ECHR judgment of November 9, 2018 in the case of Bezéz (v. Belgium) (application No. 71409/10).
In 2010, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Belgium.
The case was successfully examined by the application that during his detention and the investigation he was questioned in the absence of a lawyer, and that the jury rejected the complainant’s claim that the testimony obtained during the interrogations conducted by the police and the investigating judge were inadmissible. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
On 17 December 2007, the complainant was detained by gendarmes in France and detained on the basis of a European arrest warrant. On December 31, 2007, he was handed over to the Belgian authorities, where he was interrogated during his detention and investigation in the absence of a lawyer.
The jury rejected the claimant’s claim that the testimony obtained during interrogations conducted by the police and the investigating judge were inadmissible. At the end of the debate, the complainant was found guilty by the jury, in particular for premeditated murder and sentenced to life imprisonment.
Subsequently, the Court of Cassation dismissed the argument that a lawyer was not assisted at the preliminary stage of the proceedings. The Court of Cassation considered that, taking into account the proceedings in the case as a whole, it should be considered that the applicant's right to a fair trial was respected.
QUESTIONS OF RIGHT
Regarding compliance with paragraph 1 and subparagraph "c" of paragraph 3 of Article 6 of the Convention. (a) Availability and scope of restrictions. The applicant was handed over to the Belgian authorities on 31 December 2007 at 10.40. However, the right to the assistance of a lawyer was recognized for him only after, at the end of the interrogation at 17.42, the investigating judge ordered him to be taken into custody and notified the lawyers ’office with a view to appointing the applicant a lawyer. At the same time, it is not clear from the materials of the case from which moment the applicant actually gained access to a lawyer in order to prepare his defense.
Even if the applicant could freely communicate with the lawyer appointed to him later, he could not use his help during interrogations and other investigative actions carried out at the preliminary investigation stage of the case. In addition to the fact that this restriction was based on the interpretation of the relevant provisions of the law in force at the time, it was applied during the whole period of the preliminary investigation, namely during 10 interrogations. The applicant's lawyer also did not participate in the on-site verification of tests on 6 June 2008.
(b) There is an urgent need. The controversial restrictions were caused by a gap in the legislation of Belgium and the interpretation of the latter by the courts of the respondent state. However, restrictions on access to a lawyer in case of urgent need are allowed at the preliminary stage of the proceedings only in exceptional cases. They should be temporary and based on an individual assessment of the particular circumstances of the case. Such an individual assessment was obviously not carried out in the present case. Furthermore, the authorities of the respondent State have not established the existence of exceptional circumstances. Consequently, the restrictions on the applicant's right to access a lawyer were not justified by any urgent need.
The applicant referred to a certain interpretation of the case law of the European Court concerning the right of access to a lawyer. According to this interpretation, if the restriction of the right of access to a lawyer follows from the law and is systematic, in the absence of an urgent need, it is enough to conclude that the requirements of Article 6 of the Convention are violated. However, as follows from the judgment of the Grand Chamber of the European Court of Justice in the case of Ibrahim and Others v. The United Kingdom ((Ibrahim and Others v. United Kingdom) of September 13, 2016, complaint No. 50541/08 and three other complaints), after which It was adopted by the Grand Chamber of the European Court of Justice in the case of Simeonovi v. Bulgaria (Simeonovi v. Bulgaria) of 12 May 2017, complaint no. 21980/04, the European Court rejected the applicants ’argument that the European Court of Justice’s judgment Salduz v. Turkey (Salduz v. Turkey) of November 27, 2008, complaint No. 36391/02) contains an olyutnoe rule of this nature. The European Court has thus departed from the principle enshrined in the Danayan v. Turkey case (Dayanan v. Turkey) of October 13, 2009, complaint No. 7377/03, as well as in other rulings issued against Turkey.
(c) Compliance with the overall fairness of the process. The European Court must evaluate the fairness of the process, using a very strict approach, especially in cases where restrictions on the right of access to a lawyer are based on legal provisions of a general and mandatory nature. Thus, the burden of proof lies with the authorities of the respondent state, which must provide convincing evidence that the proceedings in the applicant’s criminal case were generally fair. However, the failure of the authorities of the respondent State to provide evidence of an urgent need carries great weight in the balance and may lead the Court to conclude that there has been a violation of paragraph 3 (c) and paragraph 1 of Article 6 of the Convention.
Below, we will analyze the various factors considered in the above-mentioned judgments of the Grand Chamber of the European Court of Justice for Ibrahim and Others v. United Kingdom and Simeonovs v Bulgaria.
(i) Applicant’s vulnerability. The applicant was not in a state of particular vulnerability, exceeding the state in which persons interrogated by the investigator are usually found. The interrogations and other investigative steps taken during the applicant's detention were neither unusual nor excessively lengthy.
(ii) Circumstances of obtaining evidence. Investigators in Belgium and the French gendarmes did not exert any pressure on the applicant.
(iii) Provisions for pre-sentencing legislation and the admissibility of evidence, as well as the opportunity to challenge the evidence collected and its investigation. At the end of the custody period, the general guarantees provided by the relevant provisions of the law allowed the applicant to communicate with a lawyer during the whole time except for interrogations. However, the Belgian legislation that was applied in the criminal proceedings against the applicant did not comply with the requirements of paragraph 3 of Article 6 of the Convention. Therefore, certain provisions of the law, which provide certain guarantees in abstracto, could not by themselves ensure the overall fairness of the process. The Court had to check whether the application of these legal provisions in the present case was of a compensatory nature, by virtue of which the whole process was fair. As part of this review, it was noted that the applicant’s behavior during interrogations could have such consequences for his further defense that the applicant could not be sure that the assistance provided later by a lawyer or the adversary of the subsequent stages of the process would be sufficient to correct the deficiencies admitted during his detention. In addition, it was not clear from the materials of the case from when the applicant was provided with legal assistance. It is obvious that the applicant's counsel has changed several times, but there is no information in the case file either about the frequency of consultations or that the lawyer was warned about the dates of the interrogations. Accordingly, the applicant did not have the opportunity to prepare his defense with the lawyer in advance, and he had to be content with what he informed the lawyer about how his interrogations took place, perhaps using the protocol, and the applicant drew conclusions for the future.
Thus, the guarantee that the investigation was under the control of the Chamber of Charges, to which the applicant could at any time appeal so that, with the help of a lawyer, to challenge the legality of the investigative actions, did not play an important role in the present case.
The admissibility of the applicant's testimony as evidence was the subject of a dispute in a jury trial. The applicant, with the help of his lawyer, filed remarks in which he demanded that the protocols of interrogations conducted in the absence of a lawyer and the criminal prosecution be declared inadmissible. Referring to the above-mentioned Resolution of the Grand Chamber of the European Court in the case of Salduz v. Turkey, the applicant argued that systematically denying the right of access to a lawyer since the first interrogation was sufficient to state a violation of Article 6 of the Convention. In the same day sentence, the jury rejected the applicant's arguments and recognized all the protocols as admissible evidence on the grounds that, according to the court, the applicant could still exercise his right to a fair trial, despite the absence of a lawyer during the preliminary interrogations.
The jury did not examine in more detail neither the protocols, nor the circumstances in which the controversial interrogations were conducted, nor the testimony obtained. Consequently, there was no evidence that the court analyzed the consequences of the absence of a lawyer for the key points of the proceedings, although such an analysis was nevertheless necessary. This omission is all the more important because, due to the oral nature of the debate in the jury and the lack of detailed court records, it is impossible to assess the impact of the debate on the jury’s opinion.
The court of cassation could assess the impact of interrogations conducted in the absence of a lawyer on the fairness of the proceedings and take measures against the judges who examined the case on the merits and admitted the evidence given by the applicant against himself in the absence of a lawyer. However, the Court of Cassation for the first time issued a relevant decision after the sentence was pronounced in the present case. In reviewing the progress of the applicant’s case, the Court of Cassation focused on the absence of confessions given during the detention period, and regarding the remainder of the preliminary investigation, when the applicant’s rights were also limited, indicated only that the applicant was never forced to testify against himself and always testified voluntarily.
(iv) The nature of the evidence. In the opinion of the jury and the Court of Cassation, the testimony given by the applicant during the controversial interrogations was not grateful and did not constitute a surrender. It is obvious that the applicant never confessed to the crimes he was accused of and, accordingly, strictly speaking, did not testify against himself. Nevertheless, he gave detailed testimony to the investigators, who directed the course of the hearings and interrogations. To this was added the fact that the applicant, during the whole preliminary investigation, changed the version of events several times, thus undermining the credibility of his words, with the result that the first interrogation acquired key importance.
At the beginning of the first and each subsequent interrogation by the police, the complainant was informed that his testimony could be used as evidence, the right of Belgium to implicitly enshrined the right to remain silent. However, in the circumstances of the present case, the information provided by the investigators was not clear enough to ensure the effectiveness of the applicant's right to remain silent and not to incriminate himself. The applicant made important statements and made extensive use of his ability to choose or hide facts.
(v) The use of the evidence obtained, and in the case when the guilt is determined by the jury, the content of the instructions and explanations given by the jury. The proceedings were carried out by a jury, a non-permanent judicial body composed of professional judges and a jury.
The indictment was read at the beginning of the process, before the debate of the parties. It contained information that the applicant admitted, as well as various versions of the statement of facts by the applicant. Thus, the prosecution was also based on various evidences not related to the statements of the applicant and not dependent on them. However, the statements obtained at the very beginning of the applicant's detention, described in detail the events that occurred on the day of the murder, and the subsequent, more detailed, statements contained additional and contradictory information. In addition, the applicant did not deny that he was present at the crime scene and threatened the witness. He himself also provided the investigation with information that could be used against him. These statements, without doubt, provided the investigators with the basis for drawing up the indictment, even if the investigators already had certain information before the first interrogation of the applicant.
The indictment is of limited value for understanding the jury’s verdict, since it is read to the debate, which is intended to allow the jury to form his own inner conviction on the case. In this case, the jury recognized as proved the intent of the applicant to commit one of the two attempted murders, the one that was proved with the help of the testimony of the applicant, among other evidence. The Court attaches great importance to this fact, which makes it possible to consider the testimony of the applicant, given in the absence of a lawyer, as an integral part of the evidence that served as the basis for sentencing the applicant in relation to the murder charge.
In addition, the presiding judge did not give any instructions to the jury as to how much importance should be attached to the numerous testimonies of the applicant during their meeting. Despite the efforts made by the Court of Cassation to evaluate the fairness of the process as a whole in the light of the case-law of the European Court in the present case, the Court of Cassation apparently did not take into account the fact that the jury was not provided information that could send their assessment of the value of the testimony of the applicant, given in the absence of a lawyer.
In the present case, there is a complete lack of instructions and explanations to the jury regarding how they should evaluate the applicant's testimony compared to other materials of the case, and about their evidentiary force, despite the fact that this testimony was obtained in the absence of a lawyer and in relation to detention, without giving the applicant sufficiently clear information about his right to remain silent, is a serious shortcoming.
(vi) The importance of public interest. The criminal prosecution of the applicant was justified by important considerations of public interest, since the applicant was charged with murder and two attempted murder.
(vii) The presence in the relevant Belgian legislation and law enforcement practice of other procedural safeguards. During the events of the present case, the Court of Cassation of Belgium took into account a number of procedural guarantees provided for by Belgian law in order to assess the compliance of the Convention with the legal restrictions on the right to a lawyer during detention.
(viii) Conclusion regarding the fairness of the process as a whole. The criminal proceedings against the applicant, if considered as a whole, did not allow remedying the procedural shortcomings made at the preliminary stage of the proceedings, among which the most important were the following:
- restrictions on the applicant's right to access a lawyer were of a special scale. He was interrogated during his detention without prior consultation with the lawyer and in his absence, and then during the preliminary investigation in the absence of a lawyer who also did not participate in other investigative actions;
- under the circumstances and in the absence of sufficiently clear preliminary information about the right to remain silent, the applicant gave detailed testimony during his detention, then he presented various versions of the facts and gave testimony, which, if they were not appreciative in the narrow sense of the word, no less, it greatly influenced his position, especially with regard to the charge of attempted murder referred to in paragraph (v);
- the aggregate of these testimonies was recognized by the jury as admissible as evidence, although the court did not carry out an appropriate examination of the circumstances in which the evidence was obtained, nor the consequences of the absence of a lawyer;
- if the Court of Cassation considered the question of the termination of the prosecution and, moreover, sought to check whether the applicant’s right to a fair trial was respected, he concentrated on the absence of a lawyer during the applicant’s detention, without assessing the consequences for the applicant’s right to defense his lawyer during interrogations and other investigative actions conducted during the preliminary investigation;
- the applicant's testimony held an important place in the indictment and, as regards the charge of attempted murder, mentioned above, were an integral part of the evidence on which the sentence imposed on the applicant was based;
- During the trial, the jury did not receive any instructions or clarifications from the presiding judge on how to evaluate the evidence of the applicant and their evidentiary value.
In the present case, the combination of various factors, and not each of them individually, led to the fact that the process with respect to the applicant as a whole was not fair.
The case was a violation of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court ruled that the finding of a violation of the Convention will in itself constitute sufficient just compensation for non-pecuniary damage.