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«Police arrest and assistance of a lawyer March 2016 This factsheet does not bind the Court and is not exhaustive Police arrest and assistance of a ...»

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Factsheet – Police arrest and assistance of a lawyer

March 2016

This factsheet does not bind the Court and is not exhaustive

Police arrest and assistance of a lawyer

Article 6 § 3 (c) (right to legal assistance) of the European Convention on Human

Rights: “Everyone charged with a criminal offence has the right to defend himself in

person or through legal assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the interests of justice so require.” “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.” (Imbriosca v. Switzerland, judgment of 24 November 1993, § 36).

« [I]n order for the right to a fair trial to remain sufficiently “practical and effective” …, Article 6 § 1 [of the Convention] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 … The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.” (Salduz v. Turkey, Grand Chamber judgment of 27 November 2008, § 55).

Access to a lawyer Salduz v. Turkey 27 November 2008 (Grand Chamber) Charged with, and subsequently convicted of, participation in an unauthorised demonstration in support of the PKK (the Workers’ Party of Kurdistan, an illegal organisation), the applicant, in the absence of a lawyer, made a statement while in police custody admitting his guilt.

The European Court of Human Rights held that there had been a violation of Article 6 § 3 (c) (right to legal assistance) taken together with Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights. It found that even though the applicant had been able to contest the charges at his trial, the fact that he could not be assisted by a lawyer while in police custody had irretrievably affected his defence rights, especially as he was a minor.

Pishchalnikov v. Russia 24 September 2009 Arrested on suspicion of aggravated robbery, the applicant was interrogated – both on the day of his arrest and immediately on the following day – in the absence of a lawyer, although he had clearly indicated a defence counsel he wanted to represent him. During these interrogations he confessed to having taken part in the activities of a criminal group which included among others a murder and kidnapping, crimes for which he was later convicted.

The Court held that there had been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention. It found that the lack of legal assistance to the Factsheet – Police arrest and assistance of a lawyer applicant at the initial stages of police questioning had affected irreversibly his defence rights and undermined the possibility of him receiving a fair trial.

Dayanan v. Turkey 13 October 2009 The applicant, who was charged with, and subsequently convicted of, being a Hezbollah member, did not have the assistance of a lawyer while he was in police custody.

The Court held that there had been a violation of Article 6 § 3 (c) taken together with 6 § 1 of the Convention. It found that that restriction (which was systematic, as it was prescribed by the relevant provisions of Turkish law) of the right of an individual deprived of his liberty to have access to a lawyer was sufficient for it to be able to conclude that there had been a violation of Article 6 of the Convention, even though the applicant had remained silent while in police custody.

Yeşilkaya v. Turkey 8 December 2009 The applicant was refused access to a lawyer while in police custody, although he had denied any involvement in the offences imputed to him by the interviewing officers.

The Court held that there had been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention on account of the lack of legal assistance to the applicant while in police custody.

Boz v. Turkey 9 February 2010 Arrested on suspicion of belonging to the PKK (Workers’ Party of Kurdistan, an illegal organisation), the applicant was at the end of his trial sentenced to the death penalty for “membership of an armed gang”, a sentence which was subsequently commuted to life imprisonment. He complained in particular of the fact that he did not have access to a lawyer while in police custody.

The Court reiterated that systematic restriction of access to a lawyer pursuant to the relevant legal provisions breached Article 6 of the Convention.

Brusco v. France 14 October 2010 The applicant, who was suspected of having masterminded an aggression, was taken into police custody and questioned as a witness, after being made to swear to tell the truth.

The Court held that there had been a violation of Article 6 §§ 1 and 3 (right to remain silent and not to incriminate oneself) of the Convention. According to the Court, the applicant was not a mere witness but a person “charged with a criminal offence”, and as such should have had the right to remain silent and not to incriminate himself, guaranteed by Article 6 §§ 1 and 3 of the Convention. The situation was aggravated by the fact that the applicant was not assisted by a lawyer until his 20th hour in police custody. Had a lawyer been present, he would have been able to inform the applicant of his right to remain silent.





Nechiporuk and Yonkalo v. Ukraine 21 April 2011 The first applicant complained in particular about the unfairness of the proceedings against him, notably that his conviction for a number of offences, including premeditated murder for profit committed following a conspiracy with a group of persons, had been based on statements made without the assistance of a lawyer.

The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. It was undisputed by the parties that the applicant had not become legally represented until having spent three days in detention. The applicant had confessed several times to murder at the early stage of his interrogation when he was not assisted by counsel, and had undoubtedly been affected by the restrictions on his access to a lawyer in that his confessions to the police were used for his conviction.

Factsheet – Police arrest and assistance of a lawyer

Mader v. Croatia 21 June 2011 Serving a prison sentence for murder, the applicant complained in particular of having been beaten by the police during his questioning at the Zagreb Police Department, of having been forced to sit on a chair and having been deprived of sleep and food during the three days that he was questioned. He also complained that the criminal proceedings against him had been unfair, in particular as he had lacked legal assistance during the police questioning.

The Court held that there had been a violation of Article 6 § 3 in conjunction with Article 6 § 1 of the Convention, on account of the lack of legal assistance afforded to the applicant during his questioning by the police. While it was not for the Court to speculate on the impact which access to a lawyer during police custody would have had on the ensuing proceedings, it was clear that neither the assistance provided subsequently by a lawyer nor the adversarial nature of the proceedings could counteract the defects which had occurred during his initial questioning. The applicant had further not waived his right to legal assistance during his police questioning, as he had complained about the lack of that assistance from the initial stages of the proceedings.

The Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention both in respect of the applicant’s treatment at the Zagreb Police Department and in respect of the failure to investigate his complaint.

Huseyn and Others v. Azerbaijan 26 July 2011 This case concerned the complaint by opposition activists about the unfairness of criminal proceedings brought against them for allegedly inciting demonstrators to violence.

As to the applicants’ legal assistance upon their arrest, the Court noted that three of them had been questioned without a lawyer, and without having expressly waived their right to legal assistance. Such a restriction had clearly infringed their defence rights at the initial stage of the proceedings, in violation of Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention.

Bandaletov v. Ukraine 31 October 2013 The applicant was summoned to a police station with several others for questioning as a witness in connection with an investigation into a double murder committed in his home.

He confessed to the offence. The following day he was arrested as a suspect and a lawyer was appointed to assist him. The applicant at all times thereafter confirmed his confession. He was sentenced to life imprisonment. The applicant complained that at the initial stage of the investigation he had not been assisted by a lawyer, and that the domestic courts had failed to mitigate his sentence even though he had voluntarily surrendered to the police and confessed to the crime.

The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention, finding that the criminal proceedings against the applicant had been fair overall. The domestic authorities had changed the applicant’s status from witness to suspect and provided him with a lawyer as soon as they had plausible reasons to suspect him. At his first interview as a suspect the applicant was legally represented and no investigative measures were taken after his initial confession before he had been assigned a lawyer. The applicant had maintained his confession throughout the pre-trial investigation and judicial proceedings, during which he was represented by several different lawyers. His initial confession could hardly be regarded as having been used to convict him, as the trial court had relied exclusively on the investigative measures conducted afterwards, when the applicant already had legal assistance. Lastly, the applicant’s request for mitigation of sentence on the ground of his voluntary surrender had been examined by the domestic courts.

Factsheet – Police arrest and assistance of a lawyer

Pakshayev v. Russia 13 March 2014 Convicted of murder and sentenced to ten years’ imprisonment in January 2001 – the conviction being eventually upheld in October 2006 – 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. Before the Court, he complained that he had not had any legal assistance during the initial stage of the criminal proceedings and that the confession he had made was then used to convict him.

The Court held that there had been a violation of Article 6 §§ 1 and 3 of the Convention, finding that the use of his confession statement made without the benefit of legal advice for the applicant’s conviction undermined the fairness of the proceedings as a whole.

Blaj v. Romania 8 April 2014 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. In accordance with domestic law, they drew up a report of the offence. Later that day the applicant was informed of the charges against him and of the fact that he had a right to remain silent and to see a lawyer. Subsequently he had the assistance of a lawyer during questioning.

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 “caught in the act”.

The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant’s questioning by the police under the flagrante delicto procedure. Observing that under Romanian law where a person is “caught in the act” of committing an offence, the investigating authorities must confine themselves to questions about the material evidence found at the scene of the flagrante delicto and must not question the person about his involvement in a criminal offence, it found that the investigating authorities had not overstepped the mark in the applicant’s case. It also noted that when the applicant had been questioned by the anti-corruption prosecutor about the offence he had had access to a lawyer. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the procès-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. The Court also noted in conclusion that the applicant had never alleged that his very first statements recorded in the procès-verbal had been the result of duress or ill treatment.

Çarkçı (no. 2) v. Turkey 14 October 2014 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. Notably, he alleged that the statements taken from him without the assistance of a legal representative and not even bearing his signature had been used as evidence to convict him.

The Court held that there had been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1 of the Convention, on account of the lack of legal assistance afforded to the applicant while in the custody of the gendarmerie.



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