PARTLY DISSENTING OPINION OF JUDGE JELIĆ

1. To my regret, I respectfully disagree with the majority’s finding that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention with regard to the right to a lawyer of one’s own choosing.

2. The right 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 Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 255, 13 September 2016), and the rights under the Convention have to be ensured in such a way that they are not “theoretical or illusory” but “practical and effective” (see Salduz, cited above, § 51, with further references). The aim is to prevent miscarriages of justice and ensure equality of arms for the accused in criminal proceedings. “These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies” (see Salduz , cited above, § 54). In this regard, I find that the present judgment has several legal shortcomings which led to a finding of no violation.

3. There are two legal constellations to consider in the present case (see paragraph 34 of the judgment). In the first constellation the applicant was not assisted at all by a lawyer during the first round of questioning, while in the second (the re-enactment and identity parade) he was represented by a lawyer who was appointed against his will and unlawfully. Where a defendant is denied access to a lawyer of his or her own choice, the State has to provide relevant and sufficient reasons that do not irretrievably prejudice the overall fairness of the proceedings (see Elif Nazan Şeker v. Turkey , no. 41954/10, § 43, 8 March 2022), whereas a restriction of the right to a lawyer in general terms has to be based on compelling reasons that do not irretrievably affect the overall fairness of the proceedings (see Ibrahim and Others , cited above, § 257).

4. As no relevant and sufficient, or compelling, reasons were demonstrated to the Court by the Government, it is necessary to apply a strict scrutiny to the question whether the overall fairness of the proceedings was irretrievably affected (see Ibrahim and Others, cited above, § 264). Additionally, the lack of compelling reasons weighs more heavily in favour of the finding of a violation (ibid., § 265; see also Bayram Koç v. Turkey , no. 38907/09, §§ 23 et seq., 5 September 2017).

5. Furthermore – and an omission in this regard weighs even more heavily in favour of a violation of Article 6 § 3 of the Convention – the domestic courts and authorities have to assess allegations that point towards an unfair trial, because the Court can otherwise not assess whether the applicant’s right to a fair trial was secured (see Bjarki H. Diego v. Iceland , no. 30965/17, § 59, 15 March 2022). This leads to a situation of doubt: it could be that the overall fairness was ensured (as the judgment assumes), but it could also be that the issue was overlooked by the national court. This negligence is detrimental to a fair trial, and not finding a violation in such a case, in my opinion, is the start of a slippery slope towards improper investigations and pre-trial proceedings. It is therefore of special importance for the national courts to assess the overall fairness of a trial when, as in the present case, there is reason to have doubts about it and the unfairness of the trial has been reasonably alleged by the accused (see also, in this regard, Doyle v. Ireland , no. 51979/17, § 101, 23 May 2019, where the national court had assessed shortcomings in the pre-trial proceedings but not the overall fairness). Thus, if failure to properly assess overall fairness suffices for a violation, this must be even more true for a situation where it is not assessed at all; see also Akdağ v. Turkey (no. 75460/10, § 68, 17 September 2019).

6. Even leaving these considerations aside, on reading paragraphs 40-46 and 78-80 of the judgment the finding of a violation is more appropriate than the finding of no violation, as can be seen by taking a closer look at the main arguments made in the judgment.

7. Firstly, any doubts about the legal situation are resolved to the detriment of the applicant. In view of the special significance of the rights in Article 6 of the Convention and the particular vulnerability of the applicant, who at the time of commission of the crime was only 19 years old and had thus just recently reached the age of majority, and who faced life imprisonment, the right to a lawyer of his own choosing is of special importance. As to the remarks on the “waiver” by the applicant with regard to his right to a lawyer (see paragraph 41 of the judgment), it is questionable whether the applicant waived his right to be assisted by a lawyer (and specifically the right to a lawyer of his own choice). The right to a lawyer can be waived with a “knowing and intelligent waiver” (see Ibrahim and Others , cited above, § 272, and Dvorski v. Croatia [GC], no. 25703/11, § 101, ECHR 2015). However, the domestic courts must examine and establish in a convincing manner the circumstances related to the waiver of access to a lawyer (see Türk v. Turkey , no. 22744/07, §§ 53 et seq., 5 September 2017). In the present case, the domestic courts did not assess the validity of the waiver, a fact which the majority correctly criticises (see paragraph 41 of the judgment). The subsequent finding that, even if the waiver was indeed invalid, the self-incriminating statements were not used in court, cannot cure the fact that the waiver was invalid (because it had not been made with informed consent; see paragraph 41 of the judgment).

8. Even if it is assumed that the applicant waived his right to a lawyer for the first round of questioning, no reasons were given by the Government as to why Kh.V. had been appointed instead of the lawyer whom the applicant/his family had chosen. “[T]he mere nomination [of a defence lawyer] does not ensure effective assistance ...” (see Artico v Italy , 13 May 1980, § 33, Series A no. 37 , and Elif Nazan Şeker , cited above, § 55).

9. The appointment of Kh.V., besides going against the will of the applicant, led to disciplinary proceedings before the Georgian Bar Association, where it was found that Kh.V. had not properly defended the applicant (see paragraph 12 of the judgment). Also, from a more factual perspective, as soon as the applicant was represented by a lawyer of his choice he made use of his right to remain silent (see paragraph 10 of the judgment); this demonstrates further that he had not been adequately defended by Kh.V. (on this point, see also the concurring opinion of Judge O’Leary, § 2). These factors lend special weight to the restriction on the applicant’s right to a lawyer of his own choosing in the present case. In addition, the remarks in the judgment concerning the waiver, in particular where it is held that “there is prima facie evidence in the case file supporting the applicant’s allegation ...” (see paragraph 41 of the judgment), speak rather in favour of a violation.

10. Secondly, the reference to the exclusion of the evidence, which is also used as justification for the appointment of Kh.V. (see paragraphs 42 et seq. of the judgment), does not, in my opinion, justify the finding of no violation. The fact that the self-incriminating statement and the evidence gathered in the re-enactment were not presented to the jury (see paragraph 44 of the judgment) does not exclude the violation of Article 6 § 3 (c) of the Convention as assumed in the judgment. This approach seems to be based on the finding of the Court in Ibrahim and Others , where the Court held that “where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair” (see Ibrahim and Others , cited above, § 274).

11. However, as also becomes clear from that judgment, the question whether the statement/evidence has been used for the applicant’s conviction is only one aspect that has to be taken into consideration. The balancing exercise has to be carried out having regard to several aspects, not only whether the self-incriminating statement was used (see Ibrahim and Others , cited above, § 274).

12. As the Court held in Beuze v. Belgium ([GC], no. 71409/10, § 135 (b), 9 November 2018): “[t]he non-participation of the lawyer in investigative measures such as identity parades ... or reconstructions” may undermine the fairness of the proceedings. For the restriction of access to a lawyer, compelling reasons are necessary. These include, inter alia , instances where “the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case [has been convincingly demonstrated] ... In such circumstances, there is a pressing duty on the authorities to protect the rights of potential or actual victims under Articles 2, 3 and 5 § 1 of the Convention in particular” (see Ibrahim and Others , cited above, § 259). As described above, the “waiver” by the applicant can be considered invalid, and no pressing need to question the applicant without legal assistance can be found.

13. In any event, even if the waiver were accepted as valid, the Government likewise adduced no reasons why, for the purposes of the reconstruction, the lawyer of the applicant’s choice was denied access during the re-enactment and identity parade.

14. There was therefore at least one, if not two phases of the proceedings (possibly the first round of questioning and certainly the re-enactment) in which the applicant did not have access to a lawyer (of his choice). Both phases were important for the progress of the proceedings. The questioning led to the re-enactment; the re-enactment was followed by the formal charge of aggravated murder, and so on. These vital procedural steps were taken without the applicant being properly defended/represented by the lawyer of his choice.

15. Therefore, the argument that the evidence obtained in the absence of a lawyer of the applicant’s own choosing was not presented to the jury is not convincing, as the evidence gathered in those stages of the proceedings was the basis for the proceedings in general (without the questioning, no re ‑ enactment and identity parade would have taken place and the formal charging of the applicant was based on all the procedural steps and occurred after them, on 20 October 2011), and thus had an important effect on the trial’s overall fairness (see also in this regard Can v. Austria , Commission report, § 50, no. 9300/81, 30 September 1985).

16. The formal charging of the applicant would otherwise have occurred earlier (the defects were not “cured” by the subsequent proceedings – see Salduz , cited above, § 58, and critically in this regard also, the concurring opinion of Judge O’Leary, § 5, referring to Mehmet Zeki Çelebi v. Turkey , no. 27582/07, § 51, 28 January 2020).

16. What ultimately leads to a violation of Article 6 §§ 1 and 3 (c) in the present case is the fact that the domestic courts did not elaborate on the effects on the overall fairness of the proceedings, but merely excluded the statements and the findings from the re-enactment and identity parade from the evidence that could be brought before the jury. This is true of all the domestic courts and authorities (see paragraphs 14, 24, 26 and 43 of the judgment). In earlier case-law, the Court has found a violation of Article 6 § 3 (c) of the Convention where the domestic courts did not reason “... adequately that there were sufficient grounds ... for overriding the applicant’s original wishes as to her choice of legal representation and for appointing [a] new defence lawyer” (see Elif Nazan Şeker, cited above, § 54; see also Lobzhanidze and Peradze v. Georgia , nos. 21447/11 and 35839/11, §§ 65 et seq., 27 February 2020).

17. There is a certain contradiction in the finding of a violation of Article 6 § 1 with regard to the lack of reasons in the inadmissibility decision of the appeal court, where the judgment explicitly refers to the alleged lack of access to a lawyer (see paragraph 78 of the judgment), and the earlier finding that this did not violate the applicant’s rights under Article 6 §§ 1 and 3 (c) (see paragraph 46 of the judgment).

18. It is for the above reasons that I cannot agree with the view of the majority in finding no violation of Article 6 §§ 1 and 3 (c) of the Convention with regard to the right to a lawyer. In my opinion, the failure of the national courts to consider the applicant’s allegations leads to a violation not only of the right to a reasoned judgment, but necessarily also to a violation of the right to a lawyer of one’s own choosing.