Alex Tinsley, Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT
On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. 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 the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.
The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led 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.
A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.
The legal territory: the Salduz principle
The case was decided by reference to the ECtHR’s 2008 judgment in Salduz v Turkey, which 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 (para 55). There are, however, some unanswered questions about this principle, some of which are resolved here.
EU law in the mix
Salduz caused waves of litigation and reform in Europe, including in older EU Member States like the UK and France. Yet, significant problems remain in practice. This is the ECtHR’s summary of Fair Trials’ view on this in A.T. v Luxembourg: ‘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).
With Member States required to cooperate on the basis of mutual trust, such concerns are problematic. So, in 2009, the EU adopted a ‘Roadmap’, a ste-by-step plan to adopt directives on key defence rights under the new legal basis of Article 82(2)(b) of the Treaty on the Functioning of the EU, in order to strengthen mutual trust. After Directive 2010/64/EU on the right to interpretation & translation and Directive 2012/13/EU on the right to information, came the Access to a Lawyer Directive (together, the ‘Roadmap Directives’), setting minimum standards on access to a lawyer.
These Directives mostly attempt to ‘codify’ ECtHR jurisprudence, but in doing so create new standards and – as for the issue at stake here – in some places may anticipate the case-law. This is significant. As Fair Trials argued in this case, the ECtHR can and does have regard to such measures when developing its case-law, so the presence of the Roadmap Directives raises significant possibility of cross-fertilisation between EU law and the ECHR. A.T. appears to be a first example of this.
The A.T. v Luxembourg judgment
You cannot waive a right that you do not have
The judgment clarifies that since there was in fact no legal right to a lawyer at the initial questioning – this was the case at the time in Luxembourg for the narrow category of persons questioned following surrender under a European Arrest Warrant (EAW) – the purported ‘waiver’ of that right was inoperative (at 71): you cannot waive an entitlement which the law does not confer upon you.
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 relying on the statements A.T. made in that context and not taking any remedial action to repair the prejudice caused by the restriction on A.T.’s right to a lawyer (at 72), e.g. excluding his statements (see 73).
It is worth noting, in that regard, that Luxembourg had argued that no violation of Article 6 arose because A.T. had denied the offences (see 55). The logic is that if you don’t confess, the absence of a lawyer does not make any difference. Fair Trials had argued for a more protective line (see 61). Relying on the Article 12 of the Access to a Lawyer Directive, which refers to ‘statements’, not simply confessions, we noted that a person might compromise themselves in other ways, e.g. saying too much or too little, speaking confusedly under 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 and that his early statements, though denials of the allegations, were held against him in that way (at 72). This is a useful addition to a line of cases which had so far only dealt with mostly with total silence, flat denials or clear confessions.
Access to a lawyer includes a right to prior consultation before questioning
The judgment is, though perhaps most notable for its emphasis on the importance of a consultation between lawyer and client prior to questioning (at 86). This is a new development of the case-law, complementing Navone v. Monaco and other cases (79) establishing that there be should assistance during questioning. 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 Article 6 ECHR (at 89).
Roadmap aficionados will note that in so finding, the ECtHR took account of Article 3(3)(a) of the Access to a Lawyer Directive which articulates this requirement in black and white. This is the first time one of the Roadmap Directives has been referred to in the interpretation of the ECHR, and it raises questions as to possible convergence and how the ECtHR is going to react to rulings from the Court of Justice of the EU (‘CJEU’) on the Roadmap Directives (see comments below).
Access to the case file prior to questioning?
On one point, however, the ECtHR will have disappointed some people. Lawyers in Spain, France and Luxembourg in particular have been arguing for some time that legal assistance is not effective if the lawyer does not have access to the case file prior to questioning, in order to advise the client on an informed basis (more here). The A.T. case gave the ECtHR a chance to say whether such a right arose under the ECHR, and it – or this Chamber, at least – has taken a negative view.
What remains now on this point 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 police case file prior to questioning (see their pleading). The conservative view, which seems closer to the text of the provision, sees this as relevant only to judicial review of detention, and it appears the ECtHR shares the view (see 80). But bearing in mind that (as in Luxembourg) the questioning may be done by a judge who also makes a first decision on detention, the broader view is credible. It seems likely that there will be further instalments in this particular discussion.
Disposal: ensure a fair (re)trial next time
Disinformation about human rights abounds, so it is worth reminding oneself what such an ECtHR judgment actually entails. A.T., accused of serious offences, does not now walk free. The ECtHR did not order his release (it cannot), or award damages. The Chamber, under ECtHR President Dean Spielmann, simply indicated that Luxembourg should give him a retrial compliant with Article 6 ECHR (97). Prosecutors had other evidence, besides the statements made without a lawyer, with which to prosecute, so their case is not lost. The retrial should simply be fair, in line with ECHR and EU norms.
Interaction between EU law and ECHR has looked unappealing of late. Not long ago, in Tarakhel v. Switzerland, found for the second time that execution of the EU’s ‘Dublin’ system for return of asylum-seekers to other Member States would infringe human rights protected by the ECHR. The CJEU, apparently miffed, then issued its alarming comments in Opinion 2/13, stating that, in obliging Member States to question each other’s compliance with human rights despite EU law obligations of mutual trust, the EU’s proposed accession to the ECHR would interfere with the EU legal order.
For 50 years, the CJEU has dealt with individuals invoking Treaty rights in order to defeat protectionist trade rules, enhance free movement and bring countries closer together in ever closer union. Now all of a sudden the countries are trying to cooperate in justice and home affairs, the individual is invoking rights to resist this, and the CJEU appears concerned. If one adopts this rationale, the issue can be confined to the cross-border sphere.
In the internal context, where cooperation interests are not at issue, a more progressive trajectory can be envisaged. When the CJEU’s Elgafaji judgment recognised that Article 15(c) of the Qualification Directive was intended to provide an additional layer of protection against refoulement for those escaping situations of indiscriminate violence, the ECtHR quickly responded in Sufi and Elmi v. UK that it was ‘not persuaded’ the standard under Article 3 ECHR was any lower, going a step further than it had in earlier cases. One can discern an element of upward competition here.
What will happen with the Roadmap Directives remains to be seen. The point decided in A.T. v Luxembourg – that one should have a chance to talk with one’s lawyer before being questioned – appears uncontroversial and would have been adopted anyway by the ECtHR. But nevertheless, it offers an example of EU law setting a standard, which the ECtHR then finds exists in the ECtHR too. It will, in that light, be interesting to see how the CJEU will treat new questions without obvious answers in the existing-case-law of the ECtHR, and what the reaction will be from Strasbroug.
The first case on the Roadmap Directives (Case C-216/14 Covaci) is pending, and the comments in the Advocate General Bot Opinion of 7 May 2015 are interesting from that perspective: these ‘minimal rules’ should be seen as ‘irreducable’ fundamentals (32); they should be approached expansively, as strengthening defence rights will strengthen judicial cooperation (33); and, while the Roadmap Direcives respect national legal cultures, national procedures will have to ensure their useful effect or face striking down by the national courts, with the CJEU on standby to give preliminary rulings (34). His conclusions on the specific case require a separate blog post, but this proposed interpretative logic is notable: it suggests, as we noted last year, that the counterpart to CJEU’s robust defence of mutual trust could be a robust approach to the Roadmap Directives designed to strengthen that trust. If the CJEU’s rulings are expansive, the ECtHR might then be slow to aim any lower, with consequent impact outside the EU. But here one goes further into the realm of speculation.
Of course, for anything to happen, lawyers need to put the issues before the courts. Working with the Legal Experts Advisory Panel (‘LEAP’), our pan-EU criminal law network, we offer free legal training, designed to share ideas across jurisdictions and encourage innovative litigation. The ECtHR listened to LEAP in A.T., and we can help in national cases too (see our comparative law opinions in cases before the Swedish Supreme Court (here) and Belgian Court of Cassation (here)). The idea is to participate in the developing EU-ECHR story and use it as an opportunity to improve defence rights across Europe. If you would like to get involved, contact Fair Trials’ Legal & Policy team.
Another version of this post appeared on the Fair Trials website.
Barnard & Peers: chapter 25