EHRM, 27-11-2008, nr. 36391/02

The case originated in an application (no. 36391/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Turkish national, Mr Yusuf Salduz (‘the applicant’), on 8 August 2002.

The applicant alleged, in particular, that his defence rights had been violated in that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him and that he had been denied access to a lawyer while in police custody. In respect of his complaints, he relied on Article 6 §§ 1 and 3 (c) of the Convention.

The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).

By a decision dated 28 March 2006 the application was declared partly inadmissible by a Chamber from that Section composed of the following judges: Jean-Paul Costa, Andras Baka, Rıza Türmen, Karl Jungwiert, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, and Sally Dollé, Section Registrar.

In its judgment of 26 April 2007 (‘the Chamber judgment’), the Chamber, made up of the following judges: Françoise Tulkens, Andras Baka, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni and Danute Jočienė, and also of Sally Dollé, Section Registrar, held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the non-communication of the Principal Public Prosecutor's written opinion and further held by five votes to two that there had been no violation of Article 6 § 3 (c) on account of the lack of legal assistance to the applicant while in police custody.

On 20 July 2007 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention).

On 24 September 2007 a panel of the Grand Chamber decided to accept his request (Rule 73).

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government each filed written observations on the merits.

A hearing took place in public in the Human Rights Building, Strasbourg, on 19 March 2008 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Mr Kılınç and Mr Özmen, as well as their replies to questions by the Court.

The central issue in the present case concerns the use made in evidence against the applicant of a confession made during the course of police interrogation at a time when he had been denied access to a lawyer. The Grand Chamber has found that the restriction on such access irretrievably prejudiced the applicant's rights of defence and that neither the legal assistance subsequently provided to the applicant nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred while the applicant was in police custody. The applicant's rights under Article 6 § 3 (c), read in conjunction with Article 6 § 1, were accordingly violated on account of this lack of legal assistance. I am in full agreement with this conclusion.

In paragraph 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently ‘practical and effective’, Article 6 requires that, as a rule, access to a lawyer should be provided ‘as from the first interrogation of a suspect by the police’. This principle is consistent with the Court's earlier case-law and is clearly sufficient to enable the Court to reach a finding of a violation of Article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under Article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre-trial detention. It 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. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate Article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect.

We agree in all respects with the Court's conclusions as to the violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention.

We would, however, have liked the reasoning set out in paragraph 72 of the judgment, on account of its importance, to have been included in the operative provisions as well, for reasons which have already been explained to a certain extent in the joint concurring opinion of Judges Spielmann and Malinverni in Vladimir Romanov v. Russia, (no. 41461/02, judgment of 24 July 2008) as well as the concurring opinion of Judge Spielmann in Polufakin and Chernyshev v. Russia, (no. 30997/02, judgment of 25 September 2008), and are now repeated here.

Firstly, it is common knowledge that while the reasoning of a judgment allows the Contracting States to ascertain the grounds on which the Court reached a finding of a violation or no violation of the Convention, and is of decisive importance on that account for the interpretation of the Convention, it is the operative provisions that are binding on the parties for the purposes of Article 46§ 1 of the Convention.

And indeed, what the Court says in paragraph 72 of the judgment is in our view of the utmost importance. It reiterates that when a person has been convicted in breach of the procedural safeguards afforded by Article 6, he should, as far as possible, be put in the position in which he would have been had the requirements of that Article not been disregarded (the principle of restitutio in integrum).

The principle of restitutio in integrum has its origin in the judgment of 13 September 1928 of the Permanent Court of International Justice in the case concerning the Factory at Chorzów (claim for indemnity) (merits), where the Court held as follows:

This principle, i.e. that restitutio in integrum is considered to be the primary remedy for effecting reparation for breaches of international law has been constantly reaffirmed by international case-law and practice, and is recalled in Article 35 of the Draft Articles on State responsibility.

Article 35 of the Draft Articles reads as follows:

There is no reason not to apply this principle to make reparation for international wrongful acts in the field of human rights (see Loukis G. Loucaides, ‘Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum’, [2008] European Human Rights Law Review, pp. 182–192).

In Papamichalopoulos and Others v. Greece ((Article 50), 31 October 1995, Series A no. 330-B) the Court held:

In the present case, and given that the absence of a lawyer while the applicant was in police custody irretrievably affected his defence rights (see paragraph 62 of the judgment), the best means of achieving this is the reopening of the proceedings and the commencement of a new trial at which all the guarantees of a fair trial would be observed, provided, of course, that the applicant requests this option and it is available in the domestic law of the respondent State.

The reason why we wish to stress this point is that it must not be overlooked that the damages which the Court orders to be paid to victims of a violation of the Convention are, according to the terms and the spirit of Article 41, of a subsidiary nature. This is in line with the subsidiary character attributed to compensation of damages in international law. Article 36 of the Draft Articles on State responsibility states:

It is therefore right that, wherever possible, the Court should seek to restore the status quo ante for the victim. However the Court should also take into consideration that ‘Wiping out all the consequences of the wrongful act may … require some or all forms of reparation to be provided, depending on the type and extent of the injury that has been caused’ (see J. Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 211, (2)) and in view of the remedies available at the domestic level (Article 41).

Admittedly, States are not required by the Convention to introduce procedures in their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However, they are strongly encouraged to do so, especially in criminal matters.

In Turkey, Article 311 § 1(f) of the Turkish Criminal Procedure Code provides that the re-opening of domestic proceedings which are found to be unfair by the European Court of Human Rights, can be requested within one year following the final decision of the European Court of Human Rights.

There is however a temporal limitation for the applicability of this provision. Paragraph 2 of Article 311 states that the above-mentioned provision is not applicable to applications which were lodged with the European Court of Human Rights before 4 February 2003 and for those judgments which became final before 4 February 2003. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure it is the Court's duty not only to suggest timidly that reopening is the most appropriate form of redress, as paragraph 72 of the judgment does, but also to urge the authorities to make use of that procedure, however unsatisfactory it may appear, or to adapt existing procedures, provided, of course, that the applicant so wishes. However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.

Moreover, the Court has already included directions of this nature in the operative provisions of judgments. For example, in Claes and Others v. Belgium (nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, 2 June 2005) it held in point 5 (a) of the operative provisions of its judgment that ‘unless it grants a request by [the] applicants for a retrial or for the proceedings to be reopened, the respondent State is to pay, within three months from the date on which the applicant in question indicates that he does not wish to submit such a request or it appears that he does not intend to do so, or from the date on which such a request is refused’, sums in respect of non-pecuniary damage and costs and expenses. Similarly, in Lungoci v. Romania (no. 62710/00, 26 January 2006) the Court held in point 3 (a) of the operative provisions of its judgment that ‘the respondent State is to ensure that, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the proceedings are reopened if the applicant so desires, and at the same time is to pay her EUR 5,000 (five thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, to be converted into Romanian lei at the rate applicable at the date of settlement’.

By virtue of Article 46 § 2 of the Convention, supervision of the execution of the Court's judgments is the responsibility of the Committee of Ministers. That does not mean, however, that the Court should not play any part in the matter and should not take measures designed to facilitate the Committee of Ministers' task in discharging these functions. In fact, there is nothing in Article 41 or anywhere else in the Convention that would prevent the Court from assessing the issue of full reparation in accordance with the principles outlined above. Since the Court has jurisdiction to interpret and apply the Convention, it also has jurisdiction to assess ‘the form and quantum of reparation to be made’ (see J. Crawford, p. 201). As was explained by the PCIJ in the Factory at Chorzów case: ‘Reparation … is the indispensable complement of a failure to apply a convention …’ (p. 21).

To that end, it is essential that in its judgments the Court should not merely give as precise a description as possible of the nature of the Convention violation found but should also indicate to the State concerned in the operative provisions, if the circumstances of the case so require, the measures it considers the most appropriate to redress the violation.

(Translation)

To my vote in favour of the judgment's operative provisions, I would like to add a few words to explain the meaning of the Court's reasoning, as I understand it.

The Court found a violation ‘of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while he was in police custody’ (point 1 of the operative provisions). It thus replied to the applicant's complaint ‘that his defence rights had been violated in that … he had been denied access to a lawyer while in police custody’. That complaint, raised by the applicant under Article 6 § 3 (c), was rightly formulated more precisely by the Court, which linked it with Article 6 § 1.

To my mind the meaning of the Court's judgment is quite clear. If there is any doubt at all, what the Court says in paragraph 53, referring back to paragraph 37, makes things clearer still. The generally recognised international standards, which the Court accepts and which form the framework for its case-law, provide: ‘An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation … and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions…’

It is therefore at the very beginning of police custody or pre-trial detention that a person accused of an offence must have the possibility of being assisted by a lawyer, and not only while being questioned.

The importance of interrogations in the context of criminal procedure is obvious, so that, as the judgment makes clear, the impossibility of being assisted by a lawyer while being questioned amounts, subject to exceptions, to a serious failing with regard to the requirements of a fair trial. But the fairness of proceedings against an accused person in custody also requires that he be able to obtain (and that defence counsel be able to provide) the whole wide range of services specifically associated with legal assistance, including discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support to an accused in distress, checking his conditions of detention and so on.

The legal principle to be derived from the judgment is therefore that, normally and apart from exceptional limitations, an accused person in custody is entitled, right from the beginning of police custody or pre-trial detention, to be visited by defence counsel to discuss everything concerning his defence and his legitimate needs. Failure to allow that possibility, regardless of the question of interrogations and their use by the courts, amounts, subject to exceptions, to a violation of Article 6 of the Convention.

I would add that, naturally, the fact that defence counsel may see the accused throughout his detention in police stations or in prison is more apt than any other measure to prevent treatment prohibited by Article 3 of the Convention.

The foregoing considerations would not have been necessary if the Court's reasoning had not contained passages capable of suggesting to the reader that the Court requires accused persons to be assisted by defence counsel only from the start of and during interrogation (or even only during an interview of which a formal record is to be produced to be used as evidence by the court). From paragraph 55 onwards the text adopted by the Court concentrates entirely on the answers given by the applicant when questioned which were later used against him.

I would find such a reading of the judgment too reductive. The importance of the Court's decision for the protection of an accused person deprived of his liberty would be severely weakened thereby. And wrongly so, to my mind, since the reasoning linked to the questioning of the applicant and the way his answers were used by the courts is easily explained by the Court's concern to take into consideration the specific facts of the case before it.