The presence of a lawyer guarantor of the fair trial
JUDGMENT:
A.T v. Luxembourg 09.04.2015 (no. 30460/13)
SUMMARY:
The case concerned the failure to provide A.T. with effective legal assistance after he was arrested under a European Arrest Warrant, during both the police interview and his first appearance before the investigating judge.
The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court found on this point that there had been a violation of Article 6.
As regards the applicant’s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6, as that provision did not guarantee unlimited access to the file prior to such an appearance. However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as A.T. had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6.
COMMENT
Before any criminal hearing, the accused or the suspect has the right to consult a lawyer.
PROVISIONS:
Article 6 § 1
Article 6 § 3 (c)
PRINCIPAL FACTS
The applicant, A.T., is a British national who was born in 1973 and is currently held in Luxembourg prison.
On 4 December 2009 A.T. was arrested in the United Kingdom under a European Arrest Warrant issued by Luxembourg on charges of rape and indecent assault against a minor under 16. On 17 December 2009 he was surrendered to the Luxembourg authorities and questioned by the criminal investigation police. According to the police report drawn up that same day, A.T. began by refusing to give any statement and asked for the assistance of counsel, before finally agreeing to an interview. He presented his version of events and denied any guilt. The next day he was examined by an investigating judge in the presence of an assigned lawyer. A.T. maintained the statements he had given to the police.
On 31 March 2011 the Criminal Division of the District Court sentenced A.T. to seven years’ imprisonment, reduced by a partial suspension of three years with probation. The court asserted in particular that A.T. kept changing his “version” and that there was no evidence on the basis of which the victim’s statements could be called into question. On 7 February 2012, the Criminal Division of the Court of Appeal upheld the judgment. The judges took note in particular of the difference between the applicant’s statements during the police interview and those he had given at first instance and on appeal. In addition, as A.T. had complained that he had not had legal assistance during the police interview, the Court of Appeal asserted that he had ultimately agreed to give a statement without the presence of counsel. On 22 November 2012 an appeal by the applicant on points of law was dismissed by the Court of Cassation.
Subsequently, as A.T. had left Luxembourg for the United Kingdom, a new European Arrest Warrant was issued for the purposes of enforcing the judgment of 7 February 2012. The applicant was ultimately surrendered to the authorities in Luxembourg, where he is still serving his prison sentence.
THE DECISION OF THE COURT
Article 6
The Court reiterated that the right to a fair trial required that, as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police, unless it was demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right.
In the present case, looking first at the police interview, the Court noted that at the relevant time the assistance of a lawyer during police interviews was expressly provided for by law only in certain situations, not including arrest under a European Arrest Warrant issued by Luxembourg. In that case, the assistance of a lawyer was thus implicitly excluded. Consequently, during the interview of 17 December 2009, A.T. was automatically deprived of legal assistance.
The Court noted that the Court of Appeal, before which A.T. had complained of a lack of legal assistance, merely considered that he had agreed to give a statement without the presence of counsel during the police interview. It had not therefore examined the need to exclude the statements made during that interview and had, by contrast, taken them into account in its reasoning in convicting the applicant. In so deciding, the Court of Appeal had not examined the impugned situation and had not remedied the consequences of the failure to provide A.T. with legal assistance.
The Court thus found that there had been a violation of Article 6 § 3 (c) of the Convention taken together with Article 6 § 1 on account of the failure to provide the applicant with legal assistance during the police interview, the consequences of which had not been remedied by the courts.
Turning to the applicant’s first appearance before the investigating judge, the Court considered that it had to separate the question of the lawyer’s access to the file from that of communication between the lawyer and his client.
As regards the question of access to the file, the Court noted that Luxembourg law provided for such access only after the end of the first appearance. However, the Court reiterated that restrictions on access to the case file at the stages of the opening of criminal proceedings and of the police or judicial investigation, might be justified by, among other things, the need to preserve the secrecy of the information in the possession of the authorities and to protect the rights of others. In the present case, having regard to the grounds given in domestic case-law, the Court considered it reasonable for the authorities to justify the lack of access to the file by reasons concerning the protection of the interests of justice. In addition, even before being charged, the person questioned was free to organise his defence, including by exercising his right to remain silent, to consult the file after the first appearance before the investigating judge and to choose his defence strategy throughout the criminal proceedings. A fair balance was therefore struck by guaranteeing access to the file after the end of the first appearance, whether in the course of the judicial investigation or during the trial itself. The Court thus found that the lack of access to the file before the appearance of 18 December 2009 did not entail a violation of Article 6.
However, as regards the question of communication between the lawyer and his client, the Court noted the importance of consultation between lawyer and client prior to the first appearance before the investigating judge, for it was on that occasion that crucial exchanges could take place, if only so that the lawyer could remind the client of his rights. Such a consultation had to be guaranteed unequivocally by the legislature. That was not the case, however, under Luxembourg law. In so far as A.T. had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6 § 3 (c) taken together with Article 6 § 1(echrcaselaw.com editing).
