DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I voted with the minority, being of the opinion that there had been a clear violation of Article 6 (art. 6). While it may be accepted that Article 6 (art. 6) does not formally require the assistance of a lawyer for an initial period of detention, the Convention does require such assistance for the phase of the preliminary investigation. Even though the specific legislation of the Canton of Zürich does not appear to provide for a period of police custody and entrusts to the district prosecutor the task of carrying out the first inquiries, the accused was questioned by the police during the first twenty-four hours and then on several occasions under the responsibility of the prosecutor. The phase of the preliminary investigation, which lasted some weeks, was the equivalent of an investigation conducted by an investigating judge under the continental inquisitorial system.

Even if it may be accepted that within the Zürich system the first stage of this phase can be conducted by a prosecutor rather than by a member of the judiciary, it remains evident that the assistance of a lawyer is indispensable if the proceedings are to be fair and the rights of the defence respected for the purposes of Article 6 (art. 6).

It is clear that the lawyer, Mr Fischer, after his appointment, was not invited to attend the second series of interrogations effected by the prosecutor, who was aware that Ms B. G. had withdrawn her services. That a lawyer should be so summoned is essential for examining whether the principle that proceedings must be adversarial has been complied with. The lawyer cannot be expected to ask to be summoned when he does not know the date of the interrogation. If the lawyer does not comply with such a summons, it will be for the judge to take any appropriate measures: postponement, appointment of a replacement lawyer and so on. Ultimately this question may be relevant to proceedings brought to establish nullity on the ground of breach of an essential procedural requirement.

In any event it is absolutely necessary for the summons to be issued. Yet there was no express provision to this effect in the relevant legislation of the Canton of Zürich. In order to reach its finding that there had been no violation, the Court took the following view:

"42. Mr Fischer received the case file on 27 February 1985 and went to see his client in prison on 1 March. When he returned it to the district prosecutor on 4 March, he did not raise the issue of the non-attendance by a lawyer at the earlier interrogations of which he had inspected the transcripts (see paragraph 14 above).

The district prosecutor questioned Mr Imbrioscia on 8 March, 11 April and 6 June 1985. It appears that the applicant was able to talk to his counsel before and after each of these interviews (see paragraphs 14, 15 and 18 above). Mr Fischer did not, however, attend the first two. It was not until 17 April that he complained that he had not been given notice that they were taking place (see paragraph 18 above). Thereupon the district prosecutor allowed him to attend the last interview, which concluded the investigation; the lawyer did not then put any questions, nor did he challenge the findings of the investigation (see paragraph 19 above), which he was aware of as he had received the relevant transcripts.

43. Furthermore, the hearings in the Bülach District Court and the Zürich Court of Appeal were attended by adequate safeguards: on 26 June 1985 and 17 January 1986 the judges heard the applicant in the presence of his lawyer, who had every opportunity to examine him and his co-defendant (see paragraphs 21 and 23 above) and to challenge the prosecution ’ s submissions in his address."

However, in my opinion, a violation should be found on the basis of other elements in the file and the practice of the Canton of Zürich. The interrogations were effected without a lawyer being present or being invited to attend between 13 February and May 1985, after the interrogation carried out by the police on 2 February. Mr Fischer did not have access to the file until 27 February 1985. The change of lawyers, Mr Fischer ’ s visit to the prison, his presence at the final interrogation of the investigation and even his failure to lodge a protest or to express reservations on 6 June cannot justify the earlier infringements of the rights of the defence. The wording of Article 17 of the Code of Criminal Procedure of the Canton of Zürich, as applicable at the material time (it has since been amended), made no reference to an obligation to invite the lawyer to attend.

The legislation of the different cantons is supposed to conform to the European Convention on Human Rights and to the case-law of the European Court and that conformity is subject to the supervision of the Swiss Federal Court. In my opinion the present case shows that at the material time the judicial practice of the Canton of Zürich did not take full account of Article 6 (art. 6).

This situation runs counter to all the recent developments in European criminal procedure, which are directed towards recognising the crucial position of the defence throughout the investigation and the criminal trial.

Admittedly the circumstances of the present case limit the scope of the Court ’ s decision. The fact remains, none the less, that the above-mentioned lacunae in the legislation of the Canton of Zürich are evident and in the instant case resulted in an infringement of the rights of the defence.

That is why I voted in favour of finding a violation of Article 6 (art. 6).

The legislation of the different member States of the Council of Europe is also developing towards securing better protection of the rights of the defence in accordance with the spirit of Article 6 (art. 6). Thus as regards police custody, Germany provides for the intervention and presence of a lawyer immediately and France, following a recent reform, after nineteen hours.

In any event, this intervention is indispensable at the stage of the preliminary investigation, the investigation into the merits of the case.

To comply with this requirement the summons must be a compulsory step in the proceedings so that the completion of this formality can be noted in the official record and to leave open the possibility of subsequently pleading the nullity of the proceedings.

The fact that the proceedings are adversarial in nature at the final stage and at the trial cannot cure earlier irregularities in this respect, because statements obtained in the absence of a lawyer can be decisive in reaching a verdict.

The proceedings in the Imbrioscia case provide an example of the difficulty encountered, even in the member States of the Council of Europe, in securing, after forty years, recognition in the legislation and in the attitudes of the legislators and lawyers of the guiding principles of the notion of fair trial derived from the European Convention on Human Rights.