Incommunicado detention of a detainee without access to a lawyer of his choice! Violation of a fair trial and the right to choose a lawyer
JUDGMENT
Atristain Gorosabel v. Spain 18.01.2022 (app. no. 15508/15)
SUMMARY
Detention in complete isolation without any communication. Right to a fair trial. Right of defense by a lawyer of the choice of the accused.
The applicant, a Spanish national, was charged with involvement in the ETA terrorist organization and possession of explosives and was sentenced to 17 years in prison. He denied involvement in the organization. An investigation was then carried out, focusing specifically on the core of the EDF of which the applicant was allegedly a member. On 29 September 2010 his detention in solitary confinement was ordered by Audiencia Nacional, to protect the integrity of the investigation. He was granted legal aid, but could not speak to him and was not allowed to see any legal counsel.
In light of the information seized during a search of his home, including explosives and computer data, the detention was extended. He testified to police that he had “collaborated” with ETA in areas such as the kidnapping attempt, providing information about police officers and so on. The plaintiff later made a statement in which he revealed where he had hidden in his house bullets from firearms, various USBs which contained many training manuals on terrorism and fake license plates. The police located the above material. He was examined by a doctor throughout his detention and did not appear to have been ill-treated.
On October 4, 2010 he was brought before the investigator. His detention in solitary confinement was lifted. On April 16, 2013 he was convicted as a member of a terrorist group and possession of explosives and was convicted by Audiencia Nacional. The court cited various pieces of evidence and testimonies, including those he allegedly hid in his residence, and his own self-incriminating statements.
The applicant relied on Article 6 §§ 1 (right to a fair trial) and 3 (c) (optional legal aid) of the ECHR and complained that while in detention in solitary confinement, he was denied access to a lawyer of his choice. during the police interrogation.
The ECtHR found that there had been no individual assessment and justification by the authorities of the need to restrict the applicant’s access to a lawyer of his choice. The detention order had been issued in accordance with the relevant legislation, but it was too general.
The Court noted that the statements he made to the police station constituted an important basis for his conviction and that the national court did not deal with allegations that his lawyer was unable to contact his client. With regard to the overall legal nature of the proceedings, preventing the legal aid lawyer from being able to communicate with the applicant at the relevant time had undermined the fairness of the subsequent criminal proceedings to the extent that the applicant’s initial statement of guilt was used as evidence. The absence of remedies during the proceedings had irreparably damaged the applicant’s rights of defense.
The ECtHR found a violation of a fair trial (Article 6 § 1) and the right to legal aid (Article 6 § 3 (c) of the ECHR) and awarded an amount of EUR 12,000 for non-pecuniary damage and EUR 8,000 for legal costs.
PROVISIONS
Article 6 par. 1
Article 6 par. 3
PRINCIPAL FACTS
The applicant, Javier Atristain Gorosabel, is a Spanish national who was born in 1970. He is currently
serving a 17-year prison sentence for membership of a terrorist group and possession of explosives.
Mr Atristain Gorosabel was arrested under a European arrest warrant in France and extradited to
Spain in 2010 on suspicion of offences related to the terrorist group ETA. He denied membership of
that organisation. Later that year the trial was discontinued.
A second investigation was also taking place, specifically focused on the ETA cell of which Mr
Atristain Gorosabel was alleged to be part. On 29 September 2010 his detention incommunicado
was ordered by the Audiencia Nacional, to protect the integrity of the investigation. He was assigned
a legal-aid lawyer, but he could not talk to him and was not allowed to meet with any legal counsel.
In the light of evidence seized during a search of his home, including explosives and information on
computer disks, the detention was extended. He was interviewed by the police, stating that he had
“cooperated” with ETA in such areas as attempted kidnapping, providing information on police
officers and so forth.
Mr Atristain Gorosabel later made a statement in which he revealed where a cache of firearms,
bullets, various USB keys containing several training handbooks on terrorism, and some fake licence
plates could be found in his residence. The police found that material.
During his detention Mr Atristain Gorosabel was examined daily by a doctor. There appeared to have
been no ill-treatment, although he did claim to the doctor that the police had threatened to arrest
his girlfriend.
On 4 October 2010 he was brought before the investigating judge. His detention incommunicado
was lifted. On 16 April 2013 he was convicted of being a member of a terrorist group and of
possession of explosives and sentenced by the Audiencia Nacional. The court referred to various
pieces of material and witness evidence, including that allegedly hidden by him in his residence, and
his own self-incriminating statements. The court stated that no ill-treatment had taken place and
that he had given his statements freely.
That judgment, and the finding of no ill-treatment, was upheld by the Supreme Court. An amparo
appeal by Mr Atristain Gorosabel was declared inadmissible in 2014.
Relying on Article 6 §§ 1 (right to a fair trial) and 3 (c) (right to legal assistance of own choosing) of
the Convention, the applicant complained that while being held in detention incommunicado he had
been denied access to a lawyer of his own choosing during police questioning.
THE DECISION OF THE COURT…
The Court reiterated that Article 6 applies not only to the trial before a court, but also to pre-trial
proceedings. A “criminal charge” existed from official notification by the authorities of an allegation
that a criminal offence had been committed by the individual, or from the point at which the
situation of the individual had been substantially affected by actions taken by the authorities. In
general, access to a lawyer should be provided as soon as there is such “a criminal charge”. It
reiterated that detention incommunicado should only be ordered by an investigating judge in
exceptional circumstances and only for purposes provided by law.
Although not decisive, the Court did find that there had been no individual assessment and
justification by the authorities of the need to restrict the applicant’s access to a lawyer of his own
choosing, and even to counsel at all at some point. The detention incommunicado order had been in
accordance with the relevant law, but had been of too general a nature.
The Court observed that the statements made by the applicant at the police station formed a
significant basis for the applicant’s conviction, and that the domestic court did not address the
complaints that the legal-aid lawyer had not been able to contact the applicant at this time. In terms
of the overall fairness of the proceedings, preventing the applicant’s legal-aid lawyer from having
access to him at the relevant time and from being assisted by a lawyer of his own choosing without
giving individualised reasons had undermined the fairness of the subsequent criminal proceedings in
so far as the applicant’s incriminating initial statement was admitted in evidence. The absence of
remedial measures during the trial had irretrievably prejudiced his defence rights.
There had been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
The Court lastly noted that the Code of Criminal Procedure had been amended by Organic Law
13/2015 of 5 October 2015 and currently provided an individual assessment of the particular
circumstances of individuals held incommunicado. That amendment had not however been
applicable at the time in question.
Just satisfaction (Article 41)
The Court held that Spain was to pay the applicant 12,000 euros (EUR) in respect of non-pecuniary
damage and EUR 8,000 in respect of costs and expenses.
