Summary of the Case Law: Salduz v. Turkey (Comparative Criminal Law, 2016/2017)

Access to a lawyer, breach of Article 6(3)(c) European Convention on Human Rights & Fundamental Freedoms

Salduz v. Turkey

Introduction

This case is about article 6(3)(c) of the European Convention on Human Rights and Fundamental Freedoms. Salduz claims that his right to a fair trial has been breached, because he did not have access to a lawyer from the first police interrogation.  

Facts

Salduz was taken into custody on the suspicion that he had participated in an unlawful demonstration in support of an illegal organisation (PKK) (par. 12). Salduz was interrogated in the absence of a lawyer. In his statement, the applicant admitted his involvement and gave the names of several persons who worked for the organisation. A medical report stated that Salduz had no trace of ill-treatment on his body (par. 13,14). On the same day the applicant was brought before the prosecutor and the investigating judge. He denied that he had a part in the PKK and that he was beaten and insulted while in police custody. He denied any illegal activity. After this moment, the applicant got access to a lawyer.

Salduz got convicted on the basis of his confession. He appealed against that decision, stating that there had been a breach of article 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly (par. 24).

Judgment of the Chamber and arguments

Access to a lawyer is the right under article 6(3)(c) Convention. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during his police custody (par. 45). The Chamber held that there had been no violation of the article; the applicant had been represented during the trial and appeal proceedings by a lawyer, and the statement of the applicant had not been the only basis for the conviction. The Chamber stated that Salduz had had the opportunity to challenge the prosecution’s allegations under conditions which did not place him at a substantial disadvantage against his opponent (par. 46).

Salduz stated that the assistance of a lawyer in police custody was a fundamental right. He reminded the Court that all the evidence which had been used against him had been collected at the preliminary investigation stage, during which he had been denied the assistance of a lawyer (par. 47).

The Government stated that the police evidence was not the only basis for the conviction. Therefore, there had not been a violation of the article of the Convention (par. 48).

Decision

The Court states that Article 6(3)(c) Convention is also relevant in the pre-trial proceedings. It also applies in the pre-trial stage, and it is a fundamental right (par. 50, 51). The right should be practical and effective, assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (par. 51).  National laws may attach consequences to the attitude of the accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings (par. 52). Article 6 will normally require that the accused is allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question always is whether the restriction can be justified and that it has not deprived the accused of a fair hearing (par. 52). This is in line with human rights standards, they contribute to the protection of the accused against abusive coercion and to the prevention of miscarriages of justice and the fulfilment of the aims (par. 53).

The Court underlines the importance of the investigation stage for the preparation of the criminal proceedings. An accused finds himself often in a vulnerable position at that stage of the proceedings (par. 54).

Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under article 6 Convention. 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 (par. 55).  In the present case, the applicant’s right of access to a lawyer was restricted during his police custody. As a result, he did not have access to a lawyer when he made his statements to the police, the prosecutor and investigation judge. There was no justification for this restriction (par. 56).

The Court held that there had been a breach of article 6(3)(c) Convention (par. 63), because the applicant was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the police custody. Salduz obtains the right to damages and the right to do a retrial.