PARTLY DISSENTING OPINION OF JUDGE KELLER

1 . I respectfully disagree with the Court as regards the applicant ’ s complaint about the lack of fairness in the criminal proceedings brought against him. In my view, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in this case.

2 . As the Court explains at paragraph 10 of its judgment, the applicant ’ s confession was preceded by a conversation with R.R., a lawyer who subsequently signed the record of his questioning. According to the applicant, R.R. was appointed by the police. This is borne out by R.R. ’ s own testimony before the national Court of First Instance, to which the Court refers at paragraph 23 of its judgment. R.R. also acknowledged that, although she had purported to act as the applicant ’ s legal-aid lawyer, she had not been formally authorised to do so by the police.

3 . There is nothing in the record to suggest that the applicant ever explicitly chose to accept R.R. ’ s assistance, as the Court of First Instance noted in the decision which the Court discusses at paragraph 27 of its judgment. Nor is there any evidence as to how this choice would have been made: the applicant does not appear, for example, to have been presented with a list of lawyers from which to select counsel.

4 . Nevertheless, the national appellate courts admitted the confession into the case file. They reasoned that, while it was not done explicitly, the applicant had tacitly accepted R.R. as his lawyer. In short, they took the applicant ’ s mute acquiescence in his questioning as circumstantial evidence of a decision to accept R.R. ’ s counsel. They did so despite the applicant ’ s allegation that he had been slapped by a police officer prior to R.R. ’ s arrival – an allegation which the Court now unanimously recognises as credible –and his testimony that the same officer was present throughout his interaction with R.R. (see paragraph 12 of the judgment).

5 . Today, the Court “fully endorse[s]” this reasoning at paragraph 113 of its judgment. In support of the conclusion reached by the national appellate courts, it appears to offer (at paragraph 111 of its judgment) an additional reason of its own: the applicant ’ s apparent waiver of his right to have counsel present during the search of his home. However, the Court immediately (and, in my opinion, correctly) undercuts this dubious point by acknowledging that “a waiver of the right to have one ’ s lawyer present during a search at a point when one has still not been formally charged with anything does not amount to an unequivocal waiver in respect of one ’ s right to have present a lawyer of one ’ s own choosing during any subsequent questioning by the police relating to specific charges”.

6 . I cannot join the Court in endorsing the reasoning of the national appellate courts as compatible with the demands of Article 6 §§ 1 and 3 (c) . The Court, sitting as a Grand Chamber, has already explained that national authorities – and particularly national courts – are obliged under Article 6 §§ 1 and 3 (c) to carefully scrutinise allegations that the appointment of a lawyer to represent a suspect influenced or led to the making of an incriminating statement by that suspect at the outset of the criminal investigation (see Dvorski v. Croatia [GC], no. 25703/11, § 109, ECHR 2015). Once a credible allegation of police abuse has been made, a careful national court cannot possibly rely on the alleged victim ’ s failure to object to the appointment of a lawyer in the presence of the alleged abuser unless it first investigates and dismisses that allegation. An investigation of this kind would be necessary even in the absence of a complaint involving Article 3 of the Convention, such as that in the present case (see, mutatis mutandis and among other authorities, Mehmet Duman v. Turkey , no. 38740/09, § 42, 23 October 2018).

7 . No such investigation was undertaken here, as the Court concludes at paragraph 66 of its judgment. That the applicant was nevertheless held by the national appellate courts to have accepted R.R. as his lawyer in the absence of any direct evidence to that effect reflects an absence of the careful scrutiny called for in Dvorski .

8 . The approach adopted by the national appellate courts and now endorsed by the Court renders the protection afforded by the Convention to those suspected of crime “theoretical or illusory” rather than “practical and effective” (contrast Artico v. Italy , 13 May 1980, § 33, Series A no. 37). Of course, individuals may make implicit decisions as to their legal representation and in such cases the national authorities must rely on circumstantial evidence, including their conduct, to discern those decisions. As the Court very recently reiterated, this is true even of decisions to waive rights secured by Article 6 (see Akdağ v. Turkey , no. 75460/10, § 46, 17 September 2019, not yet final). However, to do so incautiously, on the basis of evidence as equivocal as the evidence in this case and in the face of a credible allegation which calls into question the voluntary nature of the applicant ’ s conduct (contrast Akdağ , cited above, §§ 46, 50-61), creates a grim possibility that rights secured by the Convention will be disregarded when individuals fall silent out of fear.

9 . I have accordingly voted against the Court ’ s finding as to Article 6 §§ 1 and 3 (c) of the Convention .