European Court of Human Rights

Information Note on the Court’s case-law No. 155

August-September 2012

Simons v. Belgium (dec.) - 71407/10

Decision 28.8.2012 [Section II]

Article 5

Article 5-1

Procedure prescribed by law

Detention alleged to be unlawful on account of lack of legal representation during police custody and questioning by investigating judge: inadmissible

 

Facts - In March 2010 the police were informed that a man had been stabbed with a knife. At the scene, the applicant stated that the victim was her boyfriend and that she was responsible for the stabbing. She was arrested the same day and interviewed as a suspect by the investigating officers. She was not assisted by a lawyer nor, she alleged, was she informed in advance of her right to remain silent. She admitted having stabbed her boyfriend and, in reply to the investigating officers’ questions, gave a detailed account of the incident. The following day she gave evidence before an investigating judge. Again, she was not assisted by a lawyer. The applicant confirmed the statement she had made to the police. The investigating judge then informed her that she was being charged and that she had the “right to choose a lawyer”, and issued a warrant for her arrest. In June 2010 the indictments division ordered the applicant’s release on the grounds that her detention was no longer required in the interests of public safety. The investigation is still in progress and the case is not yet ready for trial.

Law - Article 5 § 1: The Court had to ascertain whether there was a “general principle” implicit in the Convention according to which all persons deprived of their liberty had to have the possibility of being assisted by a lawyer from the beginning of their detention. The Court’s case-law had established the principle that persons “charged with a criminal offence” within the meaning of Article 6 of the Convention had the right to be assisted by a lawyer from the start of their time in police custody or pre-trial detention and, where applicable, during questioning by the police and the investigating judge. However, that was a principle inherent in the right to a fair trial, which was based specifically on the third paragraph of Article 6, concerning, in particular, the right of any person “charged with a criminal offence” to legal assistance of his or her own choosing. It was not a “general principle” implicit in the Convention, such principles being by definition overarching in nature. The general principles implicit in the Convention to which the case-law on Article 5 § 1 referred were the rule of law and the related principle of legal certainty, the principle of proportionality and the principle of protection against arbitrariness. Hence, while the impossibility in law for persons “charged with a criminal offence” and deprived of their liberty to be assisted by a lawyer from the start of their detention had a bearing on the fairness of the criminal proceedings in question, it could not be inferred from that fact alone that their detention was contrary to Article 5 § 1 as failing to satisfy the lawfulness requirement inherent in that provision.

Conclusion: inadmissible (manifestly ill-founded).

 

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