Right of the defence and

assistance of the accused

(Article 6 § 3 ECHR)
The rights of the accused explicitly included in Article 6 §3
are:
– right to information on the nature and cause of the
accusation in a language which
the accused understands (6 §3 (a));
– right to have adequate time and facilities for the
preparation of the defence (6 §3
(b));
– right to defend oneself in person (6 §3 (c))
– right to legal assistance (6 §3 (c))
– right to legal aid (6 §3 (c))
– right to examine or have examined prosecution witnesses
and to obtain the attendance and examination on one”s
behalf under the same conditions as the prosecution
witnesses (6 §3 (d))
-right to have free assistance of an interpreter (6 §3 (e))
In addition to these, the ECtHR has also recognised as
implicitly included in the ECHR at least the following
rights:
– right against self-incrimination and to remain silent
(6 §1)
– right to “fair use” of evidence (6 §1)2
– right to access to the case fi le (Article 6 §3 (b))
– right to consult one’s lawyer (Article 6 §3 (b) and
(c))
– right to a reasoned decision (Article 6 §1)
THE SCOPE OF APPLICATION OF THE RIGHTS
A first step to determine whether the ECHR applies in a given criminal case is to
determine whether there is a “criminal charge” in the sense of the ECtHR case
law.
Both concepts have an autonomous meaning for purposes of the ECHR, aiming
at giving those notions a substantive rather than a merely formal content.
The concept of “charge” “depends on the circumstances of the case, as the
prominent place held in a democratic society by the right to a fair trial prompts
the Court to prefer a “substantive”, rather than a “formal”, conception of the
“charge” contemplated by Article 6 §1. Th e Court is compelled to look behind
the appearances and investigate the realities of the procedure in question”
(Shabelnik v Ukraine, Fifth Section judgment of 19.02.2009, application no.
16404/03, §52, citing Deweer v. Belgium, Chamber Judgment of 27.02.1980,
§44). 2
From the moment the position of the person is “substantially
affected” by investigative acts, the Court considers that the
person has been “charged”, irrespective of whether there is a
formal charge. (see decisions cited in Deweer v. Belgium, §46).
As put out in Corigliano v. Italy (Chamber judgment of
10.12.2982, application no. 8304/78)
The case law of the ECtHR is clear in stating that the right to legal
assistance provided by the ECHR is a right to effective legal
assistance.This concept has significant legal
consequences, since for the purposes of the ECHR, it is not
sufficient simply to conclude that a lawyer had been appointed or
was present, i.e., that legal assistance was given. The legal
assistance must be also be effective.

As regards the temporal scope of application of the right within

proceedings, in accordance with the Article 6 requirement of
effective legal assistance, the Grand Chamber stated in its ground
breaking judgment in Salduz v. Turkey that the right to legal
assistance attached from the first interrogation by the police
General approach to Article 6(3) provisions
• Article 6(3) pre-trial violations can be remedied
• In principle, pre-trial issue can only be litigated at ECtHR once the whole
proceedings are over, when the impact on overall fairness can be assessed
• Cases brought before trial on Article 6(3) grounds routinely dismissed on
the basis that remedies are still available in the procedure (premature).
• But see Casse v. Luxembourg (2006) – violation of Article 6(3)(a) at the pre-
trial stage in isolation.
• See also Candio Gonzalez Martin v. Spain (pending) – alleged violation of
Article 6(3)(a) at the pre-trial stage (will come back to this)
• EU Directives, by contrast, apply throughout the proceedings, and can be
invoked at that stage. This is not the same as ‘overall fairness’ ex post
Article 6(3) – when it begins to apply
• Article 6(3) applies for everyone “charged” with a criminal offence
• Key issue: X is questioned as a “witness” when he is in fact “suspected”
• The classic definition of “charged”:
That concept has to be understood within the [autonomous] meaning of the
Convention and not solely within its meaning in domestic law. It may thus be
defined as “the official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”, a
definition that also corresponds to the test whether “the situation of the
[suspect] has been substantially affected” (Mikolajova v. Slovakia, 2011)
Article 6(3) – when it begins to apply
• Article 6(3) applies for everyone “charged” with a criminal offence
• Key issue: X is questioned as a “witness” when he is in fact “suspected”
• Recent move towards objective evidence-based test:
The Court considers a person to acquire the status of a suspect calling for the
application of the Article 6 safeguards not when it is formally assigned to him
or her, but when the domestic authorities have plausible reasons for
suspecting that person’s involvement in a criminal offence (Bandaletov v.
Ukraine, 2013; derived from Brusco v. France, 2010)
• Examples of this:
• Violation due to questioning at roadside stop (not formally as a
suspect), when there was evidence against the person , and the
statement being used at trial (Zaichenko v. Russia, 2010)
• No violation when the person voluntarily made a confession, before
authorities had reason to suspect them (Bandaletov v. Ukraine, 2013)
Article 6(3) – specific paragraphs: (c)
• The (now) central principle in Salduz v. Turkey
[T]he Court underlines the importance of the investigation stage for the
preparation of the criminal proceedings, as the evidence obtained during this
stage determines the framework in which the offence charged will be
considered at the trial (…) At the same time, an accused often finds himself in
a particularly vulnerable position at that stage of the proceedings (…) this
particular vulnerability can only be properly compensated for by the
assistance of a lawyer whose task it is, among other things, to help to ensure
respect of the right of an accused not to incriminate himself.
• To say it another way: initial questioning is key, as suspect may make
statements against himself , so he needs the assistance of a lawyer.
Article 6(3) – specific paragraphs: (c)
• The (now) central principle in Salduz v. Turkey
[Article 6(1)] 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.
• Earlier, simple examples
• Salduz v. Turkey, 2008 itself: confession used as basis for conviction
• Shabelnik v. Ukraine, 2009: confession used as basis for conviction
Article 6(3) – specific paragraphs: (c)
• Some open / developing questions
[Article 6(1)] 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.
• What does ‘as from the first interrogation by the police’ mean
• Navone v. Monaco, 2010: assistance during questioning
• April 2014 decision of NL Supreme Court disagreed 
Article 6(3) – specific paragraphs: (c)
• Some open / developing questions
[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as
from the first interrogation of a suspect by the police (…)
• Real and effective assistance by a lawyer
[A]n accused [must] be able to obtain the whole range of services specifically
associated with legal assistance (…) counsel has to be able to secure without
restriction the fundamental aspects of that person’s defence: discussion of
the case, organisation of the defence, collection of evidence favourable to the
accused, preparation for questioning, support of an accused in distress and
checking of the conditions of detention (Dayanan v. Turkey, 2009).
• Sapan v. Turkey, 2011 – suggested lawyer must have access to the police
case file in order to provide effective assistance. Paris Bar relies on this a lot.
• A.T. v. Luxembourg, 2015 – disagreed with Sapan v. Turkey, and found that it
is legitimate to restrict access to the file at this stage – big discussion
Article 6(3) – specific paragraphs: (c)
• Some open / developing questions
[Article 6(1)] requires that, as a rule, access to a lawyer should be provided as
from the first interrogation of a suspect by the police (…)
• Real and effective assistance by a lawyer
• A.T. v. Luxembourg, 2015
• No private consultation with the lawyer prior to judicial interrogation
• Our intervention: you can and should rely on the EU Directive:
The right of access to a lawyer shall entail the following: (a) Member States
shall ensure that suspects or accused persons have the right to meet in
private and communicate with the lawyer representing them (…).
• ECtHR found that requirement implicit in Article 6(3)(c)
• First example of interaction betwen ECHR / EU law in this area
Article 6(3) – specific paragraphs: (c)
• Some open / developing questions
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).
• What are incriminating statements?
• Outright confessions, clearly
• Saunders v. UK: other statements deployed later to impinge credibility
• A.T. v Lux: denials of the offences different from later denials
Article 6(3) – specific paragraphs: (c)
• Some open / developing questions
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).
• When are statements ‘used for a conviction’?
• Still uncertainty as to whether statement can be used at all
• Dvorski v. Croatia (Chamber, 2013) – allowed reliance on statement,
amid a complex body of evidence.
• Dvorski v. Croatia (Grand Chamber, 2015) – overturned this, but
without clearly deciding the issue (see the individual opinions)
• Khayrov v. Ukraine, 2012 – statement ‘had a bearing’ on conviction
• Martin v. Estonia, 2013 – statement excluded, but the effect of the
early denial of access to a lawyer was not ‘completely undone’: strict
• Important: it is about national courts’ freedom to assess evidence
Article 6(3) – specific paragraphs: (c)
• Yesterday’s case: Ibrahim and Others v. UK
[Article 6(1)] 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).
• Chamber judgment in Ibrahim is the first time ‘compelling reasons’ have
been found to be established since the Salduz principle was established
• These were said (following English courts) to be ‘convincingly established’
• National courts used statements for the convictions (with safeguards)
• Chamber found that this meant Article 6 not infringed overall
Article 6(3) – specific paragraphs: (c)
• Our intervention in this case said:
• Case-law has moved on, right to a lawyer has become fundamental
• Derogations OK, but the evidence cannot be used for the criminal case
• The two options before the Court are:
• Even where compelling reasons established, any use of the evidence
for a conviction will irretrievably prejudice the rights of the defence – ‘in
principle’ means the rule is a ‘bright line’
OR
• Where compelling reasons to restrict access to a lawyer are
established, may be possible to use the statement provided there are
other safeguards – ‘in principle’ means there is an exception
• The ruling will affect the interpretation of Article 12 of the EU Directive
• ECtHR knows Court of Justice of the EU will be interpreting the Directive…
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• This is cited by lawyers as basically the number one problem in this area
Neither the letter nor the spirit of Article 6 prevents a person from waiving of
his own free will, either expressly or tacitly, entitlement to the guarantees of
a fair trial. However, if it is to be effective for Convention purposes, a waiver
of the right must be established in an unequivocal manner and be attended
by minimum safeguards (…) A waiver of the right, once invoked, must not
only be voluntary, but must also constitute a knowing and intelligent
relinquishment of a right. Before an accused can be said to have implicitly,
through his conduct, waived an important right under Article 6, it must be
shown that he could reasonably have foreseen what the consequences of his
conduct would be (e.g. Saman v. Turkey, 2011)
• The waiver therefore depends upon the information given to the suspect
• Failure to give information effectively may lead to violations of Article 6
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• Circumstances which have led to waiver being seen as ineffective:
• Notification of rights in another language (Saman v. Turkey, 2011)
• Notification by a mere oral caution (Panovits v. Cyprus, 2009)
• The stress of the situation (Zaichenko v. Russia, 2010)
• The suspect’s low level of literacy (Kaciu & Kotori v. Albania, 2013)
• EU Directive 2012/13/EU
• Requires a ‘Letter of Rights’ for arrested persons (Article 4)
• Drafted in ‘clear and accessible’ language to ensure rights understood
• The suspect must have an opportunity to read it (Article 4)
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• An interesting recent case: Zachar and Cierny v. Slovakia, 2015
• Suspects arrested on lower level drugs offences (possession)
• Notified orally of rights prior to questioning
• Choice to ‘waive’ lawyer recorded by way of ticked box on a form
• Suspects made self-incriminatory statements
• Offences later reclassified as serious supplying offences, which would
have required mandatory representation if charged initially
• We intervened, to say
• Look at the emphasis in the EU Directive on information given
• ECtHR should have regard to accuracy and detail of the accusation
given, including legal classification, and the way rights were notified
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• Judgment in Cierny v. Slovakia, 2015
• Interesting review of access to lawyer principles, paragraph 59
[T]he Court observes that any instructions as regards the applicants’
procedural rights were given to them via the first pages of the pre-printed
forms on which their pre-trial statements had been transcribed. Such
instructions went as far as informing the applicants, without providing any
commentary or further explanation, that they had the right to remain silent
and the right to choose a lawyer. Conversely, there has been no allegation or
other indication that any individualised advice about their situation and
rights was provided to the applicants (paragraph 70).
• Implicit requirement for separate notification of rights (not ex post)
• Seems to suggest advice may be needed to make waiver effective
• Arguably, ECtHR is importing EU Directive requirements into its case-law
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• Judgment in Cierny v. Slovakia, 2015
[T]he Court is of the view that there must have been a distinct possibility at
the relevant time that the offence might be reclassified to a particularly
serious one. However, there is no indication that any such distinction, or the
attendant risk of a significantly heavier penalty, was explained to the
applicants (paragraphs 72-73)
• So: misleading notification of accusations leads to ineffective waiver
• Useful to check the level of detail / classification provided initially
• (Slovakia has since implemented Directive 2012/13/EU)
Article 6(3) – specific paragraphs: (c)
• The ‘waiver’ issue
• Another interesting case: Stojkovic v. France & Belgium
• Questioned in Belgium, on request of France
• Notification regarding procedural rights in France
• Waiver (of rights in France) was not unequivocal
• This is a useful case for criminal lawyers doing cross-border work
• Cross-border questioning could be more frequent from 2017 when the
European Investigation Order Directive is implemented
Article 6(3) – specific paragraphs: (e)
• Interpretation in initial questioning
• Practitioners’ concern: quality of interpretation at the police station
• Unqualified interpreters
• Questionable independence
• No recording in place to check what was actually said
• Difficult for courts to assess whether statements are reliable
• May have an impact upon suspects’ right of self-incrimination
Article 6(3) – specific paragraphs: (e)
• Interpretation in initial questioning
• Notable case: Diallo v. Sweden (admissibility decision, 2010)
The Court notes that the investigation stage has crucial importance for the
preparation of the criminal proceedings (…) in order to (…) avoid
incriminating statements made during police interrogation without access to
a lawyer being used for a conviction, as a rule, access to a lawyer should be
provided as from the first interrogation of a suspect by the police (…) In the
same line of reasoning, the assistance of an interpreter should be provided
during the investigating stage unless it is demonstrated in the light of the
particular circumstances of each case that there are compelling reasons to
restrict this right (paragraphs 24-25).
• Establishing a ‘police station right’ in the image of access to a lawyer
• This principle has become part ofthe case law (e.g. Baytar v. Turkey, 2015)
Article 6(3) – specific paragraphs: (e)
• Interpretation in initial questioning
• Interesting point about courts’ review of police station interpreting
[T]he obligation of the competent authorities is not limited to the
appointment of an interpreter but, if they are put on notice in the particular
circumstances, may also extend to a degree of subsequent control over the
adequacy of the interpretation provided (e.g. Kamasinski v. Austria).
• How was this applied in Diallo v. Sweden?
The Court also finds that the Appeal Court did exercise a sufficient degree of
control of the adequacy of AS’s interpretation skills (paragraph 29).
• Court is referring to the fact that Appeal Court checked whether it was safe
to rely upon the incriminatory statements in the questioning – i.e.
retroactive control by the court over quality of early interpretation
• It was possible here because checks were also done at the questioning
stage (control questions etc.) – without these, may be difficult for court
Article 6(3) – specific paragraphs: (e)
• Interpretation in initial questioning
• Third-language issue
• Baytar v. Turkey, 2014
• Kurdish speaker with insufficient Turkish
• Waiver of rights ineffective; statements not reliable
• Vizgirda v. Slovenia, pending
• Lithuanian citizen with some Russian ability
• Interpretation provided in Russian throughout
• We intervened to say this is exactly like Baytar v. Turkey
• EU Directive adds very little on any of these points
Article 6(3) – specific paragraphs: (a) and (b)
• Access to the case file at the pre-trial phase
• Common problem
• Exceptional powers available to restrict access to the case file
• Used routinely, so access is restricted in much of pre-trial phase
• How does the case-law help?
• When a person is detained, Article 5(4) applies – which means that
documents which are essential to challenging detention effectively must
be made available to suspects / their lawyers (e.g. Schöps v. Germany)
• Article 6(3) position is less helpful, when a person is not detained
Article 6(3) – specific paragraphs: (a) and (b)
• Access to the case file at the pre-trial phase
• Article 6(3) principles
[T]he Court acknowledges the need for criminal investigations to be
conducted efficiently, which may imply that part of the information collected
during them is to be kept secret in order to prevent suspects from tampering
with evidence and undermining the course of justice (e.g. Garcia Alva v.
Germany among others)
Nevertheless, that legitimate goal cannot be pursued at the expense of
substantial restrictions on the rights of the defence (e.g. Dochnal v. Poland)
• Difficult to establish such a restriction if the person is not detained
• Gul v. Germany (admissibility, 2012) (challenge to arrest warrant)
• Cases often dismissed as inadmssible: file will be opened later
Article 6(3) – specific paragraphs: (a) and (b)
• Access to the case file at the pre-trial phase
• Ongoing discussion under Article 6(3)?
• A.T. v. Luxembourg, 2015
Article 6 cannot be interpreted as providing unrestricted access to the case
file as from prior to the first judicial interrogation, where national authorities
have reasons relating to the protection of the interests of justice which are
sufficient to seek to avoid jeopardising the effectiveness of the investigation
(paragraph 81 – badly drafted)
• Candido Gonzalez Martin v. Spain, pending
• Prolonged (years) restriction on access to the case file
• Challenged on the basis that it interferes with the right for the
defence to know what is going on in the investigation, and to
participate effectively in the pre-trial phase
• Pending an awfully long time – not sure what Court is doing
Article 6(3) – specific paragraphs: (a) and (b)
• Access to the case file at the pre-trial phase
• Ongoing discussion under Article 6(3)?
• A.T. v. Luxembourg, 2015
Article 6 cannot be interpreted as providing unrestricted access to the case
file as from prior to the first judicial interrogation, where national authorities
have reasons relating to the protection of the interests of justice which are
sufficient to seek to avoid jeopardising the effectiveness of the investigation
(paragraph 81 – badly drafted)
• Candido Gonzalez Martin v. Spain, pending
• Prolonged (years) restriction on access to the case file
• Challenged on the basis that it interferes with the right for the
defence to know what is going on in the investigation, and to
participate effectively in the pre-trial phase
• Article 7 of the EU Directive is more promising – leads to a general point
How ECHR points are litigated under EU law
• Access to the case file at the pre-trial phase
• Article 7 of the EU Directive (2012/13/EU)
• Article 7(1) – reiterates Article 5(4) ECHR standard
• Article 7(2) and (3) – right of access to the whole file, ‘at the latest’
when the merits of the case are submitted to the judgment of a court
• Article 7(4) – provides grounds for restricting access. These must be
taken by a judicial authority of subject to judicial review
• Scope of Directive (Article 2) – applies as from the beginning of proceedings
• Therefore: suspect has a right which can be invoked in the pre-trial phase
• By contrast, Article 6(3) pre-trial points litigated later, through telescope
• Involvement of the regional court (CJEU) comes during national phase
 Thanks
alex.tinsley@fairtrials.net