DISSENTING OPINION OF JUDGE DE MEYER

On the 13th of June 1966, the Supreme Court of the United States of America delivered its well-known Miranda judgment, in which the rules governing custodial interrogation were summarised as follows:

"(U) nless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored , the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him" [*] .

In the same judgment it was also stated that there can be no questioning if the person "indicates ... that he wishes to consult with an attorney before speaking" or if, being alone, he "indicates ... that he doe s not wish to be interrogated" [*]  .

These principles, then clearly defined, belong to t he very essence of fair trial [*]   .

Therefore I cannot agree with the present judgment, in which our Court fails to recognise and apply them.

DISSENTING OPINION OF JUDGE LOPES ROCHA

(Translation)

I subscribe fully to the views expressed in the dissenting opinions of Judge Pettiti and Judge De Meyer, to which I would add the following comments.

The most modern European codes of criminal procedure recognise that the right of an accused to legal assistance at each stage of the proceedings is an established one which is considered to be the most perfect embodiment of the rights of the defence and therefore of fair proceedings intended to secure for the accused an ever stronger and more effective position as a party to the trial.

The enjoyment of such a right is undoubtedly justified, especially in the initial stages of the proceedings when the accused has to confront the prosecuting authorities on rather unequal terms, and the fact that he is allowed the assistance of a legal specialist at the subsequent interrogations cannot effectively cure this defect.

Admittedly, at the trial the accused has the right to seek to refute the evidence obtained, including any confession that he may have made, but experience shows that at this stage of the proceedings that right is frequently insufficient to overturn opinions formed on the basis of statements made in the absence of a lawyer.

That is why, in the present case, I took the view that there had been a violation of Article 6 paras . 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.

[*]  The case is numbered 32/1992/377/451.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 275 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Miranda v. Arizona , Vignera v. New York , Westover v. United States and California v. Stewart, 384 US 436, at 478-479, 16 LEd 2d 694, at 726.

[*]   384 US at 444-445, 16 LEd 2d at 706-707.

[*]    See also the dissenting opinion of Mr Loucaides , annexed to the Commission's report in the present case.