CASE OF DVORSKI v. CROATIA

1. The case originated in an application (no. 25703/11) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Ivan Dvorski (“the applicant”), on 16 April 2011.
2. The applicant was represented by Ms S. Maroševac-Čapko, a lawyer practising in Rijeka. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3. The applicant alleged, in particular, that he had not had a fair trial because he had not been allowed to be represented by a lawyer of his own choosing during police questioning and that incriminating statements he had made had been used to convict him.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 28 June 2011 the President of the First Section decided to give notice of the application to the Government. On 5 November 2013 a Chamber of that Section, composed of Isabelle Berro- Lefèvre, President, Mirjana Lazarova-Trajkovska, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković and Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, gave judgment. They unanimously declared the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible. They held by a majority that there had been no violation of Article 6 § 1 of the Convention. The joint dissenting opinion of Judges Berro- Lefèvre and Laffranque was annexed to the judgment.
5. In a letter of 21 February 2014, the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber granted the request on 14 April 2014.
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. Judge Karakaş was subsequently prevented from taking part in the case and was replaced by the first substitute judge, Ján Šikuta (Rule 28).
8. The applicant and the Government each filed further observations on the merits (Rule 59 § 1).
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 21 January 2015 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs Š. Stažnik, Agent, Ms N. Katić, Ms M. Briški, Ms S. Raguž, Mr Z. Budimir, Advisers;
(b) for the applicantMs S. Maroševac- Čapko, Counsel.
The Court heard addresses by Ms Maroševac- Čapko and Ms Stažnik, as well as their replies to questions put by Judges Griţco, López Guerra, Vehabović, Hirvelä, Pinto de Albuquerque, Zupančič, Kalaydjieva and Šikuta.
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1986 and lives in Rijeka.
11. On 13 March 2007, between 2 and 3.30 a.m., three murders, an armed robbery and an arson attack were committed in Vežica, a residential neighbourhood of Rijeka.
12. Later that day, a number of people from Vežica were brought in for questioning at the Rijeka Third Police Station of the Primorsko-Goranska Police Department ( Policijska uprava Primorsko-goranska, Treća policijska postaja Rijeka – “Rijeka Police Station”).
13. At about 1 p.m. the same day, the applicant was brought to Rijeka Police Station for questioning. Blood samples were taken from him for DNA analysis and the police searched his flat and through his mobile phone and seized a number of his personal items.
14. The applicant was kept at Rijeka Police Station until his formal arrest at 9.50 a.m. on 14 March 2007 in connection with the above offences.
B. The applicant’s questioning by the police on 14 March 2007
1. The applicant’s version of events
15. According to the applicant, at about 10.40 a.m. on 14 March 2007 his mother, who lived and worked in Italy, called a lawyer, G.M., and asked him to represent the applicant. G.M. came to Rijeka Police Station at 10.45 a.m. but the police officers refused to let him see the applicant. G.M. remained in Rijeka Police Station until midday. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney, and pushed him out of the police station. G.M. immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made a note in their case file. The Rijeka County Court was also immediately informed.
16. At around 1.30 p.m. the applicant’s father signed a power of attorney in favour of G.M. to defend his son. A legal trainee, B.P., then tried to submit the power of attorney to the police but was told to leave.
17. At some time between 3 and 3.30 p.m. G.M. again tried to contact the applicant in Rijeka Police Station but was denied access to him.
18. At about 3.30 p.m. G.M. reported the events described above to the Chief of the Primorsko-Goranska Police Department, V., who made a note regarding their conversation.
19. The applicant was never informed by the police that G.M. had been instructed to represent him and had come to Rijeka Police Station.
20. According to the applicant, he had repeatedly asked the police officers in Rijeka Police Station to contact G.M., but was told that they had tried but there had been no answer.
2. The Government’s version of events
21. According to the Government, at 6 p.m. on 14 March 2007 the applicant agreed to be represented by a lawyer, M.R., a former chief of the Primorsko-Goranska Police. He arrived at Rijeka Police Station at about 7.45 p.m. The Government state that the applicant chose M.R. from a list of lawyers of the Rijeka Bar Association presented to him by the police and that the questioning of the applicant began at 8.10 p.m. According to the record of the applicant’s questioning, the police advised him of his right not to incriminate himself and his right to remain silent and he expressly stated for the record that his lawyer was M.R.
3. Extract of the record of the applicant’s questioning
22. The relevant part of the record of the police questioning of the applicant by Officers T.K. and Z.N. on 14 March 2007, which commenced at 8.10 p.m. and concluded at 11 p.m., reads as follows:
“I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with [M.]R. I have decided to give my evidence.”
The record then gives the applicant’s description of the relevant events concerning the charges against him: he confessed that on the night of 13 March 2007, together with L.O. and R.Lj., he had gone to Đ.V.’s flat in Vežica, where he had taken a certain amount of money from Đ.V. and then shot and killed him, his girlfriend and his father. He had then set their flat on fire in order to destroy any trace of his having been there. He also stated that he had promised L.O. and R.Lj. that he would confess to the crimes and take the blame himself if they were arrested.
The final part of the report reads:
“I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and am signing it as truthful.”
Every page of the record of the applicant’s statement is signed by him.
C. Questioning by an investigating judge on 15 March 2007 at 1.15 p.m.
23. The relevant part of the written record of the applicant’s questioning by an investigating judge reads as follows.
“In response to a question by the court regarding the choice of defence counsel since the case file includes a record of the questioning of the suspect in the presence of defence counsel M.R., and also a power of attorney signed by his parents in favour of the lawyer G.M., the suspect answers:
‘I wish to sign the power of attorney for G.M., a lawyer from Rijeka, and I am hereby withdrawing the power of attorney for M.R.’
In response to a question by defence counsel as to whether he had instructed [M.]R. to represent him, the suspect answers:
‘No, I did not. I specifically told the police officers that I wanted G.M. to represent me.
I do not know anything about G.M. coming to the police premises.’
In response to a further question by defence counsel as to whether he was under the influence of drugs, the accused answers:
‘I was under the influence of alcohol and drugs.’
24. On 16 March 2007 G.M. applied to the investigating judge for the Rijeka County State Attorney and all his deputies to be removed from the case. The investigating judge forwarded the request to the Rijeka County State Attorney’s Office. The relevant part of the request reads as follows.
“About thirty minutes ago, counsel for the defence learned that the Rijeka County State Attorney, D.H., had been present during the questioning of Ivan Dvorski as a suspect by police officers of Rijeka Police Station on 14 March 2007 at around 7 p.m., in the presence of the ‘defence lawyer’ M.R.
On the same date, at around 10.40 a.m., the mother of Ivan Dvorski, Lj.D., who lives and works in Italy, called [G.M.] and asked him to defend her son Ivan, who was suspected of the offence of aggravated murder. At around 10.45 a.m., [G.M.] went to Rijeka Police Station but the police officers refused to let him see Ivan Dvorski and also did not tell [Ivan Dvorski] that his mother had instructed a lawyer. [G.M.] remained in Rijeka Police Station until 12 noon. He wanted to file a criminal complaint against an unknown person for abuse of power and unlawfully extracting a confession, but the police officers refused to accept his complaint on the ground that he had no power of attorney and pushed him out of the police station. [G.M.] immediately informed the Rijeka County Deputy State Attorneys, D.K. and I.B., about the incident and they made an official note in their case file.
Therefore, at around 12.30 p.m. the Rijeka County State Attorney already knew that [G.M.] had been retained by [Ivan Dvorski’s] mother and that he had not been able to contact his client.
The [Rijeka] County Court was also immediately informed.
At around 1.30 p.m. Ivan Dvorski’s father signed a power of attorney for the defence of his son. A legal trainee, B.P., [then] tried to submit the power of attorney to the police but was told to ‘fuck off with that power of attorney’ and therefore it was not submitted.
At around 3 to 3.30 p.m. [G.]M. again tried to contact his client in Rijeka Police Station but was denied access to him ... However, the defendant was never informed that a defence lawyer had been instructed and had come to Rijeka Police Station.
At around 3.30 p.m. [G.M.] informed the Chief of the Primorsko-Goranska Police Department ..., V., who apparently made an official note concerning their conversation. However, the defendant was never informed that a defence lawyer had been retained and was also never asked whether he wanted to be represented by the lawyer instructed by his family.
Besides that, ever since he had been brought to Rijeka Police Station, [Ivan Dvorski] had asked on a number of occasions for [G.M.] to be contacted but was told by the police officers that they had tried but there had been no answer. When he was brought to the police station, blood samples were taken from the defendant. They showed that he had a high level of alcohol and drugs in his blood.
Between 1 p.m. on 13 March 2007 and around 7 p.m. on 14 March 2007 (these time periods are only known to [G.M.] from informal sources because he had no access to the Rijeka County State Attorney’s case file), the defendant was not given any food.
It is clear that, although all these facts were known to the Rijeka County State Attorney, D.H., he disregarded them and, although present in person, allowed the defendant to be questioned in the presence of a lawyer who had [neither been requested by him] nor ... instructed by his family. This amounts to unlawfully extracting a confession, in breach of Article 225 § 8 of the Code of Criminal Procedure, given that the Rijeka County State Attorney, since about 12.30 p.m. [on 14 March 2007], had known who the [applicant’s chosen] defence lawyer was.
On the same date [G.M.] sent the power of attorney to the Primorsko-Goranska Police Department and written complaints were also sent to the Supreme Court of the Republic of Croatia, the State Attorney General of the Republic of Croatia, the Rijeka County State Attorney’s Office, the Croatian Bar Association, the Ministry of Justice, the Ministry of the Interior, the Chief of the Primorsko-Goranska Police Department and the Rijeka County Court. ...”
25. On 16 March 2007 an investigation was opened in respect of the applicant, L.O. and R.Lj. on suspicion of having committed the three aggravated murders and arson in Vežica on 13 March 2007.
26. On 23 March 2007 the State Attorney General of the Republic of Croatia ( Glavni državni odvjetnik Republike Hrvatske ) dismissed G.M.’s request for the removal of the Rijeka County State Attorney on the ground that there were no reasons for disqualifying him from dealing with the case. The relevant part of the decision reads as follows.
“... a statement from D.H., the Rijeka County State Attorney, has been obtained.
In his statement the Rijeka County State Attorney states that on 14 March 2007 at about 10 a.m. he was on the premises of the Rijeka Police Station together with his colleague, I.B.-L., where they were informed of the evidence thus far obtained, and all the evidence that remained to be taken in connection with the events in issue. He came back to the County State Attorney’s premises at about 1 p.m., when the deputies, D.K. and I.B., informed him that G.M. had come to the premises of the County State Attorney and made a complaint regarding the conduct of the police officers of the Rijeka Police Station in refusing him access to Ivan Dvorski, even though he had been given an oral authorisation by Ivan Dvorski’s mother, [who had called him from] Italy. The lawyer had not presented any proof of his authority to represent Ivan Dvorski or of his telephone conversation with Ivan Dvorski’s mother. He had not been able to make contact with the suspect’s father, having been unable to find him since he had no fixed address.
After [the Rijeka County State Attorney, D.H.], had left the premises of the County State Attorney, he had had no further information regarding the actions of the above-mentioned lawyer.
At 5 p.m. [D.H.] returned to the Rijeka Police Station in connection with the case in issue. There, an inspector of the Primorsko-Goranska Police Department told him that Ivan Dvorski was willing to submit his defence in the presence of his defence counsel, M.R., and it was agreed that the questioning would start at about 7 p.m. M.R. arrived at the Rijeka Police Station at 6.40 p.m. and together they went to the room where Ivan Dvorski was. There, the suspect signed the power of attorney in favour of M.R. and agreed that [M.R.] would be present during his questioning by the police. After that, at the request of M.R., the suspect was allowed to talk to the lawyer in private. After ten minutes they all moved to another room, where the suspect, in the presence of his lawyer, the County State Attorney, two police inspectors and a typist, put forward his defence, which was recorded in writing, and all this lasted for more than three hours. After that they all signed the written record [of questioning] and he left the room with M.R.”
27. On 26 March 2007 the Rijeka County State Attorney dismissed the request for the removal of his deputies on the same grounds. The relevant part of that decision reads as follows.
“A Rijeka County Deputy State Attorney, I.B.-L., stated that she had not participated at all in the questioning of Ivan Dvorski by the police, and that she had no knowledge of that stage of the proceedings and, in particular, that she had had no information regarding Ivan Dvorski’s representation by or choice of defence counsel during his questioning. She only knew that on 14 March 2007 G.M. had come to the premises of the Rijeka County State Attorney, where she had met him. He had made a complaint regarding the choice of defence counsel for Ivan Dvorski. He had said that he was Ivan Dvorski’s defence counsel, having been authorised by his mother in a telephone conversation. She [I.B.-L.] commented that that could not constitute a valid power of attorney ...
The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that the only information they had regarding the conduct of the police came from [G.]M., who wanted to made a complaint regarding the conduct of police officers in connection with the choice of lawyer to represent and defend Ivan Dvorski. ... D.K. drew up an official note about this matter and presented it to G.M. The statements of the Rijeka County Deputy State Attorneys, D.K. and I.B., show that [G.M.] had mentioned a power of attorney given to him by Ivan Dvorski’s mother, who lived in Italy and with whom G.M. had talked on the telephone. The Deputies told him that a power of attorney given by telephone could not be considered valid. They had no knowledge of any other acts, including the obtaining of a power of attorney from Ivan Dvorski’s father ...”
28. On 28 March 2007 G.M. informed the Rijeka County Court that he would no longer be representing the applicant and on 30 March 2007 the President of the Rijeka County Court appointed a legal-aid lawyer, Ms Maroševac- Čapko, to represent the applicant.
29. During the investigation, evidence was taken from a number of witnesses, and a report on the inspection of the crime scene and the search and seizure, as well as medical, fire and ballistics expert reports, were obtained by the investigating judge.
30. On 12 July 2007 the Rijeka County State Attorney’s Office indicted the applicant, L.O. and R.Lj. in the Rijeka County Court on three counts of aggravated murder and one count of arson committed on 13 March 2007 in Vežica.
31. The applicant, represented by Ms Maroševac- Čapko, lodged an objection against the indictment with the Rijeka County Court on 24 July 2007 on the ground that it contained numerous substantive and procedural flaws. He also argued that he had given his statement to the police under the influence of alcohol and drugs. He made no comments regarding his legal representation during the police questioning.
32. The applicant’s objection against the indictment was dismissed as ill-founded by a three-judge panel of the Rijeka County Court on 28 August 2007.
33. On 9 October 2007, the first day of the trial, the applicant and the other accused pleaded not guilty to all charges and the trial court heard evidence from seven witnesses.
34. Another hearing was held on 11 October 2007, at which the trial court examined video-recordings of the crime-scene investigation and the autopsies of the victims.
35. Further hearings were held on 12 November 2007 and 11 January 2008, at which the trial court heard evidence from nine witnesses.
36. At a hearing on 14 January 2008, two experts in toxicology, a fingerprint expert, a ballistics expert and a DNA expert gave evidence. The defence made no objections in respect of their evidence. At the same hearing four other witnesses gave evidence.
37. At a hearing on 15 January 2008, the trial court heard evidence from another expert in toxicology and a pathologist, as well as thirteen other witnesses. The defence made no objections in respect of the evidence of the expert witnesses but asked the trial court to commission a psychiatric report in respect of the applicant.
38. At the same hearing the defence lawyer asked for a handwriting expert’s report to be commissioned in respect of the applicant’s signature on the record of his statement given to the police on 14 March 2007. She argued that the applicant had not signed any record during his questioning by the police.
39. The trial court considered that for the time being it was not necessary to commission a psychiatric report and thus dismissed the applicant’s request to that effect. However, it commissioned a handwriting expert’s report in respect of the signature on the record of the applicant’s statement given to the police.
40. On 23 January 2008 the handwriting expert submitted her report. She found that the applicant had signed the record of his statement given to the police on 14 March 2007.
41. Another hearing was held on 12 March 2008, at which a medical expert, fire expert witnesses and one other witness gave evidence. The handwriting expert also gave oral evidence confirming her previous findings. The applicant’s lawyer challenged the veracity of these findings and applied to have another report commissioned, but the application was rejected by the trial court. At the same hearing, the trial court commissioned a psychiatric report in respect of the applicant and the other accused.
42. On 2 April 2008 the applicant asked the Rijeka County Court to call the lawyer, G.M., as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced to confess by the police officers.
43. On 24 April 2008 the two psychiatric experts submitted their report to the Rijeka County Court. They found that the applicant suffered from borderline personality disorder and addictions to heroin and alcohol. However, they found no distinctive mental disorder or illness. They concluded that, even assuming that he had been intoxicated at the time the murders had been committed, he had retained the mental capacity to understand the nature of his acts, although it had been diminished to a certain degree. As to his mental capacity concerning the charge of arson, they concluded that, at the time the offence had been committed, the applicant had been able to understand the nature of his acts and to control his actions.
44. At a hearing on 26 June 2008, the psychiatric experts confirmed their findings and the parties made no objections in respect of their evidence. The trial court also dismissed the applicant’s request for G.M. to be heard as a witness, on the ground that all the relevant facts had already been established.
45. At the same hearing one of the accused, R.Lj., confirmed the course of the events as described by the applicant in his statement given to the police on 14 March 2007. R.Lj. claimed, however, that he had not personally participated in the killings, because he had panicked and had left the flat when he had heard fighting.
46. After R.Lj. had given his statement, the Rijeka County Deputy State Attorney amended the indictment. The applicant was charged with three counts of aggravated murder, armed robbery and arson, and L.O. and R.Lj. were charged with armed robbery and aiding and abetting the perpetrator of an offence. The applicant and the other accused pleaded not guilty to the charges listed in the amended indictment.
47. On 27 June 2008 L.O. gave oral evidence confirming the course of the events as described by R.Lj. He stated that after the applicant had got into a fight with Đ.V. he had heard gunshots, after which he had panicked and left the flat.
48. At the same hearing the parties submitted their closing arguments. The applicant’s defence lawyer argued that it had not been proved that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court took a different view, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.
49. On 30 June 2008 the Rijeka County Court found the applicant guilty of the three counts of aggravated murder and of the charges of armed robbery and arson and sentenced him to forty years’ imprisonment. The trial court first examined the applicant’s confession against those of the other co-accused, L.O. and R.Lj., and found that his confession was essentially consistent with the evidence provided by them. In finding the applicant guilty, the trial court also assessed his confession against the evidence from the case file.
50. The trial court relied in particular on the search and seizure records and photographs depicting L.O. holding the same type of handgun as had been used for the murders. On the basis of the witness statements and the recording of a nearby video surveillance camera, the trial court concluded that the applicant and the other co-accused had gone to Đ.V.’s flat on the date in question. Furthermore, the ballistics reports and the crime-scene reports indicated that the details of the statements of the applicant and his co-accused were accurate, and the course of the events was ascertained on the basis of the fire, ballistics, toxicology and DNA reports. The trial court also found that the statements of the accused as to the manner in which the murders had been carried out were supported by the autopsy reports, the evidence of the pathologist provided at the trial, the crime-scene report and the witness statements about the gunshots that had been heard in Đ.V.’s flat. Furthermore, as to the arson charge, the trial court examined the material from the crime-scene investigation and the evidence from the fire expert report, as well as medical records and damage reports submitted by the victims, and the statements of a number of residents in the building where the fire had occurred.
51. As regards the applicant’s questioning by the police and the request made by the defence to hear evidence from G.M. (see paragraphs 42 and 44 above), the Rijeka County Court noted as follows.
“The first accused, Ivan Dvorski, confessed to the criminal offences of robbery, aggravated murder of Ɖ. V., M. Š. and B.V. ..., exactly as is stated in the operative part of this judgment, to the police and in the presence of a defence lawyer. He later tried to contest that statement, claiming that he had not instructed the defence lawyer, M.R., that he had told the police officers that he wanted G.M. as his lawyer, that at the time he had been taken to the police station he had been under the influence of alcohol and drugs, and so on. However, this defence is not acceptable. The written record of arrest shows that Ivan Dvorski was arrested on 14 March 2007 at 9.50 a.m. at the Rijeka Police Station, and [M.]R., in favour of whom Ivan Dvorski signed the power of attorney, came to the police station on 14 March 2007 at 7.45 p.m. The written record of the questioning of the then suspect Ivan Dvorski shows that M.R. was informed at 6.15 p.m. and that the questioning started at 8.10 p.m. Besides the officers of the Rijeka Police, a typist and the defence lawyer of the then suspect Ivan Dvorski, the County State Attorney was also present during the questioning. The introductory part of the written record [indicates] that the then suspect Ivan Dvorski clearly stated that he had chosen and authorised M.R. to act as his defence lawyer and had consulted with him, after which he decided to give his statement. The written record is properly signed by the persons present. The first accused Ivan Dvorski had read the written record before signing it. Thus, the above shows without doubt that the contentions of Ivan Dvorski that he had not retained M.R. as his lawyer are unfounded. During the trial, at the request of Ivan Dvorski’s defence, a handwriting expert gave her opinion regarding the signature of Ivan Dvorski on the written record of his questioning by the police. The expert opinion proved beyond any doubt that the contested signature was that of Ivan Dvorski. The panel accepts such findings in their entirety; the findings were further explained at a hearing by the expert Lj.Z. Her findings were given in an objective, impartial and professional manner. Therefore, the questioning of Ivan Dvorski by the police was carried out in compliance with the provisions of the Code of Criminal Procedure.
The request made by [Ivan Dvorski’s] defence to call G.M. as a witness ... was dismissed as irrelevant, since the documents from the case file do not reveal that there was any extraction of a confession by the police, but only [record] the time at which [M.]R. came [to the police station], whereupon the questioning of [Ivan Dvorski] in the presence of the lawyer for whom he had signed a power of attorney started ... Nobody, including [Ivan Dvorski’s] defence lawyer who was present during the police questioning – [M.]R. – has alleged any unlawful extraction of a confession and there is no indication of this in the record of the statement given by Ivan Dvorski, [who] at the time [was] only a suspect.”
52. The applicant lodged an appeal against the first-instance judgment with the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 6 November 2008. He complained, inter alia, that the conviction had been based on his confession to the police, which had not been given in the presence of a lawyer of his own choosing, namely G.M., but in the presence of a lawyer, M.R., who had been offered to him by the police. The applicant also referred to the request for the removal of the Rijeka County State Attorney and all his deputies lodged by G.M. on 16 March 2007, highlighting the part of that request which stated that he had been denied food during his detention in police custody. The relevant part of the applicant’s appeal reads as follows.
“The statement given by the first accused to the police was unlawfully obtained, for the following reasons. When the first accused was brought to the Rijeka Police Station his defence rights were seriously infringed. However, during the trial this infringement was ignored. On 14 March 2007, the first accused’s mother and then also his now late father retained G.M. as his defence lawyer before the police, after he had been arrested. However, G.M. was not allowed access to the accused, and subsequently informed the relevant authorities thereof, but they ignored this. G.M. therefore lodged an action in the Rijeka Municipal Court in respect of an unlawful act, as well as a request for the removal of the Rijeka County State Attorney and all his deputies. In that request he alleged that the first accused had not been given any food by the police from 13 March 2007 at 1 p.m., when he had been brought to the Rijeka Police Station, until he had agreed to be represented by M.R. on 14 March at about 7 p.m. so as to give a self-incriminating statement, which was in violation of Article 225 § 8 of the Code of Criminal Procedure. Because of that, the defence asked for G.M. to be examined [at the trial] since he had knowledge about the questioning of the first accused by the police.”
53. On 8 April 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded. As regards his complaints concerning his statement to the police, that court noted:
“... The lawfulness of [the statement given to the police] was not put in doubt by the appellant’s complaints that M.R. was not his lawyer and that his lawyer was G.M., who had been retained by his father and mother on the same day, or by the appellant’s complaints that he had been denied food in the period between 1 p.m. on 13 March 2007 and 7 p.m. on 14 March 2007 until he had agreed to instruct M.R. to act as his lawyer, since according to the record of his arrest ..., the appellant was arrested at 9.50 a.m. on 14 March 2007 and the lawyer M.R. arrived [at the police station] at 6.45 p.m. on the same day.”
54. The applicant lodged a further appeal against the judgment of the Court of Appeal with the Supreme Court on 14 September 2009, reiterating his previous arguments. The relevant part of the appeal reads as follows.
“The first accused has to comment on the conclusions of the appeal court that the allegation that food was denied to him from 1 p.m. on 13 March 2007 until he agreed to be represented by M.R. at 7 p.m. on 14 March 2007 had no bearing on the lawfulness of the evidence [(the record of his questioning)] because the written record of his arrest showed that he had been arrested on 14 March 2007 at 9.50 a.m. and that M.R. had arrived on the same day at 6.45 p.m. The Record of Attendance F/949, which is in the case file, shows that the first accused was brought to the police station on 13 March 2007 at 2 p.m. and was kept there. He was arrested the next day, as found by the first-instance court. However, it is not true that M.R. came to the police station at 6.45 p.m.: he came at 7.45 p.m., which shows that the allegations of the first accused are true. That fact could have been verified by the evidence of G.M., who represented the first accused during the investigation ...”
55. On 17 December 2009 the Supreme Court, acting as the court of final appeal, dismissed the applicant’s appeal as ill-founded. That court pointed out that the record of the applicant’s statement suggested that he had chosen M.R. to represent him during police questioning and that M.R. had provided him with adequate legal advice. The Supreme Court also noted that there was nothing in the case file to indicate that the applicant had been ill-treated or forced to confess. The relevant part of the judgment reads as follows.
“The appellant erroneously argues that the first-instance court committed a grave breach of criminal procedure, contrary to Article 367 § 2 of the Code of Criminal Procedure, in basing his conviction on the statement he gave to the police in the presence of a defence lawyer, which [in the appellant’s view] constitutes unlawfully obtained evidence for the purposes of Article 9 § 2 of the Code of Criminal Procedure, and that the record of his questioning as a suspect by the police (in the presence of a defence lawyer) should thus have been excluded from the case file. In so doing, the appellant challenges the reasoning of the second-instance judgment to the effect that the lawfulness of the evidence was not affected by the appellant’s arguments that during his apprehension and arrest he had not been given food until he had agreed to be represented by M.R. These arguments of the appellant were refuted by the second-instance court on the basis of all the formally established information contained in the record of [his] questioning in the presence of a lawyer on 14 March 2007.
This Court notes that [the complaint] regarding the question of the presence of a lawyer [during the questioning], as a legal requirement for the lawfulness of evidence obtained in this way during the police investigation, relates to two objections. The first objection concerns the restriction of access to the lawyer of [the defendant’s] own choosing, and the second objection relates to the pressure exerted on the suspect through the denial of food (Article 225 § 8 of the Code of Criminal Procedure), which, according to the appeal, eventually made him accept legal representation by the lawyer imposed on him, M.R., although his parents had already engaged the services of G.M. on the morning of 14 March 2007.
It is to be noted that during the police criminal investigation a number of persons with a background of drug abuse, and with links to the victim Đ.V., were arrested, in particular from the neighbourhood of Gornja Vežica, and it was in the course of this action that the accused, Ivan Dvorski, was also apprehended. Only when a probable cause was established that the accused could have been the perpetrator of the offences in issue was he arrested on 14 March 2007 at 9.50 a.m.
At the same time the father of the accused, who was in Croatia, whereas the accused’s mother was in Italy, was informed [of the arrest] by the police at 2.10 p.m., which shows that from that moment the father of the accused (after a telephone conversation with his mother) could have engaged the services of a lawyer for the accused, for which he would most certainly have needed some time. In such circumstances, this Court finds that the parents of the accused could not have already signed a power of attorney for the lawyer of the accused’s choice by 1.30 p.m. on the day in question.
The other information from the record of the accused’s arrest and from the record of his questioning by the police shows that on 14 March 2007, as is indicated by the record of the arrest, the accused was brought to the Rijeka Police Station and, as is apparent from the record of Ivan Dvorski’s questioning by the police, the defence lawyer, M.R., was informed at 6.15 p.m. and came to the police station at 7.45 p.m. The questioning itself commenced at 8.10 p.m. and ended at 11 p.m., with a break between 10.35 p.m. and 10.38 p.m.
It should be emphasised that in the introductory part of the record [of his questioning] the suspect, Ivan Dvorski, expressly stated that he had chosen M.R. as his defence lawyer and had signed the power of attorney in favour of him, and the record of the questioning shows that the defence lawyer had almost half an hour for consultation with the suspect before the questioning, in which time he was able to advise him of his rights.
Thus, the relevant fact which follows from the formal procedural action described in the record of the suspect’s questioning is that the chosen lawyer came at least half an hour before the questioning commenced, and in the consultation with [the suspect] before the questioning he was able to give [the suspect] genuine legal advice as his chosen lawyer.
It should also be noted that the essence of the suspect’s right to have a lawyer present during his questioning by the police lies in the necessity for legal protection of his rights, which is why the beginning, conduct and end of this formal [procedural] action is fully registered in the record [of the questioning].
This is why all arguments to the contrary, as set out in the appeal against the second-instance judgment, and particularly those relating to the need to question G.M. as the second concurrent lawyer of [the suspect’s] choosing, have no support in the content of the formal record of the suspect’s questioning of 14 March 2007, because the record contains formally registered information regarding the contact with the chosen lawyer, the time the chosen lawyer came into the Rijeka Police Station, the time the questioning of the suspect commenced, the period in which a short break took place, and the time the procedural action finished, all of which was confirmed by the suspect and the defence lawyer of his choosing by signing the record without any objections as to its content.
However, irrespective of the fact that the defence of the accused in the context of police questioning formally satisfied the requirements of Article 177 § 5 of the Code of Criminal Procedure, the general thrust of the defence, as well as the substance of the defence as regards particular acts, and the confession, were provided voluntarily by the suspect, and his chosen lawyer was most certainly unable to have any influence on this, which at the same time rules out the possibility of any mental pressure being exerted on the suspect, as well as his subsequent arguments regarding the lawyer having been imposed on him during the police investigation. On the contrary, the suspect’s defence rights were fully secured, as required under the Constitution and the Code of Criminal Procedure.
There is therefore no breach of Article 367 § 2 in conjunction with Article 9 § 2 of the Code of Criminal Procedure. The refusal of the request to have the record of the suspect’s questioning by the police in the presence of a lawyer of his choosing excluded from the case file as unlawfully obtained evidence does not constitute a breach of his defence rights because the record of the suspect’s questioning by the police clearly and undoubtedly shows that the lawyer who was present [during the questioning] was the lawyer of the suspect’s free choice, and this also follows from the signed power of attorney in favour of the lawyer in question, who protected the suspect’s rights during the questioning. Accordingly, the refusal of the defence’s request did not have any bearing on the lawfulness and correctness of the judgment. At the same time, it was not necessary to question the new chosen lawyer as a witness and, for the reasons set out above, the facts of the case were not insufficiently or erroneously established, as was argued in the defendant’s appeal against the second-instance judgment.”
56. The applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2010. He complained, inter alia, that he had been ill-treated while in police custody and that he had been forced to confess. He also complained that he had been denied the chance to have a lawyer of his own choosing conduct his defence. He reiterated his arguments from his previous appeals and added:
“It is also important to stress that at the session of the Supreme Court as the court of third instance, held on 17 December 2009, the defence indicated that the applicant had been brought to the police station at 2 p.m. on 13 March 2007, and that that fact was shown in the Record of Attendance F/949, which was in the case file. The defence asked the panel [of the Supreme Court] to have a look at that record. However, after a brief examination of the case file it was established that the document in question could not be found, and that it would be looked at later. However, the judgment of the Supreme Court, acting as a third-instance court, shows that the document had [still] not been found ...”
57. On 16 September 2010 the Constitutional Court dismissed the applicant’s constitutional complaint. The Constitutional Court, endorsing the reasoning of the Supreme Court, noted that the proceedings as a whole had been fair and that there was no evidence in the case file that the applicant had been ill-treated while in police custody.
58. The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 113/2000, 28/2001 and 76/2010) read as follows.
“No one shall be subjected to any form of ill-treatment ...”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.
In the event of suspicion of a criminal offence or criminal charges [being brought], the suspect, defendant or accused shall have the right:
– to defend himself in person or with the assistance of a defence lawyer of his own choosing, and if he does not have sufficient means to pay for legal assistance, to be given it free as provided by law,
59. The relevant provisions of the Criminal Code ( Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 129/2000, 51/2001, 105/2004, 84/2005 and 71/2006) provide as follows.
“A sentence of imprisonment of not less than ten years or long-term imprisonment shall be imposed on anyone who:
(6) murders another in order to commit or to cover up another criminal offence,
“1. Anyone who, by using force against a person or threatening a direct attack on a person’s life or limb, takes away movable property from another with intent to unlawfully appropriate it shall be punished by imprisonment of one to ten years.
2. If the perpetrator commits the robbery as a member of a group or a criminal organisation, or if, during the robbery, a weapon or dangerous instrument is used, the perpetrator shall be punished by imprisonment of three to fifteen years.”
Endangering Life and Property through Dangerous Acts or MeansArticle 263
“1. Anyone who endangers the life or limb of others or property of considerable value by [starting a] fire ... shall be punished by imprisonment of six months to five years.
3. If the criminal offences referred to in paragraphs 1 and 2 of this Article are committed at a place where a number of people are gathered ... the perpetrator shall be punished by imprisonment of one to eight years.
Aggravated Criminal Offences against Public SafetyArticle 271 § 1
“If, as a result of the criminal offence referred to in Article 263 § 1 ... of this Code, serious bodily injury to another or extensive material damage has been caused, the perpetrator shall be punished by imprisonment of one to eight years.”
60. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002 and 62/2003) provide as follows.
“1. A defendant may be represented by a lawyer at any stage of the proceedings, as well as before their commencement when prescribed by this Act. ...
4. The defendant’s legal guardian, spouse or common-law spouse, linear blood relative, adoptive parent or adopted child, sibling or foster parent may instruct a lawyer for the defendant, unless the defendant expressly refuses this.
6. A defence lawyer must present his power of attorney to the authorities conducting the proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case this must be entered in the record.”
“ In the course of the investigation, the police authorities shall inform the suspect pursuant to Article 225, paragraph 2, of this Code. At the request of the suspect, the police authorities shall allow him to instruct a lawyer and for that purpose they shall stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. ... If the circumstances indicate that the chosen lawyer will not be able to appear within this period of time, the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association ... If the suspect does not instruct a lawyer or if the requested lawyer fails to appear within the time allowed, the police authorities may resume interviewing the suspect ... The State Attorney has the right to be present during the questioning. The record of [any] statement given by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings.”
“The accused shall be informed of the charges and the grounds of suspicion against him, as well as of his right to remain silent.”
61. The Code of Criminal Procedure, as amended in 2011, provides as follows.
2. The provisions concerning the reopening of criminal proceedings shall be applicable in the case of a request for revision of any final court decision on account of a final judgment of the European Court of Human Rights by which a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms has been found.
3. A request for the reopening of proceedings on account of a final judgment of the European Court of Human Rights may be lodged within a thirty-day time-limit starting from the date on which the judgment of the European Court of Human Rights becomes final.”
2. If prior to the entry into force of this Code a decision was adopted in respect of which a legal remedy is available pursuant to the provisions of legislation relevant to the proceedings [in which the decision was adopted], ... the provisions of that legislation shall be applicable [to the proceedings concerning the remedy], unless otherwise provided under this Code.
3. Articles 497 to 508 of this Code shall accordingly be applicable to requests for the reopening of criminal proceedings made under the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003 and 115/2006).”
B. Relevant international law materials
Right of access to a lawyer of one’s own choosing during police custody
(i) Rules adopted by the Committee of Ministers
62. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73) 5 of the Committee of Ministers of the Council of Europe) provides:
“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”
63. Furthermore, Recommendation Rec(2006)2 of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules, adopted on 11 January 2006 at the 952 nd meeting of the Ministers’ Deputies, reads in so far as relevant as follows:
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
(ii) Report to the Croatian Government on the visit to Croatia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 4 to 14 May 2007
64. The relevant part of this report reads as follows.
“18. The majority of the persons interviewed by the delegation during the 2007 visit indicated that they had been informed of their right of access to a lawyer shortly after apprehension. However, as during previous visits, it appeared that many persons detained by the police had been allowed to exercise that right only some time after apprehension, in particular after a statement relating to a specific criminal offence had been obtained from them.
The fact that persons summoned to a police station for ‘ informative talks’ were still not allowed to have access to a lawyer is another matter of continuing concern to the Committee. Police officers interviewed by the delegation stated that, in the context of such ‘talks’, access to a lawyer could only be granted when a person was formally declared a suspect.
In the light of the above, the CPT again calls upon the Croatian authorities to take effective steps without any further delay to ensure that the right of access to a lawyer (including the right to have a lawyer present during police questioning) is enjoyed by all persons detained by the police, as from the very outset of their deprivation of liberty. This right should apply not only to criminal suspects but also to anyone who is under a legal obligation to attend – and stay at – a police establishment. If necessary, the law should be amended. Naturally, the fact that a detained person has stated that he wishes to have access to a lawyer should not prevent the police from beginning to question/interview him on urgent matters before the lawyer arrives. Provision could also be made for the replacement of a lawyer who impedes the proper conduct of an interrogation, on the understanding that such a possibility should be strictly circumscribed and subject to appropriate safeguards.
19. The CPT is concerned that, during the 2007 visit, the Croatian legal aid system appeared to display the same shortcomings as in 2003. In many instances, ex officio lawyers had had no contact with the detained persons until the first court hearing. In addition, in some cases, detained persons expressed scepticism about ex officio lawyers ’ independence from the police. The CPT reiterates its recommendation that the system of free legal aid to detained persons be reviewed, in order to ensure its effectiveness from the very outset of police custody. Particular attention should be paid to the issue of independence of ex officio lawyers from the police .”
(iii) Report to the Croatian Government on the visit to Croatia carried out by the CPT from 19 to 27 September 2012
65. The relevant part of this report reads as follows.
“19. The CPT’s delegation also received some allegations that detained persons had not been able to have access to a lawyer named by them, as the police officers considered that their only duty was to contact ex officio lawyers from the standard list rather than to contact a specific lawyer directly.
The CPT recommends that police officers be reminded that persons deprived of their liberty by the police have the right of access to a lawyer of their own choice; if a detained person requests access to a specific lawyer, then that contact should be facilitated; the ex officio lawyer from the standard list should be contacted only if the first-mentioned lawyer cannot be reached or does not appear .”
International Covenant on Civil and Political Rights
66. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights provides that everyone charged with a criminal offence is entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”.
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
67. The applicant complained that he had not had a fair trial because he had not been allowed to be represented by G.M. during police questioning. He relied on Article 6 §§ 1 and 3 (c) 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:
(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;
68. The Chamber concentrated its assessment on the issue of the applicant’s right to retain counsel of his own choosing and whether as a result of not having had that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice. It concluded, given that the applicant had never complained about the quality of the service provided by M.R., that the trial court had addressed the applicant’s complaint about his representation during police questioning; that the applicant’s confession was not central to the prosecution’s case; and that there was no evidence that any pressure had been exerted on the applicant to confess. Viewing the fairness of the proceedings as a whole, the Chamber found that the applicant’s defence rights had not been irretrievably prejudiced, nor had his right to a fair trial under Article 6 of the Convention been adversely affected. The Chamber held that there had been no violation of Article 6.
B. The parties’ submissions to the Grand Chamber
69. The applicant argued that when questioned by the police he had wanted G.M. to represent him since G.M. had been his lawyer in another case and the applicant trusted him. Furthermore, his parents had instructed G.M. to represent him. However, G.M. had been prevented by the police from seeing him.
70. The police had not presented him with a list of lawyers from which to choose his defence counsel. Another lawyer, M.R., had been called by the police and had been given only twenty-five minutes to confer with the applicant, which, given the complexity and seriousness of the charges against him, had clearly not been sufficient. M.R. had requested the police to commence questioning as soon as possible, given the late hour.
71. The Government argued that the applicant had already been aware at about 2 p.m. on 13 March 2007 that the police wished to question him in connection with three murders, armed robbery and arson, yet he had not attempted to contact G.M. before the questioning.
72. When arrested by the police at 9.50 a.m. on 14 March 2007, the applicant had at first waived his right to a lawyer. About eight hours later he had changed his mind and asked for a lawyer. The police had then presented him with a list of the Primorsko-Goranska County criminal defence lawyers, from which he had chosen M.R. of his own free will. Upon M.R.’s arrival, he had signed a power of attorney, without being coerced into doing so by the police. Therefore, M.R. had been the lawyer of the applicant’s own choosing. The Government stressed that these were the facts and that all the applicant’s other allegations, namely those concerning G.M., amounted to mere speculation.
73. The Government further submitted that there had been no evidence that G.M. had had a power of attorney on 14 March 2007, signed by either of the applicant’s parents. Even if G.M. had been the lawyer appointed by either of the applicant’s parents, he had not been the lawyer of the applicant’s own choosing since the applicant had chosen M.R. to represent him.
74. The applicant had been questioned by the police on numerous previous occasions (he had been arrested twenty-two times in the past), and had therefore been familiar with the situation in which he had found himself. On each of these occasions he had been represented by a different lawyer. Had he wished G.M. to represent him, he would have indicated that to the police. However, he had not done so.
75. The applicant had never complained to the domestic courts about the quality of the service provided by M.R. The Government argued that the domestic courts had provided adequate reasoning in response to the applicant’s complaint that he had not been represented by a lawyer of his own choosing during the questioning at the police station. The fact that the applicant had chosen to confess to the charges against him was not unusual, since the applicant had previously confessed to committing crimes with which he had been charged in different criminal proceedings, including on one occasion in the presence of G.M.
C. The Grand Chamber’s assessment
76. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is liable to be seriously prejudiced by an initial failure to comply with its provisions. As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia v. Switzerland, 24 November 1993, §§ 36-37, Series A no. 275, and Salduz v. Turkey [GC], no. 36391/02, § 50, ECHR 2008).
77. The Court has held that, in order to exercise his right of defence, the accused should normally be allowed to have the effective benefit of the assistance of a lawyer from the initial stages of the proceedings because national laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings (see Salduz, cited above, § 52). The Court has also recognised that an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, and in most cases this can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure that the right of an accused not to incriminate himself is respected (ibid., § 54; see also Pavlenko v. Russia, no. 42371/02, § 101, 1 April 2010).
78. In such circumstances, the Court considers it important that from the initial stages of the proceedings a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (for more detailed reasoning, see Martin v. Estonia, no. 35985/09, § § 90 and 93, 30 May 2013 ). This follows from the very wording of Article 6 § 3 (c), which guarantees that “[e]veryone charged with a criminal offence has the following minimum rights: ... to defend himself ... through legal assistance of his own choosing ...”, and is generally recognised in international human rights standards as a mechanism for securing an effective defence to the accused. The Court emphasises that the fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance (see Dayanan v. Turkey, no. 7377/03, § 32, 13 October 2009, and paragraph 108 below).
79. Notwithstanding the importance of the relationship of confidence between a lawyer and his client, this right is not absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them ( see Croissant v. Germany, 25 September 1992, § 29, Series A no. 237-B ). The Court has consistently held that the national authorities must have regard to the defendant’s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (ibid., § 29; see also Meftah and Others v. France [GC], nos. 32911/96 and 2 others, § 45, ECHR 2002 ‑ VII; Mayzit v. Russia, no. 63378/00, § 66, 20 January 2005; Klimentyev v. Russia, no. 46503/99, § 116, 16 November 2006; Vitan v. Romania, no. 42084/02, § 59, 25 March 2008; Pavlenko, cited above, § 98; Zagorodniy v. Ukraine, no. 27004/06, § 52, 24 November 2011; and Martin, cited above, § 90). Where such grounds are lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 together with paragraph 3 (c) if it adversely affected the applicant’s defence, regard being had to the proceedings as a whole (see Croissant, cited above, § 31; see also Meftah and Others, cited above, §§ 46-47; Vitan, cited above, §§ 58-64; Zagorodniy, cited above, §§ 53-55; and Martin, cited above, §§ 90-97).
80. Moreover, having regard to the considerations mentioned above, as the Court affirmed in its judgment in Salduz, in order for the right to a fair trial to remain “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first interrogation 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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz, cited above, § 55-57; see also Panovits v. Cyprus, no. 4268/04, § 66, 11 December 2008).
81. Unlike in Salduz, where the accused, who was being held in custody, had been denied access to a lawyer during police questioning, the present case concerns a situation where the applicant was afforded access to a lawyer from his first interrogation, but not – according to his complaint – a lawyer of his own choosing. In contrast to the cases involving denial of access, the more lenient requirement of “relevant and sufficient” reasons has been applied in situations raising the less serious issue of “denial of choice”. In such cases the Court’s task will be to assess whether, in the light of the proceedings as a whole, the rights of the defence have been “adversely affected” to such an extent as to undermine their overall fairness (see, for example, Croissant, cited above, § 31; Klimentyev, cited above, §§ 117-18; and Martin, cited above, §§ 96-97 ).
82. It is the latter test which is to be applied in the present case. Against the above background, the Court considers that the first step should be to assess whether it has been demonstrated in the light of the particular circumstances of each case that there were relevant and sufficient grounds for overriding or obstructing the defendant’s wish as to his or her choice of legal representation. Where no such reasons exist, the Court should proceed to evaluate the overall fairness of the criminal proceedings. In making its assessment, the Court may have regard to a variety of factors, including the nature of the proceedings and the application of certain professional requirements (see Meftah and Others, cited above, §§ 45-48, and Martin, cited above, § 90); the circumstances surrounding the designation of counsel and the existence of opportunities for challenging this (ibid., §§ 90-97); the effectiveness of counsel’s assistance (see Croissant, cited above § 31, and Vitan, cited above, §§ 58-64 ); whether the accused’s privilege against self-incrimination has been respected (see Martin, cited above, § 90); the accused’s age (ibid., § 92); and the trial court’s use of any statements given by the accused at the material time (see, for example, Croissant, cited above, § 31; Klimentyev, cited above, §§ 117-18; and Martin, cited above, §§ 94-95 ). It is further mindful that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory (see, among many other authorities, Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Imbrioscia, cited above, § 38; Goddi v. Italy, 9 April 1984, § 30, Series A no. 76; and Salduz, cited above, § 55) and that in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation (see, inter alia, Delcourt v. Belgium, 17 January 1970, § 31, Series A no. 11; De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 48, Series A no. 77; Pavlenko, cited above, § 112; and Erkapić v. Croatia, no. 51198/08, §§ 80 ‑ 82, 25 April 2013 ). In cases where the accused had no legal representation, the Court also takes into consideration the opportunity given to the accused to challenge the authenticity of evidence and to oppose its use (see Panovits, cited above, § 82), whether the accused is in custody (see Salduz, cited above, § 60); whether such statements constituted a significant element on which the conviction was based and the strength of the other evidence in the case (see Salduz, cited above, § 57, and Panovits, cited above, §§ 76 and 82).
2. Application of these principles to the present case
(a) Was the applicant represented by a lawyer selected on the basis of his own informed choice?
83. On 14 March 2007, between 8.10 p.m. and 11 p.m., the applicant was questioned as a suspect by the police in the presence of a lawyer, M.R. (see paragraphs 21-22 above). The applicant’s statement to the police was used as evidence in the criminal proceedings against him (see, by contrast, Bandaletov v. Ukraine, no. 23180/06, §§ 60 and 68, 31 October 2013).
84. According to the Government, the only certain fact concerning the applicant’s representation during police questioning was that he had chosen of his own free will to be represented by M.R.; any allegations concerning the applicant’s wish to be represented by another lawyer, G.M., were pure speculation (see paragraphs 71-73 above).
85. The applicant’s allegations of coercion were declared inadmissible by the Chamber (see paragraph 73 of the Chamber judgment). The Court also notes the finding by the national courts, with the aid of a handwriting expert, that the applicant did indeed sign a power of attorney in favour of M.R. (see paragraph 40 above).
86. However, the Court observes that already on the morning of 14 March 2007 G.M. informed the Rijeka County Deputy State Attorneys, D.K. and I.B., of his unsuccessful attempt to contact the applicant, who was at Rijeka Police Station. An official note was made to that effect and the Rijeka County Court was also immediately informed (see paragraph 15 above). In his complaint, lodged on the afternoon of 14 March 2007 with the Chief of the Primorsko-Goranska Police Department, V., G.M. alleged that he had again tried to see the applicant between 3 p.m. and 3.30 p.m., but had again been told by the police to leave.
87. The day after the police questioning, when the applicant was brought before an investigating judge and asked who his lawyer was, he complained that he had not instructed M.R. to act as his lawyer and that he had expressly requested to be represented by G.M. during police questioning. He alleged that the police had never informed him that G.M. had tried to contact him. At that point, during his examination by the investigating judge, the applicant was no longer represented by M.R. but by G.M. (see paragraph 23 above).
88. In his further request of 16 March 2007 to the investigating judge, G.M. described the conduct of the police in detail and raised his objections in that respect (see paragraph 24 above).
89. Also, during the trial the applicant complained of the police’s refusal to allow G.M. to contact him on 14 March 2007 and asked the trial court to hear evidence from G.M., but his request was refused as irrelevant (see paragraph 44 above).
90. In all these submissions it was stated that G.M. had been instructed by the applicant’s parents to represent the applicant during police questioning and that the police had denied G.M. access to him even though he had actually come to the police station before the questioning of the applicant had started and before M.R. had been called to the police station. It was also alleged that, whereas on the morning of 14 March 2007 G.M. had only had oral authorisation from the applicant’s mother, that afternoon his legal trainee had presented a written power of attorney from the applicant’s father (see paragraph 16 above).
91. Thus, the applicant, through his own actions and those of his lawyer, clearly drew attention to the circumstances in which G.M. had attempted to contact him prior to his questioning by the police.
92. Against this background, the Court finds it sufficiently established that G.M. had been retained by one or both of the applicant’s parents, that he attempted on more than one occasion on 14 March 2007 to see the applicant in Rijeka Police Station and that the police officers there told him to leave, without informing the applicant that G.M. had come to see him. The Court is further satisfied that G.M.’s visits and requests to see the applicant at the police station occurred before the questioning of the applicant by the police had started.
93. Therefore, while the applicant had formally chosen M.R. to represent him during police questioning, that choice was not an informed one because the applicant had no knowledge that another lawyer, retained by his parents, had come to the police station to see him, presumably with a view to representing him.
(b) Were there relevant and sufficient reasons in the interests of justice to restrict the applicant’s access to G.M.?
94. The Court notes that the only reason cited by the Government for not allowing G.M. access to the applicant was the fact that G.M., in the Government’s view, did not have a proper power of attorney to represent him. At the same time, the Government did not dispute that the applicant was not informed at the relevant time that G.M. had been trying to see him at the police station.
95. The Court notes, however, that G.M. alleged before the national authorities that he had in fact been provided with a written power of attorney by the applicant’s parents on 14 March 2007. It would appear that these allegations have never been convincingly refuted in the domestic proceedings. Moreover, a written power of attorney was included in the case file compiled by the investigating judge on 15 March 2007, when the applicant was brought before him by the police.
96. The relevant domestic law is clear on the fact that a defence lawyer may be instructed by a suspect himself or by his relatives, including his parents (see Article 62 of the Code of Criminal Procedure, paragraph 60 above). In accordance with Article 62 § 6, a suspect may orally authorise a lawyer to act on his behalf during the proceedings. The purpose of Article 62 § 4, of the Code of Criminal Procedure, which provides that a defence lawyer may be instructed by the accused’s close relatives but that the accused may expressly refuse the lawyer chosen, cannot be achieved unless the accused is informed that his or her close relatives have instructed a lawyer to represent him or her. This, in any case, obliged the police to at least inform the applicant that G.M. had come to the police station and that he had been authorised by his parents to represent him. However, the police omitted to inform the applicant of this and also refused G.M. access to him.
97. That omission and refusal could hardly be explained by the fact that the applicant had later signed a power of attorney authorising M.R. to be present during his questioning by the police. As already mentioned, he had done so while being at all times unaware of G.M.’s attempts to assist him after being instructed by his parents.
98. Nor do the documents in the criminal case file reveal any justification for the omissions and actions of the police that resulted in the applicant being denied the opportunity to choose whether he wished to be assisted by G.M. during questioning. Moreover, according to a written record of the applicant’s oral evidence given to the investigating judge on 15 March 2007, the day after his arrest, the applicant stated that his chosen lawyer was G.M. and that the police officers had denied him access to G.M. He also said that he had not instructed M.R. as his lawyer (see paragraph 23 above).
99. In these circumstances, the Court is not convinced that the impugned restriction, resulting from the conduct of the police, of the applicant’s opportunity to designate G.M. to represent him from the initial phase of police questioning was supported by relevant and sufficient reasons (for instances of relevant and sufficient reasons, see Meftah and Others, cited above, § 45; Mayzit, cited above, § 68; Popov v. Russia, no. 26853/04, § 173, 13 July 2006; and also Zagorodniy, cited above, § 53, relating to the representative’s lack of qualifications; Vitan, cited above, §§ 59-63, where the lawyer of the defendant’s choosing did not appear at the trial, without a justified reason; Croissant, cited above, § 30, concerning the appointment of an additional lawyer for securing the proper conduct of the proceedings; Prehn v. Germany (dec.), no. 40451/06, 24 August 2010, concerning the replacement of a lawyer who was not practising in the same court and was located far away, thereby impeding the proper conduct of the proceedings; and Klimentyev, cited above, § 118, where the defendant was represented by a number of lawyers, not all of whom were able to take part in the proceedings).
(c) Whether the applicant waived his right to be represented by a lawyer of his own choosing
100. The Court has held that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II), and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A).
101. In this connection, it may be reiterated that the right to counsel, being a fundamental right among those which constitute the notion of a fair trial and ensuring the effectiveness of the rest of the guarantees set forth in Article 6 of the Convention, is a prime example of those rights which require the special protection of the “knowing and intelligent waiver” standard established in the Court’s case-law (see Pishchalnikov v. Russia, no. 7025/04, §§ 77-79, 24 September 2009 ). Such a standard ought in the Court’s view to apply to the applicant’s choice of lawyer in the instant case.
102. As the Court has already observed, the applicant had no knowledge that G.M., instructed by his parents to represent him, had come to the police station to see him. The Court also notes that the applicant challenged what he characterised as the “imposition” of M.R. on him during police questioning, first of all during his initial examination by an investigating judge and subsequently throughout the entire proceedings. In these circumstances, it cannot be maintained that, by signing the power of attorney and providing a statement to the police, the applicant unequivocally waived, either tacitly or explicitly, any right that he had under Article 6 of the Convention to be represented by a lawyer of his own informed choice.
(d) Whether the fairness of the proceedings as a whole was prejudiced
103. Turning next to the question whether the resulting restriction on the applicant’s exercise of his informed choice of lawyer adversely affected the fairness of the proceedings as a whole, the Court notes at the outset that the applicant’s statement to the police was used in convicting him, even though it was not the central platform of the prosecution’s case (see, by contrast, Magee v. the United Kingdom, no. 28135/95, § 45, ECHR 2000 ‑ VI). It is also true that the trial court viewed his statement in the light of the complex body of evidence before it (compare Bykov v. Russia [GC], no. 4378/02, § 103, 10 March 2009). Specifically, in convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence. In addition, the trial court had at its disposal the confessions made by the applicant’s co-accused at the trial, and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.
104. Nor did the applicant ever complain during the criminal proceedings that M.R. had failed to provide him with adequate legal advice. Furthermore, in her closing arguments at the trial, the applicant’s representative asked the court – in the event of its rejecting her client’s plea of not guilty – to take into consideration in sentencing the applicant his confession to the police and his sincere regret (see paragraph 48 above).
105. As to the manner in which M.R. was chosen to represent the applicant, the Court refers to Article 177 § 5 of the Code of Criminal Procedure, which requires that an accused should first be invited to instruct a lawyer of his or her own choosing (see paragraph 60 above). Only where the lawyer initially chosen by a suspect is unable to attend police questioning within a certain period of time should a replacement lawyer be chosen from the list of duty lawyers provided to the competent police authority by the county branches of the Croatian Bar Association. However, there is no conclusive evidence in the documents submitted to the Court as to whether these procedures were followed in the applicant’s case. The Court finds it unfortunate that the procedures used and decisions taken were not properly documented so as to avoid any doubts raised about undue pressure in respect of the choice of lawyer (see, mutatis mutandis, Martin, cited above, § 90, and Horvatić v. Croatia, no. 36044/09, §§ 80-82, 17 October 2013).
106. The Court notes that the record of the applicant’s questioning by the police indicates that M.R. arrived at the police station at around 7.45 p.m. on 14 March 2007 and that the questioning of the applicant commenced at 8.10 p.m. (see paragraphs 21-22 above). There is no indication of the exact time the applicant and M.R. actually commenced the consultation, nor is there any explanation of why that information was not provided in the record of the questioning. The Court notes also that the statement from D.H., the Rijeka County State Attorney, indicates that M.R. talked to the applicant in private for about ten minutes (see paragraph 26 above). The judgment of the Rijeka County Court indicates that M.R. came to the police station at 7.45 p.m. and that the questioning started at 8.10 p.m. (see paragraph 51 above). This was confirmed in the judgment of the Supreme Court (see paragraph 55 above). In the Court’s view, without speculating as to the effectiveness of the legal assistance provided by M.R., this period appears to have been relatively short, bearing in mind the scope and seriousness of the accusations, involving three counts of aggravated murder and further counts of armed robbery and arson. Regard should also be had in this context to the requirement in Article 6 § 3 (b) that an accused should be afforded adequate time and facilities for the preparation of his or her defence.
107. G.M. would already have been available to assist the applicant in the morning, long before the questioning started, and was a lawyer whom the applicant knew from a previous case. Had he been informed by the police of G.M.’s presence and had he actually chosen G.M. to represent him, the applicant would have had considerably more time to prepare himself for the questioning.
108. In this connection, the Court again emphasises the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz, cited above, § 54), and emphasises that a person charged with a criminal offence should already be given the opportunity at this stage to have recourse to legal assistance of his or her own choosing (see Martin, cited above, § 90 ). The fairness of proceedings requires that an accused should be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support for an accused in distress and checking of the conditions of detention (see Dayanan, cited above, § 32 ).
109. Where, as in the present case, it is alleged that the appointment or the choice by a suspect of the lawyer to represent him has influenced or led to the making of an incriminating statement by the suspect at the very outset of the criminal investigation, careful scrutiny by the authorities, notably the national courts, is called for. However, the reasoning employed by the national courts in the present case in relation to the legal challenge mounted by the applicant concerning the manner in which his confession had been obtained by the police was far from substantial. Neither the trial court nor the investigating judge nor any other national authority took any steps to obtain evidence from G.M. or the police officers involved in order to establish the relevant circumstances surrounding G.M.’s visit to Rijeka Police Station on 14 March 2007 in connection with the applicant’s questioning by the police. In particular, the national courts made no real attempt to provide reasons supporting or justifying their decision in terms of the values of a fair criminal trial as embodied in Article 6 of the Convention.
110. In these circumstances, having regard to the purpose of the Convention, which is to protect rights that are practical and effective (see Lisica v. Croatia, no. 20100/06, § 60, 25 February 2010 ), the Court is not convinced that the applicant had an effective opportunity to challenge the circumstances in which M.R. had been chosen to represent him during police questioning.
111. In determining whether, taking the criminal proceedings as a whole, the applicant received the benefit of a “fair hearing” for the purposes of Article 6 § 1, the Court must have regard to the actions of the police in effectively preventing the applicant, at the very outset of the investigation, from having access to the lawyer chosen by his family and from freely choosing his own lawyer, and to the consequences of the conduct of the police for the subsequent proceedings. In the abstract, if a suspect receives the assistance of a qualified lawyer, who is bound by professional ethics, rather than another lawyer whom he or she might have preferred to appoint, this is not in itself sufficient to show that the whole trial was unfair – subject to the proviso that there is no evidence of manifest incompetence or bias (see Artico v. Italy, 13 May 1980, § 33, Series A no. 37). In the instant case, it can be presumed that the consequence of the police’s conduct was that in his very first statement to the police, instead of remaining silent, as he could have done, the applicant made a confession, which was subsequently admitted in evidence against him. It is also significant that during the investigation and ensuing trial the applicant did not subsequently rely on his confession, save by way of mitigation in relation to the sentence, but took the first opportunity, before the investigating judge, to contest the manner in which the confession had been obtained from him by the police (see paragraphs 23-24, 31, 48, 52 and 54 above). Although there was other evidence against him, the significant likely impact of his initial confession on the further development of the criminal proceedings against him cannot be ignored by the Court. In sum, in the Court’s view, the objective consequence of the police’s conduct in preventing the lawyer chosen by the applicant’s family from having access to him was such as to undermine the fairness of the subsequent criminal proceedings in so far as the applicant’s incriminating initial statement was admitted in evidence.
112. The Court has found that the police did not inform the applicant either of the availability of G.M. to advise him or of G.M.’s presence at Rijeka Police Station; that the applicant, during police questioning, confessed to the crimes with which he was charged and that this confession was admitted in evidence at his trial; and that the national courts did not properly address this issue and, in particular, failed to take adequate remedial measures to ensure fairness. These factors, taken cumulatively, irretrievably prejudiced the applicant’s defence rights and undermined the fairness of the proceedings as a whole.
113. The Court therefore finds that in the circumstances of the present case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
114. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
115. The applicant claimed 1,795,200 Croatian kunas (HRK) in respect of non-pecuniary damage and an additional amount of HRK 400 for each day starting from 26 December 2011 until his release from prison, to compensate for the distress caused to him by the criminal proceedings and his imprisonment.
116. The Government did not make any observations in this respect.
117. The Court cannot speculate as to the outcome of the proceedings against the applicant. The finding of a violation of Article 6 §§ 1 and 3 (c) in the present case does not imply that the applicant was wrongly convicted. The Court considers that the finding of a violation constitutes sufficient just satisfaction. It notes that Article 502 of the Code of Criminal Procedure allows for the possibility of the reopening of proceedings (see paragraph 61 above). It therefore rejects the applicant’s claim (see Moser v. Austria, no. 12643/02, § 108, 21 September 2006; Maresti v. Croatia, no. 55759/07, § 75, 25 June 2009; Baloga v. Ukraine, no. 620/05, § 38, 16 September 2010; Hanif and Khan v. the United Kingdom, nos. 52999/08 and 61779/08, § 155, 20 December 2011; Gürkan v. Turkey, no. 10987/10, § 26, 3 July 2012; Denk v. Austria, no. 23396/09, § 24, 5 December 2013; and Aras v. Turkey (no. 2), no. 15065/07, § 62, 1 8 November 2014 ).
118. Before the Chamber the applicant claimed HRK 5,000 in respect of the costs of lodging his constitutional complaint. He further claimed HRK 15,683 in respect of the costs incurred before the Court.
119. The Government objected to the claim in respect of the costs in the domestic proceedings.
120. On 31 July 2014 and 21 January 2015 the applicant submitted a further claim for costs and expenses in addition to that submitted before the Chamber. The additional claim concerned the cost of preparing for and being represented at the hearing of 21 January 2015. The additional costs totalled HRK 29,279.60.
121. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant’s constitutional complaint lodged in connection with the criminal proceedings in issue was aimed at remedying the violation the Court has found under Article 6 § § 1 and 3 (c) of the Convention. Regard being had to the documents in its possession and to its case-law, the Court considers the sum of 6,500 euros to be reasonable to cover costs under all heads, and awards it to the applicant, plus any tax that may be chargeable to him on that amount.
122. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Holds, by sixteen votes to one, that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;