CONCURRING OPINION OF JUDGE SILVIS JOINED BY JUDGE SPIELMANN

1. I do agree with the finding of a violation of Article 6 §§ 1 and 3 (c) in this case. However, I respectfully disagree with an essential part of the reasoning of this judgment.

2. The heart of the matter to be addressed in this opinion is the way the Court applies the distinction between two situations: (a) denial of access to a lawyer, requiring that there should be “compelling reasons” and that defence rights should not be unduly prejudiced (see Salduz v. Turkey [32] ), and (b) “denial of choice” of lawyer, requiring that there should be “relevant and sufficient” reasons and that the overall fairness of the proceedings should not be undermined (see Croissant v. Germany [33] ). In paragraph 81 of the present judgment the Court states that denial of choice is “the less serious issue” and considers that the case under scrutiny is to be classified in such terms. To my mind, in supporting that view the majority are missing an essential characteristic of this case, which is that the police apparently sought to orchestrate the defence during the initial stage of the proceedings, contrary to the provisions of domestic law, as well as the Convention. In my view the combination of the police hindering the access of a retained lawyer to the applicant and simultaneously interfering with the applicant’s free choice of a lawyer by withholding relevant information is not at all “the less serious issue” in comparison to transparent denial of access to a lawyer.

3. The facts of the case may be summarised as follows. The applicant was arrested as a suspect in relation to three murders, an armed robbery and arson. Before the beginning of the police questioning, the applicant’s parent(s) instructed a lawyer (G.M.) who was prepared to defend the applicant, a possibility which is accorded legal status in Croatian law. The thus instructed lawyer immediately reported to the police station to meet his client. However, he was refused access to the applicant by the police, allegedly because he had not submitted a written power of attorney. The applicant was not informed either of the presence of the lawyer at the police station or of the action that his parent(s) had undertaken. The applicant confessed to having committed the crimes during the initial police questioning in the presence of another lawyer, who happened to be a former chief of police of the district in which the applicant was being held in custody. The Government argued that the applicant had picked this lawyer from a list presented to him by the police, which would mean that he had a lawyer of his own choosing. According to the domestic courts, the applicant confessed in the presence of a lawyer of his own choosing. The initial confession was used as evidence.

4. At the outset it is important to observe that the Croatian Code of Criminal Procedure (CCP) regulates the choice of a lawyer in such a way as to afford the defendant’s parent the possibility of instructing a lawyer for the defendant, unless the defendant expressly refuses this (CCP, Article 62 §§ 1 and 4). Paragraph 6 of Article 62 states that the defence lawyer must present his power of attorney to the authorities conducting the proceedings. The defendant may also grant a power of attorney to a lawyer orally before the authority conducting the proceedings, in which case this must be entered in the record. Article 177 § 5 provides that, at the request of the suspect, the police authorities must allow him to instruct a lawyer and for that purpose they must stop interviewing the suspect until the lawyer appears or at the latest three hours from the moment the suspect asked to appoint the lawyer. If the circumstances indicate that the chosen lawyer will not be able to appear within this period of time, the police authorities must allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association.

5. The Court has observed that the only reason cited by the Government for not allowing G.M. access to the applicant was the fact that G.M., in the Government’s view, did not have a proper power of attorney to represent him. At the same time, the Government did not dispute that the applicant had not been informed at the relevant time that G.M. had been trying to see him at the police station. The Court has noted, however, that G.M. alleged before the national authorities that he was in fact in possession of a written power of attorney granted by the applicant’s parents on 14 March 2007. This allegation was never convincingly refuted in the domestic proceedings. Moreover, a written power of attorney was included in the case file compiled by the investigating judge on 15 March 2007, when the applicant was brought before him by the police.

6. The principle of the right to legal assistance is laid down in Article 6 § 3 (c) of the Convention: “Everyone charged with a criminal offence has [the right] to defend himself in person or through legal assistance of his own choosing ...” The protection to be afforded to a person charged with an offence is not limited to court proceedings. In Imbriosca v. Switzerland [34] the Court stated:

“Certainly the primary purpose of Article 6 as far as criminal matters are concerned is to ensure a fair trial by a ‘tribunal’ competent to determine ‘any criminal charge’, but it does not follow that the Article has no application to pre-trial proceedings.”

Article 6 § 3 (c) encompasses particular aspects of the right to a fair trial within the meaning of Article 6 § 1 (see Correia de Matos v. Portugal [35] , and Foucher v. France [36] ). This sub-paragraph guarantees that the proceedings against an accused person will not take place without adequate representation of the case for the defence (see Pakelli v. Germany [37] ). The guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in the evaluation of this matter [38] . Their intrinsic aim is to contribute to ensuring the fairness of the criminal proceedings as a whole [39] . But they are not an end in themselves: compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole, and not on the basis of the isolated consideration of one particular aspect or incident.

7. In distinguishing between cases concerning “denial of access” and “denial of choice”, the Court refers to three cases where the free choice of a lawyer was restricted or denied ( Croissant , cited above; Klimentyev v. Russia , no. 46503/99, 16 November 2006; and Martin v. Estonia , no. 35985/09, 30 May 2013). I propose to take a closer look at those cases.

(a) In Croissant , the applicant contested the refusal to replace a lawyer in whom he had no trust but who had nonetheless been appointed by the domestic court at a time when the applicant was already assisted by two lawyers in whom he had shown trust. In that context the Court found that the domestic courts had had relevant and sufficient grounds for overriding the wishes of the defendant.

(b) In Klimentyev the applicant complained of the domestic court’s refusal to admit another lawyer for the defence. The Court observed that there was no indication that the applicant’s defence team, consisting of a lawyer and a civil defender, could not adequately represent him and participate effectively in the hearing. Therefore, the Court was unable to conclude that the applicant had been inadequately represented at the hearing and that the trial court’s refusal to admit the lawyer requested by him, with reference to the fact that the applicant did not need advice on international law, constituted an unreasonable and disproportionate limitation on the applicant’s right to represent himself through legal assistance of his own choosing.

(c) Martin concerned the following complaints: counsel of the applicant’s own choosing was denied access to the applicant, who was pressured into terminating his services; the legal-aid lawyer served the interests of the authorities rather than those of the applicant; the applicant’s conviction on a murder charge was based on the evidence obtained in the pre-trial proceedings in violation of his defence rights; and, even though the Court of Appeal had declared that evidence to be inadmissible, it still relied on it. The Court was not satisfied that the applicant’s wish to replace counsel of his own (his parents’) choosing could be considered genuine in the circumstances of the case. It considered that there had been an infringement of the applicant’s right to defend himself through legal assistance of his own choosing. The Court expressed concern in this case about the failure to respect the applicant’s defence rights and privilege against self-incrimination. Whether there had been relevant and sufficient grounds for limiting the choice of lawyer – a test that, indeed, was cited by the Court – was, as I see it, not at all the essential issue in that case.

8. To my mind the cases of Croissant , Klimentyev and Martin grouped together do not form a category of cases into which Dvorski would fit. Croissant and Klimentyev may be classified as dealing with the sufficiency of the reasoning underlying the denial or restriction of the choice of lawyer. Martin is not about the reasoning underlying such decisions but about the failure to respect the applicant’s defence rights and privilege against self-incrimination in view of the course of events. This issue was analysed by our Court mainly along the lines set out in Salduz . In Martin the Court concluded that the applicant’s defence rights had been adversely affected despite the domestic courts’ acknowledgment of a violation of his right to have a lawyer of his own choosing, and despite the formal exclusion of his confession. The lack of domestic scrutiny in ensuring the removal of any adverse consequences for the outcome of the proceedings, following the acknowledgment of the violation of the applicant’s defence rights, was the essential point for the Court in finding a violation. The Court’s analysis in Martin should not be reduced to a simple application of the test whether the outcome of the proceedings was adversely affected as a result of the denial of the applicant’s choice of lawyer. Such a reductionist characterisation unjustifiably ignores the important aspect of the domestic courts’ recognition of the failure to respect the rights of the defence.

9. In Dvorski the applicant was deliberately held in a state of ignorance regarding his options in choosing a lawyer, while the lawyer retained by his parent(s) was denied access to him. When there is, on the appearance of such facts, reason to believe that the police sought to orchestrate the defence and then obtained a confession that was used as evidence by the domestic courts without any serious examination of the alleged violation of the applicant’s defence rights, the question should not be whether the police could possibly have had relevant and sufficient reasons, or even compelling reasons, to deny or restrict the right to choose a lawyer, because the Court should not accept such a lack of respect for the rights of the defence in the first place, whatever the reasons or motives behind it. Such a matter does not belong to the category of “denial of choice”, labelled as a less serious issue – not even in comparison with a situation involving absolute denial of access of a lawyer.

10. Finally, to my mind the Court should have steered clear of accepting as a legitimate indication of the applicant’s guilt (in paragraph 104 of the present judgment) his lawyer’s subsidiary plea for clemency, by which she asked for her client’s initial confession to be interpreted as a sign of his sincere regret or remorse.