Information Note on the Court’s case-law 189

October 2015

Dvorski v. Croatia [GC] - 25703/11

Judgment 20.10.2015 [GC]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Denial, without relevant and sufficient reasons, of access to a lawyer of the suspect’s own choosing during police questioning: violation

Article 6-3-c

Legal assistance of his own choosing

Failure to inform suspect that his family had appoint ed a lawyer to represent him during police questioning: violation

Facts – In 2007 the applicant was arrested in connection with a number of crimes and questioned as a suspect by the police. During questioning the applicant confessed to the offences with wh ich he was charged, and his confession was admitted in evidence at his trial. In 2008 the applicant was ultimately convicted of aggravated murder, armed robbery and arson and sentenced to forty years’ imprisonment.

In his application to the European Court the applicant complained that following his arrest the police had denied him access to a lawyer (G.M.) his parents had hired to represent him, that he had therefore had to accept the services of a lawyer called in b y the police (M.R.), and that he had been forced to incriminate himself without the benefit of a lawyer of his own choice. In a judgment of 28 November 2013 a Chamber of the Court held, by five votes to two, that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. On 14 April 2014 the case was referred to the Grand Chamber at the applicant’s request (see Information Note 173 ).

Law – Article 6 §§ 1 and 3 (c): Unlike the position in Salduz v. Turkey , where the applicant was denied access to a lawyer during police questioning, the instant case concerned a situation where the applicant was afforded access from his first interrogation, but not – according to his complaint – to a lawye r of his own choosing. In contrast to cases involving denial of access, where “compelling reasons” were required for questioning a suspect without representation, the more lenient requirement of “relevant and sufficient” reasons was applied in situations r aising the less serious issue of “denial of choice”. While national authorities had to have regard to a suspect’s wishes as to his or her choice of legal representation, they could override those wishes when there were relevant and sufficient grounds for h olding that this was necessary in the interests of justice. Where relevant and sufficient grounds were lacking, a restriction on the free choice of defence counsel would entail a violation of Article 6 § 1 in conjunction with § 3 (c) if it adversely affect ed the defence, regard being had to the proceedings as a whole.

(a) Whether the applicant was represented by a lawyer of his own informed choice – The Court found it established that G.M. had attempted to see the applicant at the police station before the questioning started but was told to leave, without the applicant being informed of his presence. Accordingly, although the applicant had formall y chosen M.R. to represent him during the police questioning, his choice was not an informed one because he did not know that his parents had hired G.M.

(b) Whether there were relevant and sufficient reasons for restricting the applicant’s access to the l awyer of his choosing – The only reason cited by the Government for not allowing G.M. access to the applicant was that he did not have a proper power of attorney to represent him. However, the evidence in the case file indicated that G.M. had been given a written power of attorney by the parents, as permitted by the domestic law. The police had thus been under an obligation to at least inform the applicant that G.M. was at the police station, but this they had omitted to do. In these circumstances, the Cour t was not convinced that the applicant’s inability, as a result of the police’s conduct, to designate G.M. as his representative was supported by relevant and sufficient reasons.

(c) Whether the fairness of the proceedings as a whole was prejudiced – Wher e, as in the instant case, it was alleged that the appointment or choice of lawyer had influenced or led to the making of an incriminating statement by the suspect at the very outset of the criminal investigation, careful scrutiny by the authorities, notab ly the national courts, was called for. However, the reasoning employed by the national courts in relation to the legal challenge mounted by the applicant concerning the manner in which his confession had been obtained by the police was far from substantia l. No national authority had taken any steps to establish the relevant circumstances surrounding G.M.’s visit to the police station in connection with the applicant’s questioning by the police. In particular, the national courts had made no real attempt to provide reasons supporting or justifying their decision in terms of the values of a fair criminal trial as embodied in Article 6 of the Convention. The Court was therefore not convinced that the applicant had had an effective opportunity to challenge the circumstances in which M.R. was chosen to represent him.

In the instant case, it could be presumed that the consequence of the police’s conduct had been that, instead of remaining silent at his first police interview as he was entitled to do, the applicant had made a confession which was later admitted in evidence against him. He had subsequently contested the manner in which that confession had been obtained by the police. Although there was other evidence against him, the significant likely impact of his initial confession on the further development of the criminal proceedings could not be ignored. In these circumstances, the consequence of the police’s conduct in preventing the chosen lawyer from having access to the applicant had undermined the fairness of the subsequent criminal proceedings taken as a whole.

Conclusion : violation (sixteen votes to one).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

(See Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113 ; see also the Factsheet on Police arrest and assistance of a lawyer )

© Council of E urope/European Court of Human Rights This summary by the Registry does not bind the Court.

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