CONCURRING OPINION OF JUDGE O’LEARY

1. I fully subscribe to the finding of a violation of Article 6 § 1 of the Convention due to the appellate court’s failure to engage sufficiently with the applicant’s complaints. As regards the restriction of the applicant’s right to legal assistance pursuant to Article 6 §§ 1 and 3 (c) of the Convention, I support the absence of a violation but consider it useful to highlight the failings of the domestic courts, their obligations under the Convention in this regard and the reason why the distinct but related violation of Article 6 § 1 just mentioned sufficed in the circumstances of this case.

2. It is not disputed that the applicant’s right to legal assistance was restricted in two respects when he was first questioned as a witness, then arrested on suspicion of having committed various offences and finally formally charged. On the one hand, based on the material available to the Court, his right to be represented during the two days before the formal charges were brought by a lawyer of his own choosing was not respected. I will not engage with the question of a waiver, suggested by the respondent State, for which insufficient information was provided. On the other hand, the lawyer appointed by the investigator and present during the investigative re ‑ enactment was not lawfully appointed and failed to prepare his defence or properly represent his interests (see §§ 6 – 12 of the judgment). It is also not disputed that the self-incriminating statements made by the applicant when unrepresented and questioned as a witness and at the re-enactment were not put before the jury which convicted him. They were not part of the prosecution evidence or were deemed inadmissible by the presiding judge in accordance with the relevant provisions of the Code of Criminal Procedure (hereinafter “CCP”), see §§ 6, 9, 14 and 20).

3. The judgment recognises these two restrictions of the applicant’s right to legal representation and proceeds to examine whether the overall fairness of the criminal proceedings was irretrievably prejudiced by the absence of a lawyer during the initial hours of questioning and after his arrest the next day, concluding that overall fairness was preserved (see §§ 42-45 of the judgment).

4. However, the manner in which the applicant’s complaints about the restriction of his right to legal assistance were dealt with by the pre-trial conference judge, by the presiding judge at his jury trial and by the Court of Appeal was clearly problematic.

On each occasion the complaint now before this Court was raised or reiterated and on each occasion it was ignored. The Court of Appeal limited itself to saying that there were no serious legal or procedural violations warranting examination of the appeal and that none of the grounds in the relevant provisions of the CCP justifying an appeal on points of law were present.

A majority of the Chamber has responded to the complaint under Article 6 §§ 1 and 3 (c) of the Convention by finding that overall fairness was not irretrievably prejudiced, preferring to find a violation of Article 6 § 1 due to the failure of the Court of Appeal to sufficiently reason the rejection of the applicant’s appeal. In § 79 of the judgment it is stated that: “in the absence of a stand taken by the pre-trial conference judge or the presiding judge as to the effects of the alleged breach on the fairness of the trial [...], it was the appellate court’s duty to thoroughly examine the validity and nature of the applicant’s allegations and, more generally, to assess the manner in which the relevant procedural safeguards had been applied with respect to the applicant in his jury trial in order to ensure the fairness of that trial”. I agree with this assessment and the violation of Article 6 § 1 of the Convention which follows.

5. However, finding no violation of Article 6 §§ 1 and 3 (c) of the Convention in the particular circumstances of this case should not lead the domestic courts to ignore the two-stage analysis required by the Court’s case-law and the procedural safeguards which must be in place to offset any restriction of the rights guaranteed by this provision. According to the Court’s case-law, where the right to legal assistance has been restricted, it must be established whether there were compelling reasons for the restriction and, thereafter, whether the overall fairness of the proceedings was irretrievably prejudiced (see, for example, the recapitulation of the case-law in Beuze v. Belgium , [GC], no 71409/10, § 139 9 November 2018). Complaints under Article 6 about the investigation stage tend to crystallise at the trial itself when the prosecution seeks to rely on evidence obtained during the pre-trial proceedings – the phase in which the restrictions on Article 6 rights applied – and the defence seeks its exclusion (see Ibrahim and Others v. the United Kingd om [GC], nos. 50541/08 et 3 others, § 254, 13 September 2016 and Beuze , cited above, § 173). The role of the trial judge is crucial. While it is true in the present case that the record of the re-enactment was excluded by the presiding judge and the first incriminating statement was not included in the prosecution evidence, the fact remains that the applicant had been questioned and major investigative measures had been undertaken when he was not properly represented. It cannot be excluded that statements provided during the time when an accused is questioned by investigators influence the line of questioning and investigative measures subsequently ordered (see Beuze , cited above, § 179). The reason why trial and appellate judges need to engage with Article 6 §§ 1 and 3 (c) complaints is in order to assess to what extent the information provided when the accused was not represented substantially may have affected his or her position (see Schmid-Laffer v. Switzerland , no. 41269/08, § 37, 16 June 2015; A.T. v. Luxembourg , no. 30460/13, § 72, 9 April 2015 and Beuze , cited above, § 178). This second stage of the analysis required by the Court’s case-law should, in principle, be undertaken by the domestic courts (see Beuze , cited above, §§ 173 – 174, where the Court referred to the failure by the Assize court to “engage [...] in the requisite analysis of the consequences of the lawyer’s absence at crucial points in the proceedings”). A restriction of the Convention right to legal assistance at the investigation and pre-trial stage is not fatal to a prosecution and trial. The Court has avoided automaticity and bright-line rules (see Ibrahim and Others , cited above, § 260). The two-stage analysis required by the Court was absent in this case. No restriction was recognised, no compelling reasons were discussed and no overall fairness assessment was undertaken. The exclusion of the incriminating statements, and the existence of significant other evidence, point to overall fairness. However, that conclusion follows from the engagement by the Strasbourg court with the applicant’s complaint and not from any assessment undertaken by the domestic courts best placed to perform it. As the Court has previously stated ( Mehmet Zeki Çelebi v. Turkey , no. 27582/07, § 51, 28 January 2020):

“[...] in the determination of whether the proceedings were fair the Court does not act as a court of fourth instance deciding on whether the evidence was obtained unlawfully in terms of domestic law, its admissibility or the guilt of an applicant [...]. These matters, in line with the principle of subsidiarity, are the province of the domestic courts. It is not the Court’s task to rule on whether the available evidence was sufficient for an applicant’s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. Moreover, the Court considers that where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 of the Convention.”

As the judgment indicates in § 43, the domestic courts simply did not engage with the applicant’s complaint. The applicant was therefore not provided with the possibility of remedying a situation that he claimed was contrary to the requirements of the Convention or domestic verification that those requirements had been met (see recently Bjarki H. Diego v. Iceland , no. 30965/17, § 59, 15 March 2022). Thus, the Court did not have the benefit of an assessment by the domestic courts as to whether and to what extent the particular circumstances of the applicant’s interviews and the investigation affected the overall fairness of his trial (compare Doyle v. Ireland , no. 51979/17, §§ 94-95 and 101, 23 May 2019). A failure by a domestic court to engage in the two-stage analysis outlined above does not mean that this Court will automatically find a violation of Article 6 §§ 1 and 3 (c) of the Convention. However, the finding of no violation in this case should in no way be read to the effect that the domestic courts properly performed the role assigned first and foremost to them.

6. Finally, I should add that in the present case and in Kikabidze v. Georgia (no. 57642/12, 16 November 2021), the Court has found violations of Article 6 § 1 of the Convention on account of insufficiently reasoned decisions declaring the applicants’ appeals on points of law inadmissible. These findings are, for the reasons explained in the judgment, highly contextual, relating to the need to ensure that the first jury trials following the 2010 reform were functioning correctly and, to the extent necessary, providing guidelines and principles for the accused, prosecution, presiding trial judges and juries. In addition, in the instant case, for the reasons outlined above, the failure of the domestic courts to engage with the complaint relating to restricted access to legal assistance has been assessed under Article 6 §1 instead of under Article 6 §§ 1 and 3 (c).