THIRD SECTION
CASE OF W.R. v. THE NETHERLANDS
(Application no. 989/18)
 
 
JUDGMENT
 
 
Art 6 § 1 (criminal) and Art 6 § 3 (c) • Fair hearing • Defence through legal assistance • Overall fairness of proceedings not irretrievably prejudiced in case-circumstances, despite restriction on applicant’s access to a lawyer, without compelling reasons, during preliminary investigation stage • Application of very strict scrutiny
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
27 August 2024
 
FINAL
 
27/11/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of W.R. v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 989/18) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Dutch national, Mr W.R. (“the applicant”), on 2 January 2018;
the decision to grant the applicant anonymity, in accordance with Rule 47 § 4 of the Rules of the Court;
the decision to give notice to the Government of the Kingdom of the Netherlands (“the Government”) of the complaint concerning the lack of legal assistance during police interviews and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 25 June 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged unfairness of the criminal proceedings against the applicant due to the lack of legal assistance during the initial interviews by the police and during an on-site visit to places relevant to the investigation. The main legal issue in these criminal proceedings was whether the applicant had killed the victim with premeditation. THE FACTS
2. The applicant was born in 1974. At the time of the introduction of the application he was detained in Middelburg. He was initially represented by Mr T. Kodrzycki and Mr R. Korver, both lawyers practising in Amsterdam. Subsequently, Mr T. Kodrzycki was replaced by Mr. Th.O.M. Dieben, also a lawyer practising in Amsterdam. 3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 4. The facts of the case may be summarised as follows. CRIMINAL INVESTIGATION
5. On 11 January 2014 the police were informed that Ms C.O. (“the victim”) had gone missing. She had last been seen on 10 January 2014 at the home of her ex-husband, the applicant. When the police visited the applicant on 11 January 2014 in the context of the investigation, they detected a pungent odour of a combustible substance at the front door of the house and saw that he had an injury on his hand. The police found a partly burnt box in the garage and observed stains on the floor and multiple blood spatters in various places in the applicant’s house and garage. At first the applicant claimed that his children had set the box on fire. Later he said that he had set the box alight himself and had thrown several objects that had blood on them into it because he thought that he was going to be considered a suspect in the victim’s disappearance. The applicant also gave conflicting accounts of how he had injured his hand. 6. On 12 January 2014, at or around 1.55 a.m., the applicant was arrested on suspicion of manslaughter. He was informed that a lawyer would be assigned to him free of charge to provide legal assistance prior to questioning or that he could instead consult with a lawyer of his own choosing. The applicant did not respond when asked whether he wished to consult with an assigned lawyer. The reporting officer accordingly notified the Legal Aid Duty Roster Service. 7. When the applicant was ordered into police custody by an assistant public prosecutor, at or around 3.54 a.m., the only statement he gave was that he would speak to the police later. 8. At or around 10.30 a.m., the applicant consulted with his lawyer. 9. When questioned by the police in the evening of that day, the applicant was informed of his right to remain silent. He was further informed that he was suspected of manslaughter or murder of Ms C.O. He gave a detailed confession in which he admitted that, and how, he had violently killed the victim. The applicant also stated that he wished to cooperate and show the police several locations that were relevant to the investigation. 10. From 8.12 p.m. to 9.38 p.m. the police and the applicant undertook an on-site visit, during which the applicant gave instructions that led to the discovery of the victim’s body, the victim’s bag with some of her belongings, and two discarded tarpaulins. 11. On 13 January 2014, at 3.50 p.m., the applicant was questioned again, after having been informed of his right to remain silent. He spoke at length and in detail about the events of 10 January 2014 and described, among other things, what had happened earlier that day. In particular, he stated that he had felt belittled and almost blinded by anger following a telephone conversation with the victim in the afternoon of 10 January 2014, that while driving home he had considered different scenarios, that he had wanted to kill the victim then, that he had conceived a plan for killing her, and that upon his arrival he had laid out a knife and two tarpaulins in the garage with a view to taking her life and disposing of the body. He stated that shortly afterwards he came to his senses when he was sitting on the sofa. He said that the victim and he had gone into the garage twice: the first time because he was so angry that he wanted to do something to her, after which he came to his senses again and returned to the house, and shortly after for a second time, because he did not want one of their children to overhear their fight. He then described in detail how the verbal fight had turned into physical violence and how he had killed the victim. The applicant indicated once again that he was willing to cooperate. 12. On 14 January 2014 the applicant appeared before the investigating judge for a hearing of an application by the public prosecutor for an order for his initial detention on remand. During this hearing and in the presence of his lawyer, the applicant stated that he stood by the statements he had made to the police and that he was willing to cooperate fully in the investigation. Prior to the hearing the applicant had a consultation with a forensic psychologist, who reported that during the consultation the applicant’s awareness and concentration had been good, that he had answered all questions extensively, that he was above-average intelligent, and that there were no signs that he suffered from acute psychiatric problems such as depression, anxiety or psychosis. 13. On 20 January 2014 the police questioned the applicant again, after having informed him of his right to remain silent. Recounting the events of 10 and 11 January 2014, the applicant described, among other things, the way in which he had cleared away items near the victim’s body in the garage, and how he had transported the victim’s body in the boot of his car to a waterfront and rolled her into the water. He also described that he had contemplated setting the garage on fire using methylated spirits, and that he had instead set fire to a box with items in the garage and sprinkled methylated spirits in the boot of his car. 14. On 29 January 2014 and 6 February 2014, the police questioned the applicant again, after having informed him of his right to remain silent. During these sessions he provided more information about the increasingly troubled history of his relationship with the victim. Contrary to his earlier statement (see paragraph 11 above), he now claimed that he could not remember whether he had laid out a knife in the garage prior to taking the victim’s life. 15. On 27 August 2014 the applicant made a statement before the investigating judge and in the presence of his lawyer, after having been informed of his right to remain silent. During that hearing the applicant again gave an extensive account of the events leading up to 10 January 2014 and on that day itself. He further stated that while he had not been pressured by the police when giving his statements on 12 and 13 January 2014, he wished to retract parts that had been based on his “assumptions” (aannames) or “fragmented memories” (herinneringen aan flared) of what had happened, rather than on facts. In particular, he wished to retract the earlier statement that he had laid out a knife and tarpaulins in the garage before the victim’s arrival. He stated that he had no idea how the knife and the tarpaulins got into the garage. He also wished to retract the statement that he had planned to kill the victim. He stated that he had considered several scenarios, including “doing something to the victim”, but that he was too confused to make a choice. He stated that the next moment he remembered was in the garage when he was putting the tarpaulins there, which frightened him. He then thought that “this was not what he wanted” and came to his senses on the sofa. Furthermore, he stated that the reason he went to the garage with the victim was not to harm her, but only to prevent one of their children from overhearing the fight. More generally, he denied that he had taken the victim’s life with a preconceived plan. 16. An official record of the interview in the evening of 12 January 2014 was drawn up verbatim; official records of the other interviews were drawn up in question-and-answer format. The official records of these interviews, which had taken place without his lawyer being present, were made available to the defence. All police interviews were audio-visually recorded. PROCEEDINGS IN THE REGIONAL COURT
17. The applicant was summoned to appear before the Zeeland‑West‑Brabant Regional Court (rechtbank) on suspicion of manslaughter or murder. He was represented by a lawyer of his own choosing. 18. According to the official record of the trial hearing which took place on 4 November 2014, the defence argued that in the days immediately following the victim’s death the applicant had been in such a poor psychological and physical state that the police should not have questioned him. The defence also submitted that the applicant had not (or not sufficiently) been informed of his right to legal assistance and that the applicant’s lawyer should have been present during those interviews. The defence argued that the applicant’s statements made during police interviews on 12 and 13 January 2014 and the investigative findings obtained during the on-site visit should be excluded from evidence because of an irreparable breach of procedural rules within the meaning of Article 359a of the Code of Criminal Procedure (Wetboek van Strafvordering; see paragraph 44 below). 19. Further, also according to the official record of the hearing of 4 November 2014, the applicant stated, among other things, that after returning home on 10 January 2014 he had contemplated “to do something” (iets aandoen) to the victim and that he had laid out two tarpaulins in the garage. He also stated that when questioned by the police on 12 and 13 January 2014, he had described how at that time he had thought things had gone. 20. In a judgment of 18 November 2014, the Regional Court, addressing the arguments of the defence, held that the police had acted in accordance with the then applicable Instruction on legal assistance for police questioning (Aanwijzing rechtsbijstand politieverhoor; the Instruction has been amended since, see paragraph 41 below) and the Salduz case-law, as interpreted by the Supreme Court (see paragraphs 38-39 below). It noted that it followed from the verbatim transcript of the interrogation of 12 January 2014 that the investigators had been extremely cautious in their treatment of the accused, that they repeatedly reminded him that he should only state what he still knew, and that he could take breaks and eat and drink if he wanted. The court further noted that a forensic psychologist had found no indication that the applicant had been unfit for questioning (see paragraph 12 above). Accordingly, no irreparable breach of procedural rules had occurred, and the applicant’s statements made during questioning by the police on 12 and 13 January 2014, as well as the investigative findings obtained during the on‑site visit on 12 January 2014, could be admitted in evidence. 21. The Regional Court noted that the applicant had confessed to the police in several interviews, as well as before the investigating judge on 27 August 2014 and during the court hearing on 4 November 2014, that – and how – he had taken the victim’s life, and that his detailed statements were supported by the forensic findings. The court held that the charge of manslaughter had been lawfully and convincingly proved (wettig en overtuigend bewezen) and it sentenced the applicant to ten years’ imprisonment. 22. With respect to the charge of murder, the Regional Court noted that in the applicant’s case premeditation could in fact only be deduced from his own statements. It considered that based on the available lawfully obtained evidence, it might be deemed to have been proved that the applicant had taken the victim’s life with premeditation. The court added that it must, however, also have the conviction that murder had actually occurred. The applicant’s statements about the events and his mindset at the time – which it held could not be considered completely implausible – had left the Regional Court in doubt. Noting that in the Dutch criminal justice system such doubt should be interpreted in favour of the defendant, it acquitted the applicant of murder. PROCEEDINGS IN THE COURT OF APPEAL
23. On 24 November 2014 the Public Prosecutor’s Office lodged an appeal against the first-instance judgment, requesting that the applicant be convicted of murder and sentenced to twelve years’ imprisonment. 24. The applicant did not lodge an appeal. 25. In reply to the prosecutor’s appeal, the defence argued that it could not be proved that the applicant had acted with premeditation. In that connection the defence reiterated that the applicant’s statements made during the initial police questioning could not be admitted in evidence because they were the result of irreparable breaches of procedural rules committed during the investigation (see paragraph 18 above), in violation of Article 6 of the Convention. Without those statements, there remained insufficient evidence to establish premeditation. Even with those statements, murder could not be proved because, according to the defence, the parts that contained elements of premeditation were based on his assumptions rather than on his memory of what had occurred on 10 January 2014. 26. According to the official record of the hearing at the Court of Appeal of 26 November 2015, the applicant repeated that several scenarios had flashed through his head, including “doing something” to the victim and that he had taken the two tarpaulins to the garage before her arrival. He also repeated that when he was sitting on the sofa, he came to his senses. He said that he had then thought for a moment and knew it was totally wrong (foute boel). In answer to questions from the Court of Appeal as to why he did not remove the tarpaulins from the garage at that stage, although there had been sufficient time to do so, he said that he had not thought about the tarpaulins anymore after having fetched the children from school. 27. In a judgment of 10 December 2015, the ‘s-Hertogenbosch Court of Appeal (gerechtshof) quashed the Regional Court’s judgment, convicted the applicant of murder and sentenced him to fourteen years’ imprisonment. The appellate court held that there were no grounds for exclusion of evidence because the defence had not provided clear reasons, on the basis of the factors in Article 359a § 2 of the Code of Criminal Procedure (see paragraph 44 below), as to why the alleged breaches of procedural rules should lead to such a result. It added that during the investigation there had been no violation of the Convention because the questioning had taken place in accordance with the then applicable Instruction on legal assistance for police questioning (see paragraph 41 below) and the Salduz case-law, as interpreted by the Supreme Court (see paragraphs 38-39 below). 28. The Court of Appeal noted that the applicant had been advised of his right to consult with a lawyer prior to the first substantive interview on 12 January 2014 and he had indeed consulted with his lawyer later that day. Moreover, the applicant’s expressly and repeatedly declared willingness to cooperate and the contents of his statements of 12 and 13 January 2014, as well as the consultation with a forensic psychologist on 14 January 2014 (see paragraph 12 above), gave no indication whatsoever that he had been unfit for questioning or misunderstood his rights. 29. The appellate court found the defence’s assertion that parts of the applicant’s statements during the police interviews on 12 and 13 January 2014 had been untruthful and based on assumptions to be unconvincing and unsubstantiated. In that connection, the court held:
“[I]n the police interrogations of 12 and 13 January 2014, the investigators asked open questions, to which the accused gave detailed and consistent answers. But also afterwards, during the interrogations of 29 January and 6 February 2014, the accused made extensive statements in response to (more closed) questions. The Court of Appeal fails to see that the statements thus made by the accused, especially where they concern facts or circumstances indicating a premeditated plan to take [the victim]’s life, should be regarded as untrue. The Court of Appeal further observes that the accused did not substantiate what the assumptions he had made would have been based on.
... Furthermore, the accused was reminded that he did not have to ‘please’ the investigators and should only state what he himself knew. That the accused – by his own admission out of guilt and/or to please the investigators – made assumptions which he later claimed were incorrect, finds no support in any other, objective evidence, while the statements he made to the police are in fact confirmed in essential parts by objective evidence. In view of the above, the court considers it implausible that the accused would have made assumptions in the first police statements and that those assumptions would be incorrect. Therefore, the court sees no reason not to use the statements the accused made to the police as evidence.”
30. The Court of Appeal concluded that there was sufficient and convincing evidence of premeditation. In that regard the court considered:
“It follows from the statements which the accused made to the police that during his car ride [home], the idea first arose in his mind to do something to [the victim], as one of three scenarios to end the difficult communication between the two of them. To implement that scenario, the accused made preparations after he got home around 2.30 p.m., therefore almost two hours before he actually used violence against [the victim], by laying out two tarpaulins and a knife in the garage. He then thought, according to his own statement, that he was going to do something to [the victim] on the tarpaulin with the knife. He was then startled by his own thoughts and behaviour and sat down on the sofa in the living room ... The accused stated that at that moment he came to his senses and thought that taking [the victim]’s life was not a solution. The court infers from that statement that at that moment the accused was able to reflect on his earlier decision to take [the victim]’s life. He actually reflected at that moment on the meaning and consequences of his decision to take her life. Unlike counsel [for the defence], the court is of the opinion that at that moment the accused did not abandon his earlier thought of taking [the victim]’s life. The outward appearance of his behaviour did not indicate this, as the accused left the tarpaulin and the knife in the garage and, moreover, he actually killed [the victim] afterwards as he had initially thought of doing: in the garage, on the tarpaulin and using a knife (in addition to the other physical violence). In the Court of Appeal’s opinion, this by itself had made it sufficiently plausible that the accused did not distance himself from his plan to take [the victim]’s life. When [the victim] subsequently arrived at his residence at about 4.21 p.m., the accused executed his preconceived plan to take her life in the garage in a short period of time. The Court of Appeal is of the opinion that the accused robbed [the victim] of her life with premeditation and it has attached significance to the external features of the conduct of the accused. The court considers that this conclusion is reinforced in view of the circumstance that the accused took [the victim] to the garage where he killed her, within at most eight minutes of her arrival at the accused’s residence ...
... In the court’s opinion, there was an execution of a scenario that the accused had conceived earlier that afternoon. The suspect’s anger already increased during the car ride [home] and led to the laying out of the tarpaulins and the knife, to a moment of reflection on his intended act and its consequences and, finally, to an even greater anger from the last telephone conversation with [the victim] and after her entering his house, and the suspect proceeded to kill [the victim].
... The accused proceeded to implement a scenario conceived well in advance and, in any case, contemplated the consequences of his intended decision when he sat down on the sofa in the living room ... It cannot be said that a short period of time elapsed between the decision and its execution, nor that the accused had an opportunity for reflection only during the execution of the decision.”
31. The finding that the applicant was guilty of murder was based on the following items of evidence:
- an official record of the applicant’s arrest, dated 12 January 2014;
- an official record of findings concerning an interview with the applicant on 12 January 2014;
- an official record of the interview of the applicant, dated 13 January 2014;
- an official record of findings concerning the on-site visit on 12 January 2014;
- an official record of the interview of the applicant, dated 20 January 2014;
- the statement made by the applicant at the hearing of the Court of Appeal on 26 November 2015;
- official records of findings, dated 14 January 2014, 20 January 2014 and 17 March 2014, concerning the discovery of two tarpaulins, part of a knife and a bag containing the victim’s belongings;
- official records of findings, dated 17 January 2014, 18 March 2014 and 24 March 2014, concerning the examination of the applicant’s and victim’s phone data and the applicant’s social media account;
- a medical report, dated 10 January 2014, concerning a cut on the applicant’s hand;
- official records of interviews with witnesses, dated 14 January 2014 (concerning an employee of a petrol station where the applicant had been on 10 January 2014) and 16 January 2014 (concerning an individual who had seen the applicant at a waste disposal site on 11 January 2014);
- official records of findings, dated 30 January 2014 (concerning security camera footage of a petrol station where the applicant had been on 10 January 2014) and 13 February 2014 (concerning a sales receipt of a supermarket where the applicant had been on 10 January 2014);
- an official record of the crime scene, dated 28 January 2014;
- a medical report by a physician and pathologist of the Netherlands Forensic Institute, dated 11 April 2014, concerning the cause of death of the victim;
- an official record of findings, dated 15 January 2014, concerning the identification of the victim by family members;
- an official record of the forensic examination, dated 13 May 2014, concerning the discovery of traces of blood on a lawnmower in the applicant’s garage; and
- official forensic reports, dated 16 January 2014 (concerning a cut on the applicant’s hand) and 23 April 2014 (concerning traces of blood discovered on a tarpaulin). PROCEEDINGS IN THE SUPREME COURT
32. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). In his grounds of appeal, he complained about, among other things, the Court of Appeal’s conclusion in respect of premeditation and that court’s rejection of the defence’s argument concerning the right of a suspect to be assisted by a lawyer during police questioning. Relying, inter alia, on Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016), the defence took the position that the Court of Appeal had wrongly followed the case-law of the Supreme Court on this issue (see paragraphs 38-39 below) because that case-law could not be regarded as compliant with the Court’s case-law. The defence also complained that the proceedings before the Supreme Court had not complied with the reasonable time requirement under Article 6 § 1 of the Convention. 33. In his advisory opinion of 14 March 2017, the Procurator General (Procureur-Generaal) at the Supreme Court recommended that the appeal on points of law be dismissed, except for the complaint concerning the reasonable time requirement. Citing paragraphs 251, 257 and 260 of the Ibrahim and Others judgment, the Procurator General observed that in cases such as the present one – where a suspect was informed of his right to remain silent and provided the opportunity to consult with a lawyer prior to, but not during, police questioning – the “fairness of the proceedings as a whole” had to be assessed. He noted that the (old) practice, based on Supreme Court’s case-law, of police interviews of suspects with prior consultation rights but without assistance of a lawyer during questioning, did not necessarily constitute a violation of Article 6 §§ 1 and 3 (c) of the Convention in the light of the Court’s case-law. 34. As regards the case at hand, the Procurator General concluded that, even if restrictions on the right to having a lawyer present during police questioning and in certain other investigative acts were not unproblematic, there were – considering the proceedings as a whole – insufficient indications for the applicant’s claim that his right to a fair trial had been violated. 35. In a judgment of 4 July 2017, the Supreme Court referred to the relevant considerations by the Court of Appeal (see paragraph 30 above) and held that that court had given sufficient reasons for holding that the applicant had acted with premeditation. 36. With respect to the right to legal assistance during police interviews on 12 and 13 January 2014 and the Court of Appeal’s decision not to exclude from evidence those statements made in those interviews, the Supreme Court held that the Court of Appeal had erred in law by requiring a further explanation as to why the breach of procedural rules alleged by the defence in relation to the exercise of the right to consult with a lawyer should lead to the exclusion of evidence. To that extent this ground of appeal was considered well-founded. Nevertheless, the Supreme Court held that this did not warrant cassation because the Court of Appeal had determined that the applicant had consulted with his lawyer on 12 January 2014, prior to the first (substantive) interview regarding the applicant’s involvement in the offence with which he was charged. 37. The Supreme Court summarily dismissed the appeal in all other respects because the remaining grievances could not lead to cassation of the impugned judgment, except for the grievance concerning the reasonable time requirement. It quashed the Court of Appeal’s judgment in respect of the term of the prison sentence that had been imposed. It reduced the sentence to thirteen years and nine months’ imprisonment because the reasonable time requirement had not been complied with. RELEVANT LEGAL FRAMEWORK AND PRACTICE
RIGHT OF ACCESS TO A LAWYER IN CRIMINAL PROCEEDINGS
38. On 27 November 2008 the Court published its judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), in which it held that Article 6 § 1 of the Convention required that, as a rule, access to a lawyer should be provided as from the first interview of a suspect by the police, unless it was demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right. At that time, no right for detained suspects to have a lawyer present during such an interview existed in the Netherlands. 39. The Supreme Court gave its first view on the implications of this Court’s findings in Salduz (cited above) in a judgment of 30 June 2009 (ECLI:NL:HR:2009:BH3079). It considered that, in view of, inter alia, policy and the organisational and financial aspects involved, the drawing up of a general arrangement on legal assistance in relation to police interviews exceeded its judicial function (rechtsvormende taak). It observed that, nevertheless, the case-law of the European Court of Human Rights raised questions which national criminal courts would be called upon to answer in cases coming before them, and for that reason the Supreme Court determined as follows:
“2.5. The Supreme Court deduces from the case-law of the European Court of Human Rights (ECHR) that a suspect who finds himself under police arrest may derive from Article 6 of the Convention an entitlement to legal assistance which consists of him being provided with the opportunity to consult a lawyer prior to being interviewed by police about his involvement in a criminal offence. However, the case-law of the ECHR does not allow for the conclusion that a suspect is entitled to have a lawyer present during police interviews. The above entails that, prior to the commencement of the first interview, an arrested suspect is to be informed of his right to consult a lawyer. Save where he, either expressly or implicitly yet unequivocally, has waived that right, or where compelling reasons as referred to by the ECHR exist, he will have to be provided, within the limits of what is reasonable, with the opportunity to exercise that right.
2.6. The foregoing applies to arrested individuals who are adults under criminal law as well as to arrested individuals who are underage pursuant to criminal law. It must be noted that under-age suspects are in addition entitled to the assistance of a lawyer or another confidant [vertrouwenspersoon] during police interviews.”
40. On 22 December 2015 – that is, after the proceedings in the Court of Appeal in the applicant’s case (see paragraphs 23-31 above) – the Supreme Court accepted, having regard to the development of the case-law of the European Court of Human Rights, as well as Directive 2013/48/EU of the European Parliament and of the Council of the European Union[1] (OJ 2013, L 294, p. 1), that a suspect who finds him or herself under police arrest has a right to legal assistance by a lawyer during police interviews, save when compelling reasons exist to restrict that right (ECLI:NL:HR:2015:3608). Since law‑enforcement officers had had, prior to this judgment, no reason to suppose that the rules relating to legal assistance would be reinforced, and given that it could not be expected that they would immediately become acquainted with the judgment and its practical consequences, the Supreme Court expressed as its expectation that the right of a suspect in custody to the assistance of a lawyer during police questioning would be applied as of 1 March 2016. 41. Subsequently, in the light of the Supreme Court’s judgment of 22 December 2015 and in anticipation of the entry into force of legislation transposing Directive 2013/48/EU into national law, the Board of Procurators General (College van procureurs-generaal) announced on 10 February 2016 a number of amendments to the Instruction on legal assistance for police questioning (published in the Official Gazette (Staatscourant) 2016, no. 8884). Pursuant to these amendments, suspects were, as of 1 March 2016, to be informed of their right to be assisted by a lawyer during police questioning and enabled to give effect to that right. 42. The Code of Criminal Procedure was amended by Acts of 17 November 2016 (Official Bulletin (Staatsblad) 2016, nos. 475 and 476) which, among other things, transposed Directive 2013/48/EU into national law and enacted the right to legal assistance prior to and during police interviews. The Acts entered into force on 1 March 2017. 43. In a judgment of 17 December 2019 (ECLI:NL:HR:2019:1985) – that is, after giving judgment in the applicant’s case (see paragraphs 35-37 above) – the Supreme Court held that in cases where interviews had been conducted without the presence of a lawyer in the period before 22 December 2015, the question of whether a defendant had had a fair trial within the meaning of Article 6 of the Convention was, in the absence of compelling reasons, to be decided with due observance of, among other things, the factors mentioned in the case-law of the European Court of Human Rights, including in particular Ibrahim and Others (cited above). SANCTIONS FOR NON-COMPLIANCE WITH PROCEDURAL REQUIREMENTS BY CRIMINAL INVESTIGATION AUTHORITIES
44. Article 359a of the Code of Criminal Procedure reads, in so far as relevant, as follows:
“1. The [trial court] can, if it appears that in the preliminary investigation procedures have been disrespected that can no longer be repaired and the legal consequences thereof do not appear from the law, determine that:
a. the gravity of the sentence be mitigated in relation to the seriousness of the defect, if the disadvantage caused by the fault can be compensated in this way;
b. the results of the investigation having been obtained by the defect may not be used in evidence;
c. the prosecution is inadmissible, if owing to the defect there cannot be an examination of the case in compliance with the principles of proper proceedings. 2. In applying the first paragraph, the [trial court] takes into account the interests served by the infringed rule, the seriousness of the defect and the disadvantage caused by it.
...”
45. Article 359a of the Code of Criminal Procedure also applies to proceedings in the Court of Appeal (Article 415 § 1 of the Code of Criminal Procedure). OTHER RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE AND THE CRIMINAL CODE
46. Article 30 § 1 of the Code of Criminal Procedure provides that during the preliminary investigation (voorbereidende onderzoek) the Public Prosecution Service shall permit the suspect, at his request, access to the case documents (processtukken). 47. Pursuant to Article 33 of the Code of Criminal Procedure, a suspect must be given access to the case documents as soon as the indictment has been served on him. 48. Article 287 of the Criminal Code (Wetboek van Strafrecht) provides that anyone who deliberately deprives another of his life is guilty of manslaughter (doodslag). Article 289 provides that anyone who deliberately and with premeditation (met voorbedachten rade) deprives another of his life is guilty of murder (moord). 49. In a judgment of 28 February 2021 (ECLI:NL:HR:2012:BR2342), the Supreme Court clarified that for the element of “premeditation” it must be established that the accused was able to reflect for some time on the decision to be taken or the decision made and did not act in an instantaneous state of mind (ogenblikkelijke gemoedsopwelling), so that he had the opportunity to think about the meaning and consequences of his intended act and to take them into account. In this connection, it further held:
“2.7.3. The question of whether premeditation exists is pre-eminently a question of weighing and evaluating the circumstances of the concrete case by the judge ... While the finding that the accused had sufficient time to consider the decision to be made or the decision taken is an important objective indication that premeditation was involved, it need not prevent the judge from giving greater weight to contraindications. These may include, for example, the circumstance that the decision-making and execution occur suddenly and impulsively, that there is only a short time span between decision and execution, or that the opportunity for deliberation only arises during the execution of the decision. Thus, certain circumstances (or a combination thereof) may ultimately lead the court to conclude that the accused did not act with premeditation in the given case ... [E]specially if premeditation does not follow directly from the evidence, the court must pay further attention to it in its reasoning for the conviction.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
50. The applicant complained that the criminal proceedings against him, which focused on whether the applicant had killed the victim with premeditation, had been unfair because he had not been assisted by a lawyer during the initial police interviews and during the on-site visit to places relevant to the investigation, while the statements obtained on those occasions had been admitted by the trial courts as evidence for his conviction of murder. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 3. Everyone charged with a criminal offence has the following minimum rights:
... (c) to defend himself in person or through legal assistance ...”
Admissibility
51. The Court notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
52. Relying on, among other things, the judgment in Van de Kolk v. the Netherlands ([Committee], no. 23192/15, 28 May 2019), the applicant submitted that the lack in domestic law of a right to legal assistance during police questioning and on-site visits did not amount to a compelling reason to deny him the presence of a lawyer. 53. The applicant submitted further that the Government had not succeeded in rebutting the presumption of unfairness that had arisen as a result of the lack of compelling reasons. 54. In that connection the applicant claimed that he was a vulnerable first offender who had suffered from mild problems with anxiety, mood swings and panic attacks since the autumn of 2013, and that he had been deprived of sleep and been in an emotional state and suffering from memory loss when he had given statements to the police on 12 and 13 January 2014 and gone on the on-site visit. 55. He further argued that the right of consultation with a lawyer prior to police question had limited value in assessing overall fairness because the domestic law at the time allowed for such a consultation of no more than thirty minutes and did not provide for a right of legal assistance during on‑site visits. The applicant also argued that by informing him that he was suspected of murder only after he had had a consultation with his lawyer, the domestic authorities had deprived him of the opportunity to be effectively prepared for questions relevant to the element of premeditation and he claimed that the domestic courts had taken insufficient account of the consequences for a suspect of the absence of a lawyer when making statements. 56. In the applicant’s view, he could not be blamed for retracting parts of his statements so late because following the Regional Court’s decision of 15 April 2014 to grant his request to be heard before the investigating judge, that hearing could not be carried out earlier than 27 August 2014. 57. Lastly, the applicant maintained that the statements he had made to the police on 12 and 13 January 2014 and during the on-site visit had been the sole items of evidence of the element of the “premeditation” required for the charge of murder. (b)   The Government
58. As a preliminary remark the Government noted that the restrictions on the applicant’s right of access to a lawyer stemmed from the fact that domestic legislation and case-law at the relevant time did not recognise such a right for adult suspects. Drawing attention to the fact that the applicant’s trial had taken place well before the judgments in Ibrahim and Others (cited above) and Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018), the Government contended that at the relevant time such a right had not (yet) arisen from the Court’s developing case-law. The Government called upon the Court to consider the difficulties that the passage of time and the development of its case-law could have entailed for the domestic courts and law enforcement. 59. Applying the two stages of the test developed in the Court’s case law, the Government acknowledged that the criterion of “compelling reasons” was a stringent one and that the lack of a provision in national legislation or the interpretation of the law by the domestic courts at the time, were not compelling reasons that justified restrictions to the right of access to a lawyer. Observing that the absence of compelling reasons did not lead in itself to a violation of Article 6, the Government submitted that when assessing the specific facts of the present case in the light of the factors indicated in the Court’s case law (see paragraph 72 below), it could not be said that the criminal proceedings against the applicant, when considered as a whole, were rendered unfair by the admission in evidence of the applicant’s initial statements. In that connection the Government drew the Court’s attention to the following. 60. Firstly, the Government emphasised that the domestic legal framework applicable at the time of the applicant’s trial (that is, the Instruction on legal assistance for police questioning and case-law; see paragraphs 39-42 above) had been applied correctly. The Government noted in particular that the applicant had been offered an opportunity to consult with his lawyer prior to the first substantive interview, of which he had availed himself, and that he had repeatedly been informed of his right to remain silent. The Government submitted further that he had had the opportunity to prepare his defence effectively and to challenge the authenticity of the evidence and oppose its use. 61. Referring to the Court of Appeal’s findings (see paragraphs 28‑29 above), the Government further maintained that there was no reason to doubt the reliability or accuracy of the applicant’s statements, which had also been consistent. It had been established that the applicant had been fit for questioning during the initial police interviews and repeatedly expressed a willingness and ability to cooperate. The applicant was not particularly vulnerable by reason of age or mental capacity and had no difficulties expressing himself. He had also given consistent and extensive statements at later dates – for example, on 29 January and 6 February 2014, and at the hearing before the Court of Appeal on 26 November 2015, each time in the presence of his lawyer – that he had killed the victim. 62. The Government pointed out that it was not until 27 August 2014 (thus not “promptly”) that the applicant had retracted parts of his statements of 12 and 13 January 2014. The Government also drew the Court’s attention to the fact that the Court of Appeal had found the argument that the applicant’s earlier statements had been untruthful to be unconvincing. The appellate court noted that the police officers who conducted the interviews on 12 and 13 January 2014 had asked open-ended questions to which the applicant had given detailed and consistent answers that were also consistent with his responses to questions during the interviews of 29 January and 6 February 2014. 63. Lastly, the Government submitted that the applicant’s conviction for murder by the appellate court had been based on a large body of evidence, including evidence independent of and unrelated to his statements to the police such as telephone communications data and forensic evidence, and that the rulings of the domestic courts had been extensively reasoned in factual and legal terms.

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