The ECtHR found a violation of Article 6 (1) and 3 (c) of the Convention when the domestic courts relied on the witness testimonies recounting a confession made by the applicant to secure his conviction. According to the applicant the confession had been extracted in the absence of a lawyer after the two officers had beaten him. The applicant had been arrested and placed in police custody on the suspicion that he had committed an offence of murder. Whilst in police custody, the applicant had been informally questioned by two officers during which he aparently confessed to having also committed a theft. On the next day he was formally charged with other offence, whilst charges in relation to the murder and the theft at issue were only formally brought against him 6 months later.  

In this case, the ECtHR build on its previous judgements in Ibrahim and Others and Simeonovi in which the Court set up a two-stages test in order to decide whether a failure to grant access to a lawyer would amount to a violation of Article 6: whether there were compelling reasons to restrict the right and whether the fairness of the proceedings have been affected overall.  First, the ECtHR found that under Bulgarian law, there had been no “compelling reasons” to restrict the right of the applicant to access a lawyer. Secondly, the ECtHR stated that in the absence of “compelling reasons” for restricting the right to legal assistance, the ECtHR must apply a very strict scrutiny to its fairness assessment. It expressly stated that ‘in cases such as the present one, where there have been no “compelling reasons” to restrict access to a lawyer at the early stages of the proceedings, it can only exceptionally find that the overall fairness of proceedings has not been prejudiced by that initial failure to observe the accused’s rights’.  In Ibrahim and Others the ECtHR set out non-exhaustive list of factors to be taken into account in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings:

• Whether the applicant’s confession was obtained “cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion”. The ECtHR found that after he made the alleged confession during the questioning, the authorities charged him with a minor offence. It was only six months later that the applicant was charged with murder. Therefore, the ECtHR had doubts on the accuracy and reliability of the testimony of the police officers, relating the applicant’s confession.
• “The legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with”. The ECtHR held that the confession had not obtained in accordance with the requirements of the law and therefore it could have been used in trial.
• Whether the contested evidence formed “an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case”. The ECtHR observes that the applicant’s confession, included in the body of probative evidence through the witness testimony of the police officers, had have been one of the important elements of evidence securing his conviction. This was even more relevant in the light of the fact that the body of evidence examined at the trial also contained exonerating evidence, but on balance the national courts found that the accusations had nevertheless been proved.

You can read the full judgment here.