Author: Ilham Gasimov, LL.M. in International Human Rights Law at Saarland University, 2021/2022
Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe
Abstract.
A voluntary police interview is a formal conversation with law enforcement that often occurs at a police station outside of a custody situation. A number of solicitors argue that a police interview conducted under caution may pose considerable risks if counsel does not represent an individual. However, there was considerable debate in the case law as to whether or not a person’s right to legal representation extended to those who were questioned by police about a criminal charge but were not taken into custody. The European Court of Human Rights (hereafter ‘ECtHR’ or ‘the Court’) announced two decisions on the rights of individuals who are ‘voluntarily’ examined by the police on 22 April 2022.[1] In these final decisions, the Strasbourg Court questioned whether the observance of the safeguards, more precisely Article 6.3 of the European Convention on Human Rights (hereafter ‘ECHR’ or ‘the Convention’), is applicable when suspects attend police interviews voluntarily.
Introduction.
The right to defend oneself in person or with the assistance of legal counsel is widely recognised under international human rights law. This right is affirmed by Article 14(3)(d) of the International Covenant on Civil and Political Rights (hereinafter the ICCPR)[2], Article 7(1)(c) of the African Charter on Human and Peoples’ Rights[3], Article 8(2)(d) of the American Convention on Human Rights[4], and Article 6(3)(c) of the European Convention on Human Rights[5] (hereinafter the ECHR or ‘the Convention’). The Rome Statute of the International Criminal Court expresses this right more explicitly by stating that a person “shall also have to be questioned in the presence of counsel” if he or she “is about to be questioned either by the Prosecutor or by national authorities” before a trial begins.[6]
Parallel to the legal literature, case law also explicitly guarantees the accused’s right to access a lawyer during the trial and at the pre-trial stage. The Strasbourg Court has made the most resounding efforts to recognise the right to legal representation before a trial even begin. The court acknowledged that, as a general rule, suspects should be provided with the right to access a lawyer while in police custody.[7] The Strasbourg Court made strict determinations on the right to legal assistance of the accused, mostly under custody circumstances. However, the same entitlement for individuals interviewed by the police voluntarily without placing them under arrest remained unclear for the scholars, defendants, and solicitors. Is the observance of these safeguards, more precisely Article 6(3) of the Convention, applicable to situations when suspects attend police interviews voluntarily? To what extent do individuals invited to the police interview without being under custody enjoy the right to legal representation in practice?
This paper will discuss the recent Grand Chamber judgments[8] on the mentioned matter to answer the research question of whether the protection standards are applied to voluntary police interviews. Regarding the complete details of the data collection methodology, this paper sourced the material from the official precedent portals, including the HUDOC, as well as the new emerging Knowledge Sharing platform of the ECtHR, wherein the data was initially produced. Nevertheless, the research data is not limited to the mentioned sources but refers to the considerable knowledge gained by reviewing the scholars, which draft otherwise stated by the European perspective. The preferred data range criteria are the best methodology to touch the most recent case laws, standards, and gaps in the practice.
Chapter A formulates the general background of the right to legal assistance, its application, and utilised standards by European practice under the custody situation. It underlines a gap left by Strasbourg for years and touches on a couple of judgements concerning the enjoyment of the right by an individual charged with a criminal offence. Chapter B operates in-depth and addresses the key research question of that paper by analysing the Grand Chamber’s determinations[9] on the right to access a lawyer of a person invited to the police interrogation willingly. It starts with the main facts of the cases and findings of the Court and ends with the author’s conclusions and comments on the perspective of Strasbourg Court.
Right to Legal Representation at the Pre-trial and Trial Stage: the European Gap.
There was no consensus among European legal regulations on the importance of having access to legal counsel during preliminary interrogation by police to ensure a fair trial.[10] It was unclear whether the Convention guaranteed the right to legal representation during a criminal proceeding’s first stages. Since the Convention’s language does not explicitly mention providing a right to legal assistance in the investigation phase[11] and because this issue was delicate across Europe[12], the Strasbourg Court took a relatively conservative approach. It has addressed the issue multiple times, ruling that suspects are entitled to the right while in police custody by extending Article 6 to the pre-trial stage.[13] The Court stated that having access to a lawyer during the inquiry phase is “essential to the preparation of an accused person’s defence,” and thus falls under the protections of Article 6.[14]
The Court commenced formulating the accused’s right to access a lawyer at the pre-trial phase of the criminal proceedings but demonstrated a limited approach on that matter. In Imbrioscia v. Switzerland case, the ECtHR acknowledged the principle that the right to access legal representation can be extended to the pre-trial stage, but under the condition that “if the fairness of the trial is likely to be seriously prejudiced” by the lack of the legal assistance.[15] Thereof, it would be determined as a non-violation of Article 6.3 of the Convention, if the lack of opportunity to grant a right to legal assistance did not damage the overall fairness strictly. Overall, the Court illustrated a narrow perspective in relation to the right to access a lawyer during a pre-trial stage by depending “on the special features of the proceedings involved and on the circumstances of the case”[16]
Then the Strasbourg Court decided on the Salduz judgment which was considered as a landmark decision of the ECtHR by scholars and professionals. The applicant was charged with 234 participating in terrorist activities. He was questioned by police without legal representation after signing a paper informing him of the charges and his right to remain silent.[17] During questioning, he admitted to taking part in a protest that was against the law. This statement was used as evidence in his conviction, despite his later denial of it in front of the public prosecutor and the investigating judge, in which he claimed that he had been forced to make the statement.[18] Hence, the applicant applied for the evaluation of the ECtHR, but the Chamber again demonstrated a restricted approach. Since the applicant’s statement was not the only foundation for his conviction and he received legal representation throughout the trial and appeal, the Chamber of the ECtHR found no violations of Article 6(3)(c).[19] However, the Grand Chamber reaffirmed that the applicant’s right to counsel was irreparably damaged by the time he spent in police custody. To that end, the ECtHR has established absolute guidelines for the accused’s right to legal aid at the pre-trial phase. It found out that in order for the right to a fair trial to remain effectively, Article 6.1 of the Convention requires that “access 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”.[20] This judgement was the first time that the ECtHR considered the right of access to a lawyer at the pre-trial stage as an undeniable rule. The Salduz decision let the Court consider whether there was “any justification for the denial of the right” rather than whether “the right itself was applicable in specific cases”.[21] Although the Court still stood on the restrictive factors – compelling reasons – which may limit the right to legal representation, it reiterated that “even where compelling reasons may exceptionally justify denial of access to a lawyer, the such restriction must not unduly prejudice the rights of the accused, including the right to access a lawyer.[22]
In conclusion, the Strasbourg Court clarified the applicability of Article 6.3 of the Convention to the pre-trial phases of the criminal proceedings by its landmark judgment against Turkey. It determined that the right to access a lawyer is not an entitlement which is enjoyed by the accused only at the trial stage but has to be guaranteed even during the first interrogation by the police officers regarding the main facts of the case. Hence, the accused is able to take advantage of this right at any stage of the criminal proceedings as soon as he is put under custody and informed concerning the offence charged against him. However, it still remained unclear whether the concerned right could be extended to voluntary police interviews, in which an individual participates upon the invitation by law enforcement without being in a custody situation.
Strengthening the rights of suspects interviewed by police: Cases of Wang v. France/Dubois v. France.
Strasbourg announced two rulings on the rights of individuals who are examined by police “voluntarily” – upon invitation without being placed under custody – on April 22, 2022. These cases were Wang v. France[23] and Dubois v. France[24], which concentrated on Article 6.3 of the Convention – the right to legal representation. The Court stressed that these judgements “require observance of the safeguards pertaining to police custody,” even when suspects attend interviews with police willingly. Earlier ECtHR case law had actually caused some doubt as to whether or not the right to legal representation applies to persons questioned by police about a criminal accusation without being placed in police custody.[25] The Court affirmed in two French decisions that this privilege also extends to interviews with suspects outside of the custodial situation.
Main Facts.
The Court has been presented with two cases, which originated in France and involved convictions for unauthorised medical practice. The French government has accused Ms Wang of practising acupuncture without the proper credentials.[26] Mr Dubois, a dental technician, was charged with doing dental crown placements on patients, a task that surgeons should only carry out.[27]
Under the so-called “audition libre” regime[28], the police conducted interviews with both applicants. They were notified that they may leave at any time but not about their entitlement to the right to legal representation.[29] During the interview process, both applicants provided self-incriminating details to the police officers. Ms Wang was fined €500 and required to pay €400 in damages to the relevant professional association.[30] Mr Dubois was given a suspended sentence of 18 months in prison, 3 years of probation, an order to pay restitution for damages, and a ban on practising dentistry by the appeal decision.[31]
The Merits of the Judgments.
The Court used a step-by-step formulation of the case by introducing two key questions, which were first used in Ibrahim and others v. UK case as a two-step test.[32] It analysed firstly the complaints made concerning the lack of legal representation in police custody and then the use of statements made by the suspected for the conviction.[33] Two questions must be answered to determine if the right is prejudiced:
- Were there any compelling reasons to restrict the right to legal representation?[34]
- Were the proceedings fair, taking into account a variety of possible “counterbalancing factors” that could compensate for the lack of fairness?[35]
Article 6 may not have been automatically violated even if the right to counsel had been denied and the consequent statements used to secure a conviction; however, the Court must apply “a very strict scrutiny” in determining whether or not the proceedings were fair as a whole.[36] In applying this rationale to the two French cases under consideration, the Court concluded that there was a violation of Articles 6 (1) and (3) (c) in the case of Ms Wang[37] but not in the case of Mr Dubois.[38] In both instances, the Court determined that there were no compelling reasons to limit the access to legal representation during the “audition libre”.[39] It then proceeded to evaluate the overall fairness of the proceedings. Given that 1) Ms Wang’s language challenges and the denial of her request for an interpreter during the interrogation put her in a vulnerable situation and 2) her subsequent self-incriminating statement formed the basis of her conviction, the Court ruled in the negative.[40]
Whereas the Strasbourg Court came to a different decision in Mr Dubois’s case. It concluded that Mr Dubois was not in a particularly vulnerable position during the interview.[41] Moreover, his conviction was simply ‘incidental’ to the offence because it was supported by other evidence such as documented invoices, witness statements, and the fact that he had previously been convicted of similar offences.[42]
CONCLUSION.
After analysing these two Strasbourg judgments on the suspect’s right to legal representation under non-custodial situations and voluntary police interviews, one does not see an absolute and landmark effect on the issue. In general, two EU Directives[43] on the right to information and legal aid in criminal proceedings also recognise the right to legal aid during non-custodial interrogations. Hence, the latest ECtHR rulings are not likely to result in any modification of the legal regimes of those EU Member States that have adopted the applicable Directives.[44] Nevertheless, the Wang and Dubois judgements refer to the ambiguous relationship between EU law and Strasbourg standards in regard to breaches of suspects’ right to legal assistance at police interviews, the use of resulting statements for conviction, and remedies for the respective procedural irregularities, all of which are based on the line of reasoning established in Ibrahim and others v. UK.[45]
The evolution of Article 6.3 of the Convention commenced with the Strasbourg judgment on Salduz v. Turkey determining the lack of legal representation for the accused as a prejudice against the fair trial standards. The Court has found that the use of police interview statements acquired from defendants whose right to legal representation was not guaranteed would violate Article 6 ECHR.[46] In Ibrahim and others v. UK case Strasbourg operated in-depth by introducing a two-step inquiry in order to calculate the fairness of the proceedings.[47] The same test was also applied in these French judgments for strengthening the guarantees for the accused/suspected in terms of legal representation at any stage of criminal proceedings.[48] Although the judgment itself did not mention any concrete provisions concerning the voluntary police interviews, the Court’s assessment of Wang. v. France was quite clear in extending the application of Article 6.3 ECHR to non-custodial situations.[49] Since, Ms Wang was questioned upon the invitation by police voluntarily and since the Court found a strict non-conformity in the actions of law enforcement with Article 6.3 ECHR, this judgment can be considered as a stimulator for the domestic authorities to implement this right during the voluntary interrogations as well.
Nevertheless, the Dubois judgment demonstrated a bit unclear assessment in which the Court found no violation of Article 6 of the Convention.[50] It stated that Mr Dubois’s conviction constituted a group of evidence other than his self-incriminating statements made without access to a lawyer and adequate legal aid.[51] The author agrees with one of the dissenting opinions of Judge Mourou-Vikström in Dubois on that matter: “The detailed statements describing the “men’s rea”[52] of the crime obtained from suspects by police of the kind would always be an important piece of prosecution evidence, notwithstanding of the existence of other supporting evidence”.[53] Therefore, the non-exclusion of the statements itself can also bias the fairness of the criminal proceedings and lead to the violation of Article 6 of the Convention.
The list of references
[1] ECtHR, Wang v. France, App. no. 83700/17, 28 July 2022; Dubois v. France, App. no. 52833/19, 28 July 2022 (available only in French).
[2] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 14(3)(d).
[3] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 7(1)(c).
[4] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, Article 8(2)(d).
[5] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 6(3)(c).
[6] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, Article 55(2)(c) and (d).
[7] ECtHR, Salduz v. Turkey [GC], App. no. 36391/02, 27 November 2008, § 55. See also, ECtHR, Imbrioscia v. Switzerland, App. no. 13972/88, 24 November 1993, § 37; Ibrahim and Others v. the United Kingdom [GC], Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016, § 255; Simeonovi v. Bulgaria [GC], App. no. 21980/04, 12 May 2017, § 112.
[8] Supra note, 2.
[9] Ibid.
[10] Gordon Van Kessel, ‘European Perspectives on the Accused as a Source of Testimonial Evidence’ (1999) 100 West Virginia Law Review 799, p. 810. See also: Jacqueline Hodgson, ‘From the Domestic to the European : An Empirical Approach to Comparative Custodial Legal Advice’ in Jacqueline E Ross and Stephen C Thaman (eds.), Comparative Criminal Procedure (Edward Elgar Publishing 2016), p. 266-270.
[11] Article 6(3)(c) of the ECHR states 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”.
[12] Sarah J Summers, Fair Trials : The European Criminal Procedural Tradition and the European Court of Human Rights (Hart Publishing 2007), p. 151.
[13] M Bedri Eryilmaz, Arrest and Detention Powers in English and Turkish Law and Practice in the Light of the European Convention on Human Rights (Brill 2000), p. 273.
[14] Bonzi v. Switzerland 12 DR 185 (emphasis added); See also, Jacqueline Hodgson, ‘“Safeguarding Suspects” Rights in Europe: A Comparative Perspective’ (2011) 14 New Criminal Law Review 611, p. 122.
[15] ECtHR, Imbrioscia v. Switzerland, App. no. 13972/88, 24 November 1993, § 36.
[16] Ibid, § 38.
[17] ECtHR, Salduz v. Turkey, App. no. 36391/02, 27 November 2008, § 23.
[18] Ibid.
[19] Ibid, § 46.
[20] Ibid, § 55.
[21] Jacqueline Hodgson, ‘From the Domestic to the European : An Empirical Approach to Comparative Custodial Legal Advice’ in Jacqueline E Ross and Stephen C Thaman (eds.), Comparative Criminal Procedure (Edward Elgar Publishing 2016), p. 261.
[22] Supra note 21.
[23] ECtHR, Wang v. France, App. no. 83700/17, 28 April 2022 (available only in French).
[24] ECtHR, Dubois v. France, App. no. 52833/19, 28 April 2022 (available only in French).
[25] See, ECtHR, Salduz v. Turkey, App. no. 36391/02, 27 November 2008.
[26] Wang v. France, § 4.
[27] Dubois v. France, § 4.
[28] Lawyers at the time severely criticised the French “audition libre” system, arguing that suspects examined “voluntarily” by police should have the same rights as suspects in police detention. Attendance at an interview cannot be regarded as “voluntary” because failure to appear or answer questions will result in arrest. In addition, there was evidence that the French police employed “audition libre” to avoid the necessity to provide procedural rights to suspects who were interviewed.
[29] Wang v. France, § 6.
[30] Ibid, § 18.
[31] Dubois v. France, § 17.
[32] ECtHR, Ibrahim, and Others v. the United Kingdom [GC], Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016, § 244; Wang v. France, § 64; Dubois v. France, § 65.
[33] Ibid.
[34] Ibid, § 258.
[35] Ibid, § 260, § 274.
[36] Ibid, § 265.
[37] Wang v. France, § 91.
[38] Dubois v. France, § 92.
[39] Wang v. France, § 64; Dubois v. France, § 65.
[40] Wang v. France, § 68.
[41] Dubois v. France, § 90.
[42] Ibid.
[43] Article 3 (1) (a) of the EU Directive 2012/13/EU on the Right to Information in Criminal Proceedings and Article 3 (2) (a) of the EU Directive 2013/48/EU on the Right to Legal Assistance in Criminal Proceedings.
[44] Anna Pivaty, “Does the court really expand European fair trial rights standards in criminal proceedings with Wang v. France and Dubois v. France on ‘voluntary’ police interviews of suspects?”, https://strasbourgobservers.com/2022/08/23/does-the-court-really-expand-european-fair-trail-rights-standards-in-criminal-proceedings-with-wang-v-france-and-dubois-v-france-on-voluntary-police-interviews-of-suspects/, last accessed on 17/01/2023.
[45] Ibid.
[46] ECtHR, Salduz v. Turkey, App. no. 36391/02, 27 November 2008, § 55.
[47] [47] ECtHR, Ibrahim, and Others v. the United Kingdom [GC], Applications nos. 50541/08, 50571/08, 50573/08 and 40351/09, 13 September 2016, § 244.
[48] Wang v. France, § 64; Dubois v. France, § 65.
[49] Wang v. France, § 68.
[50] Dubois v. France, § 90.
[51] Ibid.
[52] In criminal law, “mens rea” is the mental state of the crime committed and the legal determination of a crime.
[53] See, Judge Mourou-Vikström’s dissenting opinions on Dubois v. France judgement (available only in French).
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