Information Note on the Court’s case-law 260
March 2022
Tonkov v. Belgium - 41115/14
Judgment 8.3.2022 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-c
Defence through legal assistance
Applicant’s conviction based on his statements and those of co-accused, having been given at initial stage of investigation without access to a lawyer, pursuant to the applicable law: violation
Facts – Criminal proceedings were brought against the applicant, a Bulgarian national, and his co-accused, and they were both convicted by the Assize Court on a charge of murder.
They were interviewed by the police and the investigating judge without being assisted by a lawyer, neither for a prior consultation nor during the actual questioning, at the initial stage of the investigation when the applicant had the status of witness. In addition, statements by his co-accused, taken without a lawyer being present, were relied upon by the Assize Court in the reasons given for the applicant’s conviction. The Court of Cassation dismissed the applicant’s grounds of appeal based on a violation of Article 6 §§ 1 and 3 (c) of the Convention.
Law – Article 6 § 1 and § 3 (c):
The whole of the proceedings in question took place after the judgment in Salduz v. Turkey [GC] where the Court had laid down the rule that the right of access to a lawyer applied from the first questioning of a suspect by the police.
(a) Existence and extent of restrictions
The Court had previously considered that the restrictions existing at the relevant time had been particularly extensive. In view of the lack of provision in domestic law and the interpretation by the domestic courts, those restrictions had been of a general and mandatory nature.
The applicant had only had the right to consult a lawyer, in accordance with the law, once the investigating judge had remanded him in custody, at the end of his first examination by that judge.
He had been questioned on some ten occasions by the police and the investigating judge about the acts for which he was ultimately convicted, without a lawyer being present. Nor had the lawyer been present at the lie-detector test. A subsequent telephone conversation with the lawyer and the fact that the lawyer was present during the recapitulatory examination by the investigating judge were not such as to mitigate the effect of the earlier restrictions.
Consequently the applicant, who was entitled to the protection of Article 6 from the initial stage of the criminal investigation, had not been afforded access to a lawyer even though he was already “charged” within the meaning of that Article, and that right had been restricted throughout the pre-trial investigation.
(b) Whether there were compelling reasons for the restrictions and the overall fairness of the proceedings
As there had been no compelling reasons for the restrictions, the Court had to apply very strict scrutiny to its fairness assessment, especially as the restrictions stemmed from the applicable law at the time and were thus of a general and mandatory nature. The burden of proof was on the Government to demonstrate convincingly that the applicant had nevertheless had a fair trial as a whole.
(i) The applicant’s alleged vulnerability
The applicant was an adult who had been living for several years in Belgium before his arrest. While he did not speak Dutch, the language of the proceedings, he had been able to express himself in Bulgarian and an interpreter had been present at all interviews. He had not therefore been in a greater state of vulnerability than that in which persons would generally find themselves in pre-trial proceedings.
(ii) The legal framework governing pre-trial proceedings
Since the domestic law at the relevant time had not been compatible with the requirements of Article 6 § 3, the overall fairness of the proceedings could not have been guaranteed merely by legislation providing for certain safeguards in the abstract. The Court had to examine whether the application of these legal provisions had had a compensatory effect in practical terms, rendering the proceedings fair as a whole.
While the applicant had been able to communicate freely with his lawyer from the time of his first examination by the investigating judge, the lawyer had not been informed, before the interview which followed the lie-detector test, of the dates of the interviews in order to prepare for them in advance. In those conditions, the free communication with his lawyer outside the interviews was not sufficient to cure the defect which had occurred at the initial stage of the investigation.
While the presence of the applicant’s lawyer at the recapitulatory examination by the investigating judge and the telephone consultation in connection with the interview following the lie-detector test had enabled the applicant, during the pre-trial investigation, to benefit from some provision of legal advice, this had not had a sufficient compensatory effect.
Therefore the application of the safeguards afforded to the applicant under domestic law at the relevant time had not been sufficient to ensure the fairness of the proceedings.
(iii) Nature of the statements made by the applicant without a lawyer
While the applicant’s statements had not included any confession as such, they had been detailed and were to have a decisive influence on the outcome of the proceedings.
At the initial stage of the investigation, the applicant had spoken at length about his relationship with the victim and his knowledge of the facts. When interviewed on the day of his arrest, he had again given detailed information to the investigators, including about his financial problems, and this had later been regarded as a motive for the offence, carrying some weight in his conviction. He had also made statements that raised suspicions about his real involvement in the events. Moreover, even though the law in force at the time had required his consent before undergoing a lie-detector test, he had given answers that were considered to be false and formed part of the evidence against him.
(iv) Admissibility of statements made by the applicant without a lawyer
At the close of the judicial investigation, when the applicant had been committed for trial in the Assize Court, the Indictments Division of the Court of Appeal had not examined the procedural irregularities in question, even though it could have done so of its own motion. Consequently, all the records containing the statements made by the applicant without the assistance of a lawyer had remained in the file of the criminal proceedings.
Although the applicant had made submissions before the Assize Court seeking, on the basis of the Salduz case-law, the exclusion from evidence of any records of the interviews and examinations conducted without the assistance of a lawyer, and arguing that the prosecution should be inadmissible, the Assize Court rejected this plea and admitted all the evidence in the file, taking the view that the applicant would still have a fair trial before the jury.
While the Assize Court had examined each of the interview records in detail, it had focused on the fact that the questioning had not been conducted under duress and had considered that the applicant had not made any statements that could be used in evidence against him. The Assize Court had thus drawn no conclusions from its finding that the applicant had made use of his right to remain silent only after a telephone conversation with his lawyer. Moreover, the court’s assertion that the applicant had said nothing that could be held against him was contradicted by the indictment, from which it emerged that the statements made by the applicant from the initial stage of the investigation, together with the results of the lie-detector test, had provided the investigators with a basis on which to pursue the prosecution.
Thus the courts had not carried out a sufficient analysis of the impact of the absence of a lawyer on the admissibility of the applicant’s statements.
(v) Admissibility of statements made by the co-accused without a lawyer
The Assize Court had not examined the applicant’s arguments concerning the impact of the absence of a lawyer on the quality of the statements made by his co-accused, even though they had been decisive for the applicant’s conviction.
Subsequent to the present case, the Court of Cassation had held that a defendant could rely on a breach of the right to a lawyer in relation to incriminating statements made by a co-accused, where the reliability of such statements was impaired and their use would violate the defendant’s defence rights, in the event of such statements having been obtained by means of pressure, coercion or torture.
(vi) Use of statements made by the applicant without a lawyer
While the indictment had relied on various evidence, namely witness statements, the investigators’ findings and telephone recordings, it had also been based on the statements made by the applicant in the absence of a lawyer.
In finding the applicant guilty of the murder as the instigator, the jury had referred to elements that could only have been considered corroborated in the light of all the statements taken from the applicant, his co-accused and other persons interviewed as “witnesses”. While it appeared that the statements made by his co-accused had carried decisive weight in the verdict, since they incriminated the applicant, this was not sufficient to conceal the fact that the statements made by the applicant himself without the assistance of a lawyer had played an important role in the jury’s reasoning.
Accordingly, in view of the combination of the above factors, the criminal proceedings against the applicant had not been fair as a whole.
Conclusion: violation (unanimously).
Article 41: finding of a violation was sufficient for non-pecuniary damage.
(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Legal summary; Beuze v. Belgium [GC], 71409/10, 9 November 2018, Legal summary; Knox v. Italy, 76577/13, 24 January 2019, Legal summary; Doyle v. Ireland, 51979/17, 23 May 2019, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes