PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGE LEMMENS

I.

1. The majority finds 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 during his police custody. With this finding the majority interprets the Court ’ s Grand Chamber judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) as providing for a rule which is purely theoretical and illusory on the facts of this case. As I will explain i n more detail below, this inter pretation of the judgment in Salduz is neither warranted in the light of the reasoning of the Grand Chamber in that case nor do es it take into account the sub sequent developments in the Court ’ s case-law on the fair trial guarantee of Article 6 § 1 and its subsidiary components in paragraph 3 of the same Article. I therefore respectfully dissent.

II.

2. It is undisputed in this case that during the first hearing of the trial court in the applicant ’ s case on 19 March 2001 the applicant, assisted by a lawyer, submitted his written submissions and “stated that he accepted the statements taken from him in custody and ple aded not guilty” (see paragraph 14 of the judgment). It follows that a lthough he was questioned on 17 November 2000 whilst in police custody without a lawyer present, the applicant did not, directly or indirectly, deviate from those statements or deny their relevance at any point in time throughout his trial, or in any way make the claim that the taking of those statements without the presence of a lawyer had had any prejudicial effect on his defence. The majority ’ s finding of a violation is thus based on a purely automatic application of the requirement of legal assistance under Article 6 § 3 (c), without it being deemed necessary to show that the lack of such assistance had a prejudicial effect, even speculatively, on the fairness of the applicant ’ s trial.

3. The majority ’ s reasoning for this finding is based solely on the purported application of Salduz v. Turkey (cited above, §§ 54-62) to the facts of this case.

In Salduz , the Grand Chamber began its reasoning in § 50, in the part dealing with the “general principles”, by noting that Article 6, especially paragraph 3 thereof, “may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ... ” (emphasis added). The Court then observed in § 51 that although the right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the fundamental features of a fair trial,

“ ... Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court ’ s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial . In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ... ” (emphasis added).

4. This qualification of the scope of the Grand Chamber ’ s findings in Salduz is clear in my view. The Court refrained from adopting an absolute rule on the assistance of legal counsel which would have the effect of unifying rules of criminal procedure within the Contracting States. On the contrary, the criterion to be examined by the Court was limited to “whether the method they have chosen is consistent with the requirement of a fair trial”. This reading of Salduz , as providing for a relative rule as to the application of Article 6 § 3 (c) which is closely connected to a holistic assessment of fairness under Article 6 § 1, is furthermore supported by subsequent Grand Chamber case-law on Article 6 § 1 and paragraph 3 of the same Article, notably in Taxquet v. Belgium ([GC], no. 926/05, ECHR 2010), and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06 , ECHR 2011), as I will explain more fully in paragraphs 12 and 13 below.

5. To return to the reasoning in Salduz , the Grand Chamber, having made the above findings (see paragraphs 3 and 4 above), went on to observe, very importantly, as follows (§ 52):

“National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings . In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing , for even a justified restriction is capable of doing so in certain circumstances. ... ” (emphasis added) .

6. Here again, the Grand Chamber took great care to limit its findings to an assessment of whether the lack of legal assistance had, in the light of the “entirety of the proceedings”, had the effect of depriving “the accused of a fair hearing”. The reasoning continued on that basis, with the Grand Chamber stating in § 54 that “[e]arly access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination” .

7. The Grand Chamber then concluded its reasoning under the heading of “The general principles applicable in this case” as follows (§ 55):

“Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ‘ practical and effective ’ (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 ... . The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction ” (emphasis added) .

8. As before, the Grand Chamber emphasised the relative effect of the fact that the accused had provided “incriminating statements” during police interrogation without access to a lawyer, in the form of his rights of defence being “irretrievably prejudiced”.

9. In sum, taking account of the reasoning in §§ 50-55 of Salduz , comprising the part on the applicable general principles, it cannot, in my view, be reasonably inferred from the Court ’ s analysis that the judgment provides for an absolute rule whereby the lack of legal assistance during police inter rogation will always, without exception, entail a violation of the Convention, even when, as in the present case, it is clear that the absence of counsel did not have a prejudicial effect on the accused ’ s conviction at trial, nor did the accused even claim that this was the case.

10. In proceeding to apply the general principles articulated i n §§ 50 ‑ 55 to the facts of the case, the Grand Chamber in Salduz noted in § 56 that the applicant ’ s right of access to a lawyer had been restricted during his police custody pursuant to section 31 of Law no. 3842, as he had been accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he had not had access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no justification had been given for denying the applicant access to a lawyer other than the fact that this was provided for on a systematic basis by the relevant legal provision. The Grand Chamber then stated as follows:

“As such, this already falls short of the requirements of Article 6 in this respect, as set out in paragraph 52 above ” (emphasis added).

At first glance this sentence, read in isolation , might be understood to mean that the mere fact that the restriction on access to a lawyer in Turkey at the relevant time was of a systematic nature entailed, in and of itself, a violation of Article 6. However, such a literal understanding of this sentence is untenable for two reasons.

Firstly, such a reading would in essence ren der the careful and limited ana lysis of the general principles in §§ 50-55 effectively redundant. On the contrary, it is crucial to understand this sentence in context, in particular in the light of the analysis by the Grand Chamber of the general principles set forth in §§ 50-55 which I have discussed above (see paragraphs 3-8), as supported by the clear reference in the sentence to § 52 (see paragraph 5 above).

Secondly , the sentence must be read in the light of the facts of Salduz itself and the way in which the Grand Chamber applied the general principles of the case to those facts. In Salduz , the applicant, a minor, had clearly given an incrimi ­ nating statement during police questioning in the absence of a lawyer, a statement whose accuracy he subsequently denied. Thus, the Grand Chamber stated in clear and unequivocal terms in § 58 that the applicant “was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. ... ” (emphasis added).

11. In conclusion, nothing in the reasoning in Salduz warrants, in my view, the application of an expansive and inflexible rule providing that a lack of legal assistance will auto matically result in a Contracting State having violated Article 6 § 3 (c) in conjunction with Article 6 § 1, without it being shown (or even claimed by the applicant) that this prejudiced the rights of the defence.

12. Furthermore, and importantly, I would reiterate that the above understanding of the judgment in Salduz is clearly supported by subsequent Grand Chamber case-law on the scope of the fair trial guarantee of Article 6 § 1, alone and in conjunction with the safeguards of paragraph 3. Thus, in Taxquet , cited above, the Court emphasised (§ 83) that a “variety of legal systems [exist] in Europe, and it is not the Court ’ s task to standardise them”. Furthermore, the Court noted that a “State ’ s choice of a particular criminal ‑ justice system is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention”. The Court then stated explicitly (§ 84):

“ ... The Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6. The Court ’ s task is to consider whether the method adopted to that end has led in a given case to results which are compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case. In short, it must ascertain whether the proceedings as a whole were fair ... ” (emphasis added).

A year later, the Court reaffirmed this holistic and relative approach to the fair trial guarantee of Article 6 § 1, in conjunction with its subcomponents in paragraph 3 of the same Article, in Al-Khawaja and Tahery , cited above, where the Court examined a complaint alleging a violation of Article 6 §§ 1 and (3) (d), observing as follows (§ 118):

“The Court notes that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court ’ s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, as a recent authority, Taxquet v. Belgium [GC], no. 926/05 , § 84, ECHR 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05 , § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, among many authorities, Doorson , cited above, § 70). It is also observed in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court ’ s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen , cited above, § 162, and the references therein).”

13. Consequently, in my view it follows clearly from the Grand Chamber judgments in Taxquet and Al-Khawaja and Tahery that the fair trial guarantee of 6 § 1, and the auxiliary safeguards of paragraph 3 of Article 6, are not to be read as encompassing automatic rules of criminal procedure. They require an overall judicial assessment of whether a person charged with a criminal act has been treated fairly at domestic level. Therefore, there is no legally tenable reason to apply the related judgment in Salduz in a manner that would flatly contradict this subsequent case-law of the Court, creating a rule that is liable, as the present case demonstrates, to be wholly theoretical and illusory.

III.

14. In conclusion, I disagree with the majority that a reasonable application of Salduz , in the light of its reasoning and taking account of the subsequent case-law of the Grand Chamber, warrants the finding of a violation in the present case. I note that it is true that in subsequent Chamber case-law (see in particular Dayanan v. Turkey , no . 7377/03, 13 October 2009), the Court adopted a rather categorical approach to the application of the Salduz judgment. However, in Dayanan , the facts were materially different from the facts of the present case. There, the applicant had remained silent during police questioning and up until the first hearing at his trial, when he denied all the charges against him and gave testimony (see §§ 6-11). Thus, a material question arose in that case as to whether and to what extent the trial judge “attach[ed] consequences” (see Salduz , cited above, § 52) to the applicant ’ s initial decision, taken without legal assistance, to remain silent. I reiterate that no such material question of prejudice arose in the present case as the applicant confirmed throughout the trial the statements he had given while he was in custody during the initial stage of the investigation. Before the Court, the applicant thus does not claim that the lack of legal assistance during police questioning irretrievably prejudiced his defence rights, only that the mere fact that a lawyer was not present automatically entailed a violation of his human rights.

For all the reasons adduced above, I cannot subscribe to such a categorical and inflexible approach to the interpretation of the fair trial guarantee of Article 6 § 1, along with the safeguards of paragraph 3, as such an approach is not, in my view, in con formity with the case-law of the Grand Chamber, correctly applied.