Information Note on the Court’s case-law 207
May 2017
Simeonovi v. Bulgaria [GC] - 21980/04
Judgment 12.5.2017 [GC]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-c
Defence through legal assistance
Lack of access to lawyer during first three days of police custody not affecting overall fairness of the trial: no violation
Facts – The applicant was arrested on 3 October 1999 on suspicion of involvement in a serious criminal offence. During his three days in police custody he was not assisted by a lawyer. On 6 October 1999, when he was charged in the presence of an officially assigned lawyer, he refused to answer any of the investigator’s questions. On 12 October 1999, when he was questioned in the presence of two lawyers of his choosing, he remained silent. On 21 October 1999, while assisted by his two lawyers, he confessed to the offence as charged. A few months later he retracted his confession and presented a different version of events. He was sentenced to life imprisonment.
In its Chamber judgment of 20 October 2015 the Court unanimously found no violation of Article 6 § 3 (c) read in conjunction with Article 6 § 1 as regards the lack of access to a lawyer during the first three days of police custody.
On 14 March 2016 the case was referred to the Grand Chamber at the applicant’s request.
Law – Article 6 §§ 1 and 3 (c): The Court reiterated that as a general rule, access to a lawyer must be granted as of the first police questioning of the suspect, unless it can be demonstrated that, in the light of the particular circumstances of the case, there are compelling reasons for restricting that right. Even if compelling reasons can exceptionally justify refusing access to a lawyer, such a restriction – for whatever reason – must not unduly diminish the defendant’s rights under Article 6. The rights of the defence are, in principle, irremediably infringed where incriminating statements made under police questioning without any possibility of legal assistance are used as the basis for a conviction.
(a) Starting point for the application of Article 6 – In the present case, the starting point for the right to legal assistance should be the date of the applicant’s arrest. Indeed, that arrest had been based on criminal offences which he was suspected of having committed, and had had a major impact on his situation by enabling the authorities to conduct investigative measures with his participation.
(b) Lack of waiver – Even supposing the applicant submitted no explicit request for legal assistance during his police custody, he could not be deemed to have implicitly waived the right to such assistance. The police had, in fact, failed to inform him of that right after his arrest.
(c) Lack of “compelling reasons” to restrict access to a lawyer – No “compelling reason” had been mentioned to justify restricting the applicant’s access to a lawyer during his custody (imminent threat to the lives, physical integrity and/or safety of others). Furthermore, domestic legislation on access to a lawyer during police custody did not explicitly provide for exceptions to the application of that right.
(d) Overall fairness of the proceedings – The lack of “compelling reasons” in the instant case forced the Court to conduct a very strict assessment of the fairness of the proceedings. It was incumbent on the Government to convincingly demonstrate that the applicant had nevertheless benefited from a fair criminal trial.
The Court noted that: (i) the applicant had actively participated in all stages of the criminal proceedings; he had retracted his initial statements, presenting a different version of events, and his lawyers had secured the gathering of exonerating evidence and contested the evidence against him; (ii) the applicant’s conviction had been based not solely on his confession but also on a whole body of consistent evidence; (iii) the courts had duly taken into account the evidence gathered, had ascertained that the applicant’s procedural rights had been respected and had provided adequate reasons for their decisions in both factual and legal terms.
There was nothing to suggest that the applicant had been formally or informally questioned while in police custody. No evidence against the applicant had been obtained and included in the file during his custody. It did not transpire from any case document that during the approximately three days of custody the applicant had participated in any other investigative measures (such as an identification parade or DNA sampling). Furthermore, it would have been impossible under domestic law to use evidence against him obtained in the absence of a lawyer. Moreover, the applicant had changed his version of events; even his submissions before the European Court had been very vague on that point, and he had not provided any specific details until he lodged his memorial with the Grand Chamber.
The voluntary nature of the applicant’s confession could be deduced from the following facts: (i) he had remained silent during two previous interrogations; (ii) during the questioning and his confession he had benefited from legal assistance and been informed of his procedural rights, in particular his privilege against self-incrimination; (iii) his refusal to make any statement would not have had any impact on the subsequent stages of the criminal proceedings.
No causal link had ever been mentioned, before the domestic courts or before the Court, between the lack of legal assistance during the applicant’s police custody and his confession two weeks later, in the presence of a lawyer of his choosing. Consequently, the absence of a lawyer during that custody had in no way infringed the applicant’s privilege against self-incrimination. Accordingly, it had not irremediably infringed the fairness of the criminal proceedings as a whole.
Conclusion: no violation (twelve votes to five).
The Court also unanimously found a violation of Article 3 of the Convention on account of the applicant’s conditions of detention, read in conjunction with the duration of his imprisonment and the strict prison regime imposed on him, and awarded him EUR 8,000 in respect of non-pecuniary damage.
(See also Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13 September 2016, Information Note 199)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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