Published on 13 December 2021

FOURTH SECTION

Application no. 9791/20 Basem BOURSHALLI against Austria lodged on 12 February 2020 communicated on 24 November 2021

SUBJECT MATTER OF THE CASE

The application concerns the confession of the asylum-seeking applicant, a stateless Palestinian who grew up in an UNWRA refugee camp in Syria and only speaks Arabic, in police custody in the absence of a lawyer.

The applicant was arrested on 14 June 2016 on suspicion of having been a member of a terrorist organisation which participated in the Syrian armed conflict. On 14 and 15 June 2016 he was interrogated by the police with the help of interpreter B. The applicant was given a pre-printed form in German which notified him, without further explanations, about his right to remain silent and his right to legal advice and about the possibility that his statements could be used against him in court. The form did not include information on how to obtain free legal aid or on opportunities to contact defence counsel free of charge. The applicant signed a pre-printed phrase in German that he waived his right to contact a lawyer. The police claimed that it was the interpreters’ task to translate this form. During the second day of interrogation, which was neither filmed or audiotaped, interpreter B. reported that the applicant confessed that he had shot and killed twenty to thirty severely injured persons in Syria. The applicant signed the interrogation protocol but alleges that interpreter B. had not translated it back to him. In a hearing before the investigating judge the next day, the applicant withdrew the confession. At the end of the hearing, conducted with the help of another interpreter, he stated that he did not have the financial means for a lawyer and that he wished to be appointed a legal aid defence counsel.

The applicant was first convicted in 2017, but the judgment was quashed by the Supreme Court. A new trial was held before the Innsbruck Regional Court, sitting as an assize court with a lay jury, on 10 and 11 December 2018. The applicant denied having committed any killings. The court heard as witnesses three Syrian friends of the applicant, the four police officers who had interrogated him, interpreter B., as well as R. Gh., the person who had informed the authorities that the applicant was allegedly a former fighter. It did not question the police officers on the conditions of informing the applicant of his right to a defence counsel and his waiver. Interpreter B. stated that the applicant had confessed the killings and that he had translated back the draft protocol to him. In a short note, the jury explained that their guilty verdict was based on the applicant’s confession during the police interrogation. The applicant received a life sentence.

The applicant lodged a plea for nullity with the Supreme Court arguing, inter alia , that the trial had not been fair because the waiver of his right to a defence counsel during the police interrogation was invalid as he had not been offered the opportunity to contact emergency legal services and had not understood the consequences of his decision, particularly in light of the fact that the interpreter had not been reliable. The Supreme Court rejected the plea on 23 July 2019 without addressing the complaint concerning the lack of a defence counsel during the police interrogation. On 12 September 2019 the Innsbruck Court of Appeal rejected the applicant’s appeal concerning the sentence.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant able to defend himself through legal assistance, as required by Article 6 § 3 (c) of the Convention? Was the applicant afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention? Did the interests of justice require such assistance (see Zdravko Stanev v. Bulgaria , no. 32238/04, § 38, 6 November 2012; Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008)? Was the applicant informed by the police about opportunities to contact a defence counsel and to be appointed a legal aid counsel and about his right to remain silent (see Beuze v. Belgium [GC], no. 71409/10, §§ 129-30, 9 November 2018; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 270-73, 13 September 2016)? Did the applicant’s waiver to defence counsel comply with the Court’s standard of “knowing and intelligent waiver” (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017; Türk v. Turkey , no. 22744/07, §§ 48-53, 5 September 2017; Pishchalnikov v. Russia , no. 7025/04, § 77, 24 September 2009)?

2. Was the applicant afforded the free and effective assistance of an interpreter, within the meaning of Article 6 § 3 (e) of the Convention?