JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS AND MULARONI

We regret that we cannot agree with the majority that there has been, in this case, no violation of Article 6 § 3 (c) of the Convention, for the following reasons :

1. As the majority correctly points out at paragraph 22 of the present judgment, our Court has been very clear in reiterating, over many years, that Article 6 applies even at the stage of the preliminary investigation into an offence by the police , and that its paragraph 3 (c) may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements ( Imbrioscia v. Switzerland , judgment of 24 November 1993, § 36). As the Court emphasised in that judgment, the manner in which this provision is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case ( § 38).

In the John Murray v. the United Kingdom judgment of 8 February 1996, the Court observed: “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, which is not explicitly set out in the Convention, may be subject to restrictions for good cause . The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” ( § 63).

In the Brennan v. the United Kingdom judgment of 16 October 2001, which is based on the same principles, the Court said that “[t]he manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case” ( § 45). It observed: “although 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, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause . The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing” ( ibid ).

2. We can reasonably infer from the above-mentioned case-law the following elements :

Firstly, it is now clear from the Court ’ s case-law concerning Article 6 § 3 (c) that the assistance of a lawyer already at the initial stages of police interrogation is the rule and the lack of assistance is the exception.

Secondly, both in the John Murray and Brennan judgment s , the Court made it equally clear that , if there is a restriction on the right to the assistance of a lawyer already at the initial stages of the proceedings, there must be a “good cause” ( des raisons valables ) for such a restriction.

Thirdly, we observe that in the Murray case the Court found a violation of Article 6 § 3 (c) of the Convention and refused to accept the respondent Government ’ s submission that no problem arose under this Article since the inferences drawn during the first 48 hours of police detention were not the only evidence against the applicant ( § 60, third sub-paragraph).

Fourthly, although in the Brennan case the Court did not find a violation of Article 6 § 3 (c) of the Convention as far as the deferral of access to the applicant ’ s solicitor was concerned, the reason was that the applicant had made no incriminating admissions during the 24-hour deferral period, when he was denied access to a solicitor.

3. Against this background, in the present case, we cannot accept that the exception has become the rule and that the argument put forward by the Government and rejected by the Court in the Murray case is now the ordinary justification for dismissing complaints under Article 6 § 3 (c) concerning deferral of access to lawyer, i.e. that “the statement the applicant made to the police during his pre-trial detention was not the sole basis for his conviction” (paragraph 23 above ). As to the argument that the applicant had had the opportunity to challenge the prosecution ’ s allegations under conditions which did not place him at a disadvantage vis-à-vis his opponent , i t does not seem to us to be grounded on any factual evidence in the file.

Furthermore, no examination of the specific circumstances of the case was made , although incriminating admissions made during police custody were part of the evidence used for the conviction. As to this last aspect, we would observe that the applicant was a minor suspected of having participated in an illegal demonstration in support of the imprisoned leader of the PKK , and accused of hanging an illegal placard on a bridge. He was facing a very serious penalty and was eventually sentenced to four years and six months ’ imprisonment, which was then reduced to two and a half years ’ imprisonment on account of the fact that he was a minor at the time of the offence. In addition to that, before the public prosecutor and the investigating judge , the applicant denied the content of his police statement, alleging that it had been extracted under duress (paragraph 7 above ).

Moreover, the majority does not examine at all the specific circumstances of the case, as the Court did for ex a mple in the Kolu v. Turkey judgment of 2 August 2005 , in which it held that there had been a violation of Article 6 § 3 ( c) of the Convention on the ground that “ depriving the applicant of legal a ssistance while he was being questioned – whatever the j u stification might be – caused an infringement of his right to due process which could not be made good subsequently ” ( § 62).

Finally, the Government have not advance d any “good cause” ( des raisons valables ) for the restriction at issue. The only “good cause” was probably that the legislation in force at the material time in the respondent State concerning such crimes did not provide for access to a lawyer during police custody.

4. On a more general level, we would also observe that in the last few years a number of State P arties to the Convention, including the respondent, have changed the relevant legislation concerning access to a lawyer during police custody. Some of them expressly invoked the Court ’ s case-law as the main reason for such a change. In this respect, we should not send out the wrong message by saying that the mere fact that a statement made to the police during pre-trial detention is not the sole basis for an applicant ’ s conviction retrospectively justifies any restriction s on access to a lawyer during police custody, which is simply not true.

5. Last but not least, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( the CPT) has frequently recommended that the right of access to a lawyer be guaranteed from the very outset of custody (see as a recent reference CPT/ Inf /E (2002) 1 – Rev. 2006, page 12, § 41). The CPT has stressed that, in its experience, the period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Consequently, the possibility for persons taken into police custody to have access to a lawyer during that period is a fundamental safeguard against ill-treatment. It is difficult for us to accept that our Court, while being more and more careful about any situation that could possibly be problematic under Article 3 of the Convention, is at the same time moving backward as to the protection afforded under Article 6 § 3 ( c) of the Convention.

6. The aim of the Convention is to protect rights that are not theoretical or illusory but practical and effective. That rule is true also of the right to legal assistance. As we all know, the crucial mome nts in criminal proceedings come right at the beginning , with the first stages of police intervention, which may determine the outcome of the proceedings definitively and irremediably .

That is the main reason why the right to legal assistance as soon as possible and throughout criminal proceedings is set forth as a guaranteed fundamental right in the proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union , with the aim of setting common minimum standards.