DISSENTING OPINION OF JUDGE YUDKIVSKA

The Police Station Chief in Jaroslav Hašek ’ s “ The Good Soldier Švejk ” [1] was known “for acting with great tact and cleverly at the same time. He never swore at the detainees or arrestees, but would subject them to such a cross-examination that even an innocent would confess”. “Criminology always depends on smarts and kindness” he would tell his subordinates, “to be screaming at somebody, that won ’ t get you anywhere. You have to approach delinquents and suspects gently, but at the same time see to it that they drown in an avalanche of questions ”.

Of course, such tactics could hardly be successful in the presence of a lawyer, but who cared about procedural rights in those times?!

Some one hundred years later, however, a similar ignorance not only occurred in one of the most respectable of democracies, but was also endorsed by its judiciary and, most strikingly, subsequently by this Court. For the reasons explained below, I respectfully dissent from my esteemed colleagues who found no violation of the right to a fair trial in the present case.

In the instant case the applicant, who was accused of a serious crime, was detained and interviewed on 23 occasions for approximately 31 hours in total. The applicant ’ s lawyer was not present during any of these interviews, which formed the gist of his complaint to this Court.

Over fifty years ago, in the landmark case of Miranda v. Arizona [2] (which, as recognised by the Supreme Court, was not followed in Irish jurisprudence – see paragraph 36), the US Supreme Court brilliantly summarised the ratio behind having a lawyer present during interrogations: “If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial”.

More recently, the Special Rapporteur on the Independence of Judges and Lawyers acknowledged that “ it is desirable to have the presence of an attorney during police interrogations as an important safeguard to protect the rights of the accused. The absence of legal counsel gives rise to the potential for abuse ” [3] . Such a contention is shared by the CPT , which states that “[a]ccess to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation” [4] .

Interrogation, “for people who are honest and skilful, is a means of uncovering what would have been otherwise unavailable to court ... but on the other hand, ... being used by dishonest and incompetent people, it can become an art by which one can force a person to renounce everything he knows and call himself not by his name” [5] . The position is thus obvious - who else, if not lawyers, can ensure the appropriateness of tactics and methods employed during police interrogations?

As argued below, in the present case the applicant was forced to confess by the use of methods incompatible with the democratic legal order and by the employment of techniques that grossly violate the principles of fair criminal process. Such methods and techniques could normally be prevented by the presence of a lawyer during police interviews.

As recognised in the judgment, the inability of the applicant ’ s solicitor to be present during his police interrogations stemmed from the police practice prevailing at the time of the applicant ’ s arrest, which was subsequently changed, in 2015.

Together with my learned colleagues Judges Vučinić, Turković and Hüseynov in the concurring opinion to the recent Grand Chamber precedent, Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018), I have already expressed a deep regret that the Court has made a dramatic U ‑ turn from one of its most progressive judgments ( Salduz v. Turkey ([GC], no. 36391/02, 27 November 2008), with its unequivocal prohibition of any blanket restriction on defence rights) based upon a misguided interpretation of its own jurisprudence (see, among other authorities, Dayanan v. Turkey , no. 7377/30, 13 October 2009 ; Boz v Turkey , no. 2039/04, 9 September 2010 ; Yesilkaya , no. 59780/00, 8 December 2009 ; Stojkovic v . France and Belgium , no. 25303/08, 27 October 2011; and Navone and Others v. Monaco , nos. 62880/11 and 2 others, 24 October 2013) .

The present case involves similar factual circumstances to Salduz , in which the applicant ’ s restricted access to a lawyer arose from a systemic, mandatory and general restriction of suspects ’ access to a lawyer in the respondent State ’ s national law. Such a restriction was determined to have irreparably prejudiced the proceedings and thereby constituted a violation of Article 6 §§ 1 and 3 (c) of the Convention. Salduz thus seemingly advanced a test whereby if an applicant ’ s access to a lawyer has been restricted and there is an absence of compelling reasons to justify that restriction, the proceedings will be irreparably prejudiced and therefore there will be a finding of a violation of Article 6. Accordingly, in accordance with (what I consider to be the “correct” interpretation of) Salduz, the Court ought to have determined that, due to the absence of any compelling reasons to justify the applicant ’ s restricted access to a lawyer (paragraph 84), there has been a violation of Article 6 §§ 1 and 3 (c) in this case .

Had the present case been examined prior to Beuze , it would have been fairly straightforward since, as also recognised by the Supreme Court dissenting Judge McKechnie (paragraphs 45 ‑ 48), the Salduz jurisprudence on the right to have access to a lawyer (including to have a lawyer present during interrogations), with its clear prohibition of blanket restrictions, was followed in subsequent cases and is supported by a number of international instruments and case-law (see for example, CPT/Inf (92)3-part1 [6] ; [CPT/Inf (2011) 28] ; CPT/Inf(2011)28-part1 [7] ; E/CN.4/1998/39/Add.4 [8] ; and Miranda v Arizona , 384 US 436 (1966)).

Although the above interpretation of Salduz would result in a more fair and just conclusion in the present case – namely an automatic finding of a violation due to the absence of compelling reasons to justify the restrictions on the applicant ’ s right of access to a lawyer – being bound by judicial discipline I cannot ignore the fact that the Beuze judgment, however much I may regret it, is the Court ’ s most recent valid jurisprudence to be followed. The Beuze case introduced a two-step test, in accordance with which the Court ought first of all to consider whether there are compelling reasons that justify restricting an applicant ’ s access to a lawyer. In the absence of such compelling reasons, the Court will merely apply a “strict scrutiny” to the second stage of the test ( Beuze , paragraph 145), which requires an assessment of the overall fairness of the proceedings. In accordance with Beuze , regardless of the reasons (or lack thereof) for restricting an applicant ’ s access to a lawyer, the Court will thus always conduct an assessment of the overall fairness of the proceedings in question in order to determine whether there has been a violation of Article 6.

As such, having agreed with the majority that there were indeed no compelling reasons to justify the restrictions imposed upon the applicant ’ s defence rights (paragraph 84), I will present an assessment of the overall fairness of the proceedings in the present case (considering some key elements only) which dramatically differs from that of the majority.

During the first five days o f the applicant ’ s detention (24 ‑ 28 February 2009) 23 police interviews took place which lasted for 31 hours in total. During this time, the applicant ’ s total time communicating with his solicitor amounted to 42 minutes (paragraph 81). The most primitive calculation thus suggests that for every hour of police interview the applicant had on average 1 minute and 21 seconds of communication with his solicitor; therefore, for every hour of “ drowning in an avalanche of questions ”, as HaÅ¡ek elegantly put it, the applicant only received 1 minute 21 seconds of legal “advice”. Can we accept that this allowed for a meaningful exchange of information? That this allowed for the consideration of different defence strategies? Can we allege that a thorough discussion of the applicant ’ s previous interview and preparation for the subsequent one took place each time? It is noteworthy that even during the applicant ’ s crucial 15 th interview, prior to making his confession, his communication with his solicitor lasted for only 4 minutes. In such circumstances, could the applicant ’ s solicitor have explained in detail all of the consequences of his confession or have carefully discussed all the options open to the applicant?

All these questions may appear rhetorical, but the domestic court simply did not “consider the length of time that either consultation lasted to be relevant in the context of this case” (paragraph 22). Unfortunately, the majority did not give due consideration to this either. My colleagues also agreed with their national counterparts that the lawyer ’ s role in this case “was, in fact, central in that the police and the applicant were actually communicating through him” (paragraph 98). Given the above proportion of applicant/lawyer vs. applicant/police communication, however, such a conclusion g oes beyond my comprehension.

Over a hundred years ago, the outstanding author of “ The Moral Principles in the Criminal Process ” [9] , Anatoly Koni, noted that “a close tie of trust and sincerity is established between a defence attorney and the one who turns to him in anxiety and grief because of forbidding prosecution, in the hope of help ... .”

As the Court has recognised on a number of occasions (e.g. Pishchalnikov v . Russia , no. 7025/0 4, 24 September 2009, paragraph 78), the right of access to a lawyer protects against a number of potential abuses such as to reduce the likelihood of violations of Article 6. In A.T. v. Luxembourg (no. 30460/13, 9 April 2015, paragraph 64) the Court has summarised what a lawyer does during the initial stages of proceedings:

discusses the case;

organises the defence;

collects evid ence favourable to the accused;

prepares the accused for questioning;

supports the accused in distress;

checks the conditions of detention;

helps to ensure respect for the right of the accused not to incri minate himself.

In this case, only 42 minutes were devoted to offering this range of services. In Dvorski v. Croatia ([GC], no. 25703/11, 20 October 2015) the Court recalled that “in order to exercise his right of defence, the accused should normally be allowed to have the effective benefit of the assistance of a lawyer from the initial stages of the proceedings” (see Dvorski v. Croatia, cited above, paragraph 77). In the present case, not only was it impossible to establish any “ close tie of trust and sincerity” [10] , and not only was any required effectiveness obviously missing, but in principle the circumstances constituted a complete mockery of legal assistance. Whilst it is not at all my task to assess the solicitor ’ s professional conduct in this case, consideration of the restriction of the applicant ’ s defence rights is undoubtedly relevant to an assessment of the overall fairness of proceedings. Unfortunately, however, any judicial scrutiny of the applicant ’ s solicitor ’ s performance is lacking in the present case.

Moreover, before his first interview, which we see as the most crucial moment for the whole defence (as also confirmed by Salduz , cited above), the applicant was given an opportunity to talk to his lawyer for a mere 2 (!) minutes (paragraph 7). What can be said in this time aside from general politenesses? What kind of strategic choice can be pronounced, let alone any full and informed discussion of the same? In these circumstances, the majority ’ s finding that the applicant “had access to his solicitor before the crucial first police interview” (paragraph 83) is, in my view, egregiously mistaken.

Furthermore, although according to the documents in the case file the applicant was advised of his right to remain silent at the beginning of each interview, the police officers sought to undermine this caution with remarks such as “no comment looks like a guilty man” or “[n]o comment was not consistent with innocence” (interview records submitted by the applicant). Needless to say, the applicant ’ s lawyer ’ s presence during his interviews could have been an obstacle to such a “technique”, and in such circumstances, due to his restricted access to legal advice, the applicant may have considered that confessing was his only option (see Pishchalnikov v. Russia , cited above, paragraph 80).

What is even more shocking, however, is that the applicant ’ s confession occurred after clear intimidation by the police officers, wherein they arrested an obviously innocent person – “Ms G.” , the applicant ’ s ex ‑ girlfriend and the mother of his little daughter – in order to blackmail him with the fate of his child who would be separated from her mother pending such time as the applicant confessed. If such conduct does not qualify as police pressure, I wonder how else it could be described.

The psychological impact of these threats was assessed by the domestic courts in quite a creative way, as apparently threatening the applicant with the sufferings of his under-age daughter in being separated from her mother was by no means intimidation, but rather merely constituted an “ appeal to his better nature and to his essential humanity ” (see paragraph 28). Stalin ’ s General Prosecutor, Andrey Vyshinsky, applauds from his tomb – he could never have dreamt of a more beautiful formula for the same ugly technique that was so widespread during the Great Purge, of which he was the key legal architect. However incomparable these situations are, it is regrettable that rather than strongly condemning the means employed in the present case, judges have tried to find a sound justification for these means, seemingly forgetting the consequences which endorsing such an approach – with the ends justifying the means – can have in extreme situations.

I find it particularly unfortunate that the majority, stating that “the Court cannot question the assessment of the domestic authorities unless there is clear evidence of arbitrariness, which there is not in the instant case” ( paragraph 87) , might also be understood as implicitly endorsing this reasoning.

I recall that in the case of Nechiporuk and Yonkalo v. Ukraine (no. 42310/04, 21 April 2011, paragraph 156), threats of ill-treatment towards the applicant ’ s pregnant wife in order to force him to confess were considered to have considerably exacerbated the applicant ’ s mental suffering, thereby constituting one of the relevant factors for reaching the conclusion that the applicant had been subjected to torture.

Despite this, in the present case the Court has determined that the circumstances in which the applicant ’ s confession was obtained do not display any indications of unfairness (paragraphs 86 ‑ 88).

Assessing the extent of the restriction on the applicant ’ s right of access to a lawyer, the majority also argues that the applicant “could request and was granted access to his lawyer at any time thereafter, bar a delay following the request during the 14 th interview; all the interviews were video recorded, recordings which were later examined by the trial judge; his consultations preceded the interviews and even took place during them, particularly during the crucial 15 th interview” (paragraph 84). The length (4 minutes) and the effectiveness of the consultation during the “crucial 15 th interview” have already been discussed above. With respect to the applicant ’ s 14 th interview, it is notable that the applicant ’ s right to interrupt the interviews in order to consult with his solicitor was in fact twice refused during the same (paragraph 12).

Whilst the majority heavily stresses that the video recordings of the applicant ’ s interviews and their accessibility to judges and the jury are a key safeguard (paragraph 99), it follows from paragraph 23 that the jury was in fact only shown excerpts of those video recordings; thus, it remains unclear whether the jury had in fact observed the footage of the crucial moments of the applicant ’ s intimidation.

As is evident from the above discussion, the overall fairness of the proceedings in the present case was irreparably compromised. This is due to the absence of the applicant ’ s lawyer during his police interviews, the lack of sufficient advice provided during the short telephone conversations/meetings which the applicant had with his lawyer (particularly given that the applicant ’ s solicitor was unaware of what was occurring during the police interviews, having not been present and having not been provided with details of the same nor any disclosure from the police officers - see A.T. v . Luxembourg , cited above, paragraph 64, and Huseyn and Others v . Azerbaijan , nos. 35485/05 and 3 others, 26 July 2011, paragraph 180), and, primarily, due to the fact that the applicant ’ s confession, which formed the crucial basis of his conviction, was obtained following clear pressure and intimidation by police officers in the absence of his lawyer.

In those circumstances, I strongly believe that, even applying the “ Beuze test” instead of the “ Salduz test” and assessing the overall fairness of the proceedings against the applicant, the Court ought to have found a violation of Article 6 §§ 1 and 3 (c) of the Convention.

* * *

“ ... (T)he inquisitor asked him toughly and inescapably:

“Will you admit everything?”

Å vejk gazed intently with his good blue eyes at the merciless man and said softly:

“If you wish, Sir, for me to confess, then I ’ ll confess. That can ’ t be too unfavourable for me. I ’ ll do whatever you say. So, if you say: “Švejk, don ’ t admit anything!” I ’ ll deny everything until my body is torn to pieces”.

The stern gentleman wrote something in a document.

He handed Å vejk a pen, and challenged him to sign.

Å vejk signed the document.

It was a denunciation by Bretschneider, with this addendum:

All of the above shown accusations against me are based on truth. Josef Švejk” [11]

[1] Jaroslav Hašek , The Fateful Adventures of the Good Soldier Švejk , Book Two ( AuthorHouse, 2009 ).

[2] Miranda v Arizona 384 US 436 (1966).

[3] UN Human Rights Council, Report of the Special Rapporteur on the Independence of Judges and Lawyers regarding the Mission of the Special Rapporteur to the United Kingdom E/CN.4/1998/39/Add.4 (1998), paragraph 47.

[4] European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment, Detention by Law Enforcement Officials: Extract from the 2 nd General Report [CPT/Inf(92) 31 (2002), paragraph 38.

[5] Sergeitch P, Art Speech at the Court , M Gosyurizdat (1960) 372 pages, page 151.

[6] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Detention by Law Enforcement Officials: Extract from the 2 nd General Report, [CPT/Inf (92)3-part1] (2007) , paragraph 38.

[7] European Committee for the Prevention of Torture and Inhuman or Degr ading Treatment or Punishment, Access to a lawyer as a means of preventing ill-treatment: Extract from the 21 st General Report, [CPT/Inf (2011) 28] (2011), paragraph 24.

[8] United Nations Economic and Social Council, Report of the Special Rapporteur on the Independence of Judges and Lawyers regarding the Mission of the Special Rapporteur to the United Kingdom of Great Britain and Northern Ireland, E /CN.4/1998/39/Add.4 (1998) , paragraph 47 .

[9] Koni A.F. , Nravstvennye nachala v ugolovnom protsesse , M.:Izdatelstvo Yurayt 2016 .

[10] Ibid. .

[11] Jaroslav Hašek , The Fateful Adventures of the Good Soldier Švejk , Book One ( AuthorHouse, 1997 ).