Case: A.T. v. Luxembourg
Judgement date: 9 April 2015
Topic: Police arrest and assistance of a lawyer
Aspect: Access to a lawyer

Summary of the facts:
This case concerned the failure to provide the applicant with effective legal assistance after he was arrested under a European Arrest Warrant, during both his police interview and his first appearance before the investigating judge the next day.

Summary of the Court's findings:
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 held that there had been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention on account of the failure to provide legal assistance during the police interview. As further 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 § 3 (c) taken together with Article 6 § 1, as Article 6 of the Convention 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 the applicant 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 of the Convention.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant was born in 1973 and was detained in London at the time he lodged his application.
10. On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her.
11. On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition ” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time.
12. On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2. 45 p. m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3. 20 p. m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “ [ the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning ”. The applicant was informed of the victim ’ s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day ’ s interrogation before the investigating judge. At 7. 15 p. m. he was transferred to Luxembourg Prison.
13. On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows : at 9. 02 a. m. the investigating judge checked the identity of the applicant – who now held accused ( Beschuldigter ) status – and informed him that a criminal investigation ( Untersuchungsverfahren ) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10. 53 a.m.
14. It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim.
A. The first-instance judgment
15. By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “ version of events ”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim ’ s statements.
B. The appeal judgment
16. On 7 February 2012 the criminal division of the Court of Appeal upheld the first- instance judgment.
17. The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned.
18. They pointed out that the applicant ’ s lawyer had complained about the fact that after the applicant ’ s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows :
“ As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel. ”
19. In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings.
C. The judgment of the Court of Cassation
20. On 22 November 2012 the Court of Cassation dismissed the applicant ’ s appeal on points of law. In particular, it declared ill- founded a submission under Article 6 § 3 of the Convention, on the following grounds :
“ Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding;
Whereas, however, the Court of Appeal held that ... [ see quotation in paragraph 18];
That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel;
It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ... ”
D. Subsequent events
21. The applicant left Luxembourg for the United Kingdom ( at an unspecified date ), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment.
22. On 12 June 2013, in response to a request from the British authorities ( the Extradition Unit of the Crown Prosecution Service ) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant ’ s access to his lawyer before the interrogation of 18 December 2009 had not been restricted.
23. On 19 August 2013 the British court authorised the applicant ’ s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant ’ s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
24. A. Luxembourg law and practice
...
4. Instructions to police following the Salduz judgment
31. The relevant legislative provisions have been complemented by internal circulars.
32. In particular, the “ Luxembourg Police Memorandum No. 49/2011 ” of 20 June 2011 – which also applies to customs officers interrogating a person deprived of his liberty – provides that officers must comply with the Court ’ s case-law (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and Dayanan v. Turkey, no. 7377/03, 13 October 2009), on pain of cancellation of any procedures initiated, and specifies that the relevant chapters of the police regulations have been amended accordingly.
33. Prior to this memorandum, an exchange of correspondence took place between the public prosecutor ’ s office and the police department.
In a circular sent out on 13 May 2011 the Principal State Prosecutor asked the Director General of Police to instruct all police officers to ensure that any accused person deprived of his liberty had access to the effective assistance of a lawyer during the interrogations which he underwent during his detention.
On 15 June 2011, at the request of the Director General of Police, the State Prosecutor provided the following information :
“ ... The right of legal assistance - applicable procedures
Under our current domestic law, the right to the assistance of a lawyer is applicable to specific types of police interrogations of persons deprived of their liberty, that is to say :
- police interrogations of individuals detained in in flagrante proceedings ( Article 39(7 ) of the Code of Criminal Procedure ) and
- police interrogations of individuals remanded in custody concerning acts other than those with which they have been charged ( Article 52(3) of the Code of Criminal Procedure ).
Inasmuch as recent case -law of the European Court of Human Rights has particularly emphasised the need for such assistance in respect, in principle, of any police questioning of an ‘ accused ’ deprived of his liberty, the benefit of that right should be extended to:
- police interrogations in the framework of a preparatory investigation, by way of letters rogatory from the investigating judge, of the individual deprived of his liberty pursuant to a warrant to appear or a domestic or European arrest warrant.
...
The scope of the right to the assistance of a lawyer
In my letter of 13 May 2011 I pointed out that the right to the assistance of a lawyer during an interrogation was not confined to the lawyer ’ s physical presence; it should also enable the person under interrogation to receive help and protection from the lawyer and allow the lawyer to assist the person effectively.
This should be taken to mean:
... arrangements should be made to enable the detainee to talk to his lawyer before the interrogation and, in particular, after receiving a summary of the facts relevant to the interrogation ... That conversation should take place under such conditions as to guarantee its confidentiality. There may be compelling reasons for not allowing such an interview, though only in exceptional cases and subject to the authorisation of the judge or prosecutor in charge, who must be contacted on the matter...”
...
C. European Union texts
37. The relevant passages of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings provide :
“ Article 7 Right of access to the materials of the case
1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.
2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.
3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered.
... ”
...
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
39. The applicant complained of the lack of legal assistance during his questioning by the police on 17 December 2009 and of the lack of effective legal assistance before the investigating judge on 18 December 2009. He further complained that the Court of Appeal, and later the Court of Cassation, had failed to provide redress for the consequent infringement of his defence rights. He relied on Article 6 of the Convention, which provides :
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
... ”
...
B. Merits
1. The parties ’ submissions
a) The applicant
52. In his observations of 14 April 2014 the applicant submitted that the minutes of the police interrogation of 17 December 2009 mentioned neither the fact that the applicant had been explicitly informed of the right to assistance by counsel from the outset of the proceedings nor any exceptional circumstances justifying the restriction of his right of access to a lawyer. He considered that the legal requirements set out in Article 39(7) of the Code of Criminal Procedure had been disregarded in line with the systematic and widespread practice of the police at the material time. His insistence on seeing a lawyer in line with practice in the United Kingdom clearly demonstrated his initial determination not to waive his right to legal assistance; he could therefore not be deemed to have willingly agreed to take part in the police questioning without the assistance of a lawyer. In his in his further submissions of 6 January and 2 February 2015 the applicant noted the lack of relevant domestic legal provisions. The case before the Court showed that Articles 39 and 52 of the Code of Criminal Procedure did not apply where an individual was arrested under a European arrest warrant. To the Government ’ s submission that new legislation had been proposed recently on that subject, the applicant replied that even supposing that bill was enacted, it only provided for access to the case file after the first interrogation by the investigating judge, not during police questioning, so that legal assistance was still not real or effective at the police custody stage. At all events, neither the proposed legislation nor the circulars from the Principal State Prosecutor had had the desired effect in the past.
53. As regards his first appearance before the investigating judge on 18 December 2009, the applicant stated that both the spirit and the letter of Article 84 of the Code of Criminal Procedure implied that before and during the first interrogation no communication was possible between the accused and his lawyer. Furthermore, pursuant to Article 85 of that Code, the latter could not consult the case file before the first interrogation. The mere presence of a lawyer, who is only entitled to remain silent, could in no way constitute real and effective assistance. The applicant emphasised that the main act during the preliminary examination was the immediate pressing of charges against the applicant, even before he had been questioned about the facts, as transpired from the minutes of 18 December 2009. Moreover, with particular reference to Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), he emphasised that the preliminary interrogation could lead to the accused being remanded in custody. Domestic case-law confirmed that the right of access to the case file had still not been enshrined in legislation before the preliminary examination before the investigating judge ... With reference to the case of Sapan v. Turkey ( judgment delivered by a three-judge committee, no. 17252/09, § 21, 20 September 2011) and relying on Article 7 of European Directive 2012/13/ EU of 22 May 2012, the applicant concluded that denying him access to the case file prevented the lawyer from providing any effective assistance to his client during the preliminary examination.
54. The applicant added that the fairness of the proceedings had been undermined by the fact that the judgment of the Court of Appeal, as confirmed by the Court of Cassation, had not provided redress for the infringement of his defence rights. Instead of nullifying the police questioning and the first interrogation by the investigating judge, the Court of Appeal had referred to statements given by the applicant before the police without the assistance of a lawyer in assessing the credibility, or at least the consistency, of his statements. The Court of Appeal had, at least partly, based its argumentation on the statements given by the applicant in breach of his rights. By merely noting, therefore, that the applicant had recorded his agreement to giving oral evidence in the absence of a lawyer before the police, the judges and prosecutors had not assessed whether the alleged waiver of the services of a lawyer had been voluntary and fully informed.
b) The Government
55. In their observations of 27 February 2014 the Government acknowledged that the applicant had not been assisted by a lawyer during his questioning by the police. However, they pointed out that the lack of legal assistance did not automatically amount to a violation of Article 6 of the Convention ( see Zdravko Petrov v. Bulgaria, no. 20024/04, 2 3 June 2011, and Stanca v. Romania, no. 34116/04, 24 July 2012 ) and that an express or tacit waiver of that right was accepted by the Court ( see Yoldaş v. Turkey, no. 27503/04, 23 February 2010). According to the Government, the applicant had been served with the European Arrest Warrant on his arrest in the United Kingdom, so that at his questioning on 17 December 2009 he had known for thirteen days the charges against him, and he could have sought the assistance of a lawyer of his own choice with whom to discuss the approach to be adopted in his defence. If the applicant had initially requested the assistance of a lawyer during the police questioning, he had received the necessary explanations concerning the procedure and the applicable texts – which unambiguously granted the right to legal assistance as from the first interrogation – and had been advised, for reasons of the efficient running of the investigation, to begin discussions pending the arrival of the officially appointed lawyer. The applicant had approved that procedure voluntarily and without coercion, and had waived, with full knowledge of the facts, the benefit of the presence of counsel at that very early stage in proceedings, having been informed that a lawyer would be present during the exchange with the investigating judge, which had been the case. In that regard, the Government, while accepting that he had not been notified of his rights in writing against receipt, emphasised that the applicant had been informed of the details of the usual procedure in Luxembourg and had signed the official record, which had been translated in full by the accredited interpreter assisting him; therefore, the applicant ’ s waiver had been unequivocal and attended by the requisite minimum guarantees. Last but not least, the Government submitted that the statements given during the first interview had in no way influenced the final decision, because during both the police questioning and the interrogation by the investigating judge and in the trial courts the applicant had consistently and vehemently contested the charges. Therefore, the conviction had not been based in any way on the statements or any confession given without the assistance of a lawyer; the judges had been persuaded by the various witness statements and the medical reports. Accordingly, the oral evidence given at the first interview had been completely confirmed during the subsequent proceedings, the presence of a lawyer. In their observations of 14 January 2015 the Government explained that the exchange of letters between the public prosecutor ’ s office and the police and customs departments ( see paragraphs 31 to 33 above ) showed that the provisions of Articles 39 and 52 of the Code of Criminal Procedure concerning police questioning were automatically applicable to the right to legal assistance of an individual arrested under a European arrest warrant. That clarification as regards the applicable legislation had been made at the beginning of 2011, when the Salduz and Dayanan judgments had just begun to have a real international impact; the applicant ’ s proceedings had been ongoing at the time and had benefited from the State Prosecutor ’ s explanations. The service instructions had been backed up with a wide range of meetings in the police and customs services, in order to ensure that the instructions were followed to the letter. A bill had since been tabled reinforcing procedural safeguards in criminal matters in line with the Salduz precedent and transposing the relevant European directives.
56. The Government further submitted that the availability of legal assistance as from the first interrogation by the investigating judge was prescribed by law. They explained that the key element of the case before the investigating judge was the victim ’ s deposition as it emerged during the interrogation. The fact that the applicant ’ s lawyer had been unable to consult the case file in advance had had no effect on the applicant ’ s defence because it had never been a question of the judge simply reading out the indictment and presenting the applicant with the victim ’ s allegations. Nevertheless, the lawyer ’ s role had not been confined to his mere presence alongside the applicant, because he had been free to interrupt and ask questions throughout the interrogation. Thanks to his attendance at that meeting, the lawyer had subsequently had more than one year to prepare his client ’ s defence, with full knowledge of the contents of the case file. As regards the preliminary talks between the applicant and his lawyer before the interrogation, the Government explained that the lack of regulations allowed for full freedom in that sphere; the client could at any time, on request, engage in consultations with his lawyer, including before the questioning at the preliminary stage of the investigation. It was true that in practice the procedure was easier to implement if the defendant knew the lawyer and had contacted him in advance; on the other hand, the procedure for appointing a lawyer on his behalf meant that the latter had to be appointed at the time of the first interview. However, it was wrong to suggest that the Code of Criminal Procedure prevented the applicant from communicating with his lawyer and rendered the latter ’ s intervention wholly ineffective. The Government emphasised that communication was possible without restriction and that the lawyer could ask to speak at any time during the interrogation before the investigating judge; only full consultation of the case file was impossible before the end of the interrogation. To the applicant ’ s criticism that he had suddenly found a lawyer unknown to him setting beside him, the Government replied that that was inherent in the procedure for appointing a lawyer, as the applicant had been unable to appoint counsel known to him. The Government added that Mr W., who had been appointed at the applicant ’ s request, had not been prevented from intervening but had probably seen no need to do so at that stage in the proceedings; moreover, the applicant had never complained about his lawyer, who had continued to assist him throughout the proceedings.
57. The Government considered that the Court of Appeal and the Court of Cassation had properly analysed the applicant ’ s plea under Article 6 of the Convention, but had dismissed it on the ground that he had never been refused legal assistance. Given that neither the Court of Appeal nor the Court of Cassation had found any breach of his defence rights, it had not been incumbent on those courts to provide redress. According to the Government, even if the Court of Appeal had decided to nullify the first interview, such a decision would have had no effect on his conviction, as the trial court had based the conviction on other elements in the case file. The Court should pursue a flexible approach based on an overall reading of the situation in the light of the whole proceedings in order to satisfy itself that the aims of Article 6 had been secured ( see John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, and Rupa v. Romania (no. 2), no. 37971/02, 19 July 2011 ).
2. Third party submissions
58. The non - governmental organisation Fair Trials International submitted that the right to a lawyer was a fundamental guarantee which facilitated the exercise of other rights, and extended beyond preventing suspects from confessing to the offence. During police questioning lawyers acted as a “ gateway ” to other rights and generally helped prevent any prejudice to the suspect ’ s defence. The third party illustrated the role played by the lawyer by means of several examples, including ensuring that the suspect had understood the oral or written information provided concerning his rights, or again supervising compliance with procedural requirements such as the length of interrogations, the wording of the questions put, and so on.
59. Despite its fundamental importance, the right of access to a lawyer was not sufficiently protected across Europe. For instance, many suspects had major difficulties in exercising that right, particularly owing to legal or practical restrictions, the prevalence of dubious alleged “ waivers ”, and ineffective measures by the courts to remedy the violations in question.
60. Accordingly, the European Union had, in 2009, adopted a roadmap geared to reinforcing suspects ’ procedural rights, and on 22 October 2013 it issued a directive enshrining the right of access to a lawyer, attaching a series of safeguards to waivers of those rights and requiring the courts to take action in the event of a finding of violation. Article 3 of the directive provided that suspects or accused persons had the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; under Article 9, Member States should ensure that any waiver was given voluntarily and unequivocally. Although the Court of Justice of the European Union was responsible for interpreting the provisions of that directive, the third party considered that the Court could have regard to it as a pointer to the essential obligations on EU Member States ( which were therefore also binding on many Council of Europe member States ).
61. Having outlined the Court ’ s case-law since the Salduz judgment, the third party invited the Court to carefully assess the issue of restrictions on the right of access to a lawyer, “ waivers ” of that right and the failure of domestic courts to assess the negative effects of such restrictions, even where the suspect had not confessed to any offence.
3. The Court ’ s assessment
a) The applicable principles
62. The Court reiterates that although the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial before a “ tribunal ” competent to determine “ any criminal charge ”, it may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Salduz, cited above, § 50, and Panovits v. Cyprus, no. 4268/04, § 64, 11 December 2008). Furthermore, the right set out in paragraph 3 (c) of Article 6 is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 ( see Imbrioscia v. Switzerland, 24 November 1993, § 37, Series A no. 275, and Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 ‑ X).
63. The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial ( see Krombach v. France, no. 29731/96, § 89, ECHR 2001 ‑ II). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict that right. The Court specifies that even in such cases, denial of access to a lawyer must not unduly prejudice the rights of the accused under Article 6, and that the rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction ( see Salduz, cited above, § 55). The Court found a violation of Article 6 §§ 1 and 3 ( c) notwithstanding that the applicant had subsequently benefited from legal assistance and adversarial proceedings, having noted, in particular, that the restriction in question on the right to a lawyer had been based on the systematic application of legal provisions ( see Salduz, cited above, §§ 56 and 61).
64. The fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or otherwise remanded in custody, whether interrogations take place or not. The Court emphasises in that respect that the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, pointing out that discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention were fundamental aspects of the defence which the lawyer must be able to exercise freely ( see Dayanan, cited above, §§ 31-33). Moreover, an accused often finds himself in a particularly vulnerable position at the investigation stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself ( see Pavlenko v. Russia, no. 42371/02, § 101, 1 April 2010 ).
65. The Court has had occasion to reiterate that, first of all, a person “charged with a criminal offence” within the meaning of Article 6 of the Convention is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge; secondly, while a restriction of this right may in certain circumstances be justified and be compatible with the requirements of that Article, any such restriction that is imposed by a systemic rule of domestic law is inconsistent with the right to a fair trial ( see Simons v. Belgium ( dec. ), no. 71407/10, § 31, 28 August 2012, and Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, § 80, 24 October 2013 ).
66. Neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial ( see Kwiatkowska v. Italy ( dec. ), no. 52868/99, 30 November 2000, and Ananyev v. Russia, no. 20292/04, § 38, 30 July 2009). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance ( see Salduz, cited above, § 59, and Yoldaş, cited above, § 51).
b) Application of the principles to the present case
i. Lack of assistance by a lawyer during the police questioning
67. The minutes of the police hearing of 17 December 2009 mentioned that the applicant had claimed his right to the assistance of a lawyer but that he had consented to an interrogation without such assistance, after having “ received the requisite explanations regarding the procedure to be followed in cases such as his ” ( see paragraph 12 above ).
68. Before the Court, the parties disagreed on the issue of the legal provisions applicable to the present case. The applicant contested the Government ’ s affirmation that Articles 39 and 52 of the Code of Criminal Procedure applied ipso facto where the individual had been arrested under a European arrest warrant.
69. The Court notes that at the time of the impugned interrogation on 17 December 2009, Luxembourg legislation provided for the right to legal assistance in cases of police interrogation of an individual detained under in flagrante proceedings ( Article 39 [ 7 ] of the Code of Criminal Procedure ) and in that of a person remanded in custody for facts other than those with which he had been charged ( Article 52 [ 3 ] of the Code of Criminal Procedure ) ... It transpires from the 15 June 2011 letter sent by the State Prosecutor that at the material time the right to the assistance of a lawyer had not applied to a police interrogation in the context of a preliminary investigation, on letters rogatory from a Luxembourg investigating judge, of a person detained pursuant to a European arrest warrant issued by a Luxembourg court ( see paragraph 33 above ). The Law of 17 March 2004 on the European Arrest Warrant and surrender procedures between Member States of the European Union provides for the assistance of a lawyer during police interrogations solely in the framework of the enforcement in Luxembourg of a European arrest warrant issued by a foreign authority ... However, it must be borne in mind that the applicant ’ s questioning by the police had taken place following his arrest in the United Kingdom on the basis of a European arrest warrant issued by a Luxembourg investigating judge. It is therefore incontrovertible that at the material time legal assistance during police questioning had been explicitly provided for in law under certain circumstances, but implicitly ruled out under circumstances such as those prevailing in the present case. That is why the assistance had been automatically ruled out in this way under the relevant legal provisions ( see, mutatis mutandis, Navone and Others v. Monaco, cited above, § 81).
70. The Court notes that the situation has since changed, under the 20 June 2011 “ Luxembourg Police Memorandum No. 49/2011 ” ( see paragraphs 32 and 33 above ); it also notes that a bill has been tabled geared to adding to the Code of Criminal Procedure a new right to legal assistance in any situation in which an individual deprived of his liberty is questioned. However, for his interrogation of 17 December 2009 the applicant was obviously ineligible for the facilities provided for in the memorandum in question.
71. Consequently, the Court is forced to note that under the legislation in force at the material time, the applicant was automatically deprived of the assistance of counsel, for the purposes of Article 6, during the police questioning of 17 December 2009. Under those conditions, the issue of any waiver of the right to the assistance of a lawyer becomes devoid of purpose ( see, mutatis mutandis, Navone and others v. Monaco, cited above, § 83).
72. The applicant made detailed statements during the impugned police hearing. Although he denied all the charges against him and made no incriminating statements, the Court nevertheless emphasises that the investigation stage of criminal proceedings is of crucial importance as the evidence obtained at this stage determines the framework in which the offence charged will be considered ( see Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011). In the instant case, having read the applicant ’ s oral evidence gathered by the police and the investigating judge and during the hearings, the court mentioned that the applicant had constantly changed his version of events. Moreover, the Court of Appeal had expressly referred to the statements made by the applicant during the police interrogation in its finding that he had not always been consistent in his statements. That being the case, the Court cannot accept the Government ’ s argument that the statements made by the applicant during the phase in issue had had no influence on the final decision.
73. To the applicant ’ s complaint before the Court of Appeal that he had been questioned by the police without the assistance of a lawyer, that court replied that he had agreed to give oral evidence in the absence of a lawyer. What is more, by confining itself to that finding the Court of Appeal had failed to analyse the need at least to exclude the statements recorded during the impugned phase of the proceedings; on the contrary, it even took account of those statements, albeit in conjunction with a substantial amount of other evidence, in the reasoning underpinning its conviction of the applicant. The Court of Cassation subsequently dismissed the applicant ’ s appeal on points of law on the ground that the Court of Appeal had found that there had been no violation of his defence rights since he had recorded his agreement to giving evidence in the absence of a lawyer. The Court takes the view that in so doing decision the judgment of the Court of Appeal, as subsequently upheld by the Court of Cassation, had failed to consider the situation complained of and had therefore failed to provide redress for the consequences of the failure to provide the applicant with legal assistance during the police hearing. In so far as the Government invited the Court to adopt a flexible approach based on an overall interpretation of the situation, the Court considers that they cannot use the judgments in the cases of John Murray ( cited above ) and Rupa v. Romania no. 2 ( cited above ) as authority. In John Murray, which preceded Salduz, the Court noted that the applicant had remained silent from the beginning of the police interrogation until the end of his trial, and found no violation of his right to remain silent; however, the Court did find a violation of Article 6 as regards the refusal to grant the applicant access to a solicitor for his first forty-eight hours in police custody. As regards Rupa, the complaints were of a different nature; the applicant in question had complained that the prosecutor had denied him the assistance of the lawyer of his choice and that the officially appointed lawyer had failed to provide adequate assistance.
74. The Court takes note of the fact that the situation in question had been clarified in the wake of the Principal State Prosecutor ’ s circular of 13 May 2011, given that a Police Memorandum of 20 June 2011 laid down that the case-law of the Court should be complied with, failing which any procedures initiated would be nullified ( see paragraphs 31 to 33 above ). However, that was not the case at the material time.
75. Accordingly, the Court finds a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicant did not benefit from the assistance of a defence lawyer during his police hearing and that the courts failed to provide redress for the consequences of such lack of assistance.
ii. Alleged lack of effective assistance by a lawyer during the first interrogation by the investigating judge
76. The day after his questioning by the police without the assistance of a lawyer, the applicant was interrogated by the investigating judge from 9. 02 a.m. to 10. 53 a.m., in the presence of a lawyer who had been officially appointed that morning. During the interrogation the applicant made detailed statements and repeated those which he had made to the police. The Court reiterates that in their formal conviction the trial judges mentioned the different statements and took them into account in their reasoning, stating that the applicant had constantly changed his “ version of events ” ( see paragraph 72 above ).
77. First and foremost, the Court must reiterate that the applicant ’ s complaint about the lack of effective assistance by his lawyer at the first interrogation concerns the protection of the rights of the defence under Article 6 of the Convention. The applicant therefore cannot usefully rely on the case of Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), which concerns a different type of issue, namely the lawfulness of detention under Article 5 § 4 of the Convention.
78. In order to analyse the applicant ’ s complaints concerning the first interrogation by the investigating judge, the Court considers that it must differentiate between the issue of the lawyer ’ s access to the case file and that of communication between the lawyer and his client.
α. Lack of access to the case file
79. Pursuant to Article 85 of the Code of Criminal Procedure, the Luxembourg authorities postpone access to the criminal case file until after the first interrogation ( see paragraph 30 above ). The Court reiterates that restrictions on access to the case file at the stages of instituting criminal proceedings, inquiry and investigation may be justified by, among other things, the necessity to preserve the secrecy of the data possessed by the authorities and to protect the rights of the other persons ( see, mutatis mutandis, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 72, 2 4 June 2010). In the instant case, given the justifications set out in domestic case -law, the Court considers it reasonable that the domestic authorities justify the lack of access to the case file with reasons of protecting the interests of justice. In addition, before charges are pressed, the person interrogated is at liberty to organise his defence ( including the right to remain silent, to consult the case file after the first interrogation by the investigating judge, and to choose his defence strategy throughout the criminal proceedings ). A proper balance is thus ensured by the guarantee on access to the case file, from the end of the first interrogation, before the investigating authorities and throughout the substantive proceedings.
80. The Court takes the view that it is not its task to decide whether the applicant can derive from the recently proposed legislation ( see paragraph 52 in fine ) or from Directive 2012/13/ EU ( see paragraph 37 above ) a right for the defence lawyer to have access to the case file before the first interrogation by the investigating judge. As regards the bill in question, it is not incumbent on the Court to express an opinion on a proposal which is still before the Luxembourg parliament. As regards the Directive, the Court merely notes that the first paragraph of Article 7 of the text concerns the lawfulness of arrest and detention, which is covered by Article 5 of the Convention. The issue at stake in the present case is respect for the defence rights of the person “ charged with a criminal offence ” within the meaning of Article 6 of the Convention. In that connection, paragraph 3 of Article 7 of the Directive provides that access to the materials referred to in paragraph 2 must be “granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation”.
81. The Court considers that Article 6 of the Convention cannot be interpreted as guaranteeing unlimited access to the criminal case file before the first interrogation by the investigating judge where the domestic authorities have sufficient reasons relating to the protection of the interests of justice not to impede the effectiveness of the investigations.
82. In the Court ’ s view, this finding cannot be rebutted by the judgment in the case of Sapan v. Turkey ( cited above ), as relied upon by the applicant. In that case the applicant ’ s complaint concerned the lack of any legal assistance for the applicant during his interrogations by the police and by the prosecutor with the Istanbul. Although the judgement does mention the fact that the applicant ’ s lawyer had been refused access to the investigation file by the Istanbul State Security Court, in finding a violation of Article 6 the three- judge committee had drawn exclusively on the criteria established in case-law considered as well- established, that is to say the failure to provide the applicant with any legal assistance, which had been the result of systematic application of the relevant legal provisions ( see Salduz, cited above ).
83. Having regard to the foregoing observations, the Court holds that the lawyer ’ s assistance during the interrogation on 18 December 2009 was not ineffective owing to the lack of access to the case file before that interrogation.
84. Therefore, there was no violation of Article 6 of the Convention under this head.
β. Alleged lack of communication between the applicant and his lawyer
85. The Court notes that the parties ’ submissions diverge on the matter of the applicant ’ s ability to communicate with his lawyer before the 18 December 2009 interrogation. The applicant submitted that under the very terms of Article 84 of the Code of Criminal Procedure no communication was possible between himself and his lawyer before the first interrogation by the investigating judge. The Government explained that the lack of regulations on this matter left unfettered scope for the parties, and that the practice was that clients could communicate with their lawyers at any time, upon request.
86. The Court notes the importance of consultations between the lawyer and his client upstream of the first interrogation by the investigating judge. This is an opportunity for holding crucial exchanges, if only for the lawyer to remind his client of his relevant rights. That is especially true where, as in the present case, the applicant was questioned by the police the day before without counsel and a lawyer has just been officially appointed on the morning of the interrogation by the investigating judge.
87. The lawyer must be able to provide effective and practical assistance, not just abstract backing via his presence, during the first interrogation by the investigating judge. Accordingly, the consultation between the lawyer and his client upstream of the interrogation must be unequivocally enshrined in legislation. However, that is not the case in Luxembourg. Article 84 of the Code of Criminal Procedure does not provide that accused persons can consult their lawyers before the first interrogation by the investigating judge, as in fact recommended by Article 3 of Directive 2013/48/ EU ... On the contrary, the actual wording of the provision in question gives the impression that no communication is possible before the first interrogation. Such a legislative position might suggest to accused persons that there is no point in demanding discussions with their lawyer before the first interrogation.
88. The Court is unconvinced by the Government ’ s argument that communication between the client and his lawyer is possible under current practice. It should be remembered that the Court must be able to satisfy itself that the right secured is practical and effective, and not theoretical and illusory. Where there are no clear regulations on the matter, it is impossible to ascertain whether a practice is well- established and has been respected.
89. It cannot be overlooked that in the present case the minutes of the interrogation on 18 December 2009 state that a lawyer was officially appointed on the morning of the interrogation by the investigating judge, but then fail to mention any lapse of time during which the applicant was able to talk to that lawyer. Consequently, the Court cannot satisfy itself, solely on the basis of the Government ’ s affirmations and the evidence available to it, that the applicant was able to speak to his lawyer before the impugned interrogation and that he therefore obtained effective assistance from him.
90. Nor can the Court disregard the fact that the CPT report of 28 October 2010 confirms the unreliability of the practice mentioned by the Government. That report, which was prepared in the wake of visits conducted the same year as the facts germane to the present case, states that virtually all the prisoners and detainees encountered by the CPT delegation had pointed out that their first contact with a lawyer had occurred when they had appeared before the investigating judge and that they had not been able to speak in private with the lawyer until after that appearance before the judge.
91. The foregoing considerations are sufficient to enable the Court to find that there was a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 under this head.
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