PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE V AJIĆ

1. I have not voted with the majority on point 5 of the operative part of the judgment as I am of the opinion that there has been no violation of Article 6 § 1 of the Convention on account of the Assize Court ’ s handling of the confrontation with the applicant ’ s defence counsel in the present case. In this respect I join the dissenting opinion of Judge Erotocritou , that is to say, point (3), paragraphs 13-16 of that opinion.

2. I also share Judge Erotocritou ’ s final remarks relating to the structure of the operative part of the judgment (paragraph 17 of his dissenting opinion), according to which the proceedings should have been taken as a whole (although, ultimately, I do not follow his conclusion as to the merits). There was no need in this case to find multiple separate violations of Article 6 § 1 of the Convention in the operative part and thus split up the main violation, namely the lack of a fair trial. In my opinion, the finding in the operative part should answer the question whether the trial taken as a whole was fair. The different reasons that led the Court to find such a violation are well explained in the text of the judgment, and, according to the usual approach, did not need to be repeated in the operative part.

DISSENTING OPINION OF JUDGE EROTOCRITOU

I agree on the facts as outlined in the judgment. However, while I respect the view of the majority, I cannot agree with the conclusions drawn.

1. Τ he complaints concerning the pre-trial stage of the proceedings

(a) The lack of legal assistance in the initial stages of the proceedings

1. The main complaint of the applicant is that he was deprived of his right to consult a lawyer, contrary to Article 6 § 3 (c) of the Convention, and in particular, that he was not informed of his right before making a written statement. The applicant, when arrested by the police, was under age (17 years and 8 months), and for this reason he was called to the police station accompanied by his father and guardian. Article 6 § 3 (c) of the Convention, although it protects the right to legal representation, does not specify the manner of exercising it and everything seems to depend on the circumstances. It must be noted that under domestic law there was no requirement at the material time for the authorities to warn persons arrested of their right to be legally represented. The only requirement under Article 11 §4 of the Constitution of the Republic of Cyprus is that the arrested person “ shall be allowed ” the services of a lawyer. To my mind, the distinction between denial of the right to have access to legal assistance and failure to inform of the existence of such right is important and must be borne in mind when examining a possible violation of the Convention. I do not dispute that, under the Convention, a right to be informed might exist under certain circumstances. Nevertheless, as the Convention does not detail the manner in which the right to be legally represented may be exercised and domestic law did not at the time have such a requirement, I would prefer to look at the totality of the proceedings before I decide on their fairness and whether any limitation of the right, through failure to inform, could amount to a violation under Art. 6 § 3 (c). As stated by the Court in Imbrioscia v. Switzerland, no. 13972/88, § 37, “The right set out in paragraph 3 (c) of Article 6 (art. 6-3-c) is one element, amongst others, of the concept of a fair trial in criminal proceedings ... ”.

2. The reason I differ from the view of the majority is that, in the present case, the father and guardian of the applicant was actually told by the police director that the case was very serious and that it was advisable for him to find a lawyer to assist his son. The warning was given 30-40 minutes before the first written confession was made by the applicant. The father had, in my opinion, ample time to seek the services of a lawyer or even request that further interrogation be halted or delayed, until he could consult a lawyer. However, he elected to remain inactive. There is, in my opinion, no doubt that, on behalf of his son, the father waived any right that he may have had

and it would not be fair to throw the blame for his inactivity on the investigating authorities. The police authorities, as stated by the Government and as has not been disputed, were at all times ready and willing to allow legal assistance, had it been requested. Furthermore, the father was invited by the authorities to be present during his son ’ s questioning, but again he preferred to stay outside the investigating room and walk up and down. Therefore, I cannot come to the conclusion that, in the circumstances, there was a denial of the right to have access to a lawyer at the initial stages of the proceedings, or that the whole treatment of the applicant by the police was in any way unfair.

3. I would like to go a stage further. Even if I were to accept that, due to the failure to inform, some limitation of the applicant ’ s right to legal assistance did occur, its effect must nevertheless be examined in the context of the whole proceedings and not in isolation. The applicant, less than 24 hours after his arrest, had the services of a lawyer who represented him at the remand proceedings the very next day. Within one week he appointed a second lawyer and, throughout the one and a half years the trial lasted, he was at all times legally represented and had the opportunity to test all the evidence adduced. The fact that his guardian and not the applicant himself was informed of the right to consult a lawyer cannot make any difference. In any event the issue was examined by the Assize Court during the trial within a trial and it was found that the warning to the father was sufficient, and that the statement the applicant gave was in any event voluntary. These findings were subsequently scrutinised and upheld by the Supreme Court. In G v. the United Kingdom, no. 9370/81, 35 DR 75 (1983), where the accused was similarly questioned in the absence of a lawyer, the Commission was satisfied that the statement was voluntary by the mere availability of voir dire proceedings. Identical procedural mechanisms existed in the present case and I see no valid reason to reach a different conclusion.

4. I further consider that, after the statement was declared voluntary and admissible, it would be an inconsequence to hold otherwise now. The Court would appear to be acting contrary to its established case-law that, unless the case is exceptional, it does not interfere with questions of admissibility and assessment of evidence when such issues have been decided by the domestic courts. My non-exhaustive search of the case-law under Article 6 § 3 (c) has not revealed a similar case where failure to inform alone led to a violation. In most cases the denial of the right in question takes the form of a request by the arrested person to have the services of a lawyer, followed by a denial on the part of the authorities. For instance, in Brennan v. the United Kingdom (no. 39846/98, ECHR 2001-X), the applicant requested a lawyer but access was delayed. The applicant was then interviewed for 35 hours on 4 consecutive days, during which he made a confession. Even so, the Court was not persuaded that the denial of access to legal assistance had infringed the applicant ’ s right under Article 6 § 3 (c). Having in mind the entirety of the proceedings, I consider any prejudice there may have been in the present case relatively much less serious than in Brennan and G v. the United Kingdom (cited above) and I see no reason for r eaching a different conclusion.

(b) The complaints concerning the right to remain silent

5. The second complaint is that the applicant was not informed of his right to remain silent, contrary to Article 6, when in fact he was properly informed of his right. It is not disputed that, in the initial stages, the applicant was cautioned three times as to his right to remain silent. The first caution was given on arrest in the presence of his father, the second when he was to be interviewed by the police shortly after arrest and the third before a written statement was taken from him. I cannot subscribe to the view that a mere caution in words is not enough to enable the applicant to comprehend the nature of the right. The applicant was of sufficient maturity to understand the nature and implications of the caution. I also doubt whether in ordinary cases, and in the absence of special factors or some form of incapacity, we should place a special duty on the investigating authorities to make sure that an arrested person comprehends the caution given. Irrespective of the objective difficulties involved, the danger is that we may return to where we started, i.e. again using verbal or written means in order to ensure that an accused person comprehends.

6. One other reason why I cannot accept the complaint that the applicant ’ s right to remain silent has been violated is that no such ground was explicitly included in the application and therefore it should not have been made an issue before this Court.

(2) Complaints concerning the main trial

The domestic courts ’ reliance on the applicant ’ s confessions

7. I come now to the alleged violation that concerns the use by the Assize Court of the applicant ’ s two written confessions. My first comment is that the domestic courts, both the Assize and the Supreme Court, have already decided on the issue of the admissibility of the confessions and I consider that this Court, in line with its established case-law, should refrain from acting as an appellate court by re-examining the admissibility of the confessions. This should only be done where there is an allegation that the final judgment of the domestic court was either arbitrary or inadequate. No such allegation was made in the present application and none exists.

8. In view of my dissenting conclusion that the applicant ’ s right to be legally represented was not violated, I cannot find that a violation occurred as a result of the use of the first confession. Nor do I agree that the first confession was tainted in any way by what happened at the pre-trial stage.

9. With regard to the first confession, it must also be noted that, as the Supreme Court pointed out in its judgment, the conviction was not based solely on the applicant ’ s confession. There was also other supportive evidence which, although circumstantial, by itself would have been sufficient to secure a conviction. The Supreme Court states emphatically that:

“The lawyer of the Appellant suggested that his written confession was the only evidence against him and that, without it, his conviction would not have been possible. We are of the opinion that the suggestion is ill-founded. There was sufficient, strong and independent evidence which placed the Appellant and his co-accused at the scene at the time the crime was committed.”

The Supreme Court then proceeds to analyse each piece of evidence, namely that (a) the appellant and his co-accused were seen drinking with the victim, (b) they left the bar immediately after the victim, (c) they were seen later with their clothes covered in mud, which they tried to clean and (d) the appellant made a voluntary statement (second confession), which he did not dispute, admitting kicking the victim twice and trying to minimise the extent of his complicity.

10. Even stronger is my objection to the finding of the majority with regards to the use of the second written confession. Firstly, it must be noted that the second confession was given about 15 days after the first written confession and at a time when the applicant was legally represented. Secondly, it was given after the applicant had been properly informed of his right to remain silent. Thirdly, it was admitted in evidence without the defence ever raising any objection as to its admissibility or as to its voluntariness. Fourthly, the applicant, whilst giving evidence, admitted the statement, which in effect minimised his role to only kicking the victim twice. Lastly, in his application to this Court, the applicant does not include any ground relating to the voluntariness or fairness of this particular written confession but restricts his complaint to the first confession . Consequently, I consider that it cannot be in issue in these proceedings.

11. I cannot subscribe to the view that there was any violation of Article 6 § 1 as a result of the use in the main trial of the applicant ’ s confessions. Although they were important pieces of evidence, the confessions were neither tainted by anything that happened during the pre-trial proceedings, nor were they the only evidence against the a pplicant. It must also be borne in mind that in the present case there is no evidence that the police, during the 3-4 minutes that the whole initial questioning lasted, used force, duress or trickery of any form . In any event, as I have pointed out, the confessions and the circumstances in which they were taken were assessed and scrutinised by the domestic courts and found to be voluntary and admissible. I consider that, under the circumstances, there is no justification for this Court to evaluate afresh their voluntariness or admissibility and, in so doing, appearing to act as an appellate court.

(3) Complaints concerning the Assize Court ’ s treatment of counsel for the defence

1 2 . In the judgment of the majority (paragraph 101) it is concluded that the Assize Court ’ s handling of the confrontation with the applicant´s defence counsel rendered the applicant ’ s trial unfair. Two main factors seem to have been taken into account. Firstly, the incident that led to the contempt proceedings against the applicant ’ s lawyer, and secondly, the refusal of leave for him to withdraw.

1 3 . As to the first factor, the findings of the majority are that the judges ’ personal conduct, in view of the findings of the Court in Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005-XIII, undermined the applicant ’ s confidence that his trial would be conducted in a fair manner.

1 4 . With respect, I cannot see how the incident with the applicant ’ s lawyer could have affected the totality of the proceedings. The contempt proceedings against the lawyer were separate and distinct and in no way affected the applicant. The findings of the Court in the Kyprianou case (cited above) with regard to the lack of impartiality on the part of the Assize Court were confined to Mr Kyprianou and to the contempt proceedings against him and in no way extended to the rest of the proceedings or affected the applicant in any way. I consider any insinuation that, as a result of the incident with Mr. Kyprianou , the Assize Court lost its impartiality or fairness towards the applicant to be totally unfair to the judges of the Assize Court and generally to the judiciary of Cyprus . I therefore cannot agree that, in respect of the applicant, there was any violation of Article 6 § 1 of the Convention as a result of the contempt proceedings that took place against the applicant ’ s Counsel.

1 5 . As to the second factor, it has been argued that the refusal by the Assize Court of leave for the applicant ’ s lawyer to withdraw from the case had a “chilling effect” on counsel ’ s performance and that the Court exceeded the limits of a proportionate response, given the impact on the applicant ’ s right of defence. With all respect, I cannot agree. The Assize Court , in refusing leave, based its judgment on established domestic jurisprudence and took into account both the interests of justice and those of the defence. With regard to the interests of justice, it must be noted that the lawyer ’ s application to withdraw was made towards the end of the main trial and after most of the evidence had been admitted. To have granted leave at that late stage of the proceedings would have meant that the trial would be delayed until a new lawyer was found and the voluminous record of the court containing all the evidence was transcribed for the benefit of the new lawyer. It is likely that this would have taken a considerable time, thus further delaying the proceedings. In trying to safeguard the defence interests, the Assize Court considered that a new lawyer, who would not have had the opportunity to see or hear the witnesses testify in court, would have been at a serious disadvantage. I do not detect any fault in the reasoning of the court, nor do I see any unfairness in the way the court dealt with the lawyer ’ s request. Had the applicant ’ s lawyer considered that he could not do his best for his client, as he was obliged to do at all times and under any circumstances, he should have advised his client to dismiss him forthwith, rather than continue with the trial and complain afterwards. The applicant himself never raised the issue and never indicated that he wanted to change his lawyer. Under the circumstances, I cannot agree that the refusal of leave for the lawyer to withdraw had any detrimental effect on the proceedings as a whole.

(4) Comments on the operative part of the judgment

1 6 . One final point, as to the operative part of the judgment. Given the main violation that the majority finds, I do not see any need in this case to find separate violations. This, I understand, has not been the practice of the Court, except in cases where grievous violations take place. The facts of the present case are not such. The finding of separate violations is, with respect, unnecessary, serves no useful purpose and tends to eclipse the main violation that the majority of the court finds.

17. I would therefore conclude that, taking the proceedings as a whole and not fragmenting them, no violation occurred. The applicant was legally represented throughout the proceedings before the domestic courts, was properly and adequately cautioned as to his right to remain silent, had all the benefits of an adversarial trial, including the voir dire, and the judgment of the Assize Court was fully reasoned and in any event was scrutinised by the Supreme Court. In my opinion, the trial of the applicant as a whole was fair and none of the incidents complained of had any decisive effect on the outcome of the proceedings. For my part, I would dismiss the application.

[1] For example, Austria, Belgium, Bosnia-Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Moldova, the Netherlands, Norway, Poland, Romania, San Marino, Serbia-Montenegro, the Slovak Republic, Slovenia, Spain, Switzerland, “The Former Yugoslav Republic of Macedonia”, Turkey and the United Kingdom (special review committee).

Admittedly, States are not required by the Convention to introduce procedures in to their domestic legal systems whereby judgments of their Supreme Courts constituting res judicata may be reviewed. However, they are strongly encouraged to do so, especially in criminal matters. Incidentally, in a judgment of 9 April 2008, the Belgian Court of Cassation, for the first time ordered a retrial on the basis of Articles 442 bis et seq. of the Code d’instruction criminelle (introduced by an Act of 1 April 2007) in respect of the case of Da Luz Domingue s Ferreira v. Belgium (no. 50049/99, 24 May 2007) ( Cass.b . , 9 April 2008, P.08.0051.F/1, Journal des Tribunaux , 2008, p. 403, observations by J. Van Meerbeeck ).