Information Note on the Court’s case-law 258
January 2022
Atristain Gorosabel v. Spain - 15508/15
Judgment 18.1.2022 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-c
Defence through legal assistance
Legal assistance of own choosing
Use at trial of initial confession by terrorist suspect held incommunicado and denied, without individualised reasons, access to lawyer of own choice and legal-aid lawyer: violation
Facts – The applicant is currently serving a seventeen-year sentence of imprisonment for membership of a terrorist group and possession of explosives. After his arrest on 29 September 2010, his detention incommunicado was authorised by an investigating judge of the Audiencia Nacional. The applicant complains that he was denied a lawyer of his own choosing whilst being held incommunicado, that he was not allowed to communicate with the lawyer appointed to represent him before and during the police interviews, and that for those reasons he made self-incriminatory statements which had enabled the police to obtain the evidence on which his conviction was based.
Law – Article 6 §§ 1 and 3 (c): At the material time the Code of Criminal Procedure denied to detainees being held in detention incommunicado, as in cases concerning terrorism such as the present one, the possibility of being assisted by a lawyer of their own choosing, although it stipulated that they had to be appointed a legal-aid representative from the moment of their arrest. They were also restricted to consult with the lawyer prior to the police interviews.
(a) Existence of reasons for the restrictions of the applicant’s right of access to a lawyer of his own choosing and of the access to the legal-aid lawyer before the police interviews during his incommunicado detention – The impugned restrictions stemmed from the applicable provisions of the Criminal Procedure Code in respect of the ordering of detention incommunicado which, as such, had been authorised by the investigating judge in view of the Guardia Civil requests to enter and search properties used by the cell of ETA to which the applicant allegedly belonged and the objective of pre-empting the potential frustration of the ongoing investigation, which had been primarily aimed at the location of explosives. Following that decision, the applicant had been entitled to and had in fact been granted a legal-aid representative when arrested and prior to giving his statements to the Guardia Civil; that representative had been present during the interviews when the applicant had made those statements.
If a suspect received the assistance of a qualified lawyer, who was bound by professional ethics, rather than another lawyer whom he or she might have preferred to have appointed, this was not in itself sufficient to show that the whole trial had been unfair – subject to the proviso that there was no evidence of manifest incompetence or bias. In the present case, the decisions which had restricted the applicant’s right to be assisted by a lawyer of his own choosing had been of a general and mandatory nature and based on a general provision of domestic law. They had not entailed an individual assessment of the particular circumstances of the case and had not been subject to judicial authorisation in the light of the specific facts, but had taken into account general suspicions that the applicant had participated in a terrorist organisation and had hidden explosives that could allegedly have been used in a manner posing a severe risk to others’ lives. Further, no relevant and sufficient grounds had been given by the national courts for the restriction. The fact that the judge must provide reasons for the incommunicado detention in general did not imply a justification about the necessity of the restriction of the right of access to a lawyer of one’s own choosing. The national courts had thus failed to demonstrate how the interests of justice had required that the applicant should not be able to choose his counsel.
Similarly, no concrete justification had been provided by the domestic courts on the existence of compelling reasons to justify preventing the applicant from having access to his lawyer before the interviews and during his incommunicado detention. The lack of access to a lawyer before the interviews was also (and logically) covered by the Court’s relevant case-law which emphasised the crucial importance of these confidential meetings. It had also not been shown that the domestic courts had carried out an individual assessment of the particular circumstances of the case. The case-by-case analysis currently provided for by the domestic law, had not been applicable at the material time.
(b) The fairness of the proceedings as a whole – The control of the overall fairness had to be very strict, taking into account the double nature of the restrictions which had been particularly extensive.
The evidence obtained as a result of the statements made by the applicant at the police station had formed a significant part of the probative evidence upon which his conviction had been based. Although there had been other evidence on which the conviction had also been based, the significant likely impact of the applicant’s initial confession on the further development of the criminal proceedings against him could not be ignored. In this connection, the Court observed, that the Government had not provided any reasons, other than the content of Article 527 of the Code of Criminal Procedure, concerning the necessity to prevent the applicant from contacting his lawyer and having an interview with the legal-aid lawyer assigned to him. This element had since been modified in the Code of Criminal Procedure currently in force, which now required an individual judicial decision to restrict the right of the detained person to communicate with a lawyer including during incommunicado detention. Further, neither the first instance court nor the Supreme Court had provided any reasoning to justify the applicant’s complaint that his legal-aid representative had not been allowed to communicate with him, despite repeated attempts to communicate with his client. Lastly, the domestic courts had not taken into account the fact that the applicant had made his second statement despite the opposition of his legal-aid representative.
Consequently, denying the applicant access to the legal-aid lawyer before the interviews as well as from being assisted by a lawyer of his own choosing, without individualised reasons, had undermined the overall fairness of the subsequent criminal proceedings in so far as the applicant’s incriminating initial statement had been admitted in evidence.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage.(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Legal Summary; Dvorski v. Croatia [GC], 25703/11, 20 October 2015, Legal Summary; Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al, 13 September 2016, Legal Summary; Beuze v. Belgium [GC], 71409/10, 9 November 2018, Legal Summary)
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This summary by the Registry does not bind the Court.
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