ECtHR holds restriction on early access to lawyer breached only where overall fairness of criminal proceedings are compromised

The European Court of Human Rights (ECtHR) has held that restrictions on early access to a lawyer are breached only where the overall fairness of criminal proceedings are compromised.

The case concerned a Belgian national, Mr Beuze, who was arrested and held by the French police under a European Arrest Warrant. The Belgian authorities, who were investigating the applicant for the murder of his girlfriend, issued the warrant. The applicant was surrendered to the Belgian authorities and interviewed seven times by the police and twice by the investigating judge without access to a lawyer. The applicant was granted the right to consult with a lawyer after he was remanded in custody. However, the applicant’s lawyer was not allowed to be present in interviews conducted by the police, judge or prosecutor. During these interviews, the applicant made several statements.

The applicant relied on a previous ruling of the ECtHR in the Salduz case in arguing that the restriction on access to a lawyer was a breach of his right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The decision in Salduz established the right to have a lawyer present as soon as there is a criminal charge and from the time of first arrest, unless there are compelling reasons to restrict such a right.

Following the more recent jurisprudence in Ibrahim and others in which the Court stated that there would only be a breach of the right under Article 6 if it affected the fairness of the trial, it applied a two stage test looking at whether 1) there actually existed a restriction on early access to a lawyer and this restriction was justified, and 2) evidence was obtained from the accused which ‘in the absence of a lawyer’ influenced the fairness of the trial. This is despite the Ibrahim case being a response to urgent terrorism investigation as opposed to ordinary criminal law.

The Court therefore applied to all cases the rule that the fairness of proceedings should be considered on a case-by-case basis, and the use of an incriminating statement made in the absence of a lawyer was just one such criteria in assessing fairness.

A joint concurring opinion expressed concern that the majority judgmentactually distorts and changes the Salduz principle and devalues the right that the Court established previously.The concurring opinion felt the Salduz judgement had been weakened and subsequent decisions ran contrary to the automatic breach that had been initially intended.  

In the case before it, the Court found a breach of article 6 as the Belgian authorities had failed to give compelling reasons that would have justified the restriction on the right to early access to a lawyer, and these failings were not addressed in subsequent proceedings. Not only did the national court allow the statements to be used, it did not give the appropriate warning or guidance as to how such statements should be considered.

Click here for the full judgment of Beuze v. Belgium.



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