starting from the date on which of the judgment of the ECtHR will have become final (§ 60 of the main judgment).1..

The question, however, in all similar cases is not the mere reopening of the proceedings. Clearly, the purpose of the domestic trial de novo in such circumstances is to correct the fatal faults, akin to ‘absolutely essential procedural errors’ in domestic law that had led to our finding of violation in the first place. Admittedly, the case at hand is a borderline situation concerning the suspect's right to a lawyer of his own choosing. Nonetheless, this does not detract from the domestic duty to correct the procedural errors that had led to our finding of a violation. The majority judgment establishes the presumption of the privilege against self-incrimination and places an emphasis on the retrial, but it does not specify the procedural parameters within which the new procedure is to be attempted.

In this case the unassisted interrogation error was committed in the so-called critical stage of the pre-trial criminal procedure, i.e., in the stage whose outcome may predetermine the outcome of the trial itself. As George Feifer put it: ‘The Soviet criminal code does not permit a lawyer to be present during the investigation. The Soviet trial has thus been aptly described as ‘an appeal from the pre-trial investigation’.’ (Feifer, Justice in Moscow, 1964, p. 86.) The metaphor had been repeated by the U.S. Supreme Court Justice A. J. Goldberg in the famous case of Escobedo v. Illinois, 378 U.S. 478 (1964), a precursor to Miranda v. Arizona, 384 U.S. 436 (1966). Forty-two years later our own case of Salduz v. Turkey, 36391/02 (2008), § 50, too, maintained: ‘The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings 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. Thus, Article 6 — especially paragraph 3 thereof — may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions […] As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 […].’

At this juncture we encounter the question of the adequate procedural remedy to be applied by the domestic courts upon the re-trial of the case. What to do with the evidence, which would not have been obtained by the police, was it not for the absence of the suspect's legitimate counsel during these interrogations? The question will also be to what extent the evidence obtained during the trial of the applicant is the fruit of the poisonous tree of the obvious primary violation of the applicant's Convention rights. As implied above, the test to be applied is a sine qua non test, i.e., the query applies to all of the evidence stemming directly or indirectly from the irregular interrogation at the critical beginning of this domestic procedure.

The issue, therefore, is the exclusionary rule. In the new trial, for the right to counsel to have any meaning, the previously obtained contaminated evidence — ‘contaminated’ because it was obtained in the absence of a legitimate counsel — should be conscientiously expunged from the dossier concerning the applicant and, moreover, the new court dealing with the case ought to have no knowledge of the contaminated evidence on which to rely during the subsequent trial.

In the Continental legal system this is not so easy to arrive at, given that the criminal procedure does not know the so-called voir-dire procedure for the selection of the members of the jury. In the voir-dire procedure the jurors may be peremptorily excluded and they may be excluded for a cause. For example, in our case the jurors, who had on the basis of previous knowledge of this notorious case formed an opinion concerning the criminal liability etc. of the defendant, would be excluded for a cause. The end result of this would then be the composition of a jury that would have, as far as the Dvorski case is concerned, a virgin mind.

In domestic law, the case will presumably be assigned to a new formation of judges of who some would be professional judges whereas others would be the lay assessors —, both of them selected according to the defendant's constitutional right to the natural judge. However, given the notoriety of the case, there is no guarantee that these judges would have no hitherto formed opinion and would be, accordingly, capable of seeing the case with a fresh mind. Once the genie is let out it is impossible to squash it back into the bottle.

On the other hand, the exclusionary rule derives from the system, the common law, in which the verdict of guilty or innocent is rendered by a jury. The jury is privy to particular pieces of admissible evidence. If evidence is inadmissible, also according to the exclusionary rule, the jury will never see it or hear of it. The procedural role of the judge in common law system is to watch over the admissibility of evidence according to a well-developed doctrine of the law of evidence.

In the Continental system this body of law concerning admissibility of evidence simply does not exist. Instead, we have the ruling principle called ‘the free discernment of evidence’ that had been the historical rejoinder to the preceding mechanical rules governing the value of a particular proof. The famous Croatian professor and legal theorist Vladimir Bayer had maintained, many decades ago, that the attempt to introduce the jury system in the Continental law had aborted precisely because there had been no body of evidence law regulating the admissibility of evidence during the criminal trial.

Clearly, this presents us with the problem of excluding the contaminated evidence, i.e. with the exclusionary rule, during the given trial, because once the evidence had been presented, there is no way to exclude it from the cognitive range of the sitting judges.

The German rule to the effect that the judge cannot rely on such evidence in his or her reasoning out, motivation of the judgment is, to say the least, naïve to the extent that this presupposes the ability of the judges to ignore the contaminated or otherwise inadmissible evidence.

The wrong assumption, unmasked by Bishop Berkeley, to the effect that the description of the proof of an idea explains the way through which the very idea was arrived at, underlies the proscription of citing in the motivation of the judgment of the evidence subject to exclusionary rule. This is obviously not going to prevent the judge from ex post facto rationalising his ‘intime conviction’, as the French call it.

If the effectiveness of the exclusionary rule in this reopening of the trial will not have been assured, the only solution would seem to be for the applicant to again submit the case to the ECtHR. If that were to be the case, clearly, the Court would then have to deal with this difficult question. This problem, nota bene, is not specific to Croatia; most other Continental jurisdictions without a jury would have the same problem. This is the reason I am raising the question here: in anticipation of the problem of exclusion of inadmissible and of contaminated evidence.

We concur with the opinion of the majority that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in this case, but we do not agree entirely with their reasoning. In our view, the present case raises four important questions which merit a principled approach. First, whether the right of access to a lawyer entails in itself a right to have recourse to legal assistance of one's own choosing from the initial stages of the proceedings. Second, what is the content of the right to choose a lawyer. Third, whether the right to a lawyer of one's choosing should be subject to a lesser standard of protection than the right to have access to a lawyer. Fourth, whether the Court should evaluate the fairness of the trial as a whole and apply the balancing test (harmless-error analysis) in a situation in which an applicant has been denied the right to choose a lawyer during a police investigation in the course of which he or she made self-incriminatory statements. We will deal with these questions, taking into account the Court's case-law and the current standards of international human rights law and international criminal law.

I do agree with the finding of a violation of Article 6 §§ 1 and 3 (c) in this case. However, I respectfully disagree with an essential part of the reasoning of this judgment.

The heart of the matter to be addressed in this opinion is the way the Court applies the distinction between two situations:

In paragraph 81 of the judgment the Court states that denial of choice is ‘the less serious issue’ and considers that the case under scrutiny is to be classified in such terms. To my mind, in supporting that view the majority are missing an essential characteristic of this case, which is that the police apparently sought to orchestrate the defence during the initial stage of the proceedings, contrary to the provisions of domestic law, as well as the Convention. In my view the combination of the police hindering the access of a hired lawyer to the applicant and simultaneously interfering with the applicant's free choice of a lawyer by withholding relevant information is not at all ‘the less serious issue’ in comparison to transparent denial of access to a lawyer.

The facts of the case may be summarised as follows. The applicant was arrested as a suspect in relation to three murders, an armed robbery and arson. Before the beginning of the police questioning, the applicant's parent(s) hired a lawyer (G.M.) who was prepared to defend the applicant, a possibility which is accorded legal status in Croatian law. The hired lawyer G.M. immediately reported to the police station to meet his client. However, this lawyer was refused access to the applicant by the police, allegedly because he had not submitted a written power of attorney. The applicant was not informed either of the presence of the lawyer at the police station or of the action that his parent(s) had undertaken. The applicant confessed to having committed the crimes during the initial police questioning in the presence of another lawyer, who happened to be a former chief of police of the district in which the applicant was being held in custody. The Government argued that the applicant had picked this lawyer from a list presented to him by the police, which would mean that he had a lawyer of his own choosing. According to the domestic courts, the applicant confessed in the presence of a lawyer of his own choosing. The initial confession was used as evidence.

At the outset it is important to observe that the Croatian Code of Criminal Procedure (CCP) regulates the choice of a lawyer in such a way as to afford the defendant's parent the possibility of hiring a lawyer for the defendant, unless the defendant expressly refuses this (CCP, Article 62 §§ 1 and 4). Paragraph 6 of Article 62 states that the defence lawyer must present his power of attorney to the authorities conducting the proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case this must be entered in the record. Article 177 § 5 provides that, at the request of the suspect, the police authorities must allow him to hire a lawyer and for that purpose they must stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. If the circumstances indicate that the chosen lawyer will not be able to appear within this period of time, the police authorities must allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association.

The Court has observed that the only reason cited by the Government for not allowing G.M. access to the applicant was the fact that G.M., in the Government's view, did not have a proper power of attorney to represent him. At the same time, the Government did not dispute that the applicant had not been informed at the relevant time that G.M. had been trying to see him at the police station. The Court has noted, however, that G.M. alleged before the national authorities that he had in fact held a written power of attorney granted by the applicant's parents on 14 March 2007. This allegation was never convincingly refuted in the domestic proceedings. Moreover, a written power of attorney was included in the case file compiled by the investigating judge on 15 March 2007, when the applicant was brought before him by the police.

The principle of the right to legal assistance is laid down in Article 6 § 3 (c) of the Convention: ‘Everyone charged with a criminal offence has [the right] to defend himself in person or through legal assistance of his own choosing.’ The protection to be afforded to a person charged with an offence is not limited to court proceedings. In Imbriosca v. Switzerland the Court stated (§ 36): ‘Certainly the primary purpose of Article 6 of the Convention as far as criminal matters are concerned is to ensure a fair trial by a tribunal competent to determine any criminal charge, but it does not follow that the Article has no application to pre-trial proceedings.’33. Article 6 § 3 (c) encompasses particular aspects of the right to a fair trial within the meaning of Article 6 § 1 (see Correia de Matos v. Portugal (dec.),34. and Foucher v. France, § 30).35. This sub-paragraph guarantees that the proceedings against an accused person will not take place without adequate representation of the case for the defence (see Pakelli v. Germany, Commission report, § 84).36. The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in the evaluation of this matter.37. Their intrinsic aim is to contribute to ensuring the fairness of the criminal proceedings as a whole.38. But they are not an end in themselves: compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of the isolated consideration of one particular aspect or incident.

In distinguishing between cases concerning ‘denial of access’ and ‘denial of choice’, the Court refers to three cases where the free choice of a lawyer was restricted or denied (Croissant, cited above; Klimentyev v. Russia, no. 46503/99, 16 November 2006; and Martin v. Estonia, no. 35985/09, 30 May 2013). I propose to take a closer look at those cases.

To my mind the cases of Croissant, Klimentyev and Martin grouped together do not form a category of cases into which the Dvorski case would fit. The cases of Croissant and Klimentyev may be classified as dealing with the sufficiency of the reasoning underlying the denial or restriction of the choice of lawyer. Martin v. Estonia is not about the reasoning underlying such decisions but about the failure to respect the applicant's defence rights and privilege against self-incrimination in view of the course of events. This issue was analysed by our Court mainly along the lines set out in the Salduz case. In Martin v. Estonia the Court concluded that the applicant's defence rights had been adversely affected despite the domestic courts' acknowledgment of a violation of his right to have a lawyer of his own choosing, and despite the formal exclusion of his confession. The lack of domestic scrutiny in ensuring the removal of any adverse consequences for the outcome of the proceedings, following the acknowledgment of the violation of the applicant's defence rights, was the essential point for the Court in finding a violation. The Court's analysis in Martin v. Estonia should not be reduced to a simple application of the test whether the outcome of the proceedings was adversely affected as a result of the denial of the applicant's choice of lawyer. Such a reductionist characterisation unjustifiably ignores the important aspect of the domestic courts' recognition of the failure to respect the rights of the defence.

In the Dvorski case the applicant was deliberately held in a state of ignorance regarding his options in choosing a lawyer, while the lawyer hired by his parent(s) was denied access to him. When there is, on the appearance of such facts, reason to believe that the police sought to orchestrate the defence and then obtained a confession that was used as evidence by the domestic courts without any serious examination of the alleged violation of the applicant's defence rights, the question should not be whether the police could possibly have had relevant and sufficient reasons, or even compelling reasons, to deny or restrict the right to choose a lawyer, because the Court should not accept such a lack of respect for the rights of the defence in the first place, whatever the reasons or motives behind it. Such a matter does not belong to the category of ‘denial of choice’, labelled as a less serious issue — not even in comparison with a situation involving absolute denial of access of a lawyer.

Finally, to my mind the Court should have steered clear of accepting as a legitimate indication of the applicant's guilt (in paragraph 104 of the judgment) his lawyer's subsidiary plea for clemency, by which she asked for her client's initial confession to be interpreted as a sign of his sincere regret or remorse.

I am unable to share the view of the majority of the Grand Chamber that the facts complained of by the applicant disclose a violation of Article 6 §§ 1 and 3 (c) of the Convention, which provides:

The relevant part of the record of the applicant's questioning by the police officers on 14 March 2007 reads as follows:

The applicant concluded his statement as follows:

During the trial in the Rijeka County Court the applicant was given an opportunity to put forward all his arguments concerning the circumstances in which he had given his statement, and after he had raised the argument that he had never signed the record of the statement, he was afforded an effective opportunity to challenge the authenticity of his signature. However, the evidence adduced, namely the handwriting expert's report, conclusively confirmed that the applicant had signed the statement by which he had given his confession to the police.

On the other hand, the Court established that the lawyer G.M. had been denied access to the applicant while he was in police custody, even from the moment when G.M. had obtained a power of attorney signed by the applicant's father.

Article 6 § 3 (c) secures the right for the applicant to have a lawyer of his own choosing but not the lawyer of his parents’ choosing.

The applicant submitted that throughout his detention in Rijeka Police Station the lawyer hired by his parents, G.M., had been unable to contact him.

In view of the applicant's complaints, it is evident that the central issues arising in this case are the applicant's right to retain counsel of his own choice and whether, as a result of ‘not having had’ that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice.

I have no reason to doubt the Government's arguments that the applicant was provided with the official list of lawyers of the Croatian Bar Association and that from that list he chose M.R. as his lawyer. Accordingly, similarly to the Chamber, I consider that the present case does not concern a situation in which the applicant was provided with a legal-aid lawyer by the police, but rather a situation in which he was offered an official list of lawyers by the police, from which he selected M.R. as the lawyer of his own choice.39.

I fully agree with the majority that the behaviour of the police in making any contact between G.M. and the applicant impossible raises initial concerns as to the manner in which the domestic authorities dealt with the applicant's pre-trial detention, and consequently possible doubts as to whether the proceedings as a whole satisfied the requirements of a fair trial under Article 6 of the Convention.

For these reasons this case must be clearly distinguished from the main principle set out in the Salduz case, to the effect that an accused at the initial stages of police interrogation, which are decisive for the prospects of the defence in any subsequent criminal proceedings, should normally be allowed to have the effective benefit of the assistance of a lawyer (see Salduz v. Turkey [GC], no. 36391/02, § 52, ECHR 2008). The Grand Chamber (in paragraph 78 of the judgment) also refers to the case of Martin v. Estonia (no. 35985/09, 30 May 2013), in which the Court held that a person charged with a criminal offence who did not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing.

Obviously, the present case as a whole is about two basic questions: whether the applicant's choice was given free of any pressure or duress by the police; and, if no pressure or duress was applied by the police, whether the applicant should have been represented by the lawyer of his own choosing, or one chosen by his parents or any third party, even in circumstances where the applicant, probably under considerable emotional pressure, decided to give a statement confessing to the crimes.

The Court notes (see paragraph 81 of the judgment) that unlike in Salduz, where the accused, held in custody, had been denied access to a lawyer during police questioning, the present case concerns a situation where the applicant was afforded access to a lawyer from his first interrogation, but not — according to his complaint — a lawyer of his own choosing. On that account the Court has decided to assess whether, in the light of the proceedings as a whole, the rights of the defence have been ‘adversely affected’ to such an extent as to undermine their overall fairness.

Without going into all the details of that test, I consider that the applicant's wish to have a lawyer of his own choosing was respected throughout the criminal proceedings against him. It is undisputed that he changed his representative several times. The nature of the proceedings against the applicant was serious, on account of his alleged offences, but that does not mean that there should be different requirements for a fair hearing depending on the seriousness of the nature of proceedings. It is true that one of the items of evidence used against the applicant was his statement given at the police station in the presence of the public prosecutor, but that statement was not the only evidence against him. When the applicant gave his first self-incriminatory statement in the present case, the fact is that he did so of his own free will, in the absence of any signs of physical or psychological pressure being exerted by the police. This statement was signed by the applicant, as was confirmed by a handwriting expert before the domestic courts.

I would have shared the view of the majority of the Court that the applicant suffered irreparable damage leading to a violation of Article 6 § 1 of the Convention in respect of the fairness of the proceedings as a whole if it had been proved that the applicant's self-incriminatory statement was given in violation of Article 3, or without any legal representative present, or even in the presence of a representative whom he had not chosen of his own free will; however, I did not find any of these elements to be substantiated by the applicant in his application and I found his complaint to be completely unsupported by relevant arguments.

During the trial before the courts dealing with his case, the applicant put forward all his arguments in respect of the circumstances in which his statement had been given, as well as his argument that he had never signed the statement. However, the handwriting expert's report conclusively confirmed that the applicant had indeed signed the statement. Therefore, it cannot be said that the applicant's objections regarding the admissibility of his statement as evidence were ignored by the trial court (see, by contrast, Desde v. Turkey, no. 23909/03, § 130, 1 February 2011).

Throughout the court proceedings the applicant had the benefit of effective legal advice, and the trial court afforded him an adequate opportunity to participate in the proceedings and to put forward his arguments in respect of the charges and all the relevant evidence adduced; his arguments were duly taken into account. It should be mentioned that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by the lawyer M.R. as proof of his sincere regret for the crimes committed, in the hope that it would be taken into account as a mitigating factor in the sentencing procedure.

Furthermore, the applicant's confession was not the central platform of the prosecution's case (see, by contrast, Magee v. the United Kingdom, no. 28135/95, § 45, ECHR 2000-VI), and the trial court relied on his statement, interpreting it in the light of a complex body of evidence assessed by the court (compare Bykov v. Russia [GC], no. 4378/02, 10 March 2009). Specifically, when convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence. In addition, the trial court had at its disposal the confessions made by the applicant's co-accused at the trial, and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.

In such circumstances it would be difficult for me to conclude that the proceedings as a whole were unfair (compare O'Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999), since all the applicant's rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010, and, by contrast, Martin, cited above, §§ 95–96).

Against this background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy v. Ukraine, no. 27004/06, § 51, 24 November 2011) and the requirement to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011), I consider that it has not been shown that the applicant's defence rights have been irretrievably prejudiced or that his right to a fair trial under Article 6 has been adversely affected (see, mutatis mutandis, Mamaç and Others v. Turkey, nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, and Sarıkaya v. Turkey, no. 36115/97, § 67, 22 April 2004; and, by contrast, Martin, cited above).

I wonder why the applicant never took any steps against M.R. if he considered his representation by that lawyer to be inadequate or contrary to his own free will, even though he had various opportunities to do so. He never complained in the subsequent criminal proceedings that M.R. had failed to provide him with adequate substantive legal advice. Neither he nor his new lawyer ever submitted any complaint against M.R. by instituting disciplinary proceedings before the relevant bodies of the Croatian Bar Association, an option that they were perfectly entitled to pursue. Neither the applicant nor his lawyers took any action in that respect. I wonder how he can then dispute the professional attitude of M.R. in his case?

Furthermore, on what basis can the applicant claim that his initial statement, given over the course of several hours — during which time he never refused to provide further information, and following which he acknowledged the accuracy of the information provided by signing the record of the statement — raises any issue under the Convention, in view of the clear absence of any ill-treatment contrary to Article 3 of the Convention at the hands of the police? I fully agree with the Chamber's conclusion that ‘there are no grounds to believe that any pressure was exerted on him or that there was any defiance of his will’ (see the Chamber judgment, § 102).

Just for a moment, let us imagine a hypothetical situation in which the police had allowed the lawyer G.M. to be present during their questioning of the applicant. I assume that the applicant's complaint would then have been that the lawyer of his own choosing was not G.M. but M.R. and that the police or his parents had imposed G.M. as his lawyer, in defiance of his free will as clearly expressed in the statement he had given without any sign of abuse by the police. For these reasons the Court missed a chance to draw a clear line between two distinctive periods of the proceedings — one with M.R. and the other with G.M. as the lawyer of the applicant's choosing in respect of his complaint. In the absence of any ill-treatment or of any other relevant factors that might have rendered the proceedings as a whole unfair, the applicant's complaint is without solid foundations.

Finally, I am very curious to find out how the case-law will develop in future regarding the fairness of criminal proceedings and the question of legal representation across Europe today in the light of this judgment.