The voluntary resignation of a suspect from his right to be represented by a lawyer at the interrogation does not constitute a violation of a fair trial
JUDGMENT
Fariz Ahmadov v. Azerbaijan 14.01.2021 (app. no. 40321/07)
SUMMARY
Resignation of a suspect in the pre-trial from the right of representation by a lawyer. Representation by a lawyer and a fair trial.
The applicant was sentenced by an irrevocable decision for drug possession. During the pre-trial period he voluntarily resigned from the right to be represented by a lawyer. He appealed to the ECtHR alleging a breach of the fair trial, arguing that even his voluntary resignation had to be signed in the presence of a lawyer.
The Court reiterated its well-established case-law that the right to be represented by a lawyer is valid throughout the pre-trial period – and is an important procedural guarantee aimed, inter alia, at preventing the collection of evidence through coercive methods.
The ECtHR found that throughout the pre-trial period, the applicant did not claim that his resignation and statements had been taken against his will and under pressure from the police, and that the condition for signing the resignation in the presence of a lawyer could not be considered of major importance.
The Court, after examining the proceedings as a whole, ruled that there was no violation of the right to a fair trial (Article 6§1 of the ECHR).
PROVISION
Article 6 par. 1
Article 6 par. 3(c)
PRINCIPAL FACTS
The applicant, Fariz Alam oglu Ahmadov, was an Azerbaijani national who was born in 1971 and lived
in Mingachevir (Azerbaijan). The applicant died on 13 October 2015. His mother chose to continue his
application in his stead.
The application concerned the fairness of the criminal proceedings that had led to the applicant’s
conviction for drugs offences.
On 7 March 2005 a certain A.S. was arrested in connection with possession of drugs. He stated that
he had bought the drugs from the applicant. The substance originally seized was 0.24 grams of
marijuana. On 10 March 2005 the applicant was charged. He was apprised of his rights, but signed a
handwritten waiver of his right to a lawyer. Further investigative steps, including a confrontation and
questioning, were carried out, without the applicant’s having counsel present.
The applicant’s pre-trial detention was extended several times.
On 5 August 2005 A.S. stated in the course of a confrontation that he had received manure, rather
than marijuana, from the applicant. He later changed that testimony in the absence of the applicant.
Following his indictment, the applicant applied to have the case discontinued and returned to the
prosecutor for a fresh investigation, which was successful. On 29 December 2005 the applicant was
again indicted. In the meantime A.S. had died, so the trial court read out one of his statements, which
affirmed that the applicant had given A.S. marijuana. The applicant was found guilty. An appeal by the
applicant was dismissed, without his specific complaints being examined. That judgment was upheld
by the Supreme Court, which stated that the applicant had not complained of unlawfully obtained
evidence during the investigation, only before the courts.
Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights, the applicant
complained that his conviction had breached his rights as it had been based on a confrontation that
had taken place without his lawyer present.
THE DECISION OF THE COURT…
In the present case the applicant complained that the domestic courts had unlawfully admitted evidence obtained in a confrontation held at the pre-trial stage without his being assisted by a lawyer, and had based his conviction on that evidence. Both in his complaints to the domestic authorities and to the Court he acknowledged that in the course of the first questioning he had signed a waiver of his right to be assisted by a lawyer, but insisted that he had done so without the presence of a lawyer.
According to the Court’s settled case-law, the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police – including when the statements taken are read out and the suspect is asked to confirm and sign them, as the assistance of a lawyer is equally important at this point of the interview. The lawyer’s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect, and at protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police. The right to a lawyer also applies in the context of a confrontation between the accused and a third party, for example a witness or a co-accused.
The Court has held that compliance with the requirements of a fair trial must be examined in each case, having regard to the development of the proceedings as a whole, and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case .
Turning to the circumstances of the present case, the Court first observes that the applicant’s waiver was set out by him in handwriting and that he never disputed the fact that he wrote it. The Court also notes that throughout the pre-trial investigation the applicant did not complain or claim in any other way that the waiver and his statements had been obtained against his will and under pressure from the police. Furthermore, he did not allege that he had been induced to waive his right to counsel. Likewise, he did not make any such complaints or allegations to the Court. Nor did the applicant ever argue – either in the proceedings before the domestic courts or in his application to the Court – that he had not understood the meaning of the waiver of his right to be assisted by a lawyer. On this latter point the Court observes that the applicant had two previous convictions and that, therefore, is unlikely to have been unaware of the benefits of being defended by a lawyer.
The Court, therefore, considers that the fact that the relevant domestic law provided that a lawyer must be present at the time when a waiver is made and that, apparently, this procedural requirement was not observed in the applicant’s case, cannot be said, on its own, to have rendered the waiver incompatible with the right to a fair trial under Article 6 of the Convention. Having regard to the findings of the preceding paragraph, the Court concludes that the applicant in the present case waived his right to be legally assisted in a knowing manner and voluntarily.
As regards the applicant’s complaint that the domestic courts had unlawfully admitted evidence obtained not in compliance with the requirements of the domestic law and had based his conviction on that evidence, the Court reiterates that while its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, it is not the function of this Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed the rights and freedoms protected by the Convention.
The Court further reiterates that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules regarding the admissibility of evidence as such, which is primarily a matter for regulation under national law. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question that must be answered is whether the proceedings as a whole – including the way in which the evidence was obtained – were fair.
In the circumstances of the present case, the violation of the procedural requirement providing for presence of a lawyer at the time when a waiver had been made before the confrontation of 10 March 2005 cannot be considered as having had the effect of seriously prejudicing the overall fairness of the criminal proceedings against the applicant. There is no indication or allegation – either during the domestic proceedings or in his application to the Court – that in the absence of a lawyer the applicant had made self-incriminating statements that he would later retract or change. On the contrary, he consistently denied all the charges against him and advanced his version of events, as he also did during the subsequent proceedings. While it is true that the privilege against self incrimination is not confined to actual confessions or to remarks which are directly incriminating and that for statements to be regarded as self-incriminating it is sufficient for them to have substantially affected the accused’s position, in the present case, both during the domestic appeal proceedings and in his application to the Court, the applicant’s grievance was limited to the assertion that the evidence obtained in the confrontation held on 10 March 2005 had been admitted in violation of domestic law, without advancing any arguments to indicate the existence of any specific prejudice caused by the lack of a lawyer’s involvement in that particular confrontation.
The Court also notes that the applicant actively participated at all stages in the criminal proceedings: notably, he challenged before the prosecutor’s office the actions of the investigator; he complained of the partiality of the initial trial court; following an application lodged by his lawyer, the criminal proceedings against him were discontinued and the criminal case was remitted to the prosecutor’s office for fresh investigation; he was able to present his own version of events; and his defence lawyer contested the evidence against him.
Furthermore, contrary to the applicant’s submissions, his conviction was not based exclusively on the statement given by A.S. on 10 March 2005 but on a whole body of consistent evidence. The Court observes that the national courts, in convicting the applicant, noted that throughout the entire proceedings the applicant had consistently stated that A.S. had attempted to purchase marijuana from him in order to pass it on to a third person and that he had given a cigarette to A.S. Moreover, there was no dispute that the same cigarette had been passed to R.S. Whereas the applicant claimed that the cigarette had been filled with manure, the national courts – on the basis of the oral testimony given by R.S. and corroborated by A.S., and the results of forensic expert examinations of the substance contained in that cigarette– concluded that it had been filled with marijuana and that the applicant’s actions constituted a criminal offence punishable under the relevant article of the Criminal Code.
The higher courts did not find any prejudice caused by the lack of a lawyer’s involvement in the confrontation of 10 March 2005, either. In particular, in its decision endorsing the findings of the lower courts, the Supreme Court held that the statements made by the applicant and A.S. during the pre-trial stage could not be considered as having been unlawfully obtained because throughout the investigation neither of them had raised any complaint that they had been forced to make their statements.
In sum, having examined the proceedings as a whole, the Court sees no grounds for finding that they were unfair and that the decisions of the national courts were arbitrary or otherwise contrary to Article 6 of the Convention.
In the light of the above considerations, the Court concludes that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
