Denying access to a lawyer in police custody leads to violations of the right to a fair trial
Article 6(3)(c) of the European Convention on Human Rights governs the right to legal assistance.
Article 6(3)(c) provides that everyone charged with a criminal offense 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.”
In Imbrioscia v. Switzerland, the European Court of Human Rights (ECtHR) held that the right to a fair trial does not cover only the trial itself and cannot be read as excluding the stages before trial. It follows from this judgment that steps taken during the investigation stage must also be assessed under the fair trial principle.
In Salduz v. Turkey, delivered on November 28, 2008, the Court noted that the applicant, who had been taken into custody on suspicion of membership in the PKK terrorist organization, did not have a lawyer's assistance when he gave the statement in which he admitted the offense during police questioning. Although the applicant later denied the charges at trial, the Court found a violation because he had been convicted on the basis of that statement.
Pishchalnikov v. Russia
The applicant, who was taken into custody on suspicion of aggravated robbery, was questioned without a lawyer on the day of his arrest and on the following days, even though he had clearly named the defense lawyer he wanted to represent him.
During the questioning, he confessed to involvement in a number of offenses, including murder and kidnapping. He was later convicted of those offenses as well.
In its judgment finding a violation of the fair trial principle, the Court stated that his rights of defense had been violated because he could not benefit from a lawyer's legal assistance during the initial stages of police questioning.
Dayanan v. Turkey
The applicant was taken into custody on suspicion of membership in Hezbollah and stated that his statement had been taken without a lawyer's legal assistance.
In its judgment finding a violation, the Court emphasized that the restriction on access to a lawyer was systematic and foreseeable under Turkish law and government practice. Even though the applicant exercised his right to remain silent during police questioning, the restriction of his right of access to a lawyer in itself resulted in a violation of the fair trial principle.
Yeşilkaya v. Turkey
Although the applicant denied any involvement in the offenses he was charged with when interviewed by officers, he was refused access to a lawyer while he was in custody.
The Court found a violation of the fair trial principle on the ground that the applicant had not been given legal assistance while in custody.
Boz v. Turkey
The applicant was sentenced to death for membership in the PKK terrorist organization and for acts committed as part of an armed group. His sentence was later commuted to life imprisonment. He complained that he had not had a lawyer's legal assistance while in police custody.
The Court found a violation of the right to a fair trial on the ground that a lawyer's legal assistance had been systematically denied.
Brusco v. France
The applicant was taken into custody on the ground that he had organized an assault. He was questioned as a witness (in Turkish practice, this corresponds to taking a statement from someone as a person with knowledge of the events) and was made to swear an oath to tell the truth during this questioning.
In its judgment finding a violation, the Court emphasized that the applicant's right to remain silent and his right not to incriminate himself had been violated. According to the Court, the applicant was not merely a witness but a person facing a criminal charge. It is beyond doubt that everyone facing a criminal charge has the right to remain silent and the right not to incriminate himself under Article 6 of the Convention. The violation stemmed from the fact that he spent 20 hours in custody without a lawyer's assistance. Only a lawyer with access to him could have informed the applicant that he had the right to remain silent and the right not to incriminate himself.
Nechiporuk and Yonkalo v. Ukraine
The first applicant complained that, while facing numerous charges including conspiracy against a group of people and premeditated murder, he could not obtain any legal assistance and was therefore subjected to unfair treatment.
The Court emphasized the following points in its judgment. It was undisputed between the parties that the applicant spent his first three days in custody without legal assistance. The applicant denied the murder charges at the start of several police interrogations held before he was brought before a court. The denial of legal assistance while he was in police custody undoubtedly influenced his admission of the charges against him.
Mader v. Croatia
The applicant was sentenced to imprisonment. His complaint was that police officers beat him during questioning at the Zagreb police department. He also complained that during the three days of questioning he was forced to sit on a chair, deprived of sleep and not given food. He stated that unfair criminal procedures had been applied against him and that he had not had a lawyer's assistance during custody.
In its judgment finding a violation, the Court emphasized that the applicant had been deprived of legal assistance during police questioning. The Court stressed that legal assistance in custody undoubtedly has an effect on the procedures and steps that follow custody. With a lawyer's assistance, the person can be informed about the adverse consequences that may arise from the first police questioning and be faced later at trial. The applicant also complained that he could not obtain a lawyer's assistance during police questioning in the first days of custody and about the unfair treatment he suffered during that period. The Court further held that Article 3 of the Convention had been violated with respect to the applicant's allegations of inhuman treatment.
Huseyn and Others v. Azerbaijan
This application concerns the criminal investigations brought against opposition supporters after the demonstrations they organized turned into unlawful violence.
On examination, the Court found that three of the applicants had been questioned without a lawyer. It held that the right to a fair trial had been violated because they were not given a lawyer's assistance in the initial stages of the criminal investigation.
Bandaletov v. Ukraine
The applicant was summoned to the police station several times to testify as a witness in the investigation into a double murder committed in his own home. He confessed to the crimes. He was then arrested as a suspect and taken into custody. During this process, a lawyer assisted him and advised him on his legal position. The applicant was convicted and sentenced to life imprisonment. The court reduced his sentence because he had come to the police, surrendered and confessed.
The applicant complained that he had no lawyer's assistance during the initial proceedings.
The Court stated that there was no violation in this application. The investigation against the applicant was conducted in an entirely fair manner. Because the applicant confessed, the investigating authorities changed his status from witness to suspect. A lawyer was then assigned to him. The authorities had plausible reasons for this change. Since there was no suspicion against the applicant in the initial interviews, he was not subjected to any investigative measure as a suspect. The applicant maintained his confession both during the investigation and at trial, where he was represented by more than one lawyer. The trial court convicted him on the basis of evidence obtained during investigative steps taken while he had legal assistance. It also decided to reduce his sentence because he had surrendered and confessed voluntarily.
Pakshayev v. Russia
In January 2001, the applicant was sentenced to 10 years' imprisonment for murder. His sentence was upheld in October 2006. He complained that he could not benefit from a lawyer's assistance while in custody. After he was taken into custody in May 1997, he had no lawyer's assistance for the first few days. During custody, the police officer questioning him threatened that he would be raped in the holding cell if he did not admit the charges. The applicant admitted the charges during police questioning. However, at trial, where he was represented by a lawyer, he retracted his statement and said that he had been under duress.
He complained that he had not been provided with legal assistance during the pretrial investigation and that the statements containing his confession made during that period had been used as evidence to convict him.
The Court held that the right to a fair trial had been violated. It found a violation of the fair trial principle because the confession statements used as evidence to convict the applicant had been obtained during the initial investigative steps, which were conducted without any lawyer's assistance.
Blaj v. Romania
The applicant was taken into custody during a police operation as a suspect in a bribery offense. The police caught him in the act after persons cooperating with them placed envelopes full of money in his drawer. The police prepared a report on the offense in accordance with domestic law. In the following days, the applicant was informed of the charges against him and asked to exercise his right to remain silent and his right to legal assistance by consulting a lawyer. He then had a lawyer's assistance during the subsequent questioning. The applicant complained that he had not been reminded “at the time of his arrest” that he had the right to remain silent and the right to a lawyer's assistance.
The Court held that there was no violation in this application. The Convention protects a person's right to a lawyer's legal assistance during police questioning. The steps taken concerned flagrante delicto (caught in the act) procedures, and the questions the police asked in connection with the information note they prepared could not amount to a violation of this right. The Court emphasized that a suspect must have a lawyer's assistance when questioned by an investigating official about the charges against him. It particularly stressed that the police took no investigative step without a lawyer's assistance. A review of all the steps taken shows that the applicant did not admit the charges recorded in the “procès-verbal” at any stage.
Çarkçı v. Turkey
The applicant was arrested as a suspect in an armed robbery of a jewelry store in which the owner was shot dead. He was convicted at trial and sentenced to life imprisonment.
The applicant stated that the proceedings had been carried out without a lawyer being provided to him and that the signature on the documents constituting the evidence against him was not his.
The Court held that Article 6 (right to a fair trial) and Article 1 (right to life/bodily integrity) had been violated because of the steps taken by the gendarmerie during custody.
A.T. v. Luxembourg
The application was lodged by a person arrested under the European Arrest Warrant[1] system, who complained that he had not been provided with a lawyer during his first police questioning or during the first steps taken by the investigating judge the following day.
The applicant was detained following Luxembourg's action under the European Arrest Warrant. However, the provisions in force governing such proceedings prevented him from obtaining a lawyer's assistance. In the final analysis, the Court held that Article 6(3)(c) and Article 6(1) of the Convention had been violated because the applicant could not benefit from a lawyer's legal assistance when faced with questions about the charges.
Turbylev v. Russia
The application concerns ill-treatment and unfair treatment while the applicant was under police supervision (in custody). The evidence used against the applicant, namely his surrender and confession obtained without legal assistance, formed the basis of his conviction.
The Court held that the prohibition of inhuman and degrading treatment in Article 3 of the Convention had been violated because no effective investigation was conducted into the applicant's allegations of ill-treatment.
Ibrahim and Others v. the United Kingdom
The fourth applicant was initially questioned as a witness about whether he had any connection with the incident. After it emerged that he had helped one of the other suspects following the failed attack, he was arrested and taken into custody. His written statement was then taken. All four applicants were convicted of the charges against them.
For the first three applicants, the application concerns their arrest, their custody and the temporary delay in their access to a lawyer. For the fourth applicant, it concerns the use at his later trial of steps taken before his arrest to establish his connection with the offense and the charge against him.
The ECtHR held that there was no violation of Article 6(1) and Article 6(3)(c). For the fourth applicant, it held that a violation had occurred because his right of access to a lawyer had been obstructed. The judgment states that, for the first three applicants, the steps taken during the initial police investigation were justified by an urgent and compelling need, since they posed a threat to public safety and to life with potentially devastating consequences, such as acting as suicide bombers. This situation made it necessary to restrict their access to a lawyer. The ECtHR considered that the trial had been fair for the first three applicants. However, the fourth applicant's position regarding access to a lawyer was not the same as that of the others. This is because he had no lawyer's assistance while being questioned as a witness. During that questioning, it emerged that the fourth applicant had helped the fourth bomber after the failed attack. At that point, for his statement to meet the admissibility criteria, he should have been provided with legal assistance and cautioned about his rights before the statement was taken. However, this was not done. After giving his written statement, he too was arrested and taken into custody. He was tried and convicted of assisting the fourth bomber and helping prevent his identification after the attack. The Court found no compelling reason, in the case of the fourth applicant, to restrict his access to a lawyer or to withhold a reminder of his legal rights and information that he could exercise his right to remain silent. It is also highly significant that domestic law contained no provision governing the police decision not to caution the applicant. As a result, the fourth applicant was misled about the steps being taken. Later, because there was no record of the police decision, the evidence behind it was not available and the decision was not reviewed. Taking all of this into account, the Court found that the United Kingdom government had shown no compelling reason why the proceedings were nevertheless fair.
Simeonovi v. Bulgaria, judgment of May 12, 2017
The applicant is still serving his sentence in Sofia Prison. He complained that he could not exercise his right of access to a lawyer during the first days of his custody.
The Grand Chamber held that there was no violation in this application, either of the fair trial principle or of the right of access to a lawyer. The Bulgarian government submitted strong and well-founded evidence that the restriction on access to a lawyer during the first days of police custody had not adversely affected the fairness of the trial. The Grand Chamber noted that no investigative step relating to the charge was taken during the period when access to a lawyer was restricted. It emphasized that the applicant was represented by a lawyer during the investigation, that he voluntarily confessed to the charges after two weeks of proceedings, and that before this confession he had been informed of all his legal rights, in particular his right not to incriminate himself. It is also apparent that the trial court imposed the sentence on legal grounds based on a range of evidence in addition to his confessions.
Applications concerning violations against minors
Salduz v. Turkey
This application was lodged by an applicant who was taken into custody during an unlawful demonstration organized by supporters of the PKK terrorist organization and who was convicted by the court on the basis of his admission of the offense in a statement taken by the police without a lawyer.
The Court stated that there had been a violation of Article 6(3)(c) of the Convention. It is of undeniable importance that a minor receives a lawyer's assistance in the face of the pressure experienced in police custody. This point is emphasized in paragraph 60 of the judgment.
Panovits v. Cyprus
This application was lodged because the applicant, a minor, had not been informed before police questioning that he had the right to a lawyer's assistance.
The Court held that there had been a violation of Article 6(3)(c) of the Convention. Considering the applicant's age and the circumstances, in particular the fact that the police questioning took place without his parent or guardian present, the Court concluded that the applicant had not been effectively informed before police questioning of his right to a lawyer's assistance. It concluded that his rights of defense had therefore been violated. (For a similar judgment, see Martin v. Estonia, May 30, 2013.)
Güveç v. Turkey (January 20, 2009)
The application was lodged on the allegation that the minor applicant's right of access to a lawyer and his right to legal representation had been violated during the criminal proceedings. The minor applicant was not represented by a lawyer when giving statements to the police and the prosecutor or during questioning by the judge. The applicant and his lawyer were also absent from the hearings during the trial.
The Court held that there had been a violation of Article 6(1) and Article 6(3)(c) of the Convention. It noted that the applicant was unrepresented at 14 of the 30 interrogations and hearings held during the investigation and trial stages. It emphasized that the applicant's inability to access a lawyer throughout the criminal proceedings as a whole violated his rights of defense.
Soykan v. Turkey
The 16-year-old applicant was arrested by the police and taken into custody on the allegation that he was a member of the DHKP-C. After trial, he was sentenced to 2 years and 6 months' imprisonment. He complained about the investigative measures taken against him.
The Court held that Article 6(1) of the Convention, taken in conjunction with Article 6(3)(c), had been violated because he was not granted access to a lawyer while in police custody.
Adamkiewicz v. Poland
The 15-year-old applicant was accused of killing a 12-year-old child. After being found guilty, he was placed in a juvenile correctional facility for 6 years. The applicant complained that he had been found guilty at trial because of certain restrictions imposed during the investigation stage.
[1] The European Arrest Warrant is a coordinated system for arresting offenders within the borders of the EU, used by EU member states to combat cross-border crime.