Scottish Police lose right to question suspects without solicitor present as UK Supreme Court rules on Cadder v HMA, conviction violated ECHR

UK Supreme Court throws out Scots Police right to question suspects without a lawyer. SCOTTISH POLICE have now lost the ability to question suspects without their solicitor being present, after the UK’s Supreme Court in London finally issued its ruling today on the Appeal case of Cadder (Appellant) v Her Majesty's Advocate (Respondent) (Scotland), throwing out the practice in Scotland of being able to question suspects without a solicitor in attendance as being a violation of Human Rights laws.

The background to the case : The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present. During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted.

Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (“the ECHR”).

In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majesty’s Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean.

Lord Hope, in his statement to the court was critical of the fact no one until now had though the arrangements for questioning suspects without solicitors in attendance in Scotland was wrong. He said : “It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure. Ever since the statutory power to question a suspect prior to charge was introduced by sections 1 to 3 of the Criminal Justice (Scotland) Act 1980, the system of criminal justice in Scotland has proceeded on the basis that admissions made by a detainee without access to legal advice during his detention are admissible. Countless cases have gone through the courts, and decades have passed, without any challenge having been made to that assumption. Many more are ongoing or awaiting trial - figures were provided to the court which indicate there are about 76,000 such cases - or are being held in the system pending the hearing of an appeal although not all of them may be affected by the decision in this case. There is no doubt that a ruling that the assumption was erroneous will have profound consequences. But there is no room, in the situation which confronts this court, for a decision that favours the status quo simply on grounds of expediency. The issue is one of law, as the court appreciated in McLean. It must be faced up to, whatever the consequences.“

The Judgment stated : The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger.

The judges also said their ruling was not entirely retrospective, and left the Scottish Criminal Cases Review Commission to determine if closed cases may be referred back to the High Court : This decision does not permit closed cases to be re-opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made.

The full judgement can be downloaded here : Cadder (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) (pdf)

Scotland’s Justice Secretary Kenny MacAskill issued a statement on the Supreme Court’s ruling, saying emergency legislation would immediately follow. Mr MacAskill gave the usual praises for Scotland’s ‘proud, distinctive’ justice system, despite the burgeoning catalogue of unjust convictions, allegations of miscarriages of justice & a Victorian civil justice system unfit for use even in a nursery. (Shouldn’t that be proud & distinctive as in who it wrongfully convicts, victimises or refuses to grant access to justice to ? – Ed)

Scottish Government statement follows :

Swift action to change Scots law

26/10/2010

The UK Supreme Court has today decided that one aspect of criminal procedure in Scotland is incompatible with the European Convention on Human Rights.

The judgement - which does not permit closed cases to be reopened and as such will not be retrospective - will prompt swift action from the Scottish Government that has been planned for months.

Responding to the decision of the Supreme Court in relation to the Cadder case, Justice Secretary Kenny MacAskill said: "I note today's decision by the Supreme Court. It is a decision we did not seek but it is one to which we must respond.

"The decision overturns decades of criminal procedure in Scotland, a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions. This issue is about legal advice at one step in the investigatory process.

"Today's judgement in the Supreme Court has gone against the unanimous decision last October by seven Scottish High Court judges at the Scottish Appeal Court that determined that an aspect of Scottish criminal procedure does not comply with the European Convention on Human Rights.

"We are concerned that the current devolution arrangements have created an anomaly that seems to put Scottish law at a disadvantage in comparison to elsewhere in the EU. I want to see steps taken to address this anomaly. But we cannot ignore the Supreme Court's decision.

"And while it necessitates changes to Scotland's justice system, these are changes that have been anticipated and planned for. For over a year, the Scottish Government, Crown Office, Scottish Legal Aid Board (SLAB), ACPOS and the Scottish Court Service have been preparing contingency plans to deal with all possible eventualities arising from this case. The Lord Advocate - in anticipation of an adverse judgement - issued interim guidance earlier this year.

"With Parliament's support we will be making swift legislative changes to protect the victims of crime and safeguard communities. The main changes will mean introducing a right of access to legal advice before being questioned, extending the period during which a person may be detained under section 14 of the Criminal Procedure (Scotland) Act 1995, powers to adjust legal aid eligibility rules and measures to ensure certainty and finality in concluded cases.

"We will be introducing this emergency legislation to Parliament on Tuesday - and with the support of the other political parties we can complete the parliamentary scrutiny and debate process during the course of Wednesday. We anticipate the Bill receiving Royal Assent by Friday.

"In addition to these necessary legislative changes, I am today announcing that Lord Carloway, a senior High Court judge, will lead a review of Scottish criminal law and practice in the aftermath of the Cadder decision. I have asked Lord Carloway to make swift progress with his review and report to me within months - certainly in time to allow legislation to be considered for the 2011-12 Parliamentary session.

"Our distinctive justice system is one which protects accused persons. However human rights also extend to victims and to all of the people of Scotland, and the Scottish Government and justice partners will continue to fight to ensure that the rights of the victims and indeed wider society remain at the forefront of the Scottish justice system."

Lord Advocate Elish Angiolini also issued a statement, saying : "The Supreme Court's judgment in Cadder v HMA is a significant ruling for Scots law.

"Until today, the Scottish legislation regarding access to a solicitor prior to and during police detention was held to be compliant with the European Convention on Human Rights. Indeed Scotland's highest criminal Court of Appeal looked at this very issue in the case of McLean less than a year ago. In that case seven judges held unanimously at that time that Scots law and practice was compatible with the Convention requirements.

"Prosecutors work within the law made by Parliament and as interpreted and stated by the courts. Today's ruling in Cadder changes understanding of the law as set out in McLean, and so we will immediately adapt our working practices to this new legal landscape.

"I note that the Court has stated that its decision does not apply to cases that have been finally determined. This very significantly limits the number of cases potentially affected by this judgment.

"In preparation for the possibility of this change, we have been working with the police and the Scottish Government to minimise the risk to live cases. We have of course taken precautionary measures: in early 2009 I issued guidance to prosecutors, instructing them only to use admissions made by suspects who had not had legal advice before interview in a police station where this was considered essential for the Crown case. Earlier this year, following the hearing before the Supreme Court, I issued Guidelines to the police requiring them to provide access to a solicitor prior to and during interview.

"Unlike any other jurisdiction in Europe, Scots law requires two sources of evidence to support each essential fact in a prosecution. This rule of 'corroboration' presents a further challenge to prosecution in Scotland, which does not apply in this wholesale manner in other jurisdictions.

"The balance of rights for accused in Scotland will now need to be carefully considered. It must be ensured that the Convention rights of victims to have 'effective criminal sanctions in place' are maintained where their human rights are flouted by the criminal actions of another.

"In light of this, I welcome the announcement by the Cabinet Secretary for Justice of Lord Carloway's review of the laws of criminal procedure and evidence in Scotland following the Supreme Court's decision. I consider such a review important to ensure, as the Supreme Court itself recognises at paragraph 97 of its opinion 'that any revised scheme is properly balanced and makes for a workable criminal justice system'.

"The Crown Office and Procurator Fiscal Service will continue to work with the police and with the Scottish Government to protect the integrity of pending prosecutions."

European Court of Human Rights ruling : Yusuf Salduz v. Turkey

As we reported earlier, a recent ruling by the European Court of Human Rights in a Turkish case, has ruled confessions by criminals or suspects without access to legal representation are illegal.

The ruling may have significance for convictions in Scotland obtained as a result of confessions where access to legal representation has been denied. (a few solicitors will be rubbing their hands at that one ! - Ed)

The ruling :

European Court of Human Rights : Yusuf Salduz v. Turkey

CASE OF SALDUZ v. TURKEY

(Application no. 36391/02)

JUDGMENT

STRASBOURG

26 April 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Salduz v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jociene, judges,
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 27 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

# The case originated in an application (no. 36391/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yusuf Salduz (“the applicant”), on 8 August 2002.

# The applicant was represented by Ms. T. Aslan, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

# On 28 March 2006 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the lack of legal assistance in police custody and the non-communication of the submissions of the Principal Public Prosecutor, to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

# The applicant was born in 1984 and lives in Izmir.

# On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers' Party, an illegal organisation). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001.

# On 30 May 2001 the police officers took a statement from the applicant in which he admitted the charges.

# On 1 June 2001 the applicant was brought before the public prosecutor and then the investigating judge. Before both officials, the applicant denied the content of his police statement, alleging that it had been extracted from him under duress. The same day, the investigating judge remanded the applicant in custody.

# On 11 July 2001 the public prosecutor at the Izmir State Security Court filed an indictment with the same court, accusing the applicant of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law).

# On 5 December 2001 the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months' imprisonment. This sentence was then reduced to two and a half years' imprisonment as the applicant had been less than eighteen years of age at the time of the offence.

# When delivering its judgment, the Izmir State Security Court had taken into consideration the statements which the applicant had made to the police, the public prosecutor and the investigating judge, as well as his co-defendants' testimony before the public prosecutor. The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration. The court further took note of the expert report which suggested that the applicant's handwriting was identical to that on the placard. The court also noted that, according to the arrest report drawn up by the police, the applicant had been among the people who dispersed after the demonstration.

# On 27 March 2002, the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court.

# On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed that judgment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

# The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the submissions of the Principal Public Prosecutor of the Court of Cassation had not been communicated to him, and that he had been denied the assistance of a lawyer while in police custody. Article 6 §§ 1 and 3 (c) of the Convention, in so far as relevant, read 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

# The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Non-communication of the public prosecutor's written opinions submitted to the Court of Cassation

# The Government submitted that the written opinion of the Principal Public Prosecutor was not binding on the Court of Cassation, as it was free to decide on appeals regardless of the Prosecutor's opinion. They further maintained that the applicant's representative had had the right to consult the case file and examine the documents. Finally, the Government pointed out that on account of the recent amendment of 27 March 2003 Article 316 of the Code of Criminal Procedure now provides that the written opinion of the Principal Public Prosecutor of the Court of Cassation must be sent to the parties.

# The applicant maintained his allegations.

# The Court notes that it has already examined the same grievance in the case of Göç v. Turkey and found a violation of Article 6 § 1 of the Convention ([GC], no. 36590/97, § 14, ECHR 2002-V). In that judgment, the Court held that, having regard to the nature of the principal public prosecutor's submissions and to the fact that the applicant had not been given an opportunity to make written observations in reply, there had been an infringement of the applicant's right to adversarial proceedings (loc. cit. § 55).

# The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned case.

# Accordingly, there has been a violation of Article 6 § 1 of the Convention.

2. Lack of legal assistance during police custody

# The Government maintained that the restriction imposed on the applicant concerning access to a lawyer while in police custody had not infringed his rights of defence. They submitted that, according to the Court's case-law, the assessment of whether a trial was fair should be made in the light of the entire case. In this connection, they contended that the applicant had been assisted by a lawyer before both the Izmir State Security Court and the Court of Cassation.

# The applicant maintained his allegations.

# The Court reiterates that Article 6 § 3 (c) may be relevant at the stage of the preliminary investigation in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996 I, § 62). Although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (see Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 X).

# In the present case, the Court notes that the applicant was represented both at the trial before the Izmir State Security Court and on appeal by his lawyer. Moreover, the statement he made to the police during his pre-trial detention was not the sole basis for his conviction, and he had had the opportunity of challenging the prosecution's allegations under conditions which did not place him at a substantial disadvantage vis-à-vis his opponent. Before deciding the case, the Izmir State Security Court considered the factors surrounding the applicant's arrest and the expert report which confirmed that the applicant's handwriting had been identical to that on the illegal placard. The court also took note of witnesses' statements before the public prosecutor to the effect that the applicant had invited them to join the demonstration. The court then convicted the applicant on the basis of the facts and evidence before it as a whole (see Yurtsever v. Turkey (dec.), no. 42086/02, 1 August 2006, and Uçma and Uçma v. Turkey (dec.), no. 15071/03, 3 October 2006).

# In these circumstances, the Court considers that, in the instant case, the fairness of the applicant's trial was not prejudiced on account of the fact that he did not have access to a lawyer during the period in police custody.

Accordingly, there has been no violation of Article 6 § 3 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

# 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.”

A. Damage

# The applicant claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.

# The Government contended that the amounts claimed were excessive and unacceptable.

# The Court finds that the applicant has failed to substantiate that he incurred any pecuniary damage as a result of the breach of his Convention rights. It therefore disallows this aspect of the claim. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

B. Costs and expenses

# The applicant also claimed EUR 3,500 for the costs and expenses incurred before the domestic courts and the Court.

# The Government submitted that the applicant had failed to substantiate his claim.

# Making its own estimate based on the information available, the Court considers it reasonable to award the sum of EUR 1,000 under this head.

C. Default interest

# The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

# Declares, unanimously, the application admissible;

# Holds unanimously that there has been a violation of Article 6 § 1 of the Convention on account of the non-communication of the public prosecutor's written opinion;

# Holds by 5 votes to 2 that there has been no violation of Article 6 § 3(c) of the Convention on account of the lack of legal assistance while the applicant was in police custody;

# Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant;

# Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into new Turkish liras at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

# Dismisses, unanimously, the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé F. Tulkens Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Tulkens and Mularoni is annexed to this judgment.

F.T.
S.D.

JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND MULARONI

We regret that we cannot agree with the majority that there has been, in this case, no violation of Article 6 § 3 (c) of the Convention, for the following reasons:

# As the majority correctly points out at paragraph 22 of the present judgment, our Court has been very clear in reiterating, over many years, that Article 6 applies even at the stage of the preliminary investigation into an offence by the police, and that its paragraph 3 (c) may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (Imbrioscia v. Switzerland, judgment of 24 November 1993, § 36). As the Court emphasised in that judgment, the manner in which this provision is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (§ 38).

In the John Murray v. the United Kingdom judgment of 8 February 1996, the Court observed: “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. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (§ 63).

In the Brennan v. the United Kingdom judgment of 16 October 2001, which is based on the same principles, the Court said that “[t]he manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case” (§ 45). It observed: “although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” (ibid).

# We can reasonably infer from the above-mentioned case-law the following elements:

Firstly, it is now clear from the Court's case-law concerning Article 6 § 3 (c) that the assistance of a lawyer already at the initial stages of police interrogation is the rule and the lack of assistance is the exception.

Secondly, both in the John Murray and Brennan judgments, the Court made it equally clear that, if there is a restriction on the right to the assistance of a lawyer already at the initial stages of the proceedings, there must be a “good cause” (des raisons valables) for such a restriction.

Thirdly, we observe that in the Murray case the Court found a violation of Article 6 § 3 (c) of the Convention and refused to accept the respondent Government's submission that no problem arose under this Article since the inferences drawn during the first 48 hours of police detention were not the only evidence against the applicant (§ 60, third sub-paragraph).

Fourthly, although in the Brennan case the Court did not find a violation of Article 6 § 3 (c) of the Convention as far as the deferral of access to the applicant's solicitor was concerned, the reason was that the applicant had made no incriminating admissions during the 24-hour deferral period, when he was denied access to a solicitor.

# Against this background, in the present case, we cannot accept that the exception has become the rule and that the argument put forward by the Government and rejected by the Court in the Murray case is now the ordinary justification for dismissing complaints under Article 6 § 3 (c) concerning deferral of access to lawyer, i.e. that “the statement the applicant made to the police during his pre-trial detention was not the sole basis for his conviction” (paragraph 23 above). As to the argument that the applicant had had the opportunity to challenge the prosecution's allegations under conditions which did not place him at a disadvantage vis-à-vis his opponent, it does not seem to us to be grounded on any factual evidence in the file.

Furthermore, no examination of the specific circumstances of the case was made, although incriminating admissions made during police custody were part of the evidence used for the conviction. As to this last aspect, we would observe that the applicant was a minor suspected of having participated in an illegal demonstration in support of the imprisoned leader of the PKK, and accused of hanging an illegal placard on a bridge. He was facing a very serious penalty and was eventually sentenced to four years and six months' imprisonment, which was then reduced to two and a half years' imprisonment on account of the fact that he was a minor at the time of the offence. In addition to that, before the public prosecutor and the investigating judge, the applicant denied the content of his police statement, alleging that it had been extracted under duress (paragraph 7 above).

Moreover, the majority does not examine at all the specific circumstances of the case, as the Court did for example in the Kolu v. Turkey judgment of 2 August 2005, in which it held that there had been a violation of Article 6 § 3 (c) of the Convention on the ground that “depriving the applicant of legal assistance while he was being questioned – whatever the justification might be – caused an infringement of his right to due process which could not be made good subsequently” (§ 62).

Finally, the Government have not advanced any “good cause” (des raisons valables) for the restriction at issue. The only “good cause” was probably that the legislation in force at the material time in the respondent State concerning such crimes did not provide for access to a lawyer during police custody.

# On a more general level, we would also observe that in the last few years a number of State Parties to the Convention, including the respondent, have changed the relevant legislation concerning access to a lawyer during police custody. Some of them expressly invoked the Court's case-law as the main reason for such a change. In this respect, we should not send out the wrong message by saying that the mere fact that a statement made to the police during pre-trial detention is not the sole basis for an applicant's conviction retrospectively justifies any restrictions on access to a lawyer during police custody, which is simply not true.

# Last but not least, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) has frequently recommended that the right of access to a lawyer be guaranteed from the very outset of custody (see as a recent reference CPT/Inf/E (2002) 1 – Rev. 2006, page 12, § 41). The CPT has stressed that, in its experience, the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment. It is difficult for us to accept that our Court, while being more and more careful about any situation that could possibly be problematic under Article 3 of the Convention, is at the same time moving backward as to the protection afforded under Article 6 § 3 (c) of the Convention.

# The aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective. That rule is true also of the right to legal assistance. As we all know, the crucial moments in criminal proceedings come right at the beginning, with the first stages of police intervention, which may determine the outcome of the proceedings definitively and irremediably.

That is the main reason why the right to legal assistance as soon as possible and throughout criminal proceedings is set forth as a guaranteed fundamental right in the proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, with the aim of setting common minimum standards.