JOINT PARTLY DISSENTING OPINION OF JUDGES YUDKIVSKA AND GROZEV

We voted for finding a violation of Article 6 §§ 1 and 3 (c) with respect to the murder charges against the applicant for the following reasons.

The applicant complained, both in the domestic courts and in this Court, that the proceedings against him had been unfair mainly for the reason that during the initial stage of the investigation, namely on 15 June 2004, he was not given access to a lawyer and had been forced to make a self ‑ incriminating statement, during the time when he was unlawfully kept under administrative arrest between 12 and 24 June 2004 . This confession was later used by the domestic courts as key evidence for his conviction on the murder charge. In rejecting the applicant ’ s complaint, the majority accepted that contrary to his allegations, he had indeed been represented by a lawyer during his interrogation on 15 June 2004, relying on the finding of the domestic court. It is precisely on this point that we found ourselves unable to follow the majority and their holding that “ there is no sufficient basis to put into doubt the domestic court ’ s finding that the applicant had been questioned with the assistance of a lawyer” (see paragraph 134).

The Court has held on numerous occasions that the right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial (see Salduz v Turkey [GC], no. 36391/02, § 51, ECHR 2008, and Dvorski v. Croatia [GC], no. 25703/11 , § 76, ECHR 2015) . Further, in order to implement that principle, a respondent Government has the evidentiary burden of proving that this right could effectively be exercised, particularly where the suspect was under arrest. On this second point, the Court has held recently in Simeonovi v. Bulgaria ( [GC] , no. 21980/04, ECHR 2017) that it falls on the respondent Government to prove that the applicant was duly informed of his right to a lawyer. As in that particular case the respondent Government had failed to present to the Court any document demonstrating that the applicant had been duly informed of his right to a lawyer, the Court could not conclude that the applicant had indeed been informed of his right to a lawyer, and consequently that he had validly waived this right (ibid., §§ 125 ‑ 28). We find this evidentiary requirement for the respondent Government in the proceedings before this Court, and respectively vis-à-vis the prosecution in the domestic proceedings, to be a particularly important guarantee for the effective exercise of the right to a lawyer. Placing the evidentiary burden upon the Government is justified by various considerations and primarily because persons in custody are in a vulnerable position, as this Court has repeatedly acknowledged, and the authorities are under a duty to protect them (see, among other authorities, Salman v Turkey [GC], no. 21986/93, § 99, ECHR 2000 ).

Prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz , cited above, §§ 53-54, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 255, ECHR 2016 ). This Court has repeatedly insisted on the right of access to a lawyer being “triggered” as from the first police interrogation of a suspect, since this initial stage may be particularly decisive as regards the course to be taken by the ensuing criminal proceedings, and the evidence obtained at this stage determines the framework in which the offence charged will be considered at the trial (see Salduz , cited above, § 54 , and Martin v. Estonia , no. 35985/09, § 79, 30 May 2013).

Turning to the present case, we cannot help but note that the finding of the domestic court, on which the majority relied, is of particular brevity and fails to address a number of factual issues that clearly conflict with such a finding. The domestic court simply stated that t he applicant had a lawyer on 15 June 2004, without however referring to any evidence on the basis of which this factual finding was made. No mention of the time of appointment or identity of the lawyer was made either. Further, no explanation was provided with respect to the obvious discrepancy between the finding that a lawyer represented the applicant on 15 June and the fact that a lawyer was appointed to represent the applicant on 24 June 2004 (see paragraph 38). Finally, the domestic court did not address another clearly pertinent issue, namely the fact that at the time of the applicant ’ s interrogation on 15 June 2004 he was detained unlawfully. The applicant ’ s administrative detention at the initial stage o f the investigation (between 11 and 24 June 2004) was later found to be contrary to Articles 106 and 115 of the Code of Criminal Procedure, as he had actually been arrested on suspicion of having committed crimes (see paragraph 52). The fact that the authorities had detained the applicant on a false pretext in order to avoid arresting him on the basis of the criminal procedure and the applicable guarantees for a fair trial, necessitated a closer examination of the applicant ’ s complaint that he had no lawyer on 15 June 2004. The domestic courts failed to do that.

We are fully aware that, with respect to findings of fact, this Court has a limited role, as domestic courts are better positioned to assess all the relevant evidence. However, in the light of the particular importance which the Convention and the Court ’ s case-law attach to the presence of a lawyer from the very start of the criminal proceedings, and in the light of the deficiencies of the findings of the domestic court described above, it is our view that the issue deserved strict scrutiny by this Court.

Taking such a closer look, we are not convinced that the respondent Government proved that the applicant did indeed benefit from legal representation during his confession on 15 June 2004. Despite the fact that the applicant consistently reiterated throughout the domestic proceedings and before this Court that he had had no lawyer during the murder charges questioning of 15 June 2004, the respondent Government simply ignored the applicant ’ s specific arguments and presented no additional evidence to support the holding of the domestic courts. Most importantly, in our view, the respondent Government failed to submit the documents related to the 15 June 2004 charges against the applicant and his interrogation. Not only did they fail to present these documents to the Court, without any explanations, they have also refused the applicant ’ s requests for copies of the relevant documents in the criminal file. The applicant apparently had access to the case file only at the point of the conclusion of the preliminary investigation, however, without the right to make copies of documents. In view of the refusal of the domestic authorities to provide the applicant with copies of those documents, and in view of the failure of the respondent Government to present this Court with those documents, we find ourselves unable to conclude that it was established that the applicant was legally represented on 15 June 2004. Thus, in our view, the analysis of the applicant ’ s complaint should have proceeded on a finding that the applicant was denied access to a lawyer on 15 June 2004, without there being “compelling reasons” for that denial.

Following the approach recently outlined by the Court in Ibrahim , where compelling reasons for limiting access to a lawyer were not established, the Court must apply very strict scrutiny to its assessment of the fairness of the proceedings. In such a case, the onus is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ibrahim and Others, cited above, § 265 ).

Applying this standard to the proceedings on the murder charge against the applicant, we come to the conclusion that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. While the applicant ’ s confession of 15 June 2004 was not the sole basis for his conviction, it appears to have had an impact on his conviction in both establishing the fact of the murder and in undermining the credibility of his subsequent statements during the trial (see paragraphs 49 and 53 of the judgment). In any event, the applicant ’ s self ‑ incriminating statements of 15 June 2004 formed an integral part of the body of evidence on which his conviction was based, and the Government did not demonstrate convincingly that the overall fairness of the trial was not irretrievably prejudiced by restricting his access to legal assistance.