Information Note on the Court’s case-law No. 145
October 2011
Stojkovic v. France and Belgium - 25303/08
Judgment 27.10.2011 [Section V]
Article 6
Article 6-3-c
Defence through legal assistance
Questioning, under international letter of request, of a “legally assisted witness” without a lawyer: violation
Facts – On 31 January 2003 an armed robbery was committed in a jeweller’s shop in Courchevel (France). The statements of a suspect, together with intercept evidence, led the investigating judge to believe that the applicant was involved in the case. The investigating judge issued an international letter of request. He requested that the applicant, who was being held in another case in Belgium, be questioned as a “legally assisted witness” (témoin assisté) by the Belgian judicial police, in the presence of his lawyer, the investigating judge himself, and two French police officers. Prior to questioning, when notified of his status as “legally assisted witness”, the applicant immediately asked to be assisted by a lawyer “practising in the French courts”. However, he was questioned without a lawyer. During the police interview, in March 2004, he admitted that he had taken part in an armed robbery in 2003 in a Courchevel jeweller’s shop. He mentioned other armed robberies, recognising his involvement in some of them, in particular in Saint-Tropez and Biarritz. In 2005 he was surrendered by the Belgian authorities to the French authorities under a European Arrest Warrant and placed under judicial investigation (mis en examen), charged with armed robbery committed as part of a gang in Courchevel, Biarritz and Saint-Tropez. As regards the Courchevel robbery, the indictment indicated that the charges against the applicant had been confirmed, among other things, by his own “precise and detailed” statements given in Belgium during his police interview there. However, he had refused to comment on the charges when examined by the French investigating judge, because he alleged that his confessions had been taken unlawfully. In the proceedings before the Assize Court he accepted all the charges. He was sentenced to six years’ imprisonment in 2008.
Law – Article 6 § 3 (c) in conjuction with Article 6 § 1
(a) Admissibility of the application
(i) In respect of Belgium – The applicant fell within Belgian jurisdiction within the meaning of Article 1 of the Convention. As requested State, Belgium was required* to execute the international letter of request issued in respect of the applicant according to that country’s statutory formalities, which did not provide for legal assistance during the interview organised in that connection. In those circumstances the complaint of a violation of Article 6 § 3 stemmed from Belgian legislation. By contrast, in the absence of any subsequent criminal proceedings against the applicant in Belgium, and even of any action by him against the Belgian authorities to complain about his police interview and the failure to provide him with legal assistance, the alleged violation had to be regarded as resulting not from a continuing situation but from a single event that took place in March 2004. As that date was more than six months before the application was lodged with the Court (in 2008), it had to be rejected as out of time in so far as it was directed against Belgium.
Conclusion: inadmissible (out of time).
(ii) In respect of France – The presence at the applicant’s interview by the Belgian police of the French judge in the case and a member of the public prosecutor’s office from the same court, even though they had had no active role in the questioning, was significant. Whilst it was not stricto sensu for the French investigating judge to supervise the interview held pursuant to the letter of request he had issued, he should nevertheless have reminded the Belgian authorities responsible for the interview that he had stipulated that the applicant’s lawyer should be present, especially as the applicant himself had requested a lawyer at the beginning of the interview, to no avail. It was also for the French authorities to assess ex post facto the validity of the acts undertaken pursuant to the letter of request for the purposes of the proceedings pending in France. The application was therefore compatible ratione personae with the provisions of the Convention in respect of France.
Conclusion: admissible (unanimously).
(b) Merits: The applicant’s interview had been conducted in accordance with the procedural regime applicable in Belgium, which provided for the questioning of all persons without any difference in treatment, whether or not there were any suspicions against them. Moreover, the questioning of the applicant had taken place solely for the purposes of executing an international letter of request, in the context of a judicial investigation being conducted in France. The requesting investigating judge had indicated that he would be questioned as a “legally assisted witness”. Even though this status could not have applied in reality to the interview in question, under international law as it then stood, the wording of the request showed that the applicant was strongly suspected of taking part in the offence in question, as required by French law in that connection. Moreover, the applicant had been made aware of those suspicions prior to his interview. As to the further statements by the applicant, whilst the offences in question did not fall within the initial remit of the investigating judge, it appeared that they had given rise to new judicial investigations, subsequently joined to the first, and had ultimately led to the applicant’s committal to stand trial before the Assize Court. In those circumstances, as the applicant’s situation had been substantially affected by the interview, there had already been a “criminal charge against him”. The Court further took the view that the applicant’s situation at the time of the interview had to be taken into consideration. Even though no restrictive or custodial measure had been imposed on him for the purposes of the proceedings at issue, he had been brought from prison to be questioned. He had been simultaneously notified of the provisions of Belgian law, which did not provide for legal assistance, and of his French status as a “legally assisted witness”, which afforded him certain rights. The interview had taken place in the presence of the judge who had granted him that status. For the Court, the applicant must have been confused by such a situation. Consequently, whilst he was apparently willing to make certain disclosures to the investigators, even incriminating himself by his statements, this could not be regarded as a totally informed choice. The applicant had admittedly been informed of the statutory provisions to the effect that anything he said might be used in evidence in court. However, he had not expressly been notified of his right to remain silent and had given his statements without legal assistance. He had not unequivocally waived his right to remain silent or his right to a lawyer. The Court acknowledged that the French authorities bore no responsibility for the legal conditions in which the interview had taken place. They had to abide by the provisions of Belgian law as required by their international undertakings. However, under Article 1 of the Convention, it had been for the French criminal authorities to ensure that the acts carried out in Belgium had not been in breach of the rights of the defence and thus to verify the fairness of the proceedings under their supervision. Fairness had to be assessed, in principle, in the light of the proceedings as a whole. This had not been done in the present case. In spite of the fact that the applicant had subsequently exercised his right to remain silent before the French investigating judge, after being provided with legal assistance he had been placed under judicial investigation and then sent for trial in the Assize Court based on his initial statements. The fact that he had later, before the trial court, accepted all the charges against him, could not therefore suffice to make good the breach initially committed, especially as by that time he was no longer in a position to challenge the validity of the interview in question.
Conclusion: violation in respect of France (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
* Under Article 3 of the European Convention on Mutual Assistance in Criminal Matters (STE no. 30), adopted on 20 April 1959 and ratified by France on 23 May 1967 and by Belgium on 13 August 1975.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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