{"id":23176,"date":"2023-08-25T19:53:42","date_gmt":"2023-08-25T19:53:42","guid":{"rendered":"https:\/\/legalblog.ie\/?p=23176"},"modified":"2023-08-27T16:00:37","modified_gmt":"2023-08-27T16:00:37","slug":"access-to-lawyer","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/access-to-lawyer\/","title":{"rendered":"Access to Lawyer [ECHR]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Access_to_Legal_Assistance\" title=\"Access to Legal Assistance\">Access to Legal Assistance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Legal_aid\" title=\"Legal aid\">Legal aid<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Confidential_communication_with_a_lawyer\" title=\"Confidential communication with a lawyer\">Confidential communication with a lawyer<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Effectiveness_of_legal_assistance\" title=\"Effectiveness of legal assistance\">Effectiveness of legal assistance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Police_Arrest_and_Access_to_a_lawyer_I\" title=\"Police Arrest and Access to a lawyer I\">Police Arrest and Access to a lawyer I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Police_Arrest_and_Access_to_a_lawyer_II\" title=\"Police Arrest and Access to a lawyer II\">Police Arrest and Access to a lawyer II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Police_Arrest_and_Access_to_a_lawyer_III\" title=\"Police Arrest and Access to a lawyer III\">Police Arrest and Access to a lawyer III<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Police_Arrest_and_Access_to_a_lawyer_IV\" title=\"Police Arrest and Access to a lawyer IV\">Police Arrest and Access to a lawyer IV<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Police_Arrest_and_Access_to_a_lawyer_EAW\" title=\"Police Arrest and Access to a lawyer EAW\">Police Arrest and Access to a lawyer EAW<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/access-to-lawyer\/#Voluntary_waiver_of_right_to_assistance_of_a_lawyer\" title=\"Voluntary waiver of right to assistance of a lawyer\">Voluntary waiver of right to assistance of a lawyer<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Access_to_Legal_Assistance\"><\/span>Access to Legal Assistance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Legal assistance may be required prior to trial. In Ocalan v Turkey the accused was denied access to lawyers during a period of extensive questioning where he made admissions. He was thereafter permitted to consult lawyers for very limited periods within the hearing of prison guards. He was not given details of the case file until just before the hearing. It was held there was a breach of Article 6.<\/p>\n<p>In Benham v UK where the person&#8217;s liberty is at stake then presumptively the person should have legal representation provided by the state if he cannot afford to pay for it himself.<\/p>\n<p>In Granger v UK where substantial issue emerges, legal aid will similarly be required. Where there is an appeal with a full factual and legal review of facts, on a serious charge, legal aid and presence in court is usually required.<\/p>\n<p>Where circumstances change there should be the option of applying once again for legal assistance, if initially refused.<\/p>\n<p>In Croissant v Germany the court indicated that the accused does not have an absolute right to choose a lawyer. The court might appoint lawyers and provided they were independent, and the accused could reasonably have confidence in them this would suffice. He was not entitled to veto appointment of the lawyer.<\/p>\n<p>In Othman the United Kingdom the court indicated that a flagrant denial of justice might include limited or no rights to defence, evidence of torture, no access to a lawyer, a trial in absentia, or where there was a real risk of\u00a0 evidence being procured by torture if the person was extradited to the country concerned<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Legal_aid\"><\/span>Legal aid<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The third and final right encompassed in Article 3 (c), the right to legal aid, is subject to two conditions, which are to be considered cumulatively (Quaranta v. Switzerland, 1991,.27).<\/p>\n<p>First, the accused must show that he lacks sufficient means to pay for legal assistance (Caresana the United Kingdom (dec.), 2000). He need not, however, do so \u201cbeyond all doubt\u201d; it is sufficient that there are \u201csome indications\u201d that this is so or, in other words, that a \u201clack of clear indications to the contrary\u201d can be established (Pakelli v. Germany, Commission report of 12 December 1981,.34; Tsonyo Tsonev v. Bulgaria (no. 2), 2010,.39). In any event, the Court cannot substitute itself for the domestic courts in order to evaluate the applicant\u2019s financial situation at the material time but instead must review whether those courts, when exercising their power of appreciation in assessing the evidence, acted in accordance with Article 6.1 (R.D. v. Poland, 2001,.45).<\/p>\n<p>Second, the Contracting States are under an obligation to provide legal aid only \u201cwhere the interests of justice so require\u201d (Quaranta v. Switzerland, 1991,.27). This is to be judged by taking account of the facts of the case as a whole, including not only the situation obtaining at the time the decision on the application for legal aid is handed down but also that obtaining at the time the national court decides on the merits of the case (Granger v. the United Kingdom, 1990,.46).<\/p>\n<p>In determining whether the interests of justice require an accused to be provided with free legal representation the Court has regard to various criteria, including the seriousness of the offence and the severity of the penalty at stake. In principle, where deprivation of liberty is at stake, the interests of justice call for legal representation (Benham the United Kingdom [GC], 1996,.61; Quaranta v. Switzerland, 1991,.33; Zdravko Stanev v. Bulgaria, 2012,.38).<\/p>\n<p>As a further condition of the \u201crequired by the interests of justice\u201d test the Court considers the complexity of the case (Quaranta Switzerland, 1991,.34; Pham Hoang v. France, 1992,.40; Twalib v. Greece, 1998,.53) as well as the personal situation of the accused (Zdravko Stanev v. Bulgaria, 2012,.38). The latter requirement is looked at especially with regard to the capacity of the particular accused to present his case \u2013 for example, on account of unfamiliarity with the language used at court and\/or the particular legal system \u2013 were he not granted legal assistance (Quaranta v. Switzerland, 1991,.35; Twalib v. Greece, 1998,.53).<\/p>\n<p>When applying the \u201cinterests of justice\u201d requirement the test is not whether the absence of legal aid has caused \u201cactual damage\u201d to the presentation of the defence but a less stringent one: whether it appears \u201cplausible in the particular circumstances\u201d that the lawyer would be of assistance (Artico Italy, 1980, \u00a7\u00a7 34-35; Alimena v. Italy, 1991,.20).<\/p>\n<p>The right to legal aid is also relevant for the appeal proceedings (Shekhov v. Russia, 2014,.46; Volkov and Adamskiy v. Russia, 2015, \u00a7\u00a7 56-61). In this context, in determining whether legal aid is needed, the Court takes into account three factors in particular: (a) the breadth of the appellate courts\u2019 power; (b) the seriousness of the charges against applicants; and (c) the severity of the sentence they face (Mikhaylova v. Russia, 2015,.80).<\/p>\n<p>Notwithstanding the importance of a relationship of confidence between lawyer and client, the right to be defended by counsel \u201cof one\u2019s own choosing\u201d is necessarily subject to certain limitations where free legal aid is concerned. For example, when appointing defence counsel the courts must have regard to the accused\u2019s wishes but these can be overridden when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (Croissant v. Germany, 1992,.29; Lagerblom Sweden, 2003,.54). Similarly, Article 6.3 (c) cannot be interpreted as\u00a0securing a right to have public defence counsel replaced (ibid.,.55). Furthermore, the interests of justice cannot be taken to require an automatic grant of legal aid whenever a convicted person, with no objective likelihood of success, wishes to appeal after having received a fair trial at first instance in accordance with Article 6 (Monnell and Morris v. the United Kingdom, 1985,.67).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Confidential_communication_with_a_lawyer\"><\/span>Confidential communication with a lawyer<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The right to effective legal assistance includes, inter alia, the accused\u2019s right to communicate with his lawyer in Only in exceptional circumstances may the State restrict confidential contact between a person in detention and his defence counsel (Sakhnovskiy v. Russia [GC], 2010,.102). If a lawyer is unable to confer with his client and receive confidential instructions from him without surveillance, his assistance loses much of its usefulness (S. v. Switzerland, 1991,.48; Brennan v. the United Kingdom, 2001,.58). Any limitation on relations between clients and lawyers, whether inherent or express, should not thwart the effective legal assistance to which a defendant is entitled (Sakhnovskiy v. Russia [GC], 2010,.102).<\/p>\n<p>Examples of such limitations include the tapping of telephone conversations between an accused and his lawyer (Zagaria Italy, 2007,.36); obsessive limitation on the number and length of lawyers\u2019 visits to the accused (\u00d6calan v. Turkey [GC], 2005,.135); lack of privacy in video-conference (Sakhnovskiy v. Russia [GC], 2010,.104; Gorbunov and Gorbachev v. Russia, 2016,.37); supervision of interviews by the prosecuting authorities (Rybacki v. Poland, 2009,.58); surveillance by the investigating judge of detainee\u2019s contacts with his defence counsel (Lanz v. Austria, 2002,.52); supervision of communication between the accused and the lawyer in the courtroom (Khodorkovskiy and Lebedev v. Russia, 2013, \u00a7\u00a7 642-647), and impossibility to communicate freely with a lawyer due to threat of sanction (M v. the Netherlands, 2017,.92).<\/p>\n<p>Limitations may be imposed on an accused\u2019s right to communicate with his or her lawyer out of the hearing of a third person if a good cause exists, but such limitation should not deprive the accused of a fair hearing (\u00d6calan v. Turkey [GC], 2005,.133). A \u201cgood cause\u201d in this context is one of \u201ccompelling reasons\u201d justifying that limitation (Moroz v. Ukraine, 2017, \u00a7\u00a7 67-70). \u201cCompelling reasons\u201d may exist when it has been convincingly demonstrated that the measures limiting the right of confidential communication with a lawyer were aimed at preventing a risk of collusion arising out of the lawyer\u2019s contacts with the applicant, or in case of issues related to the lawyer\u2019s professional ethics or unlawful conduct ( v. Switzerland, 1991,.49; Rybacki v. Poland, 2009,.59), including suspicion of the abuse of confidentiality and risk to safety (Khodorkovskiy and Lebedev v. Russia, 2013, 641). As to the effect of such limitations on the overall fairness of the proceedings, the length of time in which they were applied will be a relevant consideration (Rybacki v. Poland, 2009,.61) and, where appropriate, the extent to which the statements obtained from an accused, who had not benefited from a confidential communication with a lawyer, were put to use in the proceedings (Moroz v. Ukraine, 2017,.72).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effectiveness_of_legal_assistance\"><\/span>Effectiveness of legal assistance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 6.3 (c) enshrines the right to \u201cpractical and effective\u201d legal Bluntly, the mere appointment of a legal-aid lawyer does not ensure effective assistance since the lawyer appointed may die, fall seriously ill, be prevented for a protracted period from acting, or shirk his duties (Artico<br \/>\nItaly, 1980,.33; Vamvakas v. Greece (no. 2), 2015,.36).<\/p>\n<p>However, a Contracting State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes or chosen by the accused (Lagerblom v. Sweden, 2003,.56; Kamasinski v. Austria, 1989,.65). Owing to the legal profession\u2019s independence, the conduct of the defence is essentially a matter\u00a0 between the defendant and his representative; the Contracting States\u00a0are required to intervene only if a failure by counsel to provide effective representation is manifest or is sufficiently brought to their attention (Imbrioscia v. Switzerland, 1993,.41; Daud v. Portugal, 1998,\u00a038). State liability may arise where a lawyer simply fails to act for the accused (Artico v. Italy, 1980, \u00a7 33 and 36) or where he fails to comply with a crucial procedural requirement that cannot simply be equated with an injudicious line of defence or a mere defect of argumentation (Czekalla v. Portugal, 2002, \u00a7\u00a7 65 and 71).<\/p>\n<p>The same considerations related to the effectiveness of legal assistance may exceptionally apply in the context of a privately hired In G\u00fcve\u00e7 v. Turkey (2009,.131) the Court took into account the applicant\u2019s young age (15 years old), the seriousness of the offences with which he was charged (carrying out activities for the purpose of bringing about the secession of national territory, which at the time was punishable by death), the seemingly contradictory allegations levelled against him by the police and a prosecution witness, the manifest failure of his lawyer to represent him properly (failure to attend multiple hearings) and the applicant\u2019s many absences from the hearings. In these circumstances, the Court found that the trial court should have urgently reacted to ensure the applicant\u2019s effective legal representation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Police_Arrest_and_Access_to_a_lawyer_I\"><\/span>Police Arrest and Access to a lawyer I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Murray v UK denial of access to lawyer during the first 48 hours of a terrorist investigation when admissions could be made which would constitute evidence of guilt was found to breach Article 6.<\/p>\n<p>In Salduz v Turkey The court finds 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 from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify the denial of access to a lawyer such restrictions whatever their justification must not unduly prejudice the rights of the accused under Article 6<\/p>\n<p>Pakshayev v. Russia Convicted of murder and sentenced to ten years\u2019 imprisonment in January 2001 \u2013 the conviction being eventually upheld in October 2006 \u2013 the applicant complained that he had been denied access to a lawyer during his questioning and first few days of police custody in May 1997. He submitted that during the questioning he had been threatened by the investigator that if he did not confess he would be raped by his cellmates. The applicant then confessed to the murder but retracted his confession during the trial when represented by a lawyer. The Court held that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention, finding that the use of his confession statement made without the benefit of legal advice for the applicant\u2019s conviction undermined the fairness of the proceedings as a whole.<\/p>\n<p>Blaj v. Romania The applicant, who was suspected of accepting a bribe, had been placed under police surveillance. A third party who had been cooperating with the police came to meet him and left an envelope containing money on his desk. The police officers intervened immediately and caught the applicant red handed. The applicant complained in particular that he had not been informed of his right to silence and legal representation at the time when he was \u201ccaught in the act\u201d. The Court held that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant\u2019s questioning by the police under the flagrante delicto procedure. r. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the proc\u00e8s-verbal. The Court therefore found that the use of those statements at trial could not be said to have prejudiced the fairness of his trial.<\/p>\n<p>\u00c7ark\u00e7\u0131 (no. 2) v. Turkey Serving a life sentence for participating in an armed robbery of a jewellery shop during which the shop owner was shot dead, the applicant complained in particular that the criminal proceedings against him had been unfair. The Court held that there had been a violation of Article 6 \u00a7 3 (c) taken in conjunction with Article 6 \u00a7 1 of the Convention, on account of the lack of legal assistance afforded to the applicant while in the custody of the gendarmerie.<\/p>\n<p>Turbylev v. Russia concerned the applicant\u2019s complaint of having been ill-treated in police custody and of the unfairness of the criminal trial against him, in which his statement of \u201csurrender and confession\u201d, made as a result of his ill-treatment and in the absence of a lawyer, was used as evidence.<\/p>\n<p>The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, both on account of the applicant\u2019s ill-treatment and on account of the ineffective investigation into the related complaints. It also held that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, finding that the admission of the statement of \u201csurrender and confession\u201d as evidence had rendered the applicant\u2019s trial unfair. The Court observed in particular that the absence of a requirement, under Russian law, of access to a lawyer for such a statement had been used to circumvent the applicant\u2019s right as a de facto suspect to legal assistance. Moreover, in failing to conduct an independent careful assessment of the \u201cquality\u201d of the statement as evidence, and instead relying on the investigative authority\u2019s findings, the domestic courts had legalised the police officers\u2019 use of a statement of \u201csurrender and confession\u201d to document the applicant\u2019s confession obtained as a result of his inhuman and degrading treatment after his apprehension on suspicion of having committed a crime.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Police_Arrest_and_Access_to_a_lawyer_II\"><\/span>Police Arrest and Access to a lawyer II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Dvorski v. Croatia concerned the refusal by the police to allow a lawyer hired by the applicant\u2019s parents to represent him while he was being questioned at a police station on suspicion of multiple murder, armed robbery and arson. The applicant confessed to the offences after signing a power of attorney authorising another lawyer to represent him.<\/p>\n<p>The Court held that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention. It found in particular that the police had not informed the applicant either of the availability of the lawyer hired by his family or of the lawyer\u2019s presence at the police station. During questioning the applicant had confessed to the offences with which he was charged, and his confession had been admitted in evidence at his trial. The Court observed that the national courts had not properly addressed that issue, and in particular had failed to take the necessary measures to ensure a fair trial.<\/p>\n<p>Borg v. Malta \u00a0mainly concerned the complaint by a convicted offender of not having had any legal assistance during questioning in police custody, resulting from the absence of any provisions under Maltese law in force at the time allowing for legal assistance during pre-trial investigation and questioning by the police. The Court held that there had been a violation of Article 6 \u00a7 3 in conjunction with Article 6 \u00a7 1 of the Convention, finding in particular that the applicant had been denied the right to legal assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons. This fell short of the requirement under Article 6 that the right to assistance of a lawyer at the initial stages of police interrogation might only be subject to restrictions if there were compelling reasons.<\/p>\n<p>Ibrahim and Others v. the United Kingdom On\u00a0July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers.<\/p>\n<p>The Court held that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention in respect of the three first applicants and that there had been a breach of those provisions in respect of the fourth applicant. In respect of the three first applicants the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. There had therefore been compelling reasons for the temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Police_Arrest_and_Access_to_a_lawyer_III\"><\/span>Police Arrest and Access to a lawyer III<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Simeonovi v. Bulgaria The applicant, who is currently serving a sentence in Sofia Prison, alleged in particular that he had not been assisted by a lawyer during the first days of his detention.<\/p>\n<p>The Grand Chamber held that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention, finding that the Bulgarian Government had presented relevant and sufficient evidence to demonstrate that they had not irremediably infringed the fairness of the criminal proceedings taken as a whole on account of the lack of legal assistance during the first three days of the applicant\u2019s police custody. In particular, the Court noted that no evidence capable of being used against the applicant had been obtained and included in the criminal file during that period; that the applicant, assisted by a lawyer of his own choosing, had voluntarily confessed two weeks after being charged, when he had been informed of his procedural rights, including the privilege against self-incrimination; that the applicant had actively participated in all stages of the criminal proceedings; that his conviction had not been based solely on his confession but also on a whole body of consistent evidence; that the case had been assessed at three judicial levels and that the domestic courts had provided adequate reasons for their decisions in both factual and legal terms and had properly examined the issue of respect for procedural rights.<\/p>\n<p>Beuze v. Belgium The applicant, sentenced to life imprisonment for intentional homicide, complained that he had been denied access to a lawyer while in police custody, had been insufficiently informed of his right to remain silent and not to incriminate himself, and had also been deprived of legal assistance when he was questioned, or subjected to other investigative acts, during the judicial pre-trial investigation.<\/p>\n<p>The Grand Chamber held that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention. It found in particular that the criminal proceedings, when considered as a whole, had not remedied the procedural defects occurring at the pre-trial stage. The restrictions on the right of access to a lawyer had been particularly extensive and in those circumstances, without being sufficiently informed of his right to remain silent, the applicant had made detailed statements while in police custody. His statements had subsequently been included in the evidence before the Assize Court, which had failed to conduct an appropriate examination of how they had been obtained or to consider the impact of the lawyer\u2019s absence. The Court of Cassation had focused on the lack of legal assistance in police custody but had not assessed the consequences for the applicant\u2019s defence rights of the lawyer\u2019s absence during his subsequent police interviews, examinations by the investigating judge and other acts during the judicial investigation. In the Grand Chamber\u2019s view, the combination of these various factors had rendered the proceedings unfair as a whole.<\/p>\n<p>Doyle v. Ireland case concerned the applicant\u2019s complaint that his right of access to a solicitor was restricted during questioning on suspicion of murder. Although the applicant could consult with his solicitor prior to the first interview and thereafter, police practice at the time meant solicitors were not permitted to be present during police questioning.<\/p>\n<p>The Court held that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of the Convention. It noted in particular that very strict scrutiny had to be applied in cases where, as here, there had been no compelling reasons to justify restricting the applicant\u2019s right of access to a lawyer. However, when examining the proceedings as a whole, the Court found that the overall fairness of the trial had not been prejudiced.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Police_Arrest_and_Access_to_a_lawyer_IV\"><\/span>Police Arrest and Access to a lawyer IV<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Olivieri v. France and Bloise v. France \u00a0concerned periods spent in police custody prior to the legislative reform of April 20112. The applicants alleged that their criminal convictions had been based on the confessions they made while in police custody, during which time they had not been notified of their right to remain silent and had not had the effective assistance of a lawyer.<\/p>\n<p>The Court held that there had been a violation of Article 6 \u00a7\u00a7 1 (right to a fair trial) and 3 (c) (right to be assisted by a lawyer) of the Convention in the first case and no violation of Article 6 \u00a7\u00a7 1 and 3 (c) in the second case. In the case of the first applicant, and with regard to his right not to incriminate himself, the Court noted in particular the existence of statements and answers given to the investigators which had clearly affected his position in the proceedings. Firstly, he had been questioned by the police for around ten hours while in police custody, after which he had admitted responsibility. Secondly, there was nothing in the reasoning of the domestic decisions to suggest that other elements could be regarded as an integral and significant part of the evidence on which his conviction had been based..<\/p>\n<p>Atristain Gorosabel v. Spain\u00a0concerned the pre-trial detention incommunicado of the applicant, who was alleged to be part of the terrorist group ETA, and the fact that he was questioned by the police without a lawyer present, making self-incriminating statements. Those statements had formed part of the reasons for his conviction for terrorism offences.<\/p>\n<p>The Court held that there had been a violation of Article 6 \u00a7\u00a7 1 (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) of the Convention in the present case. It found, in particular, that preventing the applicant from having access to counsel without giving individualised reasons had undermined the fairness of the subsequent criminal proceedings in so far as the applicant\u2019s incriminating initial statement was admitted in evidence. The absence of remedial measures during the trial had irretrievably prejudiced his defence rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Police_Arrest_and_Access_to_a_lawyer_EAW\"><\/span>Police Arrest and Access to a lawyer EAW<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A.T. v. Luxembourg 2015 \u00a0concerned the failure to provide the applicant with effective legal assistance after he was arrested under a European Arrest Warrant, during both his police interview and his first appearance before the investigating judge the next day.<\/p>\n<p>The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court held that there had been a violation of Article 6 \u00a7 3 (c) taken together with Article 6 \u00a7 1 of the Convention on account of the failure to provide legal assistance during the police interview. As further regards the applicant\u2019s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6 \u00a7 3 (c) taken together with Article 6 \u00a7 1, as Article 6 of the Convention did not guarantee unlimited access to the file prior to such an appearance.<\/p>\n<p>However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as the applicant had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6 \u00a7 3 (c) taken together with Article 6 \u00a7 1 of the Convention.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Voluntary_waiver_of_right_to_assistance_of_a_lawyer\"><\/span>Voluntary waiver of right to assistance of a lawyer<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Akda\u011f v. Turkey The applicant alleged that she had confessed to being a member of an illegal organisation after being threatened and ill-treated by the police, without access to a lawyer in police custody.<\/p>\n<p>The Court held that there had been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention. Although it rejected as inadmissible the applicant\u2019s complaint about her conviction on the basis of police statements taken under duress because of lack of evidence of ill-treatment, it found that the Turkish Government had failed to show that a printed \u201cX\u201d next to \u201cno lawyer sought\u201d on her statement form had amounted to her validly waiving her right to a lawyer during custody. In point of fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her statements.<\/p>\n<p>Nor was the Court satisfied with the national courts\u2019 response to the applicant\u2019s complaint. They had neither examined the validity of the waiver nor the statements she had made to the police in the absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced.<\/p>\n<p>Absence of an interpreter during police questioning<\/p>\n<p>Baytar v. Turkey concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. The Court held that there had been a violation of Article 6 \u00a7 3 (e) (right to the assistance of an interpreter) taken together with Article 6 \u00a7 1 of the Convention. It found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, the applicant had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-23176\" data-postid=\"23176\" class=\"themify_builder_content themify_builder_content-23176 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Access to Legal Assistance Legal assistance may be required prior to trial. In Ocalan v Turkey the accused was denied access to lawyers during a period of extensive questioning where he made admissions. He was thereafter permitted to consult lawyers for very limited periods within the hearing of prison guards. He was not given details [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[345],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23176"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23176"}],"version-history":[{"count":12,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23176\/revisions"}],"predecessor-version":[{"id":23527,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23176\/revisions\/23527"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23176"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23176"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23176"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}