PARTLY DISSENTING OPINION OF

MR S. TRECHSEL JOINED BY MR F. MARTINEZ

Contrary to the majority of the Commission, I have come to the conclusion that there has not been a violation of the right to be assisted by counsel according to Article 6 para. 3(c) of the Convention in the present case. My reasoning is as follows:

Contrary to the situation in the John Murray case, the present applicant was never actually denied access to a solicitor. He was aware of his right to counsel and the solicitor was, so to speak, on his way. Furthermore, the applicant was also aware of his right to remain silent and he made use of this right to the fullest possible extent.

Nonetheless, the question arises whether a defendant has an unfettered right to be in contact with counsel from the moment of arrest. However, I do not believe that this question must be answered in the present case. Assuming that the answer was in the affirmative, I would then have to ask what the purpose of that guarantee is. I would take the answer from the famous Miranda warning in which the first item is the right to silence. The arrestee is then made aware of his right to counsel and of the right not to make any statement before consultation with the latter.

In the present case, this is what the applicant did. He remained silent. Thus, the risk against which the right to counsel immediately after arrest is to protect, namely that the cefendant would make self-incriminating statements due to lack of information, did not materialize and no harm was done.

Two objections could perhaps be made to this approach, the first relating to the legal situation in the present case, the second relating to the Court's case-law on Article 6 para. 3(c).

The first objection would be that the applicable legislation made it possible for the trial judge to draw inferences from the defendant's silence. It would therefore be wrong to say that no harm was done by the fact that the applicant remained silent. However, I do not find this argument convincing. The applicant could consult with his solicitor. The latter could have advised him that he ought in his own interest to answer questions. Nothing would then have prevented him from contacting the police and, after explaining that he had in the meantime consulted with counsel, declare that he was now prepared to answer their questions.

As regards the second objection, in the case of Artico v. Italy (Eur. Court. HR judgment of 13 May 1980, Series A Vol. 37, para. 35, p. 17 s.) the Government had argued that the lack of assistance must have actually predjudiced an applicant for there to be a violation of Article 6 para. 3(c). The Court quite correctly answered that to ask for proof of damage would be asking the impossible: "{A}n interpretation that introduced this requirement into the sub-paragraph would deprive it in large measure of its substance. More generally, the existence of a violation is conceivable even in the absence of prejudice".

Yet, the Court does in fact look at the probability of actual damage. In the present case, it must be recalled that legal assistance was not in any way denied. The question rather ought to be whether the fact that the police started the interrogation before the solicitor had arrived constituted a violation of the applicant's right to a fair trial. For the reasons set out above I have come to the conclusion that this is not the case and I have therefore voted against the finding of a violation of Article 6 para. 3(c).

(Or. English)

PARTLY DISSENTING AND PARTLY