DISSENTING OPINION OF JUDGE VEHABOVI Ć

I am unable to share the view of the majority of the Grand Chamber that the facts complained of by the applicant disclose a violation of Article 6 §§ 1 and 3 (c) of the Convention, which provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

The relevant part of the record of the applicant ’ s questioning by the police officers on 14 March 2007 reads as follows:

“I have been informed of the reasons for my arrest, the criminal offences of which I am accused, my rights, the right not to answer and the right to be legally represented, as well as the right to have members of my family informed about my arrest. I have chosen and authorised a defence lawyer from Rijeka, M.R., to represent me in these proceedings, and I have consulted him in private; following the consultation with [M.]R. I have decided to give my evidence.”

The applicant concluded his statement as follows:

“I am not experiencing any withdrawal symptoms or any other crisis. I have given my evidence voluntarily in the presence of my lawyer and a County State Attorney. I have read the entire statement and am signing it as truthful.”

During the trial in the Rijeka County Court, the applicant was given an opportunity to put forward all his arguments concerning the circumstances in which he had given his statement and, after he had raised the argument that he had never signed the record of the statement, he was afforded an effective opportunity to challenge the authenticity of his signature. However, the evidence adduced, namely the handwriting expert ’ s report, conclusively confirmed that the applicant had signed the statement by which he had given his confession to the police.

On the other hand, the Court established that the lawyer, G.M., had been denied access to the applicant while he was in police custody, even from the moment when G.M. had obtained a power of attorney signed by the applicant ’ s father.

Article 6 § 3 (c) secures the right for the applicant to have a lawyer of his own choosing but not the lawyer of his parents ’ choosing .

The applicant submitted that throughout his detention in Rijeka Police Station the lawyer retained by his parents, G.M., had been unable to contact him.

In view of the applicant ’ s complaints, it is evident that the central issues arising in this case are the applicant ’ s right to retain counsel of his own choice and whether, as a result of “not having had” that opportunity, he was prevailed upon in a coercive environment to incriminate himself without the benefit of effective legal advice.

I have no reason to doubt the Government ’ s arguments that the applicant was provided with the official list of lawyers of the Croatian Bar Association and that from that list he chose M.R. as his lawyer. Accordingly, similarly to the Chamber, I consider that the present case does not concern a situation in which the applicant was provided with a legal-aid lawyer by the police, but rather a situation in which he was offered an official list of lawyers by the police, from which he selected M.R. as the lawyer of his own choice [40] .

I fully agree with the majority that the behaviour of the police in making any contact between G.M. and the applicant impossible raises initial concerns as to the manner in which the domestic authorities dealt with the applicant ’ s pre-trial detention, and consequently possible doubts as to whether the proceedings as a whole satisfied the requirements of a fair trial under Article 6 of the Convention.

For these reasons this case must be clearly distinguished from the main principle set out in Salduz , to the effect that an accused in the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings should normally be allowed to benefit from the assistance of a lawyer (see Salduz v. Turkey [GC], no. 36391/02, § 52, ECHR 2008) . The Court (in paragraph 78 of the present judgment) also refers to the case of Martin v. Estonia (no. 35985/09, 30 May 2013), in which it held that a person charged with a criminal offence who did not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing.

Obviously, the present case as a whole is about two basic questions: whether the applicant ’ s choice was made free of any pressure or duress by the police; and, if no pressure or duress was applied by the police, whether the applicant should have been represented by the lawyer of his own choosing, or one chosen by his parents or any third party, even in circumstances where the applicant, probably under considerable emotional pressure, decided to give a statement confessing to the crimes.

The Court notes (see paragraph 81 of the present judgment) that unlike in Salduz (cited above), where the accused, who was being held in custody, had been denied access to a lawyer during police questioning, the present case concerned a situation where the applicant was afforded access to a lawyer from his first interrogation, but not – according to his complaint – a lawyer of his own choosing. On that account the Court has decided to assess whether, in the light of the proceedings as a whole, the rights of the defence have been “adversely affected” to such an extent as to undermine their overall fairness.

Without going into all the details of that test, I consider that the applicant ’ s wish to have a lawyer of his own choosing was respected throughout the criminal proceedings against him. It is undisputed that he changed his representative several times. The nature of the proceedings against the applicant was serious, on account of his alleged offences, but that does not mean that there should be different requirements for a fair hearing depending on the seriousness of the nature of proceedings. It is true that one of the items of evidence used against the applicant was his statement given at the police station in the presence of the public prosecutor, but that statement was not the only evidence against him. When the applicant gave his first self-incriminatory statement in the present case, the fact is that he did so of his own free will, in the absence of any signs of physical or psychological pressure being exerted by the police. This statement was signed by the applicant, as was confirmed by a handwriting expert before the domestic courts.

I would have shared the view of the majority of the Court that the applicant suffered irreparable damage leading to a violation of Article 6 § 1 of the Convention in respect of the fairness of the proceedings as a whole if it had been proved that the applicant ’ s self-incriminatory statement was given in violation of Article 3, or without any legal representative present, or even in the presence of a representative whom he had not chosen of his own free will; however, I did not find any of these elements to be substantiated by the applicant in his application and I found his complaint to be completely unsupported by relevant arguments.

During the trial before the courts dealing with his case, the applicant put forward all his arguments in respect of the circumstances in which his statement had been given, as well as his argument that he had never signed the statement. However, the handwriting expert ’ s report conclusively confirmed that the applicant had indeed signed the statement. Therefore, it cannot be said that the applicant ’ s objections regarding the admissibility of his statement as evidence were ignored by the trial court (see, by contrast, Desde v. Turkey , no. 23909/03, § 130, 1 February 2011).

Throughout the court proceedings the applicant had the benefit of effective legal advice, and the trial court afforded him an adequate opportunity to participate in the proceedings and to put forward his arguments in respect of the charges and all the relevant evidence adduced; his arguments were duly taken into account. It should be mentioned that in his closing arguments at the trial the applicant, through his representative, presented the confession he had given to the police while represented by M.R. as proof of his sincere regret for the crimes committed, in the hope that it would be taken into account as a mitigating factor in the sentencing procedure.

Furthermore, the applicant ’ s confession was not the central platform of the prosecution ’ s case (see, by contrast, Magee v. the United Kingdom , no. 28135/95, § 45, ECHR 2000 ‑ VI), and the trial court relied on his statement, interpreting it in the light of a complex body of evidence assessed by the court (compare Bykov v. Russia [GC], no. 4378/02, 10 March 2009 ). Specifically, when convicting the applicant, the trial court relied on the statements of a number of witnesses cross-examined during the trial, numerous expert reports and the records of the crime-scene investigation and searches and seizures, as well as relevant photographs and other physical evidence. In addition, the trial court had at its disposal the confessions made by the applicant ’ s co-accused at the trial, and neither the applicant nor his co-accused ever argued that any of their rights had been infringed when they had made those statements.

In such circumstances it would be difficult for me to conclude that the proceedings as a whole were unfair (compare O ’ Kane v. the United Kingdom (dec.), no. 30550/96, 6 July 1999), since all the applicant ’ s rights were adequately secured during the trial and his confession was not the sole, let alone the decisive, evidence in the case and as such did not call into question his conviction and sentence (compare Gäfgen v. Germany [GC], no. 22978/05, § 187, ECHR 2010, and, by contrast, Martin , cited above, §§ 95-96).

Against this background, and in view of the principle that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention (see, for example, Zagorodniy v. Ukraine , no. 27004/06 , § 51, 24 November 2011 ) and the requirement to evaluate the fairness of the criminal proceedings as a whole (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011), I consider that it has not been shown that the applicant ’ s defence rights have been irretrievably prejudiced or that his right to a fair trial under Article 6 has been adversely affected (see, mutatis mutandis , Mamaç and Others v. Turkey , nos. 29486/95 and 2 others, § 48, 20 April 2004, and Sarıkaya v. Turkey , no. 36115/97, § 67, 22 April 2004; and, by contrast, Martin , cited above).

I wonder why the applicant never took any steps against M.R. if he considered his representation by that lawyer to be inadequate or contrary to his own free will, even though he had various opportunities to do so. He never complained in the subsequent criminal proceedings that M.R. had failed to provide him with adequate substantive legal advice. Neither he nor his new lawyer ever submitted any complaint against M.R. by instituting disciplinary proceedings before the relevant bodies of the Croatian Bar Association, an option they were perfectly entitled to pursue. Neither the applicant nor his lawyers took any action in that respect. I wonder how he can then dispute the professional attitude of M.R. in his case?

Furthermore, on what basis can the applicant claim that his initial statement, given over the course of several hours – during which time he never refused to provide further information, and following which he acknowledged the accuracy of the information provided by signing the record of the statement – raises any issue under the Convention, in view of the clear absence of any ill-treatment contrary to Article 3 of the Convention at the hands of the police? I fully agree with the Chamber ’ s conclusion that “there are no grounds to believe that any pressure was exerted on him or that there was any defiance of his will” (see paragraph 102 of the Chamber judgment) .

Just for a moment, let us imagine a hypothetical situation in which the police had allowed G.M. to be present during their questioning of the applicant. I assume that the applicant ’ s complaint would then have been that the lawyer of his own choosing was not G.M. but M.R. and that the police or his parents had imposed G.M. as his lawyer, in defiance of his free will as clearly expressed in the statement he had given without any sign of abuse by the police. For these reasons the Court missed a chance to draw a clear line between two distinctive periods of the proceedings – one with M.R. and the other with G.M. as the lawyer of the applicant ’ s choosing in respect of his complaint. In the absence of any ill-treatment or of any other relevant factors that might have rendered the proceedings as a whole unfair, the applicant ’ s complaint is without solid foundations.

Finally, I am very curious to find out how the case-law will develop in future regarding the fairness of criminal proceedings and the question of legal representation across Europe today in the light of this judgment.

[1] . See in this respect the decision of the Croatian Constitutional Court U-III-3304/2011 of 23 January 2013 and the presentation of the decision in the article by Zoran Burić entitled Obaveza izvršenja konačnih presuda Suda za ljudska prava – u povodu odluke i rješenja Ustavnog suda Republike hrvatske broj U-III/3304/2011 od 23. Siječnja 2013 .

[2] . Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008.

[3] . Dayanan v. Turkey , no. 7377/03, §§ 32-33, 13 October 2009.

[4] . See Salduz , cited above, § 58, and Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others , § 172, 26 July 2011.

[5] . See Martin v. Estonia , no. 35985/09, §§ 90 and 93, 30 May 2013, and Erkapić v. Croatia , no. 51198 /08 , §§ 82-89, 25 April 2013.

[6] . See, for example, Kasimov v. Uzbekistan , Communication No. 1378/2005, CCPR/C/96/D/1378/2005, 30 July 2009, paragraph 9.6, and Aleksandr Butovenko v. Ukraine , Communication No. 1412 /2005, CCPR/C/102/D/1412/2005 , 19 July 2011, paragraph 7.8. Of particular interest in relation to the present case is Lyashkevich v. Uzbekistan (Communication No. 1552/2007, CCPR/C/98/D/1552/2007, 11 May 2010, paragraph 9.4), where the author alleged that her son’s right to defence had been violated, in particular because the lawyer she had hired privately on 11 August 2003 had been prevented from defending her son on that day, notwithstanding the fact that important investigative acts were being conducted at that precise moment. The Human Rights Committee noted that the State P arty had only affirmed that all investigative acts in respect of Mr Lyashkevich had been conducted in the presence of a lawyer, without specifically addressing the issue of Mr Lyashkevich’s access to his privately hired lawyer. In the circumstances, and in the absence of any other information from the parties, the Human Rights Committee concluded that denying the author’s son access to legal counsel of his choice for one day and interrogating him and conducting other investigative acts with him during that time constituted a violation of Mr Lyashkevich ’ s rights under Article 14 § 3 (b), of the ICCPR .

[7] . See, by contrast, Pavel Levinov v. Belarus , Communication No. 1812/2008, CCPR/C/102/D/1812/2008, 25 August 2011, paragraph 8.3. The author alleged a violation of his defence rights under Article 14 § 3 (b), of the ICCPR , submitting that immediately after his arrest, the police had refused to allow a relative or acquaintances of the author to act as his representative, despite their having been present at the police station after his arrest, or to give him the opportunity to designate a lawyer. The Human Rights Committee noted that the author had been represented by counsel at his trial, and that it did not appear from the material before it that any investigative acts had been carried out before the beginning of the author’s trial. Hence, the UNHRC considered that Mr Levinov’s defence rights had not been violated in that case.

[8] . General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial , CCPR/C/GC/32 (2007).

[9] . See the Concluding Observations of the UNHRC, Georgia, CCPR/C/79 Add.75, 5 May 1997, § 27. See also the Report of the Special Rapporteur on the i ndependence of j udges and l awyers regarding the Mission of the Special Rapporteur to the United Kingdom, E/CN.4/1998/39/Add.4, 5 March 1998, § 47.

[10] . See for example, Barreto Leiva v. Venezuela ( m erits, r eparations and c osts), judgment of 17 November 2009, paragraphs 58-64, and in particular paragraph 62: “If the right to defense arises as of the moment in which an investigation into an individual is ordered ( supra para. 29), the accused must have access to a legal representation from that moment onwards, especially during the procedure in which his statement is rendered. To prevent the accused from being advised by a counsel means to strictly limit the right to defense, which leads to a procedural unbalance and leaves the individual unprotected before the punishing authority . ”

[11] . See for example, Avocats sans f rontières (on behalf of Bwampamye) v. Burundi , October/November 2000. The Commission concluded (in paragraph 30) that it was in the interests of justice for the accused to have the benefit of the assistance of a lawyer “at each stage of the case”.

[12] . Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings , and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty .

[13] . Following its visit to Turkey in July 2000, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report, reiterating “once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged” (CPT/I nf (2001) 25, paragraph 61).

[14] . In its General Comment No. 2, the Committee against Torture (CAT) stated: “Certain basic guarantees apply to all persons deprived of their liberty. Some of these are specified in the Convention, and the Committee consistently calls upon the States Parties to use them. The Committee’s recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia , ... the right promptly to receive independent legal assistance” (CAT General Comment, 24 January 2008 (CAT/C/GC/2), § 13).

[15] . Adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

[16] . Annex II, HRC, Final Report, 46 th Session, E/CN.4/Sub.2/1994/24, 3 June 1994.

[17] . See ICTY Appeals Chamber, Prosecutor v. Prlić et al ., 5 September 2008, paragraph 14; ICTR Appeals Chamber, Prosecutor v. Nahimana et al. , 28 November 2007, paragraphs 172-74; and ICC Appeals Chamber, Prosecutor v. Lubanga , 20 April 2007, paragraph 6.

[18] . See ICTY Trial Chamber, Prosecutor v. Dela l ić, Mucić, Delić and Landzo , Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, 2 September 1997, paragraphs 43 and 55; ICTR Trial Chamber, Prosecutor v. Bagosora et al. , Decision on the Prosecutor’s Motion for the Admission of Certain Materials under Rule 89 (C), 14 October 2004, paragraph 21; and Prosecutor v. Karemera, Ngirumpatse and Nzirorera , Decision on the Prosecution Motion for Admission into Evidence of Post-arrest Interviews with Joseph Nzirorera and Mathieu Ngirumpatse, 2 November 2007, paragraphs 23-32.

[19] . For the defendant it might sometimes be more damaging to have a lawyer imposed by the State in whatever form (either because there was no choice at all or no meaningful choice , or because the choice was unjustifiably restricted) than not to have a lawyer at all. For telling examples see the above-cited cases of the CCPR , Inter-American Court of Human Rights and African Commission.

[20] . Croissant v. Germany , 25 September 1992, Series A no. 237-B.

[21] . Klimentyev v. Russia , no. 46503/99, 16 November 2006.

[22] . In the words of United States Supreme Court, “their infraction can never be treated as harmless error”. See Chapman v. California , 386 US 18 (1967), citing the cases of a biased trial judge, a coerced confession and the denial of the right to counsel at trial as examples of structural errors.

[23] . Arizona v. Fulminante , 499 U S . 279 (1991) , 309-10.

[24] . See Jalloh v. Germany [GC], no. 54810/00, §§ 99 and 105, ECHR 2006-IX; Harutyunyan v. Armenia , no. 36549/03, § 63, ECHR 2007-III; and Gäfgen v. Germany [GC], no. 22978/05, § 176, ECHR 2010.

[25] . Salduz , cited above, § 58.

[26] . Ibid. , § 54, and Dayanan , cited above, § 33. This same approach was repeated in Huseyn and Others (cited above, § 172): “ ... it appears that, in the first few days of their detention, the first, third and fourth applicants were questioned without the benefit of legal assistance and made certain statements that were included in the criminal case file. It does not appear that any of them had expressly waived their right to a lawyer after their arrest. Having regard to the information available on this matter, the Court cannot speculate on the exact impact which the applicants’ access to a lawyer during that period would have had on the ensuing proceedings and whether the absence of a lawyer during that period irretrievably affected their defence rights.”

[27] . See Salduz , cited above, §§ 55 and 58.

[28] . As Judge Scalia put it: “Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds’, Fulminante , supra , at 310 – or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings ... Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe” ( United States v. Gonzalez-Lopez , 548 US 140 (2006) ) . Such structural errors include the denial of counsel (see Gideon v. Wainwright , 372 US 335 (1963)), the denial of the right of self-representation (see McKaskle v. Wiggins , 465 US 168, 177-78, n. 8 (1984)), the denial of the right to public trial (see Waller v. Georgia , 467 US 39, 49, n. 9 (1984)) and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction (see Sullivan v. Louisiana , 508 US 275 (1993)).

[29] . See Salduz , cited above, § 58, and Huseyn and Others , cited above, § 172.

[30] . Ensslin, Baader and Raspe v. Germany , nos. 7572/76 and 2 others , Commission decision of 8 July 1978, Decisions and Reports 14, p. 64, at p. 114 .

[31] . Andrew Ashworth, “Excluding Evidence as Protecting Rights” (1977), Crim. L. Rev. 723.

[32] . Salduz v. Turkey [GC], no. 36391/02, § 55, ECHR 2008 .

[33] . Croissant v. Germany , 25 September 1992, § 31, Series A no. 237-B .

[34] . Imbriosca v. Switzerland , 24 November 1993, § 36, Series A no. 275.

[35] . Correia de Matos v. Portugal (dec.), no. 48188/99, ECHR 2001-XII.

[36] . Foucher v. France , 18 March 1997, § 30 , Reports of Judgments and Decisions 1997-II .

[37] . Pakelli v. Germany , no. 8398/78, Commission’s report of 12 December 1981 , unreported; it is interesting to note that in its judgment in the same case ( Pakelli v. Germany , 25 April 1983, § 42, Series A no. 64) the Court found a violation of Article 6 § 3 (c) of the Convention while holding, as it has only very rarely done: “ The finding of a breach of the requirements of paragraph 3 (c) dispenses the Court from also examining the case in the light of paragraph 1 (see, mutatis mutandis , [ Deweer v. Belgium , 27 February 1980, § 56 , Series A no. 35 ] ) ”.

[38] . S ee Imbrioscia , cited above, § 37; and also, after the Salduz case, Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010 , and Sakhnovskiy v. Russia [GC], no. 21272/03, § 94, 2 November 2010.

[39] . S ee Mayzit v. Russia , no. 63378/00, § 77, 20 January 2005 , and Seleznev v. Russia , n o. 15591/03, § 67, 26 June 2008 .

[40] . For these reasons I find it completely irrelevant to mention (in para graph 21 of th e present judgment ) that the applicant agreed to be represented “ by a lawyer, M.R. , a former chief of the Primorsko-Goranska Police ” in circumstances in which there is no evidence that M.R. acted in any way contrary to the applicant’s interest s . M.R. left the police in 2000 and this event took place in 2007, seven years later.