Case Watch: How Three Recent ECHR Rulings Strengthen Arrest Rights in Europe

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

The European Court of Human Rights (ECHR) made a series of important decisions in October last year relating to the rights of people accused or suspected of crimes. Although no major changes to the court’s body of criminal procedure was announced, these cases have the potential to serve as important and detailed advocacy tools both for those representing defendants in detention and those in law enforcement.

Several of the judgments upheld and strengthened individual defence rights. For example, in Dvorski v. Croatia, the court strengthened the relationship between the appointment of the defendant’s lawyer (Article 6—guaranteeing fair trial and legal assistance—of the European Convention on Human Rights) and whether this process affected her choice to a fair trial. Specifically, it looks at whether the circumstances led to the detainee making an incriminating statement at the outset of the criminal investigation because of coercion.

The facts are fairly uncomplicated: upon hearing of his arrest, Dvorski’s parents hired an attorney to represent him during his questioning at a police station on suspicion of murder, armed robbery, and arson. The police refused to allow the hired lawyer access to Dvorski. They also failed to inform Dvorski of this same lawyer’s presence at the police station where he was being held for questioning. In fact, the police encouraged Dvorski to appoint a lawyer whom the police had chosen—a lawyer who, rather worryingly, was the former chief of Rijeka Police. Dvorski made a confession within fifteen minutes of his meeting with the attorney and those statements were used against him at trial to assist in his conviction.

At first glance, there appears to be little new in what the Grand Chamber had to say in Dvorski. The original Chamber decision is a commonly cited case on the issue of whether a suspect has the right to be represented by a lawyer of his own choice. However, further analysis shows that with this judgment, the court has taken steps to ensure greater viability of a suspect’s right of defendants’ to effectively exercise their right to choose representation.

In the prior judgment on this matter, the Chamber acknowledged that Dvorski was not represented by a lawyer selected on the basis of a fully informed choice, meaning the police withheld key information from him that could have dramatically altered his choice of lawyer. However, it did not consider that the police’s failure to inform him of the lawyer appointed by his family rendered the proceedings against him “as a whole” unfair.

Upon revisiting Dvorski’s case several months ago, the Grand Chamber found a way to overturn the Chamber’s decision while maintaining the basic test of unfairness under Article 6. The Grand Chamber’s assessment of the totality of the circumstances of Dvorski’s confession emphasized the need for domestic courts to investigate the use of contested confessions at trial in a way not previously seen in the court’s jurisprudence. Some of the failures of the national authorities in this regard included the failure to take any steps to investigate the circumstances of Dvorski’s confession, and the failure to take steps to obtain evidence establishing the circumstances surrounding the police’s failure to inform Dvorski of a lawyer’s presence at the police station.

The Grand Chamber concluded that in the future, where it is alleged that the choice of lawyer influenced the making of an incriminating statement by the suspect at the very outset of the criminal investigation, careful scrutiny by the national authorities, especially the national courts, was called for.

Now, advocates dealing with common police tactics that exert strong influence over detained suspects have firmer ground to stand on following the decision in Dvorski. Moreover, it encourages national authorities to look behind confessions given while in custody, so to speak.

Advocates facing similar behavior by national authorities can benefit from the Dvorski judgment by using it to support an argument in favor of a presumption that but for the police’s conduct interfering with the suspect’s right to choose, they would not have made a confession later admitted into evidence against them.

Protecting detained persons from wrongly elicited confessions appeared as an important theme again in Turbylev v. Russia. The case involved the unfortunate Turbylev, detained and physically abused by police on the streets of Russia before he elicited a confession immediately after the physical abuse came to a stop. The court articulated an important standard regarding the relationship between Article 3 (inhuman or degrading treatment) and Article 6.

The court found that taking statements obtained by treatment constituting inhuman or degrading treatment into consideration at trial was incompatible with the fair trial guarantees because “their use in criminal proceedings is often the reason for which the acts of ill-treatment are committed in the first place.” This is important because it creates a general human rights standard linking together Article 3 (inhuman or degrading treatment) and Article 6.

The connection that the court has previously made between Article 3 and Article 6 in the realm of admissibility has now been expanded in to the realm of substantive rights as well. Thus, violations of Article 3 increase the likelihood that the state has also violated Article 6. Given that the right not to be subjected to inhuman or degrading treatment is an absolute right, then it only stands to reason that the use in criminal proceedings of evidence obtained in breach of Article 3 “renders the proceedings as a whole automatically unfair, irrespective of the probative value of the statements and . . . whether their use was decisive in securing the defendant’s conviction.”

In yet another small victory for defendants, in the case of R.E. v. United Kingdom, the court announced new rules governing court surveillance of a detainee in a police station. The judgment came after the applicant filed a complaint about Ireland’s regime for covert surveillance of certain categories of persons in furtherance of the country’s national security efforts.

Although stringent confidentiality rules between lawyers and clients is nothing new, the court considered this case from the standpoint of right to privacy principles, protected by Article 8 of the European Convention. Finding Ireland in violation of Article 8, the court rested its judgment on the fact that surveillance of a legal consultation constituted an extremely high degree of intrusion into a person’s right to respect for his or her private life, especially when that information was shared with others or stored.

Advocates working in states with national security and anti-terrorism data surveillance regimes similar to Ireland will find that this case gives them a means to overcome uses of covert surveillance of consultations between detainees and their lawyer.

Moreover, this judgment is useful for lawyers strategizing their claims for just satisfaction before the European Court and claims for civil remedies before domestic courts. This is because lawyers representing clients in similar clients will be able to invoke both article 6 (right to fair trial) and article 8, rather than relying solely on article 6.

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