CONCURRING OPINION OF JUDGE ZAGREBELSKY , JOINED BY JUDGES CASADEVALL AND TÃœRMEN

(Translation)

To my vote in favour of the judgment ’ s operative provisions, I would like to add a few words to explain the meaning of the Court ’ s reasoning, as I understand it.

The Court found a violation “of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while he was in police custody” (point 1 of the operative provisions). It thus replied to the applicant ’ s complaint “that his defence rights had been violated in that ... he had been denied access to a lawyer while in police custody”. That complaint, raised by the applicant under Article 6 § 3 (c), was rightly formulated more precisely by the Court, which linked it with Article 6 § 1.

To my mind , the meaning of the Court ’ s judgment is quite clear. If there is any doubt at all, what the Court says in paragraph 53, referring back to paragraph 37, makes things clearer still. The generally recognised international standards, which the Court accepts and which form the framework for its case-law, provide: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions ... ”

It is therefore at the very beginning of police custody or pre-trial detention that a person accused of an offence must have the possibility of being assisted by a lawyer, and not only while being questioned.

The importance of interrogations in the context of criminal procedure is obvious, so that, as the judgment makes clear, the impossibility of being assisted by a lawyer while being questioned amounts, subject to exceptions, to a serious failing with regard to the requirements of a fair trial. But the fairness of proceedings against an accused person in custody also requires that he be able to obtain (and that defence counsel be able to provide) the whole wide range of services specifically associated with legal assistance, including discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support to an accused in distress, checking his conditions of detention and so on.

The legal principle to be derived from the judgment is therefore that, normally and apart from exceptional limitations, an accused person in custody is entitled, right from the beginning of police custody or pre-trial detention, to be visited by defence counsel to discuss everything concerning his defence and his legitimate needs. Failure to allow that possibility, regardless of the question of interrogations and their use by the courts, amounts, subject to exceptions, to a violation of Article 6 of the Convention.

I would add that, naturally, the fact that defence counsel may see the accused throughout his detention in police stations or in prison is more apt than any other measure to prevent treatment prohibited by Article 3 of the Convention.

The foregoing considerations would not have been necessary if the Court ’ s reasoning had not contained passages capable of suggesting to the reader that the Court requires accused persons to be assisted by defence counsel only from the start of and during interrogation (or even only during an interview of which a formal record is to be produced to be used as evidence by the court). From paragraph 55 onwards the text adopted by the Court concentrates entirely on the answers given by the applicant when questioned which were later used against him.

I would find such a reading of the judgment too reductive. The importance of the Court ’ s decision for the protection of an accused person deprived of his liberty would be severely weakened thereby. And wrongly so, to my mind, since the reasoning linked to the questioning of the applicant and the way his answers were used by the courts is easily explained by the Court ’ s concern to take into consideration the specific facts of the case before it.