A.T. Five Luxembourg: The Outset Of The Eu-Echr Flush On Criminal Defence Forcefulness Rights
November 26, 2018
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Alex Tinsley, Legal & Policy Officer (Head of European Union Office) at Fair Trials, based inwards Brussels. Twitter: @AlexLouisT
On nine Apr 2015, the European Court of Human Rights (‘ECtHR’) gave judgment inwards A.T. v Luxembourg. The judgment, which volition locomote lastly unless referred to the Grand Chamber, inwards finding a violation of Article half dozen of the European Convention on Human Rights (ECHR), develops the principles established inwards the Salduz v Turkey. At the invitation of Fair Trials International, 3rd political party intervener, it also takes into account, for the offset time, Directive 2013/48/EU on access to a lawyer inwards criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of time to come convergence inwards this area.
Background
The applicant, A.T. was questioned past times constabulary next give upwards nether a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave data (it is unclear what) which led him to choose to live questioned without one. He denied the offences. He was hence questioned 1 time to a greater extent than before the investigating judge, alongside a lawyer introduce but (a) without having had the run a peril to speak alongside that lawyer beforehand as well as (b) without the lawyer having had sight of the instance file prior to that questioning; again, he denied the offences.
A.T. argued that his defense forcefulness rights had been breached every bit he had been denied access to a lawyer. The appeal court, as well as hence the Court of Cassation, rejected this, essentially finding that he had agreed to live questioned without a lawyer as well as that no obligation arose to remedy whatever prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR tilt a violation of Article half dozen ECHR.
The legal territory: the Salduz principle
The instance was decided past times reference to the ECtHR’s 2008 judgment inwards Salduz v Turkey, which established that a individual charged alongside a offense has a correct of access to a lawyer ‘as from the offset interrogation past times police’, as well as that the rights of the defense forcefulness are irretrievably prejudiced if incriminating statements made inwards the absence of a lawyer are used for a conviction (para 55). There are, however, exactly about unanswered questions almost this principle, exactly about of which are resolved here.
EU law inwards the mix
Salduz caused waves of litigation as well as reform inwards Europe, including inwards older European Union Member United States similar the Britain as well as France. Yet, pregnant problems rest inwards practice. This is the ECtHR’s summary of Fair Trials’ see on this inwards A.T. v Luxembourg: ‘many suspects encounter serious difficulties inwards the exercise of this right, inwards item due to legal or practical restrictions on the correct of access to a lawyer, a prevalence of supposed ‘waivers’ of the correct whose reliability is questionable, as well as ineffective remedial activity past times the courts to repair violations’ (at 59).
With Member United States required to cooperate on the reason of usual trust, such concerns are problematic. So, inwards 2009, the European Union adopted a ‘Roadmap’, a ste-by-step computer programme to adopt directives on key defense forcefulness rights nether the novel legal reason of Article 82(2)(b) of the Treaty on the Functioning of the EU, inwards gild to strengthen usual trust. After Directive 2010/64/EU on the correct to interpretation & translation as well as Directive 2012/13/EU on the correct to information, came the Access to a Lawyer Directive (together, the ‘Roadmap Directives’), setting minimum standards on access to a lawyer.
These Directives generally endeavour to ‘codify’ ECtHR jurisprudence, but inwards doing hence create novel standards as well as – every bit for the number at stake hither – inwards exactly about places may anticipate the case-law. This is significant. As Fair Trials argued inwards this case, the ECtHR tin as well as does take away maintain regard to such measures when developing its case-law, hence the presence of the Roadmap Directives raises pregnant possibility of cross-fertilisation betwixt European Union law as well as the ECHR. A.T. appears to live a offset instance of this.
The A.T. v Luxembourg judgment
You cannot waive a correct that y'all do non have
The judgment clarifies that since in that location was inwards fact no legal correct to a lawyer at the initial questioning – this was the instance at the fourth dimension inwards Grand Duchy of Luxembourg for the narrow category of persons questioned next give upwards nether a European Arrest Warrant (EAW) – the purported ‘waiver’ of that correct was inoperative (at 71): y'all cannot waive an entitlement which the law does non confer upon you.
If access to a lawyer is denied, a remedy may live needed fifty-fifty inwards absence of a confession
That beingness established, the ECtHR found that the courts had infringed Article half dozen ECHR past times relying on the statements A.T. made inwards that context as well as non taking whatever remedial activity to repair the prejudice caused past times the restriction on A.T.’s correct to a lawyer (at 72), e.g. excluding his statements (see 73).
It is worth noting, inwards that regard, that Grand Duchy of Luxembourg had argued that no violation of Article half dozen arose because A.T. had denied the offences (see 55). The logic is that if y'all don’t confess, the absence of a lawyer does non brand whatever difference. Fair Trials had argued for a to a greater extent than protective draw (see 61). Relying on the Article 12 of the Access to a Lawyer Directive, which refers to ‘statements’, non only confessions, nosotros noted that a individual mightiness compromise themselves inwards other ways, e.g. proverb too much or too little, speaking confusedly nether pressure, damaging their credibility vis-à-vis other witnesses etc. (see the actual intervention, paragraph 41). The ECtHR followed this line, pointing out that A.T. had ‘changed his story’ during the proceedings as well as that his early on statements, though denials of the allegations, were held against him inwards that agency (at 72). This is a useful add-on to a draw of cases which had hence far solely dealt alongside generally alongside full silence, apartment denials or clear confessions.
Access to a lawyer includes a correct to prior consultation before questioning
The judgment is, though possibly most notable for its emphasis on the importance of a consultation betwixt lawyer as well as customer prior to questioning (at 86). This is a novel evolution of the case-law, complementing Navone v. Monaco as well as other cases (79) establishing that in that location live should assistance during questioning. The legal assistance provided to A.T. during the questioning, without such a prior opportunity, was non ‘effective’ as well as hence did non run across the requirements of Article half dozen ECHR (at 89).
Roadmap aficionados volition depository fiscal establishment bill that inwards hence finding, the ECtHR took occupation concern human relationship of Article 3(3)(a) of the Access to a Lawyer Directive which articulates this requirement inwards dark as well as white. This is the offset fourth dimension 1 of the Roadmap Directives has been referred to inwards the interpretation of the ECHR, as well as it raises questions every bit to possible convergence as well as how the ECtHR is going to react to rulings from the Court of Justice of the European Union (‘CJEU’) on the Roadmap Directives (see comments below).
Access to the instance file prior to questioning?
On 1 point, however, the ECtHR volition take away maintain disappointed exactly about people. Lawyers inwards Spain, French Republic as well as Grand Duchy of Luxembourg inwards item take away maintain been tilt for exactly about fourth dimension that legal assistance is non effective if the lawyer does non take away maintain access to the instance file prior to questioning, inwards gild to advise the customer on an informed reason (more here). The A.T. instance gave the ECtHR a run a peril to say whether such a correct arose nether the ECHR, as well as it – or this Chamber, at to the lowest degree – has taken a negative view.
What remains at 1 time on this dot is Article 7(1) of Directive 2012/13/EU, requiring access to documents which are essential for challenging detention. The Paris bar reckons this is a key to the constabulary instance file prior to questioning (see their pleading). The conservative view, which seems closer to the text of the provision, sees this every bit relevant solely to judicial review of detention, as well as it appears the ECtHR shares the see (see 80). But bearing inwards heed that (as inwards Luxembourg) the questioning may live done past times a gauge who also makes a offset determination on detention, the broader see is credible. It seems probable that in that location volition live farther instalments inwards this item discussion.
Disposal: ensure a fair (re)trial adjacent time
Disinformation almost human rights abounds, hence it is worth reminding oneself what such an ECtHR judgment truly entails. A.T., defendant of serious offences, does non at 1 time walk free. The ECtHR did non gild his release (it cannot), or accolade damages. The Chamber, nether ECtHR President Dean Spielmann, only indicated that Grand Duchy of Luxembourg should give him a retrial compliant alongside Article half dozen ECHR (97). Prosecutors had other evidence, also the statements made without a lawyer, alongside which to prosecute, hence their instance is non lost. The retrial should only live fair, inwards draw alongside ECHR as well as European Union norms.
Comments
Interaction betwixt European Union law as well as ECHR has looked unappealing of late. Not long ago, inwards Tarakhel v. Switzerland, found for the mo fourth dimension that execution of the EU’s ‘Dublin’ organization for homecoming of asylum-seekers to other Member United States would infringe human rights protected past times the ECHR. The CJEU, obviously miffed, hence issued its alarming comments inwards Opinion 2/13, stating that, inwards obliging Member United States to interrogation each other’s compliance alongside human rights despite European Union law obligations of usual trust, the EU’s proposed accession to the ECHR would interfere alongside the European Union legal order.
For 50 years, the CJEU has dealt alongside individuals invoking Treaty rights inwards gild to defeat protectionist merchandise rules, elevate costless motility as well as choose countries closer together inwards e'er closer union. Now suddenly the countries are trying to cooperate inwards justice as well as abode affairs, the private is invoking rights to resist this, as well as the CJEU appears concerned. If 1 adopts this rationale, the number tin live confined to the cross-border sphere.
In the internal context, where cooperation interests are non at issue, a to a greater extent than progressive trajectory tin live envisaged. When the CJEU’s Elgafaji judgment recognised that Article 15(c) of the Qualification Directive was intended to supply an additional layer of protection against refoulement for those escaping situations of indiscriminate violence, the ECtHR apace responded inwards Sufi as well as Elmi v. UK that it was ‘not persuaded’ the criterion nether Article three ECHR was whatever lower, going a pace farther than it had inwards before cases. One tin discern an chemical constituent of upward contest here.
What volition occur alongside the Roadmap Directives remains to live seen. The dot decided inwards A.T. v Luxembourg – that 1 should take away maintain a run a peril to speak alongside one’s lawyer before beingness questioned – appears uncontroversial as well as would take away maintain been adopted anyway past times the ECtHR. But nevertheless, it offers an instance of European Union law setting a standard, which the ECtHR hence finds exists inwards the ECtHR too. It will, inwards that light, live interesting to see how the CJEU volition process novel questions without obvious answers inwards the existing-case-law of the ECtHR, as well as what the reaction volition live from Strasbroug.
The offset instance on the Roadmap Directives (Case C-216/14 Covaci) is pending, as well as the comments inwards the Advocate General Bot Opinion of seven May 2015 are interesting from that perspective: these ‘minimal rules’ should live seen every bit ‘irreducable’ fundamentals (32); they should live approached expansively, every bit strengthening defense forcefulness rights volition strengthen judicial cooperation (33); and, patch the Roadmap Direcives abide by national legal cultures, national procedures volition take away maintain to ensure their useful outcome or human face upwards striking downwards past times the national courts, alongside the CJEU on standby to give preliminary rulings (34). His conclusions on the specific instance require a dissever spider web log post, but this proposed interpretative logic is notable: it suggests, every bit nosotros noted lastly year, that the counterpart to CJEU’s robust defense forcefulness of usual trust could live a robust approach to the Roadmap Directives designed to strengthen that trust. If the CJEU’s rulings are expansive, the ECtHR mightiness hence live dull to aim whatever lower, alongside consequent send on exterior the EU. But hither 1 goes farther into the realm of speculation.
Of course, for anything to happen, lawyers involve to pose the issues before the courts. Working alongside the Legal Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, nosotros offering costless legal training, designed to portion ideas across jurisdictions as well as encourage innovative litigation. The ECtHR listened to LEAP inwards A.T., as well as nosotros tin aid inwards national cases too (see our comparative law opinions inwards cases before the Swedish Supreme Court (here) as well as Belgian Court of Cassation (here)). The thought is to participate inwards the developing EU-ECHR storey as well as operate it every bit an chance to better defense forcefulness rights across Europe. If y'all would similar to instruct involved, contact Fair Trials’ Legal & Policy team.
Another version of this postal service appeared on the Fair Trials website.
Barnard & Peers: chapter 25
