European Court of Human Rights

Information Note on the Court’s case-law No. 179

November 2014

Aras (no.2) v. Turkey - 15065/07

Judgment 18.11.2014 [Section II] See: [2014] ECHR 1294

Article 6

Article 6-3-c

Defence through legal assistance

Lack of effective legal assistance during questioning: violation

Article 6-1

Fair hearing

Lack of effective legal assistance during questioning: violation

Facts - The applicant was arrested on suspicion of qualified fraud. While he was being questioned by the investigating judge, his lawyer was allowed to enter the hearing room but not to take the floor or advise his client. The applicant was then placed in detention and eventually convicted of involvement in offshore banking activities.

Law - Article 6 § 3 (c) in conjunction with Article 6 § 1: The applicant’s access to a lawyer had been restricted pursuant to the relevant law in force at that time. The presence of the applicant’s lawyer in the hearing room during the questioning had been merely passive as he had not had any possibility to intervene in order to ensure respect for his client’s rights. In fact, the applicant had not been given an opportunity to consult his lawyer, who in turn had not been allowed to take the floor and defend him. Furthermore, the restriction imposed on his access to a lawyer had been systematic and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. The Court recalled the importance of the investigation stage for the preparation of criminal proceedings and stressed that Article 6 § 1 required access to a lawyer from the start of questioning of a suspect by the police, unless it was demonstrated in the particular circumstances of the case that there were compelling reasons to restrict that right. Accordingly, the mere presence of the applicant’s lawyer in the hearing room could not be considered to have been sufficient by Convention standards.

Conclusion: violation (five votes to two).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Salduz v. Turkey [GC], 36391/02, 27 November 2008, Information Note 113 and, generally, the Factsheet on Police arrest and assistance of a lawyer)

 

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