THIRD SECTION
 
 
 
 
 
 
 
CASE OF VAN DE KOLK v. THE NETHERLANDS
 
(Application no. 23192/15)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
28 May 2019
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of van de Kolk v. the Netherlands,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Dmitry Dedov, President,
 Alena Poláčková,
 Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23192/15) 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 Hugo Johannes Charles van de Kolk (“the applicant”), on 8 May 2015. 2. The applicant was represented by Mr R.A. Korver, a lawyer practising in Amsterdam. The Dutch Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms B. Koopman, and their Deputy Agent, Ms K. Adhin, all three of the Ministry of Foreign Affairs. 3. On 17 December 2015 notice of the complaint concerning the lack of legal assistance during police interviews was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. On 18 February and 8 July 2016 the Government submitted a unilateral declaration in which they admitted a breach of the applicant’s rights under Article 6 §§ 1 and 3 (c) of the Convention and offered to pay him a sum to cover any pecuniary and non-pecuniary damage and to reimburse the costs for legal assistance incurred by him. The Government suggested that the Court strike the application out of its list on that basis in accordance with Article 37 § 1 of the Convention. The applicant disagreed with that proposal, submitting that national law would only allow him to apply for revision of the final domestic judgment concerning his conviction on the basis of a judgment in which the Court had concluded that a violation of the Convention had taken place (see paragraph 22 below). 5. On 23 January 2018 the Court decided not to strike the case out of its list of cases on the basis of the unilateral declaration submitted by the Government. It took note of the fact that, in the Netherlands, the possibility to apply for reopening of domestic proceedings following such a strike-out decision is not provided for by law and therefore not assured to the same extent as it is following a judgment in which the Court has found a violation of the Convention (see Aviakompaniya A.T.I., ZAT v. Ukraine, no. 1006/07, §§ 33 and 37-38, 5 October 2017). The Court further decided that it would adjourn its examination of the application pending the outcome of the proceedings in the case of Beuze v. Belgium (no. 71409/10) which was at that time pending before the Grand Chamber. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1990 and lives in Alphen aan den Rijn. A. Arrest and questioning of the applicant
7. On 19 August 2009 the applicant, who was then nineteen years of age, was arrested on suspicion of distribution of child pornography (three pictures of a 16-year-old girl) in April of that year. He was informed that he had the right to consult a lawyer. 8. At the police station the applicant was taken into police custody (inverzekeringstelling) and, before he had consulted his lawyer (who had not been immediately available) but with his consent, police officers commenced the so-called social interview (sociaal verhoor), during which questions were put to him about his personal circumstances and his personality but not about the offence of which he was suspected. He told the officers, inter alia, that he had a brain disorder: he had cavernous hemangiomas (clusters of abnormal blood vessels) in his brain and spinal cord. This did not affect his functioning other than that it might have a bearing on his trust in others; moreover, while he was allowed to play football he could not head the ball. When the applicant’s lawyer became available the police officers suspended the interview to give the applicant the opportunity to consult his lawyer by telephone. After that conversation, the applicant stated that his lawyer would come to see him at the end of the afternoon and that, on the advice of his lawyer, he would not answer any more questions. The interview was terminated. The applicant met with his lawyer later that day. 9. The following day, 20 August 2009, the applicant was interviewed twice, including concerning distribution of child pornography, of which he was suspected. At the beginning of the interview, the applicant stated that he would prefer to have his lawyer present. He was told that this was not possible and the interview was started. The applicant replied to the questions put to him. 10. In the course of the interview the police officers questioning the applicant noted that he made a spasm-like movement with his arm. They asked him whether he was having an epileptic fit. The applicant confirmed that he was. The police officers then decided to interrupt the interview and call a doctor. They heard the applicant say that the seizure could have been caused by a combination of stress and other factors. The interview was resumed. 11. A final interview was held with the applicant on 21 August 2009. Audio recordings were made of all the interviews. 12. The applicant was released from police custody on 21 August 2009. B. Proceedings before the domestic courts
13. On 25 March 2011 the Regional Court (rechtbank) of The Hague found the applicant guilty of distribution of child pornography and sentenced him to a suspended sentence of two weeks’ imprisonment and to eighty hours’ community service. The Regional Court was of the opinion that the applicant should have been enabled to consult his lawyer prior to being interviewed by the police for the first time. However, it did not appear from the subsequent interviews that they had been conducted without the applicant having been able to consult his lawyer. Given, moreover, that the contents of the interviews that had been conducted after the applicant had received legal assistance had not substantially differed from the content of the interview that had taken place without legal assistance, the Regional Court considered that the finding that a procedural requirement had not been complied with (vormverzuim) sufficed. The applicant lodged an appeal (hoger beroep). 14. On 3 July 2013 the Court of Appeal (gerechtshof) of The Hague quashed the decision of the Regional Court, convicted the applicant of the same offence and sentenced him to forty hours’ community service. As regards the claim that the applicant ought to have been assisted by a lawyer during the police interviews, the Court of Appeal held as follows:
“At the hearing on appeal counsel submitted that at the time of the police interviews the suspect had the mental age of a 15 or 16-year old, and also that he was suffering from a brain disorder which may have caused him to have epileptic seizures. Counsel did not submit (medical) data to substantiate that claim. In the opinion of the Court of Appeal, the above does not entail an indication for the officers who interviewed the suspect that he had the mental age of a 15 or 16-year old, nor that the brain disorder from which the suspect is apparently suffering was capable of causing an epileptic seizure. After the suspect had, in the eyes of the interviewing officers, made ‘a kind of spastic’ movement, they had consulted a physician before resuming the interview. The Court of Appeal considers that this was the correct course of action. The Court of Appeal does not agree with counsel that the interviewing officers ought reasonably to have considered the suspect as vulnerable or underage. This means in the light of the Salduz case-law that the suspect, who was an adult at the time, was not entitled to have a lawyer present at his interview.”
15. The Court of Appeal based its conviction of the applicant on the following evidence:
-  a complaint lodged with the police by the victim, who claimed that in March 2009 (when she had been 16 years old), she had shown the applicant various parts of her body via webcam, that she had subsequently been told by a third party that the applicant had sent photographs of her to that third party, and that she had been told by two other parties that they had received photographs of her;
-  a further statement made by the victim to the police, according to which she had taken a photograph of a part of her body and sent it to the applicant by mobile telephone;
-  a statement made by the applicant to the police on 20 August 2009 to the effect that he had sent several photographs (showing parts of the victim’s body), one of which he had taken by means of a screen shot while the others had been sent to him by the victim, to a third party via mobile telephone and that he had also uploaded them onto an image-hosting website;
-  a statement made by the aforementioned third party to the police, according to which she had received two photographs from the applicant showing parts of the victim’s body; and
-  a record drawn up by a police officer whose investigations into the victim’s allegations had shown that the photographs showing part of the victim’s body were accessible on the world wide web via a profile with a name used by the applicant on the above-mentioned image-hosting website. 16. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), complaining, inter alia, of the refusal to allow him to be assisted by his lawyer during police questioning. On 18 November 2014 the Supreme Court dismissed the appeal with summary reasoning, in accordance with section 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). Under that provision, the Supreme Court may limit its reasoning in a decision to a finding that a complaint does not provide grounds to overturn the judgment appealed against or does not require answers to questions of law in the interests of the uniform application or development of the law. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Right of access to a lawyer in criminal proceedings
17. On 27 November 2008 this 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 requires that, as a rule, access to a lawyer should be provided as from the first interview of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. At that time, no right for detained suspects either to consult a lawyer prior to a police interview or for suspects to have a lawyer present during such an interview existed in the Netherlands. 18. The Supreme Court of the Netherlands gave its first elaborate 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, Netherlands Law Reports (Nederlandse Jurisprudentie – “NJ”)) 2009, no. 349) – that is to say just under two months before the applicant in the present case was interviewed by police. 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). Nevertheless, the Strasbourg Court’s case-law 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 underage suspects are in addition entitled to the assistance of a lawyer or another confidant (vertrouwenspersoon) during police interviews.”
19. On 22 December 2015 – thus after the termination of the national proceedings in the present case – the Supreme Court accepted, having regard to the development of the Strasbourg Court’s case-law 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, NJ 2016, nr. 52). 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. 20. 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 (Aanwijzing rechtsbijstand politieverhoor; 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. 21. Legislation – in the shape of amendments to the Code of Criminal Procedure (Wetboek van Strafvordering) – transposing Directive 2013/48/EU into national law and thereby enacting the right to legal assistance prior to and during police interviews entered into force on 1 March 2017. B. Possibility of reopening criminal proceedings
22. Article 457 of the Code of Criminal Procedure governs the possible means of obtaining revision (herziening) of final judgments. In so far as relevant, it provides as follows:
“1. Following an application by the Procurator General or by the former suspect in regard of whom a judgment or appeal judgment has become irrevocable, the Supreme Court may, for the benefit of the former suspect, review a judgment entailing a conviction rendered by the courts in the Netherlands:
...
b.  on the grounds of a ruling (uitspraak) of the European Court of Human Rights in which it was determined that the European Convention for the Protection of Human Rights and Fundamental Freedoms or a Protocol to this Convention was violated in proceedings which led to a conviction or a conviction for the same offence, if review is necessary with a view to legal redress as referred to in Article 41 of that Convention;
...”
23. If the Supreme Court accepts a request for revision based on Article 457 § 1 (b), it may either itself determine the criminal charges after reopening the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 472 § 1 in conjunction with Article 471 of the Code of Criminal Procedure). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
24. The applicant complained under Article 6 § 3 of the Convention that he had been denied assistance by a lawyer during police questioning. 25. The Court considers that this complaint falls to be examined under paragraphs 1 and 3 (c) of Article 6, which, in so far as relevant, provide 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:
(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;”
A. Admissibility
26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
27. The applicant argued that he had not had a fair trial in that he had wrongly been denied the assistance of a lawyer during police interviews. This was the more so as, although no longer officially a minor at the time, he had had the mental age of a 15 or 16-year old and was suffering from a brain disorder. 28. The Government did not wish to make any observations in the present case in view of a number of developments with regard to the applicable law on the right of access to a lawyer in criminal proceedings. Thus, the Government had submitted a proposal to the Lower House of Parliament (Tweede Kamer der Staten-Generaal) to amend the Code of Criminal Procedure in accordance with Directive 2013/48/EU (see paragraph 20 above) and, anticipating the entry into force of certain of those amendments to the Code of Criminal Procedure, the Supreme Court had ruled in December 2015 that suspects would be entitled to the presence of a lawyer during police questioning as of 1 March 2016 (see paragraph 19 above). 2. The Court’s assessment
29. After its judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) (see paragraph 17 above), the Court further clarified the general principles to be applied in cases concerning a restriction on the right of access to a lawyer and fairness of the proceedings in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, §§ 249-74 ECHR 2016); and Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, ECHR 2017 (extracts); and confirmed them recently in Beuze v. Belgium ([GC], no.71409/10, §§ 119‑50, 9 November 2018). 30. Applying those principles to the present case, the Court observes at the outset that it is not in dispute that, having been arrested on suspicion of distribution of child pornography and finding himself in police custody, the applicant was charged with a criminal offence within the meaning of Article 6 § 3 of the Convention (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein). As such, the guarantees laid down in Articles 6 §§ 1 and 3 (c) as interpreted by the Court entailed that he had, inter alia, a right to be assisted by a lawyer during police interviews (see Beuze, cited above, §§ 133-34), unless there were compelling reasons to restrict that right (see Beuze, cited above, §§ 142-43). 31. In view of the fact that there is no indication in the case file that on either 19 or 21 August 2009 the applicant made any statements that were to play a role in his conviction, the Court will focus its examination on the interviews which took place on 20 August 2009, as statements made by the applicant on that day were used for his conviction (see paragraph 15 above). 32. The Court notes that when the applicant at the start of the police interview on 20 August 2009 indicated that he wished to be assisted by his lawyer, he was told that that was not possible (see paragraph 9 above). The Court does not discern from the material in the case file that there were any compelling reasons for the restriction of the applicant’s rights. Rather, it would appear that the only reason not to allow the applicant’s lawyer to be present at the interview was the fact that at the relevant time there was no right in the Netherlands providing for legal assistance during police questioning to adult suspects (see paragraphs 17-18 above). The Court has previously held that such a general and mandatory restriction on the right to be assisted by a lawyer during the pre-trial phase of criminal proceedings does not constitute a compelling reason (see Salduz, cited above, § 56, and Beuze, cited above, §§ 138 and 142). 33. Whilst the absence of compelling reasons does not lead in itself to a finding of a violation of Article 6 (see Ibrahim and Others, cited above, § 262), such absence weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The burden of proof falls on the Government, which must demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 165). 34. In the present case the Government have not advanced any argument in substantiation of a claim that the applicant nevertheless had a fair trial. That being the case, the Court considers that the aforementioned burden of proof has not been discharged, a finding which is sufficient to enable it to conclude that the failure to allow the applicant to be assisted by his lawyer during the police interviews on 20 August 2009 rendered the proceedings as a whole unfair. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.

Outcome for Article 6: violation