JOINT DISSENTING OPINION OF JUDGE S SPIELMANN, POWER-FORDE AND BUROMENSKIY

The lack of access to legal assistance during the first two weeks of the applicant ’ s detention in custody, pending an investigation into serious criminal charges, is not in dispute. The majority finds no violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention. Its finding is based, essentially, upon the apparent absence of any concrete prejudice caused to the applicant by the lack of legal representation during this initial stage of investigation ( § 64). We consider that there has been a violation of the said provisions . Our reasoning is based upon what we deem to be well settled principles of this Court ’ s jurisprudence.

Although not absolute, the right of everyone charged with a criminal offence to be ef fectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial ( see Salduz v Turkey , [GC] no. 36391/02, § 54, 27 November 2008, § 51; Poitrimol v. France , 23 November 1993, § 34, Series A no. 277 ‑ A; and Demebukov v. Bulgaria , no. 68020/01, § 50, 28 February 2008 ). The Court has frequently repeated that in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the proceedings, including, the pre-trial proceedings ( see Panovits v Cyprus , § 64, and Imbrioscia v Switzerland , no. 13972/88, § 38, 24 November 1993).

That the right of access to a lawyer is ‘ triggered ’ as from the first interrogation of a suspect by the police is also firmly established in the Court ’ s case law (see Panovits , cited above, § 6 6, and Salduz , cited above , § 55) . Indeed, the concept of fairness enshrined in Article 6 “requires that the accused be given the benefit of the assistance of a lawyer already at the initial stages of police interrogation” (see Panovits , cited above , § 66). This principle reflects the Court ’ s recognition of the fact that evidence obtained during the investigation stage can determine the frame work in which the offence charged will be considered at the trial (see Salduz , cited above , § 54). From the moment of arrest until the handing down of sentence, criminal proceedings form an organic and interconnected whole and an event that occurs at one stage may influence and, at times, determine what transpires at another. This ‘ holistic ’ approach to criminal proceedings is reflected in the Grand Chamber ’ s finding in Salduz that neither the legal assistance provided subsequently nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the time spent in police custody ( Salduz , cited above, § 58). Consequently, the Court proceeded to find a violation of Article 6 in that case.

In the circumstances of the present case, we take the view that, firstly, the test adopted by the majority in § 64 of the judgment (namely, whether the lack of legal assistance had any bearing on the general fairness of the proceedings) is not the correct one. The correct test, in our view, is that Article 6 § 1 requires, that as a rule, a suspect has a right of access to a lawyer from his or her first interrogation 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 ( Salduz , cited above, § 55). In other words, there is a presumption that a trial will be unfair unless access to a lawyer has been given from a suspect ’ s initial interrogation by police. However, even proceeding upon the test used by the majority, we cannot share its view that the absence of legal assistance at the early stage of investigation appears to have had no bearing on the general fairness of the applicant ’ s trial. One simply cannot speculate as to how that trial would have proceeded or how the defence would have been conducted had the applicant been given access to a lawyer at that initial stage of the proceedings.

We can accept, as does the majority, that in the present case the applicant did not retract any statements made during those early weeks in custody when questioned without the benefit of access to a lawyer. However, it does not follow that the lack of legal assistance at such a crucial stage in the criminal investigation had no bearing on the general fairness of the applicant ’ s trial. To draw such a conclusion is to overlook the fact that access to a lawyer involves much more than advice in relation to the making of statements. The applicant complains that because of the absence of a lawyer the gathering of evidence in support of his defence was unsatisfactory. This submission appears to us to be entirely plausible. Legal assistance includes a whole panoply of services which are put at an accused person ’ s disposal so that he can defend himself, effectively, in a criminal trial. As the Court has stated in Dayanan v Turkey , no. 7377/03, 13 October 2009:

Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person ’ s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.

None of the above was available to the applicant at the initial stage of the criminal investigation and thus we are not convinced that his criminal trial was ‘ fair ’ within the meaning of Article 6.

The majority also rely on the fact that, notwithstanding the provisions of domestic law (which required obligatory legal representation in view of the gravity of the offence in issue) the applicant had waived his right to legal assistance. It concludes that this waiver was a genuine one (§ 64). The applicant, however, claims that, prior to the waiver, he was informed by the investigator that ‘ it would take a lot of time to fetch a lawyer ’ and that he agreed to forsake such assistance “ since he wanted to help the investigation” (§ 7). The majority ’ s conclusion as to the genuineness of the ‘ waiver ’ fails, in our view, to pay sufficient regard to the reality of the vulnerable position of an accused person at such a critical time. As the Court noted in Salduz and subsequently reiterated in Borotyuk c. Ukraine , no. 33579/04, 16 December 2010:

[A]n accused person often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence.

The Court has held that in most cases, this particular vulnerability could only be properly compensated for by the assistance of a lawyer (see Salduz , cited above , § 54). Given the gravity of the charges in question and the applicant ’ s admitted desire to help the investigator, this, in our view, is such a case.

We consider that both the safeguards envisaged by the national legislation and the guarantee of fairness enshrined in Article 6 of the Convention required that the applicant should have had the benefit of a ccess to a lawyer from his first interrogation as a suspect by the police. This is what the case law of the Court requires unless it is demonstrated , in the light of the particular circumstances of each case , that there are compelling reasons to restrict this right (see Salduz , cited above, § 55). We find no such reasons in this case.