DISSENTING OPINION OF JUDGES BERRO-LEFÈVRE AND LAFFRANQUE

Unfortunately we are unable to follow the majority in finding no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (c) of the Convention. We consider that there was a violation of Article 6 §§ 1 and 3 (c), for the following reasons.

Central issue of this case and previous case-law of the Court

The central issue of this present case is the applicant’s right under Article 6 § 3 (c) of the Convention to defend himself through legal assistance of his own choosing. As a result of his not having had this opportunity, it cannot be excluded that the applicant was prevailed upon in a coercive environment to incriminate himself. The foregoing affected the entire trial, made it unfair and led to a violation of Article 6 § 1.

Recently the Court dealt with a similar issue in the case of Martin v. Estonia , no. 35985/09, 30 May 2013, where it found a violation because the counsel of the applicant’s own choosing was denied access to him. The Court pointed out in this connection that the guarantees in Article 6 § 3 (c) are specific aspects of the right to a fair hearing set forth in paragraph 1 of that 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. The Court also had regard to the subsequent use of statements made by the applicant during the preliminary investigation in breach of his defence rights. It is unfortunate that in the present case the majority did not follow the approach adopted unanimously in Martin v. Estonia .

Violation of the right to be represented by counsel of one’s own choosing

In the present case, when the applicant was arrested by the police his family engaged the services of lawyer G.M. to represent him. However, the police denied G.M. access to the applicant without giving any valid reason. Furthermore, the applicant had never been informed that G.M. had come to the police station, even though he had expressly stated that he wished to be represented by G.M. Instead, according to the Government, the police offered the applicant a list of lawyers from which to choose one to represent him during police questioning, the Government failed to produce that list before the Court.

We are concerned that in § 94 of the judgment, without any explanation, the majority use the expression “legal aid lawyer provided by the police” and “choice of lawyer provided by the police” as if they somehow considered it normal, or even legitimate, that the police should provide a lawyer for a suspect. This does not exactly correspond to the relevant national law cited in § 56 of the judgment: Article 177 § 5 of the Code of Criminal Procedure of Croatia provides for the police authorities to allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police authority by the county branches of the Croatian Bar Association.

We fail to see the meaning of the distinction made by the majority in § 94 of the judgment between a situation where the applicant is “provided with a legal aid lawyer by the police” and a situation where he “was offered a choice of lawyer provided by the police, whose services the applicant had to pay for from his own funds”. To us the question of payment in this connection is irrelevant, since in many legal systems even the legal aid lawyers’ fees need to be paid subsequently by the accused. How the lawyer is paid should not, as such, be a criterion in establishing whether there is “legal assistance of one’s own choosing” or not. In the present case it is rather the fact that the lawyer M.R. did not charge the applicant for his services that raises questions about the good faith of the police.

The Government do not dispute that the appointed lawyer, M.R., was a former chief of Rijeka Police and that when acting as his lawyer he never charged the applicant for his services.

The Court has constantly held that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (see Campbell and Fell v. the United Kingdom , 28 June 1984, § 99, Series A no. 80). It is true that notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute, but the national authorities may override the defendant’s wish relating to legal representation only when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice ( Pavlenko v. Russia , no. 42371/02, § 98, 1 April 2010).

We are unable to accept the actions of the police in preventing lawyer G.M. from contacting the applicant, and failing to inform the applicant of G.M.’s presence in the police station despite applicant’s wish to be represented by him, or the way the lawyer M.R. was involved in the case. Contrary to the principles cited above, the documents in the criminal case file against the applicant do not reveal any good – let alone relevant and sufficient – reasons for not allowing lawyer G.M to assist the applicant during the police questioning, and neither the national courts nor the Government have produced any arguments in that respect.

In the circumstances M.R.’s background and the fact that he did not charge the applicant are also relevant and worrying. To our mind there was no waiver on the part of the applicant of his right to retain G.M., since the applicant had not been informed of G.M.’s arrival at the police station when he signed the power of attorney with M.R.

It is noteworthy that the majority also had serious doubts as to whether the police acted in good faith and whether M.R. was a lawyer the applicant would actually have chosen had he known about the other lawyer, G.M., hired by his parents (§ 98 of the judgment). The majority also acknowledge that the mere signature by the applicant of the power of attorney with M.R. did not constitute a “knowing and intelligent waiver” of his right to retain G.M. as lawyer. Therefore it is even more striking that, despite having serious concerns as to the manner in which the domestic authorities acted (see § 100 of the judgment) and the failure to allow the applicant to be represented by a lawyer of his own choosing during the pre-trial interrogation – a crucial moment in the criminal proceedings –, the majority found no violation of Article 6 § 3 (c). For us these serious concerns, including the manner in which M.R.’s services were proposed to the applicant by the police are valid grounds for a finding of a violation.

Possible pressure by the police to confess

Furthermore, the applicant consistently maintained that his statement was obtained in a coercive environment. Since it is established that the police and the Rijeka County State Attorney questioned the applicant while at the same time preventing him from meeting lawyer G.M., and suggested that he choose another lawyer proposed by them, the applicant’s allegations of pressure exerted by the authorities do not appear completely misplaced.

Therefore the finding of the majority in § 106 of the judgment that the applicant never argued that any of his rights had been infringed when he made his statement seems to be in contradiction with the statement of facts in § 38 of the judgment, which reads: “On 2 April 2008 the applicant asked the Rijeka County Court to call lawyer G.M. as a witness in connection with the alleged unlawful extraction of his confession by the police. He pointed out that G.M. had not been allowed to see him while he had been in police custody and stated that he had been forced by the police officers to confess.”

In addition, we fail to adhere to the conclusion made by the majority in § 105 of the judgment: “The Court also notes 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 the lawyer M.R. as a proof of his sincere regret for the crimes committed in order for it to be taken into account as a mitigating factor in the sentencing procedure.” In § 42 of the judgment it is stated that the applicant pleaded not guilty to the charges and in § 44 it is said that during the closing arguments: “The applicant’s defence lawyer argued that it had not been proven that the applicant had committed the offences he was charged with. She pointed out, however, that if the trial court considered differently, then the applicant’s confession to the police and his sincere regret had to be taken into consideration in sentencing him.” Thus the lawyer used a common tactic of alternative pleadings and used the confession, in the event of sentencing, as a mitigating circumstance, which is by no means the same as maintaining the confession the applicant had given to the police while represented by the lawyer M.R.

Confession as evidence and overall fairness of the criminal proceedings

Although the applicant had the benefit of adversarial proceedings in which he was represented by a lawyer, the detriment he suffered because of the breach of due process at the pre-trial stage of the proceedings was not remedied by the subsequent proceedings. We think that the serious shortcomings in respect of legal assistance at such an important stage of pre-trial events seriously undermined the position of the applicant’s defence at the trial as well. In these subsequent proceedings his confession was held to be admissible as evidence, and even though other evidence was adduced and the confession was not the sole evidence, it nevertheless played a decisive role, without any importance being attached to the circumstances in which the confession had been made (see Panovits v. Cyprus , no. 4268/04, § 75, 11 December 2008).

For all these reasons we conclude that there has been a violation of Article 6 §§ 1 and 3(c) of the Convention on account of the infringement of the applicant’s right to defend himself through legal assistance of his own choosing.