Restrictions on access to a lawyer in the initial stages of criminal proceedings in breach of the applicant’s right to a fair trial
JUDGMENT
Tonkov v. Belgium 08.03.2022 (app. no. 41115/14)
SUMMARY
In this case, Mr Tonkov complained that he had been deprived of his right of access to a lawyer in
the initial stages of the judicial investigation against him, and in particular during his police custody
and during the hearings, interviews and other investigative measures. He was sentenced to life
imprisonment in the criminal proceedings.
Relying on Article 6 §§ 1 and 3 (c) of the Convention (right to a fair trial / right to legal assistance),
the applicant complained that he had been deprived of his right of access to a lawyer during his
police custody, without adequate information on his right to remain silent and not to incriminate
himself, as well as the absence of any lawyer during the hearings, interviews and other investigative
measures. He also complained that his conviction was partly based on statements made by a coaccused without the assistance of a lawyer.
Emphasising the strictness of the scrutiny which it had to conduct in the absence of overriding
reasons to justify restricting the right of access to a lawyer in criminal cases, and in line with the
Grand Chamber judgment in Beuze v. Belgium, the Court held that the criminal proceedings in the
case had been unfair as a whole. It had regard to the fact that the Assize Court had failed to consider
Mr Tonkov’s submissions concerning the impact of the absence of a lawyer on the quality of the
evidence submitted by the co-accused, on which the applicant’s conviction had been based to a
decisive degree.
The Court also considered that the finding of a violation was sufficient just satisfaction for the nonpecuniary damage sustained by Mr Tonkov.
PROVISIONS
Article 6 par. 1
Article 6 par. 2
PRINCIPAL FACTS
The applicant, Mr Tonislav Tonkov, is a Bulgarian national who was born in 1983. He is currently
detained in Hasselt Prison (Belgium), where he is serving a life prison sentence.
Mr Tonkov was interviewed twice in 2009 by the Belgian police as a “source” in the framework of an
investigation into the murder of a certain B.V. during the evening of 14 September 2009. He was
once again heard on 20 January 2010 as a “suspect”. He returned to Bulgaria in the meantime,
where he was arrested and extradited to Belgium.
On his arrival in Belgium on 18 August 2010, Mr Tonkov was questioned by the police as a suspect in
the murder of B.V., and then heard by the investigating judge. The arrest warrant was served on him
after that examination. The reports drawn up the same day specify that Mr Tonkov voiced a wish to
be assisted by a lawyer to help him understand Belgian law and recount his version of events. On
that occasion, it transpired that Mr Tonkov knew N.I., who had also been arrested and questioned
and whom the investigators presented as being under suspicion of having carried out the murder.
In September and October 2010 Mr Tonkov was once again examined on several occasions.
Furthermore, a polygraph test was carried out on him on 25 November 2010, followed on
8 December 2010 by a police hearing, which comprised telephone contact between the investigators
and Mr Tonkov’s lawyer, who requested that his client be informed of his right to remain silent.
Mr Tonkov then refused to answer any of the questions asked by the investigators. A further hearing
was held on 21 December 2010, the report on which stated that Mr Tonkov had had advance
consultations with his lawyer. Several examinations were carried out in 2011, followed by a
recapitulatory examination. In accordance with domestic law in force at the time, Mr Tonkov was
assisted by a lawyer neither during the examinations and questioning, apart from the recapitulatory
examination, nor during the polygraph test.
Subsequently, Mr Tonkov was committed to stand trial before the Eastern Flanders Assize Court,
together with one co-accused. On 21 May 2013, at the opening of the trial, Mr Tonkov argued,
amongst other things, that there had been an irremediable infringement of the rights of the defence
and the right to a fair trial within the meaning of Article 6 of the Convention, on the grounds that he
had not been assisted by a lawyer in the examinations and questioning conducted during the judicial
investigation, and that incriminating statements had been obtained from the co-accused and various
witnesses, who had also not been given access to legal assistance. The Assize Court dismissed that
objection.
Finally, on 30 May 2013, the jury found Mr Tonkov and the co-accused guilty of intentional
premeditated murder. As regards Mr Tonkov, the jury’s arguments were based, amongst other
things, on the co-accused’s detailed and consistent statements to the effect that he had stabbed B.V.
to death on the express instructions of Mr Tonkov.
On 26 November 2013 the Court of Cassation dismissed Mr Tonkov’s appeal on points of law.
THE DECISION OF THE COURT…
Article 6 §§ 1 and 3 (c) of the Convention (right to a fair trial / right to legal assistance)
The Court noted that during the first two examinations the applicant had been heard as a “source”,
having been formally questioned as a “suspect” only in the framework of the third examination. The
applicant had not had the benefit of legal assistance at any of the three examinations, even though
his statements had proved decisive for the ongoing investigation. In fact, in the Court’s view, the
applicant had acquired, right from the beginning of the investigation, the status of an accused
person, thus attracting the guarantees of Article 6 of the Convention. In all, between his surrender to
the Belgian authorities and the committal order issued by the Indictments Division of Ghent Court of
Appeal on 26 April 2012, the applicant had been heard on about ten occasions by the police and the
investigating judge concerning the offences of which he had been convicted, without any help from
his lawyer. Nor had the latter been present during the polygraph testing.
Thus the applicant, who had been eligible for Article 6 protection right from the initial stages of the
investigation, had not had access to a lawyer even when he had become an “accused person”, and
the right to such access had subsequently been restricted throughout the pre-trial stage.
In that connection the Court observed that the restrictions in question had not been based on
compelling reasons. It reiterated that it accordingly had to carefully consider whether the criminal
proceedings against the applicant, taken as a whole, had made good the omissions at the
preliminary stage. It noted the following aspects.
As regards the legal framework governing the pre-trial proceedings, the Court pointed out that
since Belgian law as applied at the time had been incompatible with the requirements of Article 6 § 3
of the Convention, the overall fairness of proceedings could not have been guaranteed solely by
legal provisions laying down a number of abstract safeguards. Furthermore, the application of those
provisions would have had to have a compensatory effect rendering the whole of the proceedings
fair. The Court noted in that regard that freedom to communicate with counsel outside of
examinations and questioning had been insufficient to remedy the deficiencies in the initial stages of
the investigation. It noted that the Government argued that the applicant had been able to avail
himself of other guarantees; however, while such guarantees had allowed him occasionally, at the
investigation stage, to be assisted by his lawyer, the Court held that this had not had an adequate
compensatory effect. Consequently, the implementation of other guarantees – which the applicant
had enjoyed under the legal provisions applicable at the time – had been insufficient to ensure the
fairness of the proceedings.
As regards the nature of the evidence presented by the applicant in the absence of counsel, the
Court noted that while the statements made by the applicant during the examinations and
interviews without legal assistance had not, strictly speaking, comprised any admission of guilt, the
statements had been detailed, and had decisively influenced the further conduct of proceedings.
Moreover, even though the law in force at the time had required the applicant to consent to the
polygraph testing, he had given replies which had been deemed mendacious and had been held in
evidence against him.
When the investigation had been closed and the applicant committed for trial before the Assize
Court, the Indictments Division of the Brussels Court of Appeal had not considered, possibly of its
own motion, the procedural irregularities in issue in the case. Consequently, all the reports
containing the impugned statements made by the applicant without assistance by a lawyer had
remained in the case file.
Subsequently, the applicant having submitted a request to the Assize Court for the removal of the
reports of the examinations and interviews conducted without legal assistance and for the
proceedings in question to be declared inadmissible, the Assize Court rejected that request and
admitted all the reports, considering that the applicant would still have a fair trial by jury.
The Assize Court focused on the facts that the interviews and examinations had been neither
coercive nor oppressive and that the applicant had made no self-incriminating statements. However,
the Assize Court’s affirmation that the applicant had not incriminated himself was contradicted by
the bill of indictment, which showed that the statements made by the applicant right from the initial
stages of the investigation and the results of the polygraph test had provided the investigators with
a framework for the prosecution. Therefore, the Belgian courts had not adequately analysed the
impact of the absence of a lawyer on the admissibility of the evidence given by the applicant.
As regards the admissibility of the evidence given by the co-accused in the absence of a lawyer, the
Court noted that the applicant had not merely complained that the statements incriminating him
had been made by the co-accused in the absence of a lawyer and without prior consultation. He
specifically criticised the conditions under which the hearings of the co-accused had been
conducted, submitting that the reliability of the statements made in evidence against him might
have been compromised by the fact that the co-accused had possibly yielded to pressure exerted by
the investigators, thinking that it might be in his interests to testify against the applicant as he did. In
its interlocutory judgment, however, the Assize Court had not examined the applicant’s arguments
concerning the impact of the absence of a lawyer on the quality of the evidence given by the coaccused, even though the applicant’s conviction was based decisively on that evidence. The Court pointed out that it was for the domestic courts to ensure that that evidence had not originated in the exertion of pressure or in acts contrary to Article 3 of the Convention. The Court noted in that
connection that subsequently to the present case, the Court of Cassation had considered that an
accused could rely on ignorance of the right to legal assistance in connection with incriminating
statements made by a co-accused, where the reliability of those statements had been undermined
and using them would violate the accused’s defence rights, inasmuch as such statements had been
obtained by means of pressure, coercion or torture.
As regards the use of evidence given by the applicant in the absence of a lawyer, the Court
observed first of all that while the bill of indictment, which had been read out at the beginning of the
trial before the Assize Court, had been based on several factors, including witness statements, the
investigators’ findings and recordings of telephone calls, it had also drawn on statements made by
the applicant in the absence of a lawyer.
It further noted that in declaring the applicant guilty of murder as having masterminded it, the jury
had referred to factors which could only have been gleaned from comparison of all the statements
gathered from the applicant, the co-accused and the persons heard as “witnesses”. Although those
statements from the co-accused incriminating the applicant had been decisive in forming the
verdict, the Court considered that that did not suffice to obscure the fact that the statements made
by the applicant himself without legal assistance had been a major influence on the jury’ decision.
In conclusion, emphasising the strictness of the scrutiny which it had to conduct in the absence of
overriding reasons to justify restricting the right of access to a lawyer in criminal cases, and in line
with the Grand Chamber judgment in Beuze v. Belgium, the Court, having regard to the combination
of the various aforementioned factors, held that the criminal proceedings against the applicant had
been unfair as a whole. There had therefore been a violation of Article 6 §§ 1 and 3 (c) of the
Convention.
Just satisfaction (Article 41)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by Mr Tonkov. It further held that Belgium should pay him
2,400 euros (EUR) in respect of costs and expenses.
