frsrdg · H004JO1 · 2012-11-07 00:00:00 — The grounds cited were that he had given the policed a detailed account of his involvement and his words were confirmed by statements by two of the other accused. He was also found guilty on one of the other charges. Here, however, J admitted that he had been present and that he had also written a text that was later in- cluded in the film in question. The interrogation was not cited specifi- cally concerning this charge. J appealed to the Court of Appeal for Western , which, under the heading Premises for the Court of Appeals deliberations, included the fol- lowing in its judgment (issued 1 October 2010 in case B 2111-10): As [] revealed in the judgment of the District Court questioning was con- ducted by the in several cases without the presence of any defence counsel. Basing a conviction on statements made by the suspect when ques- tioned by the could involve infringement of the right to a fair trial pur- suant to Article 6.1 of Convention if his or her rights pursuant to the Convention have not been respected. According to the article cited, the right to a fair trial is considered for instance to include the right of the suspect to remain silent, refuse to make a confession or provide any incriminating information (see for the instance the judgment of the ECHR [] in the case of Panovits v. ). In addition, the Court of Appeal is able to determine that it has not been made clear if the officer conducting the questioning ensured that each of the accused, who were all under the age of eighteen, understood that they were entitled to remain silent. There are therefore grounds for considering whether the interrogations with them were conducted in a that is compatible with Article 6 of Convention. On these premises alone, the Court of Appeal considers that the statements made during questioning by the should be afforded less weight than concluded by the District Court. The Court of Appeal acquitted J on one of the two charges in which the evi- dence was based in essence on the interrogations. B I L A G A 10 20 12 /13 :J O1 the value as evidence of the admissions he had then made was low and re- ferred, for instance, to the fact J had made these admissions in interrogations where he had no defence counsel. The statements which the court did take into consideration included Js information that he felt under pressure to con- fess and also that he did so in order to be released and at the urging of his mother, who said that the other youths had been released. He was, on the other hand, also found guilty by the Court of Appeal of the other charge. Here the evidence was the admission he had made to the court. The infringement of Js defence rights that occurred during the in- vestigation seem, therefore, to have been remedied during the closing stages of the proceedings, in the appraisal of the evidence made by the Court of Appeal. On the basis of all that has been revealed in my enquiry I therefore consider that there has been no infringement of the right to a fair trial pursu- ant to Article 6 of Convention. The current regulations on notifications and summonses to parents or guardi- ans and to boards of social welfare were not complied with. The au- thority is responsible for ensuring that routine measures of this kind are exe- cuted correctly. The authority in the County of is therefore criticised for the fundamental shortcomings that occurred in these respects. The initial measures. It was inappropriate but not unlawful to allow J to come to the station in the belief that he was going to be informed about his moped, when the intention was to question him about a crime. The first interrogation was terminated once J had requested a defence counsel. The officer conducting the interrogation, , continued to discuss the investigation with him and to ask questions about it. is criticised for her de facto continuation of the inter- rogation and her lack of respect for Js right to the assistance of a defence counsel. The right to a defence counsel some general conditions. Even if a sus- pect says that questioning may take place without a defence counsel, those in charge of investigations must assess on objective grounds whether this is the case. The main intention of entitling a suspect to a defence counsel at an early stage of a criminal investigation is to ensure that he or she is not placed at a disadvantage in having less information than the or prosecutor. The defence counsel also has a more extensive role in monitoring the investigation and the court hearings. Typically this means that the defence counsel should be present during interrogations. A suspect can waive this right. This should be declared unequivocally and in a legally secure : a record should also be made. Js right to a defence counsel. Defence counsel do not always have to be present when the suspect is questioned. J was, however, a juvenile. The nature of the evidence was complicated and it could be foreseen that statements made during questioning could be adduced as evidence before a court of law. Neither J nor his parents had waived the right to legal assistance in an accept- 2 012 /1 3:JO1 B I L A G A 10 These are some of the reasons why all the interrogations of J should have taken place in the presence of a defence counsel. was it in the best interests of to undertake the questioning without a defence counsel, as the statements then made could only be ascribed limited value as evidence. The prosecutor in charge of the investigation is criticised for the grave errors that were made. Convention lays down that the right to a defence counsel at a interrogation is a fundamental element in the right to a fair trial. This comprises a de facto requirement that a suspect is given access to legal assis- tance. This requirement was not met when J was questioned. An individual may waive a right laid down in the Convention but then special conditions apply, which were not fulfilled in this case. A number of circumstances indicate that Js right to a fair trial was in- fringed. The assessment of whether or not this is what happened has to be made, however, on the basis of the judicial proceedings in their entirety. The Court of Appeal acquitted J on the two charges where the evidence was based in essence on the interrogations. The court considered that the state- ments made during questioning had value as evidence and one of the reasons given was that they were made during interrogations where no de- fence counsel was present. The infringement of Js defence rights that seems to have taken place was therefore remedied in the final stages of the proceed- ings. For this reason there was no breach of the right to a fair trial pursuant to Article 6 of Convention.