PARTLY DISSENTING OPINION OF JUDGE YUDKIVSKA

I respectfully disagree with my colleagues that Article 6 §§ 1 and 3 (c) of the Convention was violated in the circumstances of the present case. In my view, the majority ’ s approach demonstrates an automatic application of the Salduz jurisprudence , which was not the intent ion of the Grand Chamber in that case.

The Salduz case ( Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 ) was about access to a lawyer . The Court held that , as a rule, access to a lawyer should be provided from the first interrogation of a suspect by the police . The rights of the defence “ will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction” (emphasis added).

The intrinsic nature of this key principle of a fair trial was brilliantly explained further in the case of Dayanan v. Turkey :

“ ... the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person ’ s defen c e: discussion of the case, organisation of the defen c e, collection of evidence favo u rable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”

All these aspects are of paramount importance for a ny one accused of a serious crime and potentially facing a term of imprisonment. In such situations the interests of justice clearly call for a strict safeguard of the right to legal assistance “by reason of the mere fact that so much [is] at stake” [1] . As the Court noted in Salduz , “ an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer ... ”

It is worth mentioning that this was said in the context of a juvenile offender accused of a terrorism-related offence.

The issue of whether or not an accused must be represented from the first interrogation is related to the notion of “interests of justice”, developed by the Court in the context of the State ’ s obligation to provide free legal assistance for those who do not have means. The Court has held that where deprivation of liberty is at stake, those interests in principle call for legal representation [2] .

A person ’ s young age can also be grounds for considering him or her to be particularly vulnerable (see Güveç v. Turkey , no. 70337/01, § 131, ECHR 2009 (extracts) ) , as can a particular medical condition (see Borotyuk v. Ukraine , no. 33579/04 , § 82, 16 December 2010 ).

Hence, it is inevitable that in a situation of any particular vulnerability the requirement of access to a lawyer places an obligation on the authorities to provide for legal representation. However, it does not appear that the Court is ready to accept that anyone subject to the criminal justice system is vulnerable per se .

Therefore, a distinction should be made between access to a lawyer , or, in other words, the right to seek legal assistance on the one hand, and obligatory legal representation in any case of police interrogation on the other.

The present case is not about access to a lawyer : the applicant was not denied legal representation. N or, unlike in Salduz , did the relevant legal provisions systematically fail to require the presence of a lawyer during the first interrogation . The applicant merely failed to request legal assistance whilst being detained.

In this respect the present case is substantially different from the case of Pishchalnikov v. Russia , in which the applicant ’ s explicit request for legal assistance was left without a response. In that case the Court stated: “... the Court is of the opinion that an accused such as the applicant in the present case, who had expressed his desire to participate in investigative steps only through counsel, should not be subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police or prosecution” [3] .

In the present case there is no evidence that on 29 December 2006 the applicant was not notified of his defence rights guaranteed by the Code of Administrative Offences , and the applicant does not dispute this . Furthermore, it is no t alleg ed that the police had intentionally hindered access to a lawyer until the applicant had made his confession statements.

Lastly , it does not appear that the applicant made his statements to the police under duress: the Court has found that the applicant ’ s complaint in this respect is not corroborated by any evidence (see paragraphs 48-52 ).

It cannot be said that the applicant was vulnerable. The maximum possible penalty he faced , as charged under Article 44 of the Code , was fifteen days ’ imprisonment. In view of t he minor character of that offence and the leniency of the envisaged sanction , an arrested person cannot be regarded as helpless or exposed to the other risks described above.

As the CPT stated in their report, “ persons suspected of particularly serious offences can be among those most at risk of ill-treatment, and therefore most in need of access to a lawyer”. H owever , i t has criticized the situation in numerous countries where “persons can be deprived of their liberty for several weeks for so-called “administrative” offences. ... Further, the Committee has frequently encountered the practice of persons who are in reality suspected of a criminal offence being formally detained in relation to an administrative offence, so as to avoid the application of the safeguards that apply to criminal suspects” [4] .

This is not the case here. There is no evidence that, contrary to the situation in other cases against Ukraine, the authorities used an administrative offence as a pretext to ensure the applicant ’ s availability for questioning as a criminal suspect [5] . Being unaware, prior to the expert report , of the quantity of the cocaine found, they mistakenly believed that it was small enough not to amount to a criminal offence. As soon as the results of the expert report proved that the seized cocaine was of a large quantity, criminal proceedings were instituted and a lawyer attended the first interrogation of the applicant as a suspect. It is significant that , when interrogated in the presence of a lawyer on 2 January 2007 , the applicant repeated the same confession statement as the one he had made on 29 December 2006.

At no stage of the proceedings did the applicant claim that he requested legal assistance but was refused it .

Given the above considerations , I cannot agree that the applicant ’ s case required obligatory legal representation. As the Court held in Galstyan v. Armenia , “... noting that the applicant was accused of a minor offence and the maximum possible sentence could not exceed 15 days of detention, the Court does not discern in the present case any interests of justice which would have required a mandatory legal representation” [6] .

Likewise, it cannot be said that the onus of proving in each and every case, regardless of its minor character, that an accused did not request legal assistance or waived his right to have a lawyer should be on the authorities. The c ircumstances of each individual case are to be taken into account and some attention should also be paid to the reality of police work so that the Salduz requirements are not deprived of their meaning in practical terms.

In their opinion on the “Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest” the European Economic and Social Committee stated that “excessive formality in criminal proceedings might jeopardise the effectiveness of the investigation, ... it [is] necessary to allow each Member State the option of implementing procedures derogating from certain established principles during both the investigation and the proceedings, particularly when relatively minor acts, relating to commonly-committed offences, are neither questioned nor questionable” [7] .

[1] See Quaranta v. Switzerland , 24 May 1991, § 33 , Series A no. 205

[2] S ee Benham v. the United Kingdom , 10 June 1996, § 61, Reports of Judgments and Decisions 1996 ‑ III , and, more recently, Shabelnik v. Ukraine , no . 16404/03 , § 58, 19 February 2009.

[3] Pishchalnikov v. Russia , no. 7025/04 , § 79, 24 September 2009 .

[4] see paragraph s 20- 21 of the CPT’s 21 st Ge neral Report, CPT/ Inf (2011) 28 .

[5] This recurrent practice warranted the Court ’s special finding in this respect under Article 46 of the Convention in the case of Balitskiy v. Ukraine , no 12793/03, 3 November 2011.

[6] Galstyan v. Armenia , no. 26986/03, § 91 , 15 November 2007.

[7] 2012/C 43/11 Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest COM( 2011) 326 final.