CONCURRING OPINION OF JUDGE SAJÓ

I voted with the majority in finding a violation in this case: in view of the applicable precedent ( Salduz v. Turkey [GC], no . 36391/02, 27 November 2008), the restrictions on the applicant ' s access to a lawyer amount to a violation of the Convention.

However, I cannot agree with the Court ' s finding that the use in the criminal proceedings against the applicant of statements purportedly obtained from him by torture and ill-treatment during the preliminary investigation, in the absence of his lawyer, rendered his trial as a whole unfair. The Court ' s conclusion rests on the authority of Örs v. Turkey , no. 46213/99, 20 June 2006. I do not see the facts of that case as being analogous to the present one. In Ö rs the physicians found serious bruises on the body of several accused who complained, independently, of torture, to the extent that criminal proceedings were initiated against the alleged perpetrators, although the allegations of torture were not subsequently established because the crime allegedly committed by the police officers was found to fall under the statute of limitations. In the present case the applicant was examined by several doctors, including doctors (!) outside the prison system, and they found nothing. Four days after the applicant ' s arrest a judge noticed a purple bruise and redness on his left eye, while on his sixth day in detention a fading light-green line was observed by a prison doctor, who estimated that it related to an event occurring seven to ten days earlier or to hyperpigmentation, lack of sleep or a local infection. An investigation was instigated into the alleged ill-treatment. The applicant ' s co-detainees stated that they had no knowledge of ill-treatment of the applicant, nor did they complain of ill-treatment themselves. This led to the prosecutor ' s decision not to commit any police officer for trial, on account of the lack of evidence (see paragraph 25); the applicant did not lodge any objection against that d ecision with the Assize Courts.

It follows that the decisive factual elements in Örs are absent in the present case. Nevertheless, the Court found the applicant ' s “consistent and detailed version of events” to be sufficient evidence of torture, in particular as it was “corroborated” by a statement from a police officer who alluded to the “lengthy questioning” of the applicant. The Court found that the applicant ' s version was further “corroborated” by the statement from the same police officer to the effect that the applicant was subjected to a twenty-five-hour car journey. I cannot see how “lengthy questioning” (of unspecified duration without signs of sleep deprivation), or a journey in relation to which there is not even any suggestion of humiliating or abusive conduct, could contribute to torture or corroborate the applicant ' s “consistent” allegations. Incidentally, not even the applicant himself attributed the alleged bruise to the officers who had questioned him and obtained his confession. To my mind, information of this kind proves nothing and is incapable of meeting the requirements of burden of proof. Further, in the present case, in contrast to the careful formulation in Örs ( § 61), where the fairness of the trial as a whole was undermined by the fact that the procedural guarantees could not counter the confessions supposedly (“ pretenduement ”) [or even probably] obtained under torture, in the absence of a lawyer and on the basis of a misreading of the rules on self ‑ incrimination, in the present case the Court concludes that “the use of the applicant ' s statements obtained purportedly under torture and ill ‑ treatment during the preliminary investigation, in the absence of his lawyer, in the criminal proceedings brought against him, rendered his trial as a whole unfair” (see paragraph 49). This conclusion is reached without considering the role of other procedural guarantees and of possible non ‑ tainted evidence. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not, though I personally believe that the Court should require very stringent guarantees in cases where exclusionary rules do not apply in a national system. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question (see, among others, Khan v. the United Kingdom , no. 35394/97, § 34 , ECHR 2000 ‑ V , and Jalloh v. Germany [GC], no. 54810/00, § 95, ECHR 2006 ‑ IX ). The Court takes no position on the issue whether the statements given by the applicants while in custody served as the main evidence in the judgment convicting the applicant, as required in Hacı Özen v. Turkey ( no. 46286/99, § 103 , 12 April 2007 ). The use of evidence obtained in violation of Article 3 in criminal proceedings infringes the fairness of such proceedings even if the admission of the evidence concerned was not decisive in securing the conviction; however, in the present case the facts simply do not support the finding of such a violation.