PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I am happy to concur with the majority in the part of the judgment relating to the recapitulation and clarification of the general principles set out in the Salduz judgment (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008). I am also in agreement with the majority as far as the application of these principles to the case of the first three applicants is concerned.

To my regret, however, I am unable to follow the majority in their application of these principles to the case of the fourth applicant. On this point I have joined the relevant joint dissenting opinion.

Having found no violation of the Convention in respect of the fourth applicant, I have voted against awarding him the reimbursement of costs and expenses.

DISSENTING OPINION OF JUDGE SAJÓ

According to the judgment, it is not necessary to grant just satisfaction to the fourth applicant. I respectfully disagree, for the reasons given by Judges KarakaÅŸ , Lazarova Trajkovska and De Gaetano.

As I am of the opinion that there has been a violation in regard to the first three applicants, the same considerations apply in their case too.

[1] . This is not as rigid and formalistic as an absolute exclusionary rule. It does allow, apparently, for the inclusion of the statements in the case file, but it prohibits their use in reaching conviction.

[2] . According to the Collins English Dictionary, “if you talk about irretrievable damage or an irretrievable situation, you mean that the damage or situation is so bad that there is no possibility of putting i t right”.

[3] . There is no reason given why the Court must always do so and why this is the only possible approach. See Can v. Austria (no. 9300/81, Commission’s report of 12 July 1984, Series A no. 96), quoted in the judgment.

Moreover, and this in itself should have militated against the way in which the Court relies on the “fairness as a whole” methodology, in Can (§ 60) we find the following: “In view of the fact that the restriction lasted a considerable period at a juncture which was crucial for the development of the proceedings as a whole,” without looking at the trial stage, the Commission concluded that there has been a violation of Art 6(3)(c) of the Convention by reason of the refusal to allow the applicant unsupervised pe rsonal contacts with his lawyer ” . Once again, the effect is to be considered in view of the impact on the proceedings as a whole, and not at the trial. The violation was found for the specific violation of 6(3) c.

[4] . “‘In principle’ - as a general idea or plan, although the details are not yet established...” Oxford Dictionary of English. No other meaning is given. The opposite is “in practice”.

According to the Larousse French dictionary : “ En principe, si on s'en tient à la règle générale, selon toute vraisemblance, si rien ne vient l'empêcher ” .

[5] . “In other words, the Court must examine the impact of the restriction…” ( paragraph 257).

[6] . “In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights ( Salduz , § 62). In view of the above, the Court found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 ( Salduz , § 63).

[7] . See further, Aleksandr Zaichenko v. Russia , no. 39660/02, 18 February 2010; Khayrov v. Ukraine , no. 19157/06, 15 November 2012; and Grinenko v. Ukraine , no. 33627/06, 15 November 2012.

[8] . One could argue that the overall fairness approach has been used to overcome inconveniences in the formulation used in Art 6 § 3. See, for example, Bönisch v. Austria , 6 May 1985, Series A no. 92; and Goss, Criminal Fair Trial Rights, Hart 2014.

[9] . Can , which seems to be the lead authority in the present judgment, had no difficulty in disregarding the practice of a good number of member States (§ 49). Here, the opposite occurs: while there is a strong trend towards the exclusionary rule in situations similar to the present one, the Court insists that this is immaterial, as evidence is a matter of national law.

[10] . Reports and responses published in April 2013, CPT/ Inf (2013) 6, 7, 8 and 9.

[11] . For example, the Court refers to A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009 (without any specific paragraph reference). While accepting that the al-Qaeda network had given rise to a “public emergency threatening the life of the nation” resulting in an urgent need to protect the population of the United Kingdom, it remains the case, however, that the applicants’ right under Article 5 § 4 to procedural fairness was to be balanced against these important public interests. Article 5 § 4 must import substantially the same fair-trial guarantees as Article 6 § 1 in its criminal aspect (paragraphs 216-217). There is no concession to the compelling interest of prevention or conviction.

[12] . While it cannot be a judicial consideration, given that the Court is concerned with a policy issue, namely “the most compelling nature of conviction”, we find that this policy is contrary to the duty of respecting the most compelling nature of prevention of further loss of life. If a terrorist knows that information concerning other terrorists or the location of a bomb will result in his conviction, he will be less likely to co-operate.

[13] . We have, however, a slightly different view on the decisive importance to be given to the question of compliance with domestic law when it comes to analysing the existence of “compelling reasons” (see paragraph 258 of the judgment and paragraph 15 of the present opinion).

[14] . See, variously, Brogan and Others v. United Kingdom , judgment of 29 November 1988, Series A no. 145-B; Heaney and McGuinness v. Ireland , no. 34720/97, §§ 57-58, ECHR 2000-XII; Jalloh v. Germany [GC], n o. 54810/00, § 97, ECHR 2006-IX; and Aleksandr Zaichenko v. Russia , no. 39660/02, § 39, 18 February 2010.

[15] . Szabó and Vissy v. Hungary , no. 37138/14, § 68, 12 January 2016.

[16] . A very limited possib ility to derogate from Article 2 is permitted by Article 15 in respect of deaths resulting from lawful acts of war.

[17] . Salduz v. Turkey [GC], no. 36391/02, ECHR 2008.

[18] . See below paragraphs 13-15 for why this distinct approach is of particular importance as regards the fourth applicant.

[19] . 467 US 436 (1966) – quoted at paragraph 230 of the judgment.

[20] . See, for example, Adamkiewicz v. Poland , n° 54729/00, §§ 70 and 89, which involved use in evidence of a confession to police by a minor who had been denied access to a lawyer.

[21] . See, amongst others, Taxquet v. Belgium [GC], no. 926/05, § 92, ECHR 2010-VI.

[22] . Gregory v. the United Kingdom , 25 February 1997, § 44, Reports of Judgments and Decisions , 1997-I.

[23] . Taxquet , cited above, § 83.

[24] . See the case-law cited in footnote 2.