Communicated on 10 February 2015

THIRD SECTION

Application no. 45892/13 Omar EL ALLATI against the Netherlands lodged on 11 July 2013

STATEMENT OF FACTS

1. The applicant, Mr Omar El Allati , is a Dutch national, who was born in 1987 and lives in Utrecht . He is represented before the Court by Mr J. Weldam , a lawyer practising in Utrecht .

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 5 January 2011, the applicant was interrogated by police as a suspect of the offence of arson with (risk of) grave consequences ( brandstichting met er ns tige gevolgen danwel de kans op gevaar voor ernstige gevolgen ). At that time the applicant was already being held in detention on remand in connection with other unrelated criminal offences. The police had notified the Legal Aid Duty Roster Service ( piketcentrale ) beforehand and accordingly, a lawyer had arrived. The applicant was given the opportunity to consult this lawyer before the interrogation commenced and was assisted by the same lawyer during the ensuing police interrogation. According to the applicant, the police had explicitly requested the lawyer ’ s presence and assistance during the interrogation. Following these events, the lawyer sought remuneration for the assistance he had provided to the applicant from the Legal Aid Council ( Raad voor Rechtsbijstand ).

4. On 19 January 2011, the Legal Aid Council set the remuneration for the legal assistance provided to the applicant under the scheme of the Legal Aid Duty Roster Service at 110.94 Euros pertaining only to the assistance provided prior to the police interrogation. The applicant ’ s lawyer lodged an objection ( bezwaar ) against the partly refused request for remuneration. On 23 March 2011, the Legal Aid Council rejected the objection, finding that the Regulation on remuneration of legal assistance prior to or during police questioning ( Beleidsregel vergoedingen raadplegen raadsman voorafgaand aan of bij het politieverhoor , “the Regulation”) did not provide for the granting of a remuneration for the legal assistance given to the (adult) applicant during police questioning. Although possible, the lawyer did not lodge an appeal with the Regional Court ( rechtbank ).

5. On 5 May 2011, the applicant ’ s lawyer, on behalf of the applicant, applied for State-sponsored legal aid ( toevoeging ) in the criminal proceedings against the applicant on charges of arson, in order to be remunerated for the assistance he had provided during police questioning. This application was refused by the Legal Aid Council on 14 June 2011, as it found that the criminal proceedings for which legal aid was requested had still been at a stage where the litigant could be expected to attend to his own interests without the assistance of a lawyer, which, pursuant to article 12, paragraph 2 (g) of the Legal Aid Act ( Wet op de rechtsbijstand ), is a ground for refusal of a request for State-sponsored legal aid. The applicant lodged an objection against the refusal, advancing arguments why the assistance by a lawyer during police interrogation had been necessary and moreover asserting that the refusal was in violation of Article 6 of the Convention.

6. On 28 September 2011, the Legal Aid Council rejected the applicant ’ s objection, referring to and adopting the contents of an advice drawn up by its objections committee ( Bezwarencommissie ) on 21 September 2011. In the advice it was considered that the Legal Aid Act and the Regulation provide that in criminal proceedings, State-sponsored legal aid is to be granted from the moment that an indictment has been issued. When no indictment has (yet) been issued, such legal aid is only afforded when special circumstances so require, for example in the event of a preliminary judicial investigation or inquiry, which, in the present case, had not been the case. Further reference was made to the Instruction on l egal assistance for p olice q uestioning ( Aanwijzing rechtsbijstand politieverhoor , “the Instruction”) which, so the objections committee considered, laid down the right of a defendant in criminal proceedings to consult a lawyer only prior to, and not during police interrogations; the right to be assisted by a lawyer during interrogation pertaining only to an under-age defendant (younger than 18).

7. The applicant lodged an appeal with the Regional Court, arguing, inter alia , that the gravity of the offence he had been suspected of having committed – arson – and the fact that he was already being held in custody at the material time, required the assistance of a lawyer during police interrogation and that the denial of State-sponsored legal aid for such assistance – taking into account his insufficient financial means – prejudiced his defence rights in a manner incompatible with Article 6 of the Convention.

8. On 2 February 2012, a single-judge chamber ( enkelvoudige kamer ) of the Amsterdam Regional Court dismissed the appeal. It agreed with the Legal Aid Council that no basis could be found in the Instruction or in the Regulation for granting State-sponsored legal aid in respect of legal assistance to an adult defendant during police interrogation. It further found the policy at issue set by the Legal Aid Council reasonable, considering that it was in conformity with this Court ’ s case-law concerning Article 6.

9. The applicant lodged a further appeal with the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State , “the Division”), which dismissed that appeal on 3 April 2013. In concluding that the refusal of the applicant ’ s request for State-sponsored legal aid was not in violation of Article 6, the Division referred to several judgments of the Supreme Court ( Hoge Raad ) in which that court had considered that no right of a defendant to be assisted by a lawyer during police interrogation could be derived from this Court ’ s case-law.

COMPLAINT

The applicant complains that, in violation of Article 6 § 3 (c) of the Convention, he was not provided with legal assistance free of charge during police questioning.

QUESTION TO THE PARTIES

Was the applicant afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention? In particular, did the interests of justice require such assistance during police questioning ?