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A.T. v Luxembourg: European Court of Human Rights follows EU law on access to lawyer

ARCHITECTURE STOCKThe European Court of Human Rights has given judgment in A.T. v Luxembourg, and it is the first time one of the Roadmap Directives has been relied upon in the interpretation of the ECHR. These Directives set minimum standards regarding access to a lawyer, the waiver of the right to a lawyer and remedies when that right is infringed.

The case was one in which Fair Trials had submitted a third party intervention, an opportunity to draw attention to information supplied by our expert networks, including: the significant challenges faced by suspects in gaining access to a lawyer throughout the EU; the common practice of suspects ‘waiving’ their right to a lawyer under pressure from police; and the insufficiently robust action being taken by courts to address this.

The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in Salduz v Turkey.

Salduz established that a person charged with a criminal offence has a right of access to a lawyer ‘as from the first interrogation by police’, and that the rights of the defence are irretrievably prejudiced if incriminating statements made in the absence of a lawyer are used for a conviction. Salduz led to waves of reform, including within older Member States and highlighted the absence of common definitions of defence rights in the EU.

A.T. was questioned by police following surrender under a European Arrest Warrant (EAW). On arrival, he demanded a lawyer, following which information was given to him, which caused him to accept to be questioned without one; he denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

At trial, A.T. argued that his defence rights had been breached, as he had been denied access to a lawyer. The appeal court, and after that the Court of Cassation, rejected this, finding that he had ‘waived’ his right to a lawyer and that it therefore had no obligation to remedy any prejudice caused. This being the last instance, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

Fair Trials had argued in the intervention that the ECtHR was entitled to take account of the Access to a Lawyer Directive as an indicator of consensus within the EU (over half the Council of Europe) as to the requirements of a fair trial as protected by the ECHR. We are, essentially, hoping that EU law may lead the ECtHR to interpret the ECHR progressively so as to match the EU law standard, possibly triggering an upward spiral between the two systems.

The ECtHR found that ‘many suspects encounter serious difficulties in the exercise of this right, in particular due to legal or practical restrictions on the right of access to a lawyer, a prevalence of supposed ‘waivers’ of the right whose reliability is questionable, and ineffective remedial action by the courts to repair violations’ (at 59).

The decision:

1. You cannot waive a right that you do not have.

The decision found a violation of the right to a lawyer. The judgment clarifies that when there is no legal right to a lawyer there is no question of that right being ‘waived’: you cannot waive something to which you have no right.

2. If access to a lawyer is denied, a remedy may be needed even in absence of a confession.

That being established, the ECtHR found that the courts had infringed Article 6 ECHR by not taking any remedial action to repair the restriction on A.T.’s right to a lawyer.

3. Access to a lawyer includes a right to prior consultation before questioning.

The judgment is, perhaps, most notable for its extension of the Article 6(3)(c) ECHR case-law by confirming that access to a lawyer includes a right to consult with that lawyer privately before any questioning takes place. The legal assistance provided to A.T. during the questioning, without such a prior opportunity, was not ‘effective’ and so did not meet the requirements of the ECHR.

You can download a fuller analysis from our Legal and Policy Officer (Head of EU Office), Alex Tinsley, here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851.

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If you are a journalist interested in this story, please call the media team on +44 (0) 7749 785 932 or email [email protected]

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