FOURTH SECTION
CASE OF STRASSENMEYER v. GERMANY
(Application no. 57818/18)
 
JUDGMENT
 
Art 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Rights of defence • Inability to examine co-accused who refused to testify in court and whose incriminating pre-trial statements carried significant weight in applicant’s conviction • Trial court had good reason to admit untested statements • Sufficient counterbalancing factors allowing for fair and proper assessment of reliability of untested evidence • Defence rights not restricted to an extent incompatible with Art 6 guarantees • No indication in circumstances that police’s omission to inform accused before questioning of right to court-appointed counsel affected applicant’s conviction or fairness of the proceedings • Accused informed in writing at that stage about right to legal assistance • No indication of lack means for obtaining the services of a lawyer
 
STRASBOURG
2 May 2023
FINAL
 
02/08/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Strassenmeyer v. Germany,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Armen Harutyunyan,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 57818/18) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Marco Straßenmeyer (“the applicant”), on 28 November 2018;
the decision to give notice of the application to the German Government (“the Government”);
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the German Federal Bar Association, which was granted leave to intervene by the Vice-President of the Section;
Having deliberated in private on 11 April 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s conviction for murder based, in particular, on the pre-trial statement of a co-accused who had refused to testify in court. Before being questioned, the police did not inform the accused of their right to court-appointed counsel. The case raises issues under Article 6 §§ 1 and 3 (d) of the Convention. THE FACTS
2. The applicant was born in 1971 and is currently detained in Tonna Prison. The applicant was represented by Mr Bogatz, a lawyer practising in Bendestorf. 3. The Government were represented by one of their Agents, Mr H.J. Behrens, of the Federal Ministry of Justice. 4. The facts of the case may be summarised as follows. THE PRELIMINARY PROCEEDINGS
5. In the early hours of 14 September 1994, a German national, G., was killed in the Czech Republic. The body was discovered the same day by the Czech police in a wooded area, at which time it could not be identified. In Germany, G. was declared missing. 6. Before his death, G. had run a clothing shop in Erfurt with F., who committed suicide in October 1994. In 2012 N., a former friend of F., contacted the German police. She stated that before his death, F. had confided to her that he had been involved in the killing of a co-worker in the Czech Republic. 7. K. had also worked at the clothing shop. On 29 September 2014 the police arrested him. Before being questioned, he was informed in writing about his rights to remain silent and to consult a lawyer. However, owing to the use of an outdated form that did not reflect a recent change in legislation, he was not informed about his right to have court-appointed counsel assigned to him pursuant to Article 136 § 1 of the Code of Criminal Procedure (see paragraph 36 below). 8. When questioned about G.’s death, K. stated that he had been part of a group that had driven from Erfurt to the Czech Republic on 13 September 1994. With him had been G., S., M.S., V. and the applicant. K. claimed that he had not been present during the murder, but that he had been told by the others that the applicant had killed G. 9. On 30 September 2014 the applicant was arrested. Before being questioned, he was informed about his rights in the same manner as K. (see paragraph 7 above). The applicant acknowledged that he had been to the shop in Erfurt before but stated that he did not know G. and had never been to the Czech Republic. 10. On 1 October 2014 S. was heard as a witness by the police. He confirmed that he had been to the Czech Republic with the others but claimed to have no knowledge of any acts of violence. 11. On 9 October 2014 K. asked to be heard again by the police. In the presence of his counsel, he stated that he had seen the applicant hit G. with a truncheon and place the unconscious body in the boot of a car. It was only then that he had fled the scene. K. stated further that S. had been present during the beating. 12. On the same day, S. was again questioned by the police, this time as an accused. He confirmed that he had been present at the scene of the crime and had heard screams but had not seen the murder itself. However, his brother, M.S., who had died in 1995, had told him that the applicant had beaten G. to death. 13. On 10 October 2014 V. was arrested. When asked about his involvement in G.’s death, V. confirmed that he had witnessed the murder. According to him, F. had been angry with G. for squandering the revenue from their shop. The original plan, according to V., had been to drug G. and abandon him somewhere in the woods in order to teach him a lesson. On 13 September 1994 they had met at the shop and someone had slipped LSD into G.’s drink. G. had been told that they were going to a party and they had driven off in two cars. However, once they had arrived in the Czech Republic, G. had realised that he had been drugged and threatened to report them to the police. At this point the applicant had hit G. on the head with his fist. Somebody had then placed the unconscious G. in the boot of S.’s car and they had driven to a wooded area. When the cars had stopped, the applicant and M.S. had got out of the car and walked around to the back of the car. G. had regained consciousness and the two men had started to beat him with their fists. At this stage, V. had handed the applicant a tonfa, a sort of truncheon with a side grip. When G. had stopped moving, a discussion took place and it was decided that the body should be burned in order to destroy the evidence. K. had left in order to purchase petrol. V. had then assisted the applicant and M.S. to lift the body out of the boot and put him on the ground around 3 to 4 metres from the cars. At that point, they had discovered that G. was still breathing. The applicant had then picked up a rock and thrown it at G.’s head. Later, when K. had returned with the petrol, V. had left the crime scene to sit in his car. He had not witnessed who had set fire to the body but claimed that, as they had driven away, he had seen G. running around like a burning torch. 14. Both S. and V. were informed about their rights in the same manner as K. (see paragraph 7 above). After being questioned, the accused were brought before the investigating judge who ordered their detention and assigned lawyers to them. Before the judge, the accused made no further statements. THE PROCEEDINGS BEFORE THE ERFURT REGIONAL COURT
15. The proceedings against the applicant, V., K. and S. before the Erfurt Regional Court began on 20 April 2015. Evidence taken by the Regional Court
16. At the trial, the applicant only made a statement about his drug abuse at the time of the alleged crime. The other accused exercised their right to remain silent. Instead, the Regional Court heard the police officers who had conducted the pre-trial interviews as witnesses. The applicant and the other accused objected to those pre-trial statements being admitted in evidence. 17. The court also heard N., the former friend of F. (see paragraph 6 above). She repeated what F. had told her about the killing, namely, that the victim had been drugged, beaten to death, set on fire and then buried in a forest in the Czech Republic. 18. Furthermore, the court heard the witness L., who had worked for F. and G. at their shop in Erfurt. He stated that he had been in the shop one day in September 1994 when K. had approached him. They had gone to a separate room where several people had been sitting, including the applicant. K. had then disclosed that they had killed G. The applicant had then boasted that it had been him who had “set the finale”, that G. “had squealed like a pig” and that the applicant had kept beating him with a club until it was quiet. K. had added that they had then set fire to G.’s body. 19. In connection with this statement, the court also heard the witness B., who told the court about an encounter he had had with L. around the year 2002. At that time, L. had told him about the conversation L. had had with K. and the applicant regarding the death of G., but had asked him not to tell anyone. B. stated that, according to L.’s account, the applicant had been the driving force behind the killing. 20. Furthermore, the court heard the Czech police officers who had discovered the body in 1994 (see paragraph 5 above). The officers stated, in particular, that two rocks with traces of blood on them had been found near the body. The court also heard the forensic expert who had examined the crime scene. The expert considered that the fractures to the victim’s head were consistent with blows from the tonfa V. had described (see paragraph 13 above) and described the victim’s burns. Regarding the cause of death, the court heard the pathologist who had performed the autopsy and another medical expert. The experts agreed that it was impossible or at least highly unlikely that G., as V. had described it in his statement (see paragraph 13 in fine above), had got up and moved around after he had been set on fire. 21. On 24 August 2015 S. submitted a request for an expert opinion regarding the veracity of V.’s pre-trial statement, which was joined by the applicant. They submitted that V. had agreed to talk to a psychologist. The accused emphasised that V.’s statement was evidently partly untrue. In particular, the experts had ruled out the possibility that after being set on fire G. could have moved on his own. Furthermore, V. had stated that he had helped the others to lift G.’s body out of the car and that they had carried it only 3 to 4 metres before putting it on the ground. However, it followed from the statements of the Czech police officers and the photographs of the crime scene that the distance between the cars and the location of G.’s body was noticeably larger. 22. On 30 September 2015 the court dismissed the request. It considered that the assessment of statements given by a witness or the accused fell to the trial judge. An expert opinion would only be necessary under special circumstances, for example if the person in question was a minor or exhibited strong psychopathological limitations, neither of which applied to V. The Regional Court’s judgment
23. On 2 June 2016 the court convicted K. and the applicant of murder and deprivation of liberty resulting in death. V. was convicted of murder and S. was acquitted. The applicant was sentenced to life imprisonment. 24. The facts established by the Regional Court regarding the crime itself corresponded largely to V.’s statement to the police (see paragraph 13 above). In its decision, the court stated that its findings were based on the entirety of the evidence collected, including the pre-trial statements by the four accused, in particular V.’s statement, the statements of the witnesses heard at the trial, in particular L. and N. (see paragraphs 17 and 18 above), the evidence found at the crime scene and the expert statements (see paragraph 20 above). With regard to the applicant’s statement (see paragraph 9 above), the court considered that, given the evidence before it, his denial was not of a nature to call into question his participation in the crime. 25. The court gave detailed reasons as to why it considered V.’s pre-trial statement reliable. It began by observing that the statement coincided in large part with the statements K. had made during his police questioning (see paragraphs 8 and 11 above). The two accused had given very similar accounts of the trip to the Czech Republic and both had described the applicant hitting G. with a sort of truncheon. The court further considered that any sort of collusion between V. and K. appeared very unlikely. Both had been unaware of the investigation into the death of G. and, according to the police officers, had appeared surprised when confronted with this fact. 26. In addition, V.’s account of G.’s death was corroborated by the findings of the pathologist. In this regard, the court noted that V. had been privy to details which suggested that he had been present during the crime. Lastly, the court observed that, while V. had apparently considered that he bore no criminal responsibility for G.’s death at the time of his questioning by the police, it nevertheless appeared highly unlikely that he would give a false account which incriminated him so heavily. 27. Regarding the alleged inaccuracies in V.’s statement, the court considered that these were not of a nature to call into question the statement in its entirety. The court concurred that, given the statements by the medical experts (see paragraph 20 in fine above), it was highly unlikely that V. had seen G. moving around after he had been set on fire. However, the court considered it entirely possible that V. did indeed believe that he had seen G. on fire. The observation in question had been made at night-time out of a moving car. Under these circumstances, V. could easily have mistaken the flames from the burning petrol for a human figure. Furthermore, with regard to the distance between the body and the place where the cars had been parked (see paragraph 21 in fine above), the court concluded from the tracks on the ground that G. had first been put on the ground near the cars, which was where the first rock had been thrown at his head. The injured G. had then managed to get up and attempt to flee but one of the aggressors had hit him with another rock and he had fallen to the ground again a little further away. 28. With regard to the weight to be given to V.’s statement, the Regional Court considered that it had to be taken into account that the accused had exercised their right to remain silent at the trial (see paragraph 16 above) and that no video or audio-recording of the police interviews existed. 29. The Regional Court further attached importance to the statements given by N. and L. (see paragraphs 17 and 18 above). It noted that V.’s account of the crime was partly confirmed by L.’s testimony about the conversation L. had had with K. and the applicant in September 1994. The details of the murder L. had been able to provide, the fact that it had occurred in the Czech Republic and that G. had been beaten to death, corresponded with V.’s statement. The veracity of L.’s statement was further strengthened by B. (see paragraph 19 above), to whom L. had confided this conversation. Again, the court considered that there was no indication that either of the witnesses had intentionally given an untruthful statement. 30. Lastly, the fact that the accused had not been informed about their right to court-appointed counsel (see paragraphs 7, 9 and 14 above) did not make the statements inadmissible in the court’s view. The court noted that owing to the seriousness of the crime, the State had a very strong interest in prosecuting the accused. Furthermore, the failure to inform the accused of this right had not been intentional but rather an oversight by the police officers. In addition, the court observed that, according to the police officers, V. had himself emphasised during his questioning that he wanted to be heard without a lawyer. Since V. had been arrested and questioned by the police on several occasions and for various offences prior to his arrest in 2014, the court considered that he had been well aware of the potential consequences of making a statement without legal counsel present. 31. The court concluded that despite the fact that neither the prosecution nor the applicant had been able to put questions to the accused regarding their pre‑trial statements, it had sufficient evidence at its disposal for a conviction. THE PROCEEDINGS BEFORE THE FEDERAL COURT OF JUSTICE
32. On 3 June 2016 the applicant lodged an appeal on points of law against the judgment of the Erfurt Regional Court. He complained, in particular, that the Regional Court had primarily based his conviction on the pre-trial statements given by his co-accused who he had been unable to examine at any stage of the proceedings. While he acknowledged that the fact that the other accused had relied on their right to remain silent was not imputable to the Regional Court, he considered that there had been insufficient counterbalancing factors, in particular given that the court had denied his request for a psychological examination of V. (see paragraph 21 above). In addition, he argued that the failure to inform him and the other accused of their right to court-appointed counsel had rendered the pre-trial statements inadmissible. 33. On 6 February 2018 the Federal Court of Justice dismissed the appeal on points of law. Regarding the argument that the accused had not been properly informed about their rights, the court reiterated that owing to the gravity of the charges the State had a very strong interest in prosecuting the accused and that the error had been unintentional. Lastly, the court observed that there was no indication that the accused had not obtained legal counsel owing to a lack of funds. THE PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT
34. On 28 May 2018 the applicant lodged a constitutional complaint with the Federal Constitutional Court, relying essentially on the same arguments as he had before the Federal Court of Justice (see paragraph 32 above). 35. On 26 June 2018 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons. RELEVANT LEGAL FRAMEWORK
RELEVANT DOMESTIC LAW
36. Article 136 § 1 of the Code of Criminal Procedure, as applicable at the relevant time, provided that from the time of the first questioning the accused was to be informed of his or her rights to remain silent and to consult a lawyer. Furthermore, the accused was to be informed that under certain conditions he or she could request court-appointed counsel, particularly if the charge concerned a criminal offence with a minimum term of imprisonment of one year. Sentence 3 of Article 136 § 1 of the Code of Criminal Procedure had been amended to include this obligation, effective from 6 July 2013, in order to implement Directive 2012/13/EU (see paragraph 39 below). Under German law, a conviction for murder carries a mandatory life sentence. 37. Article 168c § 2 of the Code of Criminal Procedure provides that the accused and his counsel are permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings. According to the domestic case-law, this provision does not apply when a co-accused is being heard during the investigation phase. 38. At the relevant time the Code of Criminal Procedure did not provide for the statements of an accused before the police to be recorded. On 1 January 2020 Article 136 § 4 of the Code of Criminal Procedure was amended to provide for such a possibility. In particular, a video-recording of the interview is now mandatory for persons charged with premeditated killing. RELEVANT EUROPEAN UNION LAW
39. The relevant part of Article 3 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 reads as follows:
“1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:
... (b)  any entitlement to free legal advice and the conditions for obtaining such advice;
...”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
40. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained that the criminal proceedings against him had been unfair. He complained, in particular, that he had been unable to examine his co-accused. Relying on Article 5 § 1 (c) and Article 6 § 1 of the Convention, he complained, furthermore, that none of the accused had been informed of their right to court-appointed counsel before being questioned by the police. 41. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114, 124 and 126, 20 March 2018), will examine the complaints solely under Article 6 §§ 1 and 3 (d) of the Convention which, in so far as relevant, reads as follows:
“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:
... (d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
Admissibility
42. The Government submitted that the applicant had failed to exhaust domestic remedies regarding the inability to examine his co-accused, arguing that he had not properly raised the complaint before the domestic courts. The Government pointed to the fact that in his appeals the applicant had stated that this shortcoming was not imputable to the Regional Court (see paragraph 32 above), whereas in his complaint to the Court he had argued that his inability to put questions to his co-accused could be attributed to the judiciary. 43. The applicant retorted that he had never alleged that the judiciary was to blame for his inability to challenge the statements made by his co-accused. 44. The general principles concerning exhaustion of domestic remedies are summarised in Vučković and Others v. Serbia ([GC] (preliminary objection), nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). The Court reiterates, in particular, that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 45. The Court observes that the applicant raised the issue that he had been unable to examine his co-accused and the lack of sufficient counterbalancing factors before all levels of jurisdiction domestically (see paragraphs 16, 32 and 34 above). In doing so, he provided the State with the opportunity to remedy the alleged breach, regardless of whether he attributed the inability to put questions to his co-accused to the domestic authorities. Accordingly, the Court finds that the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention and dismisses the Government’s objection in this respect. 46. Furthermore, the Court notes that the applicant’s complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions

(a)   Inability to challenge the statements of the applicant’s co-accused
(i)      The applicant
47. The applicant complained that he had been unable to examine his co‑accused V., K. and S. either in court or during the pre‑trial proceedings. Moreover, M.S.’s account of the crime had been provided by his brother, S., who had mentioned it during his second questioning by the police (see paragraph 12 above). 48. The applicant acknowledged that V., K. and S. had had the right to remain silent and that their pre-trial statements could be introduced at trial by the police officers who had conducted the interviews. 49. As regards the significance of the statements, the applicant argued that V.’s statement before the police (see paragraph 13 above) had been decisive for his conviction. Regarding the witnesses N. and L. (see paragraphs 17 and 18 above), he emphasised that their witness statements had been hearsay. 50. Lastly, he submitted that the handicaps under which the defence had laboured as a result of the admittance of the pre-trial statements had not been compensated for by sufficient counterbalancing factors. In particular, the court had denied his request to have V. examined by a psychologist (see paragraph 21 above). In his view, such an examination would have allowed the applicant to challenge V.’s statement through a court-appointed expert, thus constituting an important counterbalancing factor. (ii)    The Government
51. The Government submitted that in view of the Court’s case-law on the matter, the applicant’s right to examine witnesses had not been breached. 52. In the Government’s view there had been a good reason for the applicant’s inability to examine his co-accused and, consequently, to admit the untested statements in evidence. The accused had exerted their right to remain silent and the Regional Court had thus been unable to provide the applicant with the opportunity to put questions to them. 53. The Government further submitted that the statements by his co‑accused had not been the sole or decisive basis for the applicant’s conviction. Rather, the Regional Court had based its decision on an overall assessment of the evidence before it. In particular, the court had had regard to the testimony by L. who had stated that the applicant had admitted the crime in his presence (see paragraph 18 above). Furthermore, V.’s statement regarding G.’s injuries had been corroborated by the evidence discovered at the crime scene and the statements of the medical experts (see paragraph 20 above). 54. Lastly, even assuming that the untested statements had been the decisive basis for the conviction, the Government submitted that there had been sufficient counterbalancing factors. In examining the pre-trial statements by V. and K. in detail, the court had demonstrated the necessary caution. Furthermore, the applicant had been provided with the opportunity to give his own account of the facts at the trial. 55. With regard to the request for a psychological examination of V. regarding the veracity of his pre-trial statement (see paragraph 21 above), the Government submitted that such an examination had not been necessary or appropriate. As the Regional Court had stated in its decision denying the request (see paragraph 22 above), the assessment of the credibility of a witness fell to the trial judge. Lastly, the Government argued that such an examination would not have served as an effective counterbalancing factor. Contrary to the applicant’s position, an expert opinion would not have provided the applicant with the opportunity of examining V. Furthermore, indirect questioning of V. by the applicant’s counsel using the expert as a “mouthpiece” would have been contrary to V.’s right to remain silent. 56. Further counterbalancing factors had not been available to the domestic authorities. Referring to Sievert v. Germany (no. 298881/07, 19 July 2012), the Government submitted that there had been no indication for the police or the prosecution that the accused would subsequently exercise their right to remain silent. Furthermore, the domestic law did not allow for the accused or his counsel to be present for the pre-trial questioning of another accused (see paragraph 37 above). In addition, at the relevant time, the possibility of video or audio-recordings of the questioning had not been provided for by the domestic law (see paragraph 38 above). Accordingly, such a recording would have required the consent of the other accused. (b)   Failure to inform the accused about the right to court-appointed counsel
(i)      The applicant
57. The applicant maintained that the failure of the police officers to inform him and the other accused of their right to have court-appointed counsel should have led to the pre-trial statements being inadmissible. He argued that the domestic courts’ interpretation of the relevant provisions had been contrary to Directive 2012/13/EU (see paragraph 39 above). The aim of the Directive to strengthen the rights of the accused during the investigation stage could only be achieved if a breach resulted in the inadmissibility of the evidence. Had the other accused been properly informed of this right, it could not be excluded that they would have obtained counsel and subsequently made use of their right to remain silent. Furthermore, the violation had been perpetuated when the investigating judge who had issued the arrest warrants had failed to inform the accused about the inadmissibility of their pre-trial statements owing to this breach. (ii)    The Government
58. The Government first submitted that Article 6 § 3 (c) of the Convention only guaranteed the right to court-appointed counsel if the accused lacked sufficient means to pay for legal assistance. Since this did not occur in the present case, the right of the accused to have court-appointed counsel assigned to them had merely been based on the corresponding provisions of the domestic law. Accordingly, the Government submitted that the failure to inform the accused of this right had not been in breach of Article 6 § 1 of the Convention. 59. Moreover, this error did not necessarily lead to the inadmissibility of the pre-trial statements. Referring, in particular, to Allan v. the United Kingdom (no. 48539/99, § 42, 5 November 2002), the Government pointed out that Article 6 of the Convention did not lay down any rules on the admissibility of evidence as such, which was therefore primarily a matter for regulation under national law. The question the Court had to answer was whether the proceedings as a whole, including the way in which the evidence had been obtained, had been fair. 60. Furthermore, the Government submitted that the domestic courts had properly balanced the competing interests. The courts had correctly held that the information concerning the right to be assigned a court-appointed lawyer was not of equal importance to the information regarding access to a lawyer itself. While the obligation to inform an accused of his or her right to a lawyer was provided for in a number of international treaties, a corresponding obligation regarding information about court-appointed counsel was significantly less prevalent. 61. Regarding the accused, the Government stressed that there had been no indication of any specific vulnerability in their regard and that no pressure had been exerted on them in order to obtain their statements. In addition, the accused, in particular V., had previously been the subject of criminal charges and had thus been aware of the possibility of obtaining court-appointed counsel. 62. Lastly, the Government emphasised that there was no indication that the police officers had deliberately withheld the information from the accused. While it was true that the new provisions had already been in force for several months at the time of the interviews (see paragraph 36 above), there was always a risk that outdated forms might still be in use for some time after a change in legislation (see paragraph 7 above). The third-party intervener’s submissions
63. The Federal Bar Association submitted that the fact that a co-accused had exercised his right to remain silent could not be considered a good reason for admitting an untested pre-trial statement in evidence. 64. With regard to counterbalancing factors, it held that the applicant’s counsel should have been given the opportunity to question the co-accused during the investigation phase of the proceedings. Furthermore, it submitted that the applicant should at least have been provided with the opportunity to have the veracity of the statements given by his co-accused examined by a psychologist. 65. Lastly, the Federal Bar Association was of the view that admitting the pre‑trial statements in evidence despite the fact that the accused had not been informed of their right to court-appointed counsel had been in violation of Article 6 § 3 (c) the Convention. In this regard, it pointed out that a failure to appoint counsel where it was required by law constituted grounds for an appeal under the domestic law. However, no similar protection existed for the pre-trial phase where a lack of legal counsel was only taken into account in the assessment of the overall fairness of the proceedings.

Article of the Convention at issue: Article 6
Outcome: no_violation