Assistenza legale e CEDU

Estratto delle pronunce della Corte Europea dei Diritti umani che ritengono l'assistenza effettiva di un avvocato per chiunque venga accusato sia elemento fondante di un processo equo.


Factsheet – Police arrest / Assistance of a lawyer 
 
The Court has repeatedly held that the right of any person 
charged with a criminal offence to be effectively defended by a 
lawyer is a fundamental element of a fair trial
 
Article 6 § 3 (c) of the European Convention on Human Rights: “Everyone charged with 
a criminal offence has the right to defend himself in person or through legal assistance 
of his own choosing or, if he has not sufficient means to pay for legal assistance, to be 
given it free when the interests of justice so require”. 
Imbrioscia v. Switzerland 
24 November 1993 
Although the “primary purpose” of Article 6 of the European Convention on Human 
Rights in criminal proceedings is “to ensure a fair trial by a ‘tribunal’”, it does not follow 
that it has no application to “pre-trial proceedings” (§ 36 of the judgment). 
The Court has reiterated the above principle many times. 
John Murray v. the United Kingdom 
25.01.1996 
While accepting the possibility of restrictions (although Article 6 “normally require[s] that 
the accused be allowed to benefit from the assistance of a lawyer already at the initial 
stages of police interrogation”, “this right, which is not explicitly set out in the 
Convention, may be subject to restrictions for good cause” (§ 63 of the judgment)), the 
Court held that in this case, in the context of application of the 1987 Northern Ireland 
(Emergency Provisions) Act, it was “of paramount importance for the rights of the 
defence [for] an accused [to have] access to a lawyer at the initial stages of police 
interrogation” (§ 66). 
Elements taken into account by the Court: 
•
Whether or not the applicant has made incriminating admissions in the absence of 
a lawyer. 
That was not the case in the Brennan v. the United Kingdom judgment of 
16 October 2001: no violation of Article 6 §§ 1 or 3 (c) of the 
Convention because, unlike the situation in the John Murray case, no inference 
was drawn from what the applicant had said or declined to say during the first 
24 hours of his detention when no lawyer was present. 
• 
Whether or not pressure was exerted on the applicant in the absence of a lawyer. 
See the Magee v. the United Kingdom judgment of 6 June 2000, § 40. In this 
case the Court found a violation of Article 6 § 1 taken together with 
Article 6 § 3 (c): the applicant had not had the benefit of access to a lawyer 
who could play the customary role of “counterweight” to the intimidating 
atmosphere in which he had been held while in police custody, and the 
statements he had made at that time had been central to his conviction. 
Salduz and Dayanan v. Turkey and Brusco v. France judgments 
Salduz v. Turkey 
27 November 2008 (Grand Chamber) 
Charged with, and subsequently convicted of, participation in an unauthorised 
demonstration in support of the PKK (the Workers’ Party of Kurdistan, an illegal 
organisation), the applicant, in the absence of a lawyer, made a statement while in 
police custody admitting his guilt. 
Violation of Article 6 § 3 (c) (right to legal assistance) taken together with 
Article 6 § 1 (right to a fair trial): The Court held that even though the applicant had 
been able to contest the charges at his trial, the fact that he could not be assisted by a 
lawyer while in police custody had irretrievably affected his defence rights, especially as 
he was a minor. 
“[A]ccess to a lawyer should be provided as from the first interrogation of a suspect 
by the police, unless it is demonstrated in the light of the particular circumstances of 
each case that there are compelling reasons to restrict this right” (§ 55 of the 
judgment). 
Dayanan v. Turkey 
13 October 2009 
The applicant, who was charged with, and subsequently convicted of, being a Hezbollah 
member, did not have the assistance of a lawyer while he was in police custody. 
Violation of Article 6 § 3 (c) (right to legal assistance of own choosing) taken 
together with 6 § 1 (right to a fair trial): The Court held that that restriction (which 
was systematic, as it was prescribed by the relevant provisions of Turkish law) of the 
right of an individual deprived of his liberty to have access to a lawyer was sufficient for 
it to be able to conclude that there had been a violation of Article 6, even though the 
applicant had remained silent while in police custody. 
Brusco v. France 
14 October 2010 
The applicant, who was suspected of having masterminded an aggression, was taken 
into police custody and questioned as a witness, after being made to swear to tell the 
truth. 
Violation of Article 6 §§ 1 and 3 (right to remain silent and not to incriminate 
oneself): According to the Court, the applicant was not a mere witness but a person 
“charged with a criminal offence”, and as such should have had the right to remain silent 
and not to incriminate himself, guaranteed by Article 6 §§ 1 and 3. The situation was 
aggravated by the fact that the applicant was not assisted by a lawyer until his 
20th hour in police custody. Had a lawyer been present, he would have been able 
to inform the applicant of his right to remain silent. 
Recent cases 
Pishchalnikov v. Russia 
24 September 2009 
Arrested on suspicion of aggravated robbery, the applicant was interrogated – both on 
the day of his arrest and immediately on the following day – in the absence of a lawyer, 
although he had clearly indicated a defence counsel he wanted to represent him. During 
these interrogations he confessed to having taken part in the activities of a criminal 
group which included among others a murder and kidnapping, crimes for which he was 
later convicted. 
Violation of Article 6 § 3 (c) in conjunction with Article 6 § 1: The Court found 
that the lack of legal assistance to the applicant at the initial stages of police questioning had affected irreversibly his defence rights and undermined the possibility of him receiving a fair trial. 
Yesilkaya v. Turkey 
8 December 2009 
The applicant was refused access to a lawyer while in police custody, although he had 
denied any involvement in the offences imputed to him by the interviewing officers. 
Violation of Article 6 § 3 (c) taken together with Article 6 § 1. 
Boz v. Turkey 
9 February 2010 
The applicant complained in particular of the fact that he did not have access to a lawyer 
while in police custody. 
The Court reiterated that systematic restriction of access to a lawyer pursuant to the 
relevant legal provisions breached Article 6. 
Aleksandr Zaichenko v. Russia 
18 February 2010 
Convicted of stealing diesel from the company for which he worked as a driver and 
sentenced to a suspended prison sentence, the applicant complained that his conviction 
had been based on admissions he had made to police before the trial in the absence of a 
lawyer. 
No violation of Article 6 § 3 (c) taken together with Article 6 § 1: Although the 
applicant had not been free to leave when he was stopped on 21 February the 
circumstances of the case disclosed no significant curtailment of his freedom of action 
sufficient to activate a requirement for legal assistance at that stage. The police’s role 
had been to draw up a record of inspection of the car and to hear the applicant’s 
explanation as to the origin of the cans. That information had then been passed to an 
inquirer who had in turn compiled a report on the basis of which his superior had decided 
to open a criminal case against the applicant. At that stage (2 March 2001) the applicant 
was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to 
sign the act of accusation and waived his right to legal assistance, indicating that he 
would defend himself at the trial. 
Bouglame v. Belgium 
2 March 2010 (decision on the admissibility) 
The case concerned the denial of legal assistance to the applicant while in police custody 
on charges relating to international drug trafficking. He was subsequently acquitted of 
the charges by the first instance court whose judgment was confirmed on appeal. 
Application declared inadmissible (manifestly ill-founded): Having been acquitted, the 
applicant could no longer claim to be a “victim” of a violation of Article 6 of the 
Convention. 
Yoldas v. Turkey 
23 February 2010 
The applicant complained that he had not been assisted by a lawyer while in police 
custody. 
No violation of Article 6 §§ 1 and 3 (c): The applicant’s waiver of the right to be 
assisted by a lawyer had been free and unambiguous. 
Nechiporuk and Yonkalo v. Ukraine 
21 April 2011 
The first applicant complained in particular about the unfairness of the proceedings 
against him, notably that his conviction for a number of offences, including premeditated 
murder for profit committed following a conspiracy with a group of persons, had been 
based on statements made without the assistance of a lawyer. 
Violation of Article 6 §§ 1 and 3 (c): It was undisputed by the parties that the 
applicant had not become legally represented until having spent three days in detention. 
The applicant had confessed several times to murder at the early stage of his 
interrogation when he was not assisted by counsel, and had undoubtedly been affected 
by the restrictions on his access to a lawyer in that his confessions to the police were 
used for his conviction. 
Huseyn and Others v. Azerbaijan 
26 July 2011 
The case concerned the complaint by four opposition activists about the unfairness of 
criminal proceedings brought against them for their role in clashes between 
demonstrators and the police. 
As to the applicants’ legal assistance upon their arrest, the Court noted that three of 
them had been questioned without a lawyer, and without having expressly waived their 
right to legal assistance. Such a restriction had clearly infringed their defence rights at 
the initial stage of the proceedings, in violation of Article 6 § 1 taken together with 
Article 6 § 3 (c). 
Cases concerning minors 
Panovits v. Cyprus 
11 December 2008 
The case concerned in particular the failure to inform the applicant, who was a minor, of 
his right to consult a lawyer prior to first police questioning. 
Violation of Article 6 §§ 1 and 3 (c). 
Güveç v. Turkey 
20 January 2009 
The case concerned in particular the inability of a minor defendant to participate 
effectively in his criminal trial and lack of adequate legal representation. 
Violation of Article 6 § 1 in conjunction with Article 6 § 3 (c). 
Adamkiewic v. Poland 
2 March 2010 
The case concerned in particular the use in evidence of confession to police of a minor 
who had been denied access to a lawyer. 
Violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1. 
Dushka v. Ukraine 
3 February 2011 
The case concerned the unlawful detention and questioning without a lawyer of a 17year 
old’s. The applicant alleged that he was tortured in police custody in order to make 
him confess to a robbery. 
The Court found that such practice, especially given the applicant’s vulnerable age, 
qualified as inhuman and degrading treatment, in violation of Article 3 of the 
Convention. In particular the fact that the confession had been made in a setting lacking 
such procedural guarantees as the presence of a lawyer, and had then been retracted 
upon release, pointed to the conclusion that it might not have been given freely. 
http://www.echr.coe.int/Documents/FS_Police_arrest_ENG.pdf
August 2013 
This factsheet does not bind the Court and is not exhaustive

Factsheet – Police arrest / Assistance of a lawyer

  

 The Court has repeatedly held that the right of any person charged with a criminal offence to be effectively defended by a

lawyer is a fundamental element of a fair trial

 

 

Article 6 § 3 (c) of the European Convention on Human Rights: “Everyone charged with

a criminal offence has the right to defend himself in person or through legal assistance

of his own choosing or, if he has not sufficient means to pay for legal assistance, to be

given it free when the interests of justice so require”.

 

 

Imbrioscia v. Switzerland 
24 November 1993

 

Although the “primary purpose” of Article 6 of the European Convention on Human

Rights in criminal proceedings is “to ensure a fair trial by a ‘tribunal’”, it does not follow

that it has no application to “pre-trial proceedings” (§ 36 of the judgment).

 

The Court has reiterated the above principle many times.

 

John Murray v. the United Kingdom 
25.01.1996

 

While accepting the possibility of restrictions (although Article 6 “normally require[s] that

the accused be allowed to benefit from the assistance of a lawyer already at the initial

stages of police interrogation”, “this right, which is not explicitly set out in the

Convention, may be subject to restrictions for good cause” (§ 63 of the judgment)), the

Court held that in this case, in the context of application of the 1987 Northern Ireland

(Emergency Provisions) Act, it was “of paramount importance for the rights of the

defence [for] an accused [to have] access to a lawyer at the initial stages of police

interrogation” (§ 66).

 

Elements taken into account by the Court:

 • Whether or not the applicant has made incriminating admissions in the absence of

a lawyer.

That was not the case in the Brennan v. the United Kingdom judgment of

16 October 2001: no violation of Article 6 §§ 1 or 3 (c) of the

Convention because, unlike the situation in the John Murray case, no inference

was drawn from what the applicant had said or declined to say during the first

24 hours of his detention when no lawyer was present.

• Whether or not pressure was exerted on the applicant in the absence of a lawyer.

See the Magee v. the United Kingdom judgment of 6 June 2000, § 40. In this

case the Court found a violation of Article 6 § 1 taken together with

Article 6 § 3 (c): the applicant had not had the benefit of access to a lawyer

who could play the customary role of “counterweight” to the intimidating

atmosphere in which he had been held while in police custody, and the

statements he had made at that time had been central to his conviction.

 

 

Salduz v. Turkey
 27 November 2008 (Grand Chamber)

 

Charged with, and subsequently convicted of, participation in an unauthorised

demonstration in support of the PKK (the Workers’ Party of Kurdistan, an illegal

organisation), the applicant, in the absence of a lawyer, made a statement while in

police custody admitting his guilt.

 

Violation of Article 6 § 3 (c) (right to legal assistance) taken together with

Article 6 § 1 (right to a fair trial): The Court held that even though the applicant had

been able to contest the charges at his trial, the fact that he could not be assisted by a

lawyer while in police custody had irretrievably affected his defence rights, especially as

he was a minor.

 

“[A]ccess to a lawyer should be provided as from the first interrogation of a suspect

by the police, unless it is demonstrated in the light of the particular circumstances of

each case that there are compelling reasons to restrict this right” (§ 55 of the

judgment).

 

Dayanan v. Turkey
 13 October 2009

 

The applicant, who was charged with, and subsequently convicted of, being a Hezbollah

member, did not have the assistance of a lawyer while he was in police custody.

 

Violation of Article 6 § 3 (c) (right to legal assistance of own choosing) taken

together with 6 § 1 (right to a fair trial): The Court held that that restriction (which

was systematic, as it was prescribed by the relevant provisions of Turkish law) of the

right of an individual deprived of his liberty to have access to a lawyer was sufficient for

it to be able to conclude that there had been a violation of Article 6, even though the

applicant had remained silent while in police custody.

 

Brusco v. France
14 October 2010

 

The applicant, who was suspected of having masterminded an aggression, was taken

into police custody and questioned as a witness, after being made to swear to tell the

truth.

 

Violation of Article 6 §§ 1 and 3 (right to remain silent and not to incriminate

oneself): According to the Court, the applicant was not a mere witness but a person

“charged with a criminal offence”, and as such should have had the right to remain silent

and not to incriminate himself, guaranteed by Article 6 §§ 1 and 3. The situation was

aggravated by the fact that the applicant was not assisted by a lawyer until his

20th hour in police custody. Had a lawyer been present, he would have been able

to inform the applicant of his right to remain silent.

 

 

Pishchalnikov v. Russia
 24 September 2009

 

Arrested on suspicion of aggravated robbery, the applicant was interrogated – both on

the day of his arrest and immediately on the following day – in the absence of a lawyer,

although he had clearly indicated a defence counsel he wanted to represent him. During

these interrogations he confessed to having taken part in the activities of a criminal

group which included among others a murder and kidnapping, crimes for which he was

later convicted.

 

Violation of Article 6 § 3 (c) in conjunction with Article 6 § 1: The Court found

that the lack of legal assistance to the applicant at the initial stages of police questioning had affected irreversibly his defence rights and undermined the possibility of him receiving a fair trial.

 

Yesilkaya v. Turkey
 8 December 2009

 

The applicant was refused access to a lawyer while in police custody, although he had

denied any involvement in the offences imputed to him by the interviewing officers.

 

Violation of Article 6 § 3 (c) taken together with Article 6 § 1.

 

Boz v. Turkey
 9 February 2010

 

The applicant complained in particular of the fact that he did not have access to a lawyer

while in police custody.

 

The Court reiterated that systematic restriction of access to a lawyer pursuant to the

relevant legal provisions breached Article 6.

 

Aleksandr Zaichenko v. Russia
 18 February 2010

 

Convicted of stealing diesel from the company for which he worked as a driver and

sentenced to a suspended prison sentence, the applicant complained that his conviction

had been based on admissions he had made to police before the trial in the absence of a

lawyer.

 

No violation of Article 6 § 3 (c) taken together with Article 6 § 1: Although the

applicant had not been free to leave when he was stopped on 21 February the

circumstances of the case disclosed no significant curtailment of his freedom of action

sufficient to activate a requirement for legal assistance at that stage. The police’s role

had been to draw up a record of inspection of the car and to hear the applicant’s

explanation as to the origin of the cans. That information had then been passed to an

inquirer who had in turn compiled a report on the basis of which his superior had decided

to open a criminal case against the applicant. At that stage (2 March 2001) the applicant

was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to

sign the act of accusation and waived his right to legal assistance, indicating that he

would defend himself at the trial.

 

Bouglame v. Belgium
 2 March 2010 (decision on the admissibility)

 

The case concerned the denial of legal assistance to the applicant while in police custody

on charges relating to international drug trafficking. He was subsequently acquitted of

the charges by the first instance court whose judgment was confirmed on appeal.

 

Application declared inadmissible (manifestly ill-founded): Having been acquitted, the

applicant could no longer claim to be a “victim” of a violation of Article 6 of the

Convention.

 

Yoldas v. Turkey
 23 February 2010

 

The applicant complained that he had not been assisted by a lawyer while in police

custody.

 

No violation of Article 6 §§ 1 and 3 (c): The applicant’s waiver of the right to be

assisted by a lawyer had been free and unambiguous.

 

Nechiporuk and Yonkalo v. Ukraine
 21 April 2011

 

The first applicant complained in particular about the unfairness of the proceedings

against him, notably that his conviction for a number of offences, including premeditated

murder for profit committed following a conspiracy with a group of persons, had been

based on statements made without the assistance of a lawyer.

 

 

Violation of Article 6 §§ 1 and 3 (c): It was undisputed by the parties that the

applicant had not become legally represented until having spent three days in detention.

The applicant had confessed several times to murder at the early stage of his

interrogation when he was not assisted by counsel, and had undoubtedly been affected

by the restrictions on his access to a lawyer in that his confessions to the police were

used for his conviction.

 

Huseyn and Others v. Azerbaijan
 26 July 2011

 

The case concerned the complaint by four opposition activists about the unfairness of

criminal proceedings brought against them for their role in clashes between

demonstrators and the police.

 

As to the applicants’ legal assistance upon their arrest, the Court noted that three of

them had been questioned without a lawyer, and without having expressly waived their

right to legal assistance. Such a restriction had clearly infringed their defence rights at

the initial stage of the proceedings, in violation of Article 6 § 1 taken together with

Article 6 § 3 (c).

 

 

Panovits v. Cyprus
 11 December 2008

 

The case concerned in particular the failure to inform the applicant, who was a minor, of

his right to consult a lawyer prior to first police questioning.

 

Violation of Article 6 §§ 1 and 3 (c).

Güveç v. Turkey
 20 January 2009

 

The case concerned in particular the inability of a minor defendant to participate

effectively in his criminal trial and lack of adequate legal representation.

 

Violation of Article 6 § 1 in conjunction with Article 6 § 3 (c).

Adamkiewic v. Poland
 2 March 2010

 

The case concerned in particular the use in evidence of confession to police of a minor

who had been denied access to a lawyer.

 

Violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1.

Dushka v. Ukraine
 3 February 2011

 

The case concerned the unlawful detention and questioning without a lawyer of a 17year

old’s. The applicant alleged that he was tortured in police custody in order to make

him confess to a robbery.

 

The Court found that such practice, especially given the applicant’s vulnerable age,

qualified as inhuman and degrading treatment, in violation of Article 3 of the

Convention. In particular the fact that the confession had been made in a setting lacking

such procedural guarantees as the presence of a lawyer, and had then been retracted

upon release, pointed to the conclusion that it might not have been given freely.

 

  

http://www.echr.coe.int/Documents/FS_Police_arrest_ENG.pdf

 

August 2013

This factsheet does not bind the Court and is not exhaustive