DISSENTING OPINION OF JUDGE KALAYDJIEVA

The applicants in the present joined cases argued (see paragraph 169 of the judgment) that “the right to legal advice was not merely a protection against coercion and ill ‑ treatment: there was a clear link between the right to legal advice and the right against self-incrimination running through the case-law of the Court both before and after Salduz ” ( see Salduz v. Turkey ( [GC], no. 36391/02, ECHR 2008) . They furthermore maintained (see paragraph 170) that “there was no relevance in the distinction drawn by the Government between telling lies and making incriminating admissions or staying silent ... Any such distinction had no basis in domestic law or the Court ’ s case-law”. The principles set out, in particular, in the case of Saunders v. the United Kingdom (17 December 1996, § 71, Reports 1996 ‑ VI) “made it clear that the right not to incriminate oneself could not reasonably be confined to admissions”. In their view such a distinction “would have uncertain and unpredictable consequences”.

I regret the fact that the majority of my learned colleagues seem to have failed to address these complaints jointly as raised by the applicants. As in Gäfgen v. Germany ([GC], no. 22978/05, ECHR 2010), the complaints of insufficient safeguards for the privilege against self-incrimination were separate d from the allegations that the police had deliberately impeded access to defence lawyers until after the applicants had been questioned and had made statements concerning the offences of which they were suspected.

While the case-law of this Court sees the privilege against self-incrimination as one of the basic principles of Article 6 of the Convention, there is little doubt that the “minimum right to legal assistance” enshrined in Article 6 § 3 (c) serves as one of the basic guarantees for the protection of this privilege. In the present case, t he majority agreed with the domestic authorities and the Government that “the police were concerned that access to legal advice would lead to the alerting of other suspects” (see paragraph 201) and were satisfied that , at the time of the “safety interviews” , the delayed access to legal advice was justified by “the need to obtain, as a matter of critical urgency, information on any further planned attacks and the identities of those potentially involved in the plot, while ensuring that the integrity of the investigation was not compromised by leaks”, a need which “was clearly of the utmost compelling nature” (see paragraph 200). While I am fully aware of the difficult and urgent situation, which called for “safety interviews” for the purposes of obtaining information that was urgently necessary to remove imminent danger and save the lives of many, I find myself unable to follow the argument that preventing access to a lawyer may be justified for the purposes of “ensuring that the integrity of the investigation was not compromised by leaks”. This argument appears to be broadly dismissive of the very essence of the right guaranteed by Article 6 § 3 (c) , being potentially applicable to any investigation proceedings , and reflects a generalised view that lawyers constitute a threat to justice by definition.

I also regret that there is no analysis as to whether or not the situation with which the applicants were confronted during the “safety interviews” – the applicable legal framework , which appears to leave no space for the right to remain silent, the erroneous or omitted cautions against self-incrimination , taken together with the absence of legal assistance –, amounted to “ coercion or oppression in defiance of the suspect ’ s will ” . A proper analysis of this situation may lead to the conclusion that , taken together, these circumstanc es inevitably trap suspects in a situation where both their silence and their lies may be lawfully interpreted to their detriment, thus leaving space only for confession. The compatibility of this situation with the principles in Saunders is questionable. It appears that in this regard the majority were satisfied with the observation that they were neither arrested, nor subjected to any ill-treatment. I am not convinced that this suffices for the purposes of ruling out “coercion” within the meaning of the Court ’ s case-law. In this regard I would simply mention the principles reiterated in Gäfgen ( cited above , § 168) where, with regard to “the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court reiterate[d] that these [were] generally recognised international standards which [lay] at the heart of the notion of fair procedures under Article 6”. The Grand Chamber continued as follows:

“ Their rationale lies, inter alia , in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia , S aunders v. the United Kingdom [GC], 17 December 1996, § 68, Reports 1996-VI; Heaney and McGuinness v. Ireland , no. 34720/97, § 40, ECHR 2000-XII; and the judgment in Jalloh , cited above, § 100).”

Finally, the case raises yet again the issue of appropriate remedies in cases of infringement of the privilege against self-incrimination. Instead of clarifying the scope of this privilege and the appropriate remedies for its infringement, in the case of Gäfgen the Grand Chamber focused its examination on the Article 3 aspects of the case, albeit noting the provisions of other international instruments and the views of other courts concerning the “exclusionary rule” established for the protection of the privilege against self-incrimination. In this regard the Grand Chamber admitted that “in its case-law to date, it has not yet settled the question whether the use of such evidence will always render a trial unfair, that is, irrespective of other circumstances of the case ” .

Having found that , in breach of the law, the fourth applicant Mr Ismail Abdurahman had been deliberately questioned without a proper caution against self-incrimination, the majority deemed it sufficient that this “did not give rise to undue prejudice to his defence rights” and in fact left the assessment of appropriate remedies to the national criminal courts.

In f ailing to analyse both whether the circumstances in the first three cases amounted to coercion to self-incrimination and what the appropriate remedies should be in established circumstances of self-incrimination , i.e. in the case of the fourth applicant , under the Convention rather than domestic law standards, I ask myself whether this Court ’ s scrutiny was at all necessary or appropriate, or was it in fact redundant , as falling outside the scope of the Court ’ s competence and even encroaching upon the domestic authorities ’ margin of appreciation?