European Court of Human Rights

THIRD SECTION

CASE OF W.R. v. THE NETHERLANDS

(Application no. 989/18)

JUDGMENT
 

STRASBOURG

27 August 2024

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of W.R. v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

 Pere Pastor Vilanova, President,
 Jolien Schukking,
 Georgios A. Serghides,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Oddný Mjöll Arnardóttir, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 989/18) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Dutch national, Mr W.R. ("the applicant"), on 2 January 2018;

the decision to grant the applicant anonymity, in accordance with Rule 47 § 4 of the Rules of the Court;

the decision to give notice to the Government of the Kingdom of the Netherlands ("the Government") of the complaint concerning the lack of legal assistance during police interviews and to declare the remainder of the application inadmissible;

the parties' observations;

Having deliberated in private on 25 June 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the alleged unfairness of the criminal proceedings against the applicant due to the lack of legal assistance during the initial interviews by the police and during an on-site visit to places relevant to the investigation. The main legal issue in these criminal proceedings was whether the applicant had killed the victim with premeditation.

THE FACTS

2.  The applicant was born in 1974. At the time of the introduction of the application he was detained in Middelburg. He was initially represented by Mr T. Kodrzycki and Mr R. Korver, both lawyers practising in Amsterdam. Subsequently, Mr T. Kodrzycki was replaced by Mr. Th.O.M. Dieben, also a lawyer practising in Amsterdam.

3.  The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.

4.  The facts of the case may be summarised as follows.

1. CRIMINAL INVESTIGATION

5.  On 11 January 2014 the police were informed that Ms C.O. ("the victim") had gone missing. She had last been seen on 10 January 2014 at the home of her ex-husband, the applicant. When the police visited the applicant on 11 January 2014 in the context of the investigation, they detected a pungent odour of a combustible substance at the front door of the house and saw that he had an injury on his hand. The police found a partly burnt box in the garage and observed stains on the floor and multiple blood spatters in various places in the applicant's house and garage. At first the applicant claimed that his children had set the box on fire. Later he said that he had set the box alight himself and had thrown several objects that had blood on them into it because he thought that he was going to be considered a suspect in the victim's disappearance. The applicant also gave conflicting accounts of how he had injured his hand.

6.  On 12 January 2014, at or around 1.55 a.m., the applicant was arrested on suspicion of manslaughter. He was informed that a lawyer would be assigned to him free of charge to provide legal assistance prior to questioning or that he could instead consult with a lawyer of his own choosing. The applicant did not respond when asked whether he wished to consult with an assigned lawyer. The reporting officer accordingly notified the Legal Aid Duty Roster Service.

7.  When the applicant was ordered into police custody by an assistant public prosecutor, at or around 3.54 a.m., the only statement he gave was that he would speak to the police later.

8.  At or around 10.30 a.m., the applicant consulted with his lawyer.

9.  When questioned by the police in the evening of that day, the applicant was informed of his right to remain silent. He was further informed that he was suspected of manslaughter or murder of Ms C.O. He gave a detailed confession in which he admitted that, and how, he had violently killed the victim. The applicant also stated that he wished to cooperate and show the police several locations that were relevant to the investigation.

10.  From 8.12 p.m. to 9.38 p.m. the police and the applicant undertook an on-site visit, during which the applicant gave instructions that led to the discovery of the victim's body, the victim's bag with some of her belongings, and two discarded tarpaulins.

11.  On 13 January 2014, at 3.50 p.m., the applicant was questioned again, after having been informed of his right to remain silent. He spoke at length and in detail about the events of 10 January 2014 and described, among other things, what had happened earlier that day. In particular, he stated that he had felt belittled and almost blinded by anger following a telephone conversation with the victim in the afternoon of 10 January 2014, that while driving home he had considered different scenarios, that he had wanted to kill the victim then, that he had conceived a plan for killing her, and that upon his arrival he had laid out a knife and two tarpaulins in the garage with a view to taking her life and disposing of the body. He stated that shortly afterwards he came to his senses when he was sitting on the sofa. He said that the victim and he had gone into the garage twice: the first time because he was so angry that he wanted to do something to her, after which he came to his senses again and returned to the house, and shortly after for a second time, because he did not want one of their children to overhear their fight. He then described in detail how the verbal fight had turned into physical violence and how he had killed the victim. The applicant indicated once again that he was willing to cooperate.

12.  On 14 January 2014 the applicant appeared before the investigating judge for a hearing of an application by the public prosecutor for an order for his initial detention on remand. During this hearing and in the presence of his lawyer, the applicant stated that he stood by the statements he had made to the police and that he was willing to cooperate fully in the investigation. Prior to the hearing the applicant had a consultation with a forensic psychologist, who reported that during the consultation the applicant's awareness and concentration had been good, that he had answered all questions extensively, that he was above-average intelligent, and that there were no signs that he suffered from acute psychiatric problems such as depression, anxiety or psychosis.

13.  On 20 January 2014 the police questioned the applicant again, after having informed him of his right to remain silent. Recounting the events of 10 and 11 January 2014, the applicant described, among other things, the way in which he had cleared away items near the victim's body in the garage, and how he had transported the victim's body in the boot of his car to a waterfront and rolled her into the water. He also described that he had contemplated setting the garage on fire using methylated spirits, and that he had instead set fire to a box with items in the garage and sprinkled methylated spirits in the boot of his car.

14.  On 29 January 2014 and 6 February 2014, the police questioned the applicant again, after having informed him of his right to remain silent. During these sessions he provided more information about the increasingly troubled history of his relationship with the victim. Contrary to his earlier statement (see paragraph 11 above), he now claimed that he could not remember whether he had laid out a knife in the garage prior to taking the victim's life.

15.  On 27 August 2014 the applicant made a statement before the investigating judge and in the presence of his lawyer, after having been informed of his right to remain silent. During that hearing the applicant again gave an extensive account of the events leading up to 10 January 2014 and on that day itself. He further stated that while he had not been pressured by the police when giving his statements on 12 and 13 January 2014, he wished to retract parts that had been based on his "assumptions" (aannames) or "fragmented memories" (herinneringen aan flared) of what had happened, rather than on facts. In particular, he wished to retract the earlier statement that he had laid out a knife and tarpaulins in the garage before the victim's arrival. He stated that he had no idea how the knife and the tarpaulins got into the garage. He also wished to retract the statement that he had planned to kill the victim. He stated that he had considered several scenarios, including "doing something to the victim", but that he was too confused to make a choice. He stated that the next moment he remembered was in the garage when he was putting the tarpaulins there, which frightened him. He then thought that "this was not what he wanted" and came to his senses on the sofa. Furthermore, he stated that the reason he went to the garage with the victim was not to harm her, but only to prevent one of their children from overhearing the fight. More generally, he denied that he had taken the victim's life with a preconceived plan.

16.  An official record of the interview in the evening of 12 January 2014 was drawn up verbatim; official records of the other interviews were drawn up in question-and-answer format. The official records of these interviews, which had taken place without his lawyer being present, were made available to the defence. All police interviews were audio-visually recorded.

2. PROCEEDINGS IN THE REGIONAL COURT

17.  The applicant was summoned to appear before the Zeeland-West-Brabant Regional Court (rechtbank) on suspicion of manslaughter or murder. He was represented by a lawyer of his own choosing.

18.  According to the official record of the trial hearing which took place on 4 November 2014, the defence argued that in the days immediately following the victim's death the applicant had been in such a poor psychological and physical state that the police should not have questioned him. The defence also submitted that the applicant had not (or not sufficiently) been informed of his right to legal assistance and that the applicant's lawyer should have been present during those interviews. The defence argued that the applicant's statements made during police interviews on 12 and 13 January 2014 and the investigative findings obtained during the on-site visit should be excluded from evidence because of an irreparable breach of procedural rules within the meaning of Article 359a of the Code of Criminal Procedure (Wetboek van Strafvordering; see paragraph 44 below).

19.  Further, also according to the official record of the hearing of 4 November 2014, the applicant stated, among other things, that after returning home on 10 January 2014 he had contemplated "to do something" (iets aandoen) to the victim and that he had laid out two tarpaulins in the garage. He also stated that when questioned by the police on 12 and 13 January 2014, he had described how at that time he had thought things had gone.

20.  In a judgment of 18 November 2014, the Regional Court, addressing the arguments of the defence, held that the police had acted in accordance with the then applicable Instruction on legal assistance for police questioning (Aanwijzing rechtsbijstand politieverhoor; the Instruction has been amended since, see paragraph 41 below) and the Salduz case-law, as interpreted by the Supreme Court (see paragraphs 38-39 below). It noted that it followed from the verbatim transcript of the interrogation of 12 January 2014 that the investigators had been extremely cautious in their treatment of the accused, that they repeatedly reminded him that he should only state what he still knew, and that he could take breaks and eat and drink if he wanted. The court further noted that a forensic psychologist had found no indication that the applicant had been unfit for questioning (see paragraph 12 above). Accordingly, no irreparable breach of procedural rules had occurred, and the applicant's statements made during questioning by the police on 12 and 13 January 2014, as well as the investigative findings obtained during the on-site visit on 12 January 2014, could be admitted in evidence.

21.  The Regional Court noted that the applicant had confessed to the police in several interviews, as well as before the investigating judge on 27 August 2014 and during the court hearing on 4 November 2014, that - and how - he had taken the victim's life, and that his detailed statements were supported by the forensic findings. The court held that the charge of manslaughter had been lawfully and convincingly proved (wettig en overtuigend bewezen) and it sentenced the applicant to ten years' imprisonment.

22.  With respect to the charge of murder, the Regional Court noted that in the applicant's case premeditation could in fact only be deduced from his own statements. It considered that based on the available lawfully obtained evidence, it might be deemed to have been proved that the applicant had taken the victim's life with premeditation. The court added that it must, however, also have the conviction that murder had actually occurred. The applicant's statements about the events and his mindset at the time - which it held could not be considered completely implausible - had left the Regional Court in doubt. Noting that in the Dutch criminal justice system such doubt should be interpreted in favour of the defendant, it acquitted the applicant of murder.

3. PROCEEDINGS IN THE COURT OF APPEAL

23.  On 24 November 2014 the Public Prosecutor's Office lodged an appeal against the first-instance judgment, requesting that the applicant be convicted of murder and sentenced to twelve years' imprisonment.

24.  The applicant did not lodge an appeal.

25.  In reply to the prosecutor's appeal, the defence argued that it could not be proved that the applicant had acted with premeditation. In that connection the defence reiterated that the applicant's statements made during the initial police questioning could not be admitted in evidence because they were the result of irreparable breaches of procedural rules committed during the investigation (see paragraph 18 above), in violation of Article 6 of the Convention. Without those statements, there remained insufficient evidence to establish premeditation. Even with those statements, murder could not be proved because, according to the defence, the parts that contained elements of premeditation were based on his assumptions rather than on his memory of what had occurred on 10 January 2014.

26.  According to the official record of the hearing at the Court of Appeal of 26 November 2015, the applicant repeated that several scenarios had flashed through his head, including "doing something" to the victim and that he had taken the two tarpaulins to the garage before her arrival. He also repeated that when he was sitting on the sofa, he came to his senses. He said that he had then thought for a moment and knew it was totally wrong (foute boel). In answer to questions from the Court of Appeal as to why he did not remove the tarpaulins from the garage at that stage, although there had been sufficient time to do so, he said that he had not thought about the tarpaulins anymore after having fetched the children from school.

27.  In a judgment of 10 December 2015, the 's-Hertogenbosch Court of Appeal (gerechtshof) quashed the Regional Court's judgment, convicted the applicant of murder and sentenced him to fourteen years' imprisonment. The appellate court held that there were no grounds for exclusion of evidence because the defence had not provided clear reasons, on the basis of the factors in Article 359a § 2 of the Code of Criminal Procedure (see paragraph 44 below), as to why the alleged breaches of procedural rules should lead to such a result. It added that during the investigation there had been no violation of the Convention because the questioning had taken place in accordance with the then applicable Instruction on legal assistance for police questioning (see paragraph 41 below) and the Salduz case-law, as interpreted by the Supreme Court (see paragraphs 38-39 below).

28.  The Court of Appeal noted that the applicant had been advised of his right to consult with a lawyer prior to the first substantive interview on 12 January 2014 and he had indeed consulted with his lawyer later that day. Moreover, the applicant's expressly and repeatedly declared willingness to cooperate and the contents of his statements of 12 and 13 January 2014, as well as the consultation with a forensic psychologist on 14 January 2014 (see paragraph 12 above), gave no indication whatsoever that he had been unfit for questioning or misunderstood his rights.

29.  The appellate court found the defence's assertion that parts of the applicant's statements during the police interviews on 12 and 13 January 2014 had been untruthful and based on assumptions to be unconvincing and unsubstantiated. In that connection, the court held:

"[I]n the police interrogations of 12 and 13 January 2014, the investigators asked open questions, to which the accused gave detailed and consistent answers. But also afterwards, during the interrogations of 29 January and 6 February 2014, the accused made extensive statements in response to (more closed) questions. The Court of Appeal fails to see that the statements thus made by the accused, especially where they concern facts or circumstances indicating a premeditated plan to take [the victim]'s life, should be regarded as untrue. The Court of Appeal further observes that the accused did not substantiate what the assumptions he had made would have been based on.

... Furthermore, the accused was reminded that he did not have to 'please' the investigators and should only state what he himself knew. That the accused - by his own admission out of guilt and/or to please the investigators - made assumptions which he later claimed were incorrect, finds no support in any other, objective evidence, while the statements he made to the police are in fact confirmed in essential parts by objective evidence.

In view of the above, the court considers it implausible that the accused would have made assumptions in the first police statements and that those assumptions would be incorrect. Therefore, the court sees no reason not to use the statements the accused made to the police as evidence."

30.  The Court of Appeal concluded that there was sufficient and convincing evidence of premeditation. In that regard the court considered:

"It follows from the statements which the accused made to the police that during his car ride [home], the idea first arose in his mind to do something to [the victim], as one of three scenarios to end the difficult communication between the two of them. To implement that scenario, the accused made preparations after he got home around 2.30 p.m., therefore almost two hours before he actually used violence against [the victim], by laying out two tarpaulins and a knife in the garage. He then thought, according to his own statement, that he was going to do something to [the victim] on the tarpaulin with the knife. He was then startled by his own thoughts and behaviour and sat down on the sofa in the living room ... The accused stated that at that moment he came to his senses and thought that taking [the victim]'s life was not a solution. The court infers from that statement that at that moment the accused was able to reflect on his earlier decision to take [the victim]'s life. He actually reflected at that moment on the meaning and consequences of his decision to take her life. Unlike counsel [for the defence], the court is of the opinion that at that moment the accused did not abandon his earlier thought of taking [the victim]'s life. The outward appearance of his behaviour did not indicate this, as the accused left the tarpaulin and the knife in the garage and, moreover, he actually killed [the victim] afterwards as he had initially thought of doing: in the garage, on the tarpaulin and using a knife (in addition to the other physical violence). In the Court of Appeal's opinion, this by itself had made it sufficiently plausible that the accused did not distance himself from his plan to take [the victim]'s life. When [the victim] subsequently arrived at his residence at about 4.21 p.m., the accused executed his preconceived plan to take her life in the garage in a short period of time.

The Court of Appeal is of the opinion that the accused robbed [the victim] of her life with premeditation and it has attached significance to the external features of the conduct of the accused. The court considers that this conclusion is reinforced in view of the circumstance that the accused took [the victim] to the garage where he killed her, within at most eight minutes of her arrival at the accused's residence ...

... In the court's opinion, there was an execution of a scenario that the accused had conceived earlier that afternoon. The suspect's anger already increased during the car ride [home] and led to the laying out of the tarpaulins and the knife, to a moment of reflection on his intended act and its consequences and, finally, to an even greater anger from the last telephone conversation with [the victim] and after her entering his house, and the suspect proceeded to kill [the victim].

... The accused proceeded to implement a scenario conceived well in advance and, in any case, contemplated the consequences of his intended decision when he sat down on the sofa in the living room ... It cannot be said that a short period of time elapsed between the decision and its execution, nor that the accused had an opportunity for reflection only during the execution of the decision."

31.  The finding that the applicant was guilty of murder was based on the following items of evidence:

- an official record of the applicant's arrest, dated 12 January 2014;

- an official record of findings concerning an interview with the applicant on 12 January 2014;

- an official record of the interview of the applicant, dated 13 January 2014;

- an official record of findings concerning the on-site visit on 12 January 2014;

- an official record of the interview of the applicant, dated 20 January 2014;

- the statement made by the applicant at the hearing of the Court of Appeal on 26 November 2015;

- official records of findings, dated 14 January 2014, 20 January 2014 and 17 March 2014, concerning the discovery of two tarpaulins, part of a knife and a bag containing the victim's belongings;

- official records of findings, dated 17 January 2014, 18 March 2014 and 24 March 2014, concerning the examination of the applicant's and victim's phone data and the applicant's social media account;

- a medical report, dated 10 January 2014, concerning a cut on the applicant's hand;

- official records of interviews with witnesses, dated 14 January 2014 (concerning an employee of a petrol station where the applicant had been on 10 January 2014) and 16 January 2014 (concerning an individual who had seen the applicant at a waste disposal site on 11 January 2014);

- official records of findings, dated 30 January 2014 (concerning security camera footage of a petrol station where the applicant had been on 10 January 2014) and 13 February 2014 (concerning a sales receipt of a supermarket where the applicant had been on 10 January 2014);

- an official record of the crime scene, dated 28 January 2014;

- a medical report by a physician and pathologist of the Netherlands Forensic Institute, dated 11 April 2014, concerning the cause of death of the victim;

- an official record of findings, dated 15 January 2014, concerning the identification of the victim by family members;

- an official record of the forensic examination, dated 13 May 2014, concerning the discovery of traces of blood on a lawnmower in the applicant's garage; and

- official forensic reports, dated 16 January 2014 (concerning a cut on the applicant's hand) and 23 April 2014 (concerning traces of blood discovered on a tarpaulin).

4. PROCEEDINGS IN THE SUPREME COURT

32.  The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). In his grounds of appeal, he complained about, among other things, the Court of Appeal's conclusion in respect of premeditation and that court's rejection of the defence's argument concerning the right of a suspect to be assisted by a lawyer during police questioning. Relying, inter alia, on Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016), the defence took the position that the Court of Appeal had wrongly followed the case-law of the Supreme Court on this issue (see paragraphs 38-39 below) because that case-law could not be regarded as compliant with the Court's case-law. The defence also complained that the proceedings before the Supreme Court had not complied with the reasonable time requirement under Article 6 § 1 of the Convention.

33.  In his advisory opinion of 14 March 2017, the Procurator General (Procureur-Generaal) at the Supreme Court recommended that the appeal on points of law be dismissed, except for the complaint concerning the reasonable time requirement. Citing paragraphs 251, 257 and 260 of the Ibrahim and Others judgment, the Procurator General observed that in cases such as the present one - where a suspect was informed of his right to remain silent and provided the opportunity to consult with a lawyer prior to, but not during, police questioning - the "fairness of the proceedings as a whole" had to be assessed. He noted that the (old) practice, based on Supreme Court's case-law, of police interviews of suspects with prior consultation rights but without assistance of a lawyer during questioning, did not necessarily constitute a violation of Article 6 §§ 1 and 3 (c) of the Convention in the light of the Court's case-law.

34.  As regards the case at hand, the Procurator General concluded that, even if restrictions on the right to having a lawyer present during police questioning and in certain other investigative acts were not unproblematic, there were - considering the proceedings as a whole - insufficient indications for the applicant's claim that his right to a fair trial had been violated.

35.  In a judgment of 4 July 2017, the Supreme Court referred to the relevant considerations by the Court of Appeal (see paragraph 30 above) and held that that court had given sufficient reasons for holding that the applicant had acted with premeditation.

36.  With respect to the right to legal assistance during police interviews on 12 and 13 January 2014 and the Court of Appeal's decision not to exclude from evidence those statements made in those interviews, the Supreme Court held that the Court of Appeal had erred in law by requiring a further explanation as to why the breach of procedural rules alleged by the defence in relation to the exercise of the right to consult with a lawyer should lead to the exclusion of evidence. To that extent this ground of appeal was considered well-founded. Nevertheless, the Supreme Court held that this did not warrant cassation because the Court of Appeal had determined that the applicant had consulted with his lawyer on 12 January 2014, prior to the first (substantive) interview regarding the applicant's involvement in the offence with which he was charged.

37.  The Supreme Court summarily dismissed the appeal in all other respects because the remaining grievances could not lead to cassation of the impugned judgment, except for the grievance concerning the reasonable time requirement. It quashed the Court of Appeal's judgment in respect of the term of the prison sentence that had been imposed. It reduced the sentence to thirteen years and nine months' imprisonment because the reasonable time requirement had not been complied with.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. RIGHT OF ACCESS TO A LAWYER IN CRIMINAL PROCEEDINGS

38.  On 27 November 2008 the Court published its judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), in which it held that Article 6 § 1 of the Convention required that, as a rule, access to a lawyer should be provided as from the first interview of a suspect by the police, unless it was demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right. At that time, no right for detained suspects to have a lawyer present during such an interview existed in the Netherlands.

39.  The Supreme Court gave its first view on the implications of this Court's findings in Salduz (cited above) in a judgment of 30 June 2009 (ECLI:NL:HR:2009:BH3079). It considered that, in view of, inter alia, policy and the organisational and financial aspects involved, the drawing up of a general arrangement on legal assistance in relation to police interviews exceeded its judicial function (rechtsvormende taak). It observed that, nevertheless, the case-law of the European Court of Human Rights raised questions which national criminal courts would be called upon to answer in cases coming before them, and for that reason the Supreme Court determined as follows:

"2.5. The Supreme Court deduces from the case-law of the European Court of Human Rights (ECHR) that a suspect who finds himself under police arrest may derive from Article 6 of the Convention an entitlement to legal assistance which consists of him being provided with the opportunity to consult a lawyer prior to being interviewed by police about his involvement in a criminal offence. However, the case-law of the ECHR does not allow for the conclusion that a suspect is entitled to have a lawyer present during police interviews.

The above entails that, prior to the commencement of the first interview, an arrested suspect is to be informed of his right to consult a lawyer. Save where he, either expressly or implicitly yet unequivocally, has waived that right, or where compelling reasons as referred to by the ECHR exist, he will have to be provided, within the limits of what is reasonable, with the opportunity to exercise that right.

2.6. The foregoing applies to arrested individuals who are adults under criminal law as well as to arrested individuals who are underage pursuant to criminal law. It must be noted that under-age suspects are in addition entitled to the assistance of a lawyer or another confidant [vertrouwenspersoon] during police interviews."

40.  On 22 December 2015 - that is, after the proceedings in the Court of Appeal in the applicant's case (see paragraphs 23-31 above) - the Supreme Court accepted, having regard to the development of the case-law of the European Court of Human Rights, as well as Directive 2013/48/EU of the European Parliament and of the Council of the European Union[1] (OJ 2013, L 294, p. 1), that a suspect who finds him or herself under police arrest has a right to legal assistance by a lawyer during police interviews, save when compelling reasons exist to restrict that right (ECLI:NL:HR:2015:3608). Since law-enforcement officers had had, prior to this judgment, no reason to suppose that the rules relating to legal assistance would be reinforced, and given that it could not be expected that they would immediately become acquainted with the judgment and its practical consequences, the Supreme Court expressed as its expectation that the right of a suspect in custody to the assistance of a lawyer during police questioning would be applied as of 1 March 2016.

41.  Subsequently, in the light of the Supreme Court's judgment of 22 December 2015 and in anticipation of the entry into force of legislation transposing Directive 2013/48/EU into national law, the Board of Procurators General (College van procureurs-generaal) announced on 10 February 2016 a number of amendments to the Instruction on legal assistance for police questioning (published in the Official Gazette (Staatscourant) 2016, no. 8884). Pursuant to these amendments, suspects were, as of 1 March 2016, to be informed of their right to be assisted by a lawyer during police questioning and enabled to give effect to that right.

42.  The Code of Criminal Procedure was amended by Acts of 17 November 2016 (Official Bulletin (Staatsblad) 2016, nos. 475 and 476) which, among other things, transposed Directive 2013/48/EU into national law and enacted the right to legal assistance prior to and during police interviews. The Acts entered into force on 1 March 2017.

43.  In a judgment of 17 December 2019 (ECLI:NL:HR:2019:1985) - that is, after giving judgment in the applicant's case (see paragraphs 35-37 above) - the Supreme Court held that in cases where interviews had been conducted without the presence of a lawyer in the period before 22 December 2015, the question of whether a defendant had had a fair trial within the meaning of Article 6 of the Convention was, in the absence of compelling reasons, to be decided with due observance of, among other things, the factors mentioned in the case-law of the European Court of Human Rights, including in particular Ibrahim and Others (cited above).

2. SANCTIONS FOR NON-COMPLIANCE WITH PROCEDURAL REQUIREMENTS BY CRIMINAL INVESTIGATION AUTHORITIES

44.  Article 359a of the Code of Criminal Procedure reads, in so far as relevant, as follows:

"1. The [trial court] can, if it appears that in the preliminary investigation procedures have been disrespected that can no longer be repaired and the legal consequences thereof do not appear from the law, determine that:

a. the gravity of the sentence be mitigated in relation to the seriousness of the defect, if the disadvantage caused by the fault can be compensated in this way;

b. the results of the investigation having been obtained by the defect may not be used in evidence;

c. the prosecution is inadmissible, if owing to the defect there cannot be an examination of the case in compliance with the principles of proper proceedings.

2. In applying the first paragraph, the [trial court] takes into account the interests served by the infringed rule, the seriousness of the defect and the disadvantage caused by it.

..."

45.  Article 359a of the Code of Criminal Procedure also applies to proceedings in the Court of Appeal (Article 415 § 1 of the Code of Criminal Procedure).

3. OTHER RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE AND THE CRIMINAL CODE

46.  Article 30 § 1 of the Code of Criminal Procedure provides that during the preliminary investigation (voorbereidende onderzoek) the Public Prosecution Service shall permit the suspect, at his request, access to the case documents (processtukken).

47.  Pursuant to Article 33 of the Code of Criminal Procedure, a suspect must be given access to the case documents as soon as the indictment has been served on him.

48.  Article 287 of the Criminal Code (Wetboek van Strafrecht) provides that anyone who deliberately deprives another of his life is guilty of manslaughter (doodslag). Article 289 provides that anyone who deliberately and with premeditation (met voorbedachten rade) deprives another of his life is guilty of murder (moord).

49.  In a judgment of 28 February 2021 (ECLI:NL:HR:2012:BR2342), the Supreme Court clarified that for the element of "premeditation" it must be established that the accused was able to reflect for some time on the decision to be taken or the decision made and did not act in an instantaneous state of mind (ogenblikkelijke gemoedsopwelling), so that he had the opportunity to think about the meaning and consequences of his intended act and to take them into account. In this connection, it further held:

"2.7.3. The question of whether premeditation exists is pre-eminently a question of weighing and evaluating the circumstances of the concrete case by the judge ... While the finding that the accused had sufficient time to consider the decision to be made or the decision taken is an important objective indication that premeditation was involved, it need not prevent the judge from giving greater weight to contraindications. These may include, for example, the circumstance that the decision-making and execution occur suddenly and impulsively, that there is only a short time span between decision and execution, or that the opportunity for deliberation only arises during the execution of the decision. Thus, certain circumstances (or a combination thereof) may ultimately lead the court to conclude that the accused did not act with premeditation in the given case ... [E]specially if premeditation does not follow directly from the evidence, the court must pay further attention to it in its reasoning for the conviction."

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

50.  The applicant complained that the criminal proceedings against him, which focused on whether the applicant had killed the victim with premeditation, had been unfair because he had not been assisted by a lawyer during the initial police interviews and during the on-site visit to places relevant to the investigation, while the statements obtained on those occasions had been admitted by the trial courts as evidence for his conviction of murder. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which read as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance ..."

1. Admissibility

51.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Merits
   1. The parties' submissions

(a)   The applicant

52.  Relying on, among other things, the judgment in Van de Kolk v. the Netherlands ([Committee], no. 23192/15, 28 May 2019), the applicant submitted that the lack in domestic law of a right to legal assistance during police questioning and on-site visits did not amount to a compelling reason to deny him the presence of a lawyer.

53.  The applicant submitted further that the Government had not succeeded in rebutting the presumption of unfairness that had arisen as a result of the lack of compelling reasons.

54.  In that connection the applicant claimed that he was a vulnerable first offender who had suffered from mild problems with anxiety, mood swings and panic attacks since the autumn of 2013, and that he had been deprived of sleep and been in an emotional state and suffering from memory loss when he had given statements to the police on 12 and 13 January 2014 and gone on the on-site visit.

55.  He further argued that the right of consultation with a lawyer prior to police question had limited value in assessing overall fairness because the domestic law at the time allowed for such a consultation of no more than thirty minutes and did not provide for a right of legal assistance during on-site visits. The applicant also argued that by informing him that he was suspected of murder only after he had had a consultation with his lawyer, the domestic authorities had deprived him of the opportunity to be effectively prepared for questions relevant to the element of premeditation and he claimed that the domestic courts had taken insufficient account of the consequences for a suspect of the absence of a lawyer when making statements.

56.  In the applicant's view, he could not be blamed for retracting parts of his statements so late because following the Regional Court's decision of 15 April 2014 to grant his request to be heard before the investigating judge, that hearing could not be carried out earlier than 27 August 2014.

57.  Lastly, the applicant maintained that the statements he had made to the police on 12 and 13 January 2014 and during the on-site visit had been the sole items of evidence of the element of the "premeditation" required for the charge of murder.

(b)   The Government

58.  As a preliminary remark the Government noted that the restrictions on the applicant's right of access to a lawyer stemmed from the fact that domestic legislation and case-law at the relevant time did not recognise such a right for adult suspects. Drawing attention to the fact that the applicant's trial had taken place well before the judgments in Ibrahim and Others (cited above) and Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018), the Government contended that at the relevant time such a right had not (yet) arisen from the Court's developing case-law. The Government called upon the Court to consider the difficulties that the passage of time and the development of its case-law could have entailed for the domestic courts and law enforcement.

59.  Applying the two stages of the test developed in the Court's case law, the Government acknowledged that the criterion of "compelling reasons" was a stringent one and that the lack of a provision in national legislation or the interpretation of the law by the domestic courts at the time, were not compelling reasons that justified restrictions to the right of access to a lawyer. Observing that the absence of compelling reasons did not lead in itself to a violation of Article 6, the Government submitted that when assessing the specific facts of the present case in the light of the factors indicated in the Court's case law (see paragraph 72 below), it could not be said that the criminal proceedings against the applicant, when considered as a whole, were rendered unfair by the admission in evidence of the applicant's initial statements. In that connection the Government drew the Court's attention to the following.

60.  Firstly, the Government emphasised that the domestic legal framework applicable at the time of the applicant's trial (that is, the Instruction on legal assistance for police questioning and case-law; see paragraphs 39-42 above) had been applied correctly. The Government noted in particular that the applicant had been offered an opportunity to consult with his lawyer prior to the first substantive interview, of which he had availed himself, and that he had repeatedly been informed of his right to remain silent. The Government submitted further that he had had the opportunity to prepare his defence effectively and to challenge the authenticity of the evidence and oppose its use.

61.  Referring to the Court of Appeal's findings (see paragraphs 28-29 above), the Government further maintained that there was no reason to doubt the reliability or accuracy of the applicant's statements, which had also been consistent. It had been established that the applicant had been fit for questioning during the initial police interviews and repeatedly expressed a willingness and ability to cooperate. The applicant was not particularly vulnerable by reason of age or mental capacity and had no difficulties expressing himself. He had also given consistent and extensive statements at later dates - for example, on 29 January and 6 February 2014, and at the hearing before the Court of Appeal on 26 November 2015, each time in the presence of his lawyer - that he had killed the victim.

62.  The Government pointed out that it was not until 27 August 2014 (thus not "promptly") that the applicant had retracted parts of his statements of 12 and 13 January 2014. The Government also drew the Court's attention to the fact that the Court of Appeal had found the argument that the applicant's earlier statements had been untruthful to be unconvincing. The appellate court noted that the police officers who conducted the interviews on 12 and 13 January 2014 had asked open-ended questions to which the applicant had given detailed and consistent answers that were also consistent with his responses to questions during the interviews of 29 January and 6 February 
2014.

63.  Lastly, the Government submitted that the applicant's conviction for murder by the appellate court had been based on a large body of evidence, including evidence independent of and unrelated to his statements to the police such as telephone communications data and forensic evidence, and that the rulings of the domestic courts had been extensively reasoned in factual and legal terms.

2. The Court's assessment

(a)   General principles

64.  After its judgment in Salduz (cited above), the Court further clarified the general principles to be applied in cases concerning a restriction on the right of access to a lawyer and fairness of the proceedings in Ibrahim and Others (cited above, §§ 249-74) and Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, ECHR 2017 (extracts)). The Court confirmed these principles in Beuze (cited above, §§ 119-50).

65.  The Court reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are "compelling reasons" for doing so. However, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. When assessing whether compelling reasons have been demonstrated, it is important to ascertain whether the decision to restrict legal advice had a basis in domestic law and whether the scope and content of any restrictions on legal advice were sufficiently circumscribed by law so as to guide operational decision-making by those responsible for applying them (see Ibrahim and Others, §§ 258-59, and Simeonovi, §§ 116-17, both cited above).

66.  Whilst the absence of compelling reasons does not in itself amount to a violation of Article 6 of the Convention, such absence weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation (see Ibrahim and Others, cited above, §§ 263 and 265). The onus is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Beuze, cited above, § 145). The Court must apply "very strict scrutiny" when assessing the overall fairness of the proceedings (compare Beuze, cited above, § 165, and Kohen and Others v. Turkey, nos. 66616/10 and 3 others, § 57, 7 June 2022).

67.  When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, a non-exhaustive list of factors, drawn from the Court's case-law (see Beuze, cited above, § 150) should, where appropriate, be taken into account.

(b)   Application of the general principles to the present case

68.  The Court considers that, having been arrested on suspicion of a criminal offence and interviewed by the police, the applicant was subject to a "criminal charge" within the meaning of its case-law (see Ibrahim and Others, § 249; Simeonovi, §§ 110-11 and 121; and Beuze, § 124, all cited above). As such, the guarantees laid down in Articles 6 §§ 1 and 3 (c) as interpreted by the Court meant that the applicant had a right to be assisted by a lawyer during police interviews, unless there were compelling reasons to restrict that right and subject to an assessment of the overall fairness of the proceedings.

(i)      Whether there was a restriction on the applicant's right of access to a lawyer and, if so, whether there were compelling reasons to restrict that right

69.  In Van de Kolk (cited above, §§ 17-18 and 32) the Court observed that in August 2009 - when the applicant in that case was interviewed by the police - there was no right in the Netherlands for adult suspects to have legal assistance during police questioning. It follows from the timeframe and scope of the development of domestic legislation and case-law on this matter (see paragraphs 38-43 above) that in January 2014, when the applicant in the present case was interviewed by the police, such right did still not exist (see also Van de Kolk, cited above, §§ 17-21) and he was consequently questioned by the police without legal assistance other than a prior consultation. The applicant's right to a lawyer during the preliminary investigation stage of the proceedings was thus restricted.

70.  The Court reiterates that a general and mandatory restriction on the right to be assisted by a lawyer during the pre-trial phase of criminal proceedings does not constitute a compelling reason (see Salduz, cited above, §§ 56 and 61; A.T. v. Luxembourg, no. 30460/13, §§ 69 and 71, 9 April 2015; and Beuze, cited above, §§ 138, 142 and 160-61). Furthermore, the Government have not demonstrated the existence of any exceptional circumstances which could have justified the restrictions on the applicant's right, and it is not for the Court to ascertain such circumstances of its own motion (see Simeonovi, § 130, and Beuze, § 163, both cited above).

71.  The Court observes that domestic law and practice has since changed. Pursuant to amendments to the Instruction on legal assistance for police questioning, suspects have, as of 1 March 2016, the right to be assisted by a lawyer during police questioning (see paragraph 41 above), and amendments to the Code of Criminal Procedure which entered into force on 1 March 2017 granted the right to legal assistance prior to and during police interviews (see paragraph 42 above). It must be noted, however, that the applicant was unable to benefit from those provisions at the time of his police interviews and the on-site visit in January 2014 (see, mutatis mutandis, Beuze, § 162, and A.T. v. Luxembourg, § 70, both cited above; see also Kalēja v. Latvia, no. 22059/08, § 63, 5 October 2017).

(ii)    The fairness of the proceedings as a whole

72.  The Court is called upon to examine, in the light of a list of non-exhaustive factors set out in its case-law (see paragraphs 66-67 above) whether the restrictions on the applicant's right to a lawyer during the initial police interviews and the on-site visit were such as to prejudice the overall fairness of the criminal proceedings against him through the lens of Article 6 §§ 1 and 3 (c) of the Convention.

(α)     Whether the applicant was vulnerable

73.  The Court notes that at the relevant time the applicant was a thirty-nine year old management consultant who was found to be above-average intelligent (see paragraph 12 above). He had no difficulties expressing himself (see also Leka v. Albania, no. 60569/09, § 108, 5 March 2024, and Doyle v. Ireland, no. 51979/17, § 85, 23 May 2019; see a contrario Knox v. Italy, no. 76577/13, § 160, 24 January 2019). While a police interview is inevitably a stressful event from a suspect's perspective, it cannot be said that the applicant was in a greater state of vulnerability than that in which persons interviewed by investigators would generally find themselves, or that he had to be deemed unfit or unwilling to cooperate. In that regard the Court observes that, as pointed out by the Government, it follows from the findings on this issue by the Regional Court (see paragraph 20 above) and the Court of Appeal (see paragraph 28 above) - which courts referred, amongst other things, to his consultation with a psychologist - and the official records in the case file, that there were no indications that the applicant had been unfit for questioning or had misunderstood his rights. It further follows that the police officers conducted the interviews on 12 and 13 January 2014 in a careful manner, asking open questions (see paragraph 29 above) and repeatedly reminding the applicant to make statements only in respect of things of which he was sure (see paragraph 20 above).

(β)      The circumstances in which the evidence was obtained and the degree and nature of any compulsion

74.  The Court reiterates that where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against self-incrimination takes on particular importance (see Ibrahim and Others, cited above, § 273, and case-law cited therein). It is noteworthy that, in the present case, the applicant was informed repeatedly, before each round of questioning, in a sufficiently explicit manner of his right to remain silent so as to make it clear that anything said by him could be used against him at trial (see paragraphs 9, 11, 13 and 14-15 above; compare Farrugia v. Malta, no. 63041/13, § 112, 4 June 2019; contrast Beuze, cited above, § 184). Although this does not mean that the applicant in the circumstances of the case waived his rights, it nevertheless follows that the applicant could have chosen to remain silent (compare Leka, § 109, and Farrugia, § 112, both cited above).

75.  The Court further takes note of the fact that, as indicated by the Government, in addition to repeatedly being informed of his right to remain silent, the applicant consulted with his lawyer prior to the first substantive interview on 12 January 2014 (see paragraph 8 above). The applicant did not raise in the domestic proceedings, and failed to substantiate before this Court, that the time allowed for this consultation with his lawyer to prepare for the interviews had been insufficient.

76.  The applicant did not allege in the domestic courts or before the Court that the police had exerted any pressure, coercion or violence on him (compare Farrugia, cited above, § 111), nor does this appear from the case file. In that connection the Court takes expressly note of the fact that all police interviews were audiovisually recorded (see paragraph 16 above) and that the interviews at issue were conducted in a careful manner (see paragraph 73 above). There are thus no indications to hold that the applicant gave his statements under compulsion.

(γ)      The nature of the statements and whether the applicant promptly retracted or modified them

77.  The Court notes that after his interviews with the police on 12 and 13 January 2014, the applicant did not fully retract or modify his statements or present a completely different version of events. On the contrary, throughout the trial he maintained his confession that he had taken the victim's life and provided very detailed factual statements of the circumstances in which this had happened. In particular, when heard by the investigating judge on 14 January 2014, in the presence of his lawyer, the applicant stated that he stood by the statements he had already made to the police and that he was willing to cooperate fully in the investigation (see paragraph 12 above, and compare Kuralić v. Croatia, no. 50700/07, §§ 46 and 49, 15 October 2009).

78.  The applicant partly retracted his previous statements to the police in relation to the element of premeditation when he was heard by the investigating judge on 27 August 2014 on the basis that those elements were based on assumptions and fragmented memories rather than established facts. However, he repeated that he had considered killing the victim and had put the tarpaulins the garage before the victim's arrival (see paragraph 15 above). He did not present an alternative reason for doing so. Later, during a hearing before the Regional Court (see paragraph 19 above), the applicant said, in the presence of his lawyer, that during his interviews with the police on 12 and 13 January 2014 he had described what had happened as he had remembered it at the time of the interviews. He repeated once again, both before the Regional Court on 4 November 2014 and before the Court of Appeal on 26 November 2015, that he had had thoughts of "doing something" to the victim and that he had put the tarpaulins in the garage before her arrival (see paragraphs 19 and 26 above). The Court considers that it was for the national courts to assess the probative value of the applicant's statements in the interviews on 12 and 13 January 2014, given the proximity of those interviews to the time when the applicant had killed his former wife, and given the differences and also the similarities with the statements he made later, in the presence of his lawyer.

(δ)      The use to which the evidence was put and the strength of the other evidence

79.  As to the use of the applicant's statements and the strength of the other evidence, the Court reiterates that it should not act as a court of fourth instance by calling into question the outcome of the trial or engaging in an assessment of the facts and evidence or whether the evidence was sufficient to justify a conviction. These matters, in line with the principle of subsidiarity, are the domain of the domestic courts (see Kohen and Others, cited above, § 59). However, as the Court has previously found, "the strength of the other evidence in the case" is a factor to be taken into account in assessing the impact of procedural failings at the pre-trial stage on the overall fairness of criminal proceedings (see Ibrahim and Others, cited above, § 274). In that connection, and in the circumstances of the present case, the Court makes the following observations.

80.  Even though the applicant's confession was an important element in establishing premeditation, the Court notes that the criminal investigation in respect of the applicant did not commence with, or result from, the statements that he had made without access to legal assistance (see paragraph 5 above; see also Kohen and Others, cited above, § 60).

81.  The Court further notes that the statements in question were not the sole basis for the applicant's conviction for murder in the Court of Appeal's judgment of 10 December 2015 and that the applicant repeated important elements of these statements concerning the premeditation during the court hearing, including having considered to kill the victim and having laid out the tarpaulins in the garage before her arrival (see paragraphs 26 and 29-31 above).

82.  Finally, the Court reiterates that the "strength of the other evidence in the case" is only one factor to be taken into account; other relevant criteria indicated in Beuze and other procedural safeguards that exist in domestic law and practice also need to be assessed.

(ε)      Whether the applicant was able to challenge the evidence and oppose its use and whether the assessment of guilt was performed by professional judges

83.  The Court considers that the applicant, who took part in the trial personally and was also represented by a legal counsel, was not restricted in adopting a defence strategy at variance with his statements made on 12 and 13 January 2014 - which indeed he did by challenging, among other things, the fairness of admitting his initial statements to the police. Nor was the applicant restricted in his rights to state his case, question witnesses or challenge the evidence concerning this part of the case during the trial. The domestic courts examined the applicant's submissions in detail and provided comprehensive rulings which were properly reasoned in factual and legal terms (see also Ibrahim and Others, § 281-86; Simeonovi, §§ 141 and 143; and Beuze, § 153; and contrast A.T. v. Luxembourg, § 73; all cited above). In particular, as also noted by the Government, the Court of Appeal provided relevant and sufficient reasons as to why and to what extent the applicant's statements were found reliable, credible and consistent. That court also duly noted what parts of his statements to the police the applicant had retracted, subjecting this issue to a detailed assessment and explaining why they had decided to attach weight to his earlier statements and why it found unconvincing and unsubstantiated the applicant's assertion that his statements during the police interviews concerning the elements of premeditation, had not been truthful (see paragraphs 29-30 above; compare Kohen and Others, cited above, § 59).

(στ)   Other domestic procedural safeguards

84.  The Court notes that in the Netherlands criminal trials are characterised by an extensive and well-documented preliminary investigation. The defence received copies of all the case documents - including the official records of the initial police interviews, witness statements and other evidence - when the indictment was served on the applicant, and he could have asked access to the case documents even at an earlier stage (see paragraphs 46 and 47 above). The Court further notes that the initial police interviews were recorded on video (see paragraph 16 above; see also Doyle, cited above, § 99). The Court considers that these factors contributed to him being able to adequately prepare his defence at the trial hearings and challenge the admissibility and probative value of the evidence against him, including his statements during the initial police interviews.

(ζ)      The weight of the public interest

85.  The Court considers that the nature of the crime with which the applicant was charged, namely the murder of his former wife, implied there was a very strong public interest in the prosecution (compare Doyle, cited above, § 96).

(η)     Conclusion as to the overall fairness of the proceedings

86.  Given the above assessment, the Court considers that the criteria indicated in Beuze (see paragraph 72 above), in so far as relevant in the present case, such as the lack of vulnerability of the applicant, his opportunity to challenge the authenticity of the evidence, the quality of the evidence, the assessment of guilt by professional judges and the weight of the public interest, as well as other domestic procedural safeguards, militate in favour of finding that the proceedings were overall fair (compare Leka, § 118, and Kohen and Others, § 62, both cited above). Though being mindful of the fact that very strict scrutiny is to be applied to cases where there are no compelling reasons to restrict an applicant's right to a lawyer during a preliminary investigation, the Court considers that in the specific circumstances of the case, the absence of a defence lawyer during the applicant's initial questioning by the police and during the on-site visit was not such a flaw as to irretrievably prejudice the overall fairness of the criminal proceedings against him (compare Leka, § 119; Kohen and Others, § 63; and Doyle, § 102, all cited above; see also Pervane v. Turkey, no. 74553/11, § 32, 8 September 2020).

87.  Accordingly, there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;
2. Holds, by six votes to one, that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

Done in English, and notified in writing on 27 August 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Milan Blaško Pere Pastor Vilanova
 Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment.

DISSENTING OPINION OF JUDGE SERGHIDES

1. Introduction

1.  Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that the criminal proceedings against him had been unfair. This was so because he had not been assisted by a lawyer during the initial police interviews, on 12, 13 and 20 January 2014, or during the on-site visit on 12 January 2014 to places relevant to the investigation, while the statements obtained on those occasions had been included in the evidence before the trial courts which convicted him of manslaughter, and later on of murder. It is to be noted that the Regional Court convicted the applicant of manslaughter and acquitted him of murdering his ex-wife, sentencing him to ten years' imprisonment. Though the applicant did not appeal, the public prosecutor did, and the Court of Appeal held that there was sufficient and convincing evidence of premeditation: it convicted the applicant of murder, sentencing him to fourteen years' imprisonment.

2.  The right of a suspect or an accused person to a lawyer under Article 6 § 3 (c) comes into effect from the moment that there is a "criminal charge"[2] against him or her, and, of course, it includes the right to contact and confidentially consult with a lawyer before his or her first interview with the authorities and the right to have a lawyer physically present during any questioning[3]. The right of a defendant to a lawyer is a "minimum right" under Article 6 § 3 (c), as part of the right to a fair trial, which is "the most invoked in cases before the European Court", and "is pre-eminent because it provides the platform for the vindication of all other legal rights"[4], holding a prominent place in a democratic society[5].

3.  I respectfully disagree with the finding that there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention and therefore I voted against point 2 of the operative provisions of the judgment. I will explain the reasons for my disagreement below and I will argue that whichever line of case-law I were to follow, I would without hesitation reach the conclusion that there has been a violation of those provisions.

2. The two basic Grand Chamber case-law approaches

4.  There are two basic Grand Chamber case-law approaches regarding restrictions on the right of early access to a lawyer under Article 6 § 3 (c)[6].

5.  The first approach is that of John Murray v. the United Kingdom[7], but especially and more clearly that of Salduz, cited above, from which it can be concluded that the evaluation of the overall fairness of a trial (stage two) is required only when there are compelling reasons justifying the restriction on the right to a lawyer (stage one): "the question, in each case, has therefore been whether the restriction was justified and if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing"[8]. It is obvious that following this approach, there will be no stage two if, at stage one, no compelling reasons have been found for the restriction. Even where compelling reasons exceptionally justify denial of access to a lawyer, such a restriction must not unduly prejudice the defendant's Article 6 rights. As observed in paragraph 9 of the joint concurring opinion of Judges Yudkivska, Vučinić, Turković and Hüseynov in Beuze (cited above), in the post-Salduz case-law "the Court ha[d] not analysed the overall fairness of the proceedings, but ha[d] found an automatic violation on the basis of a systematic statutory restriction"[9].

6.  The second approach is that of Ibrahim and Others v. the United Kingdom[10], Simeonovi (cited above), and Beuze (cited above), according to which an evaluation of the overall fairness of the trial is always required, even if there are no compelling reasons justifying the restriction[11]. Thus under this approach there is a compulsory two-stage test in every case. In Beuze, the criterion of "compelling reasons" to justify any restriction is characterised as strong; restrictions are permissible only in exceptional circumstances, and only if they are temporary and based on an individual assessment of the circumstances of the case. The absence of compelling reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. It does not, however, automatically result in a breach of Article 6 § 3 (c), thereby departing from Salduz. The question remains whether the defendant nevertheless had a fair trial overall. The onus is on the authorities to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction.

7.  In two separate opinions, I expressed my preference for the first of the above two approaches: the first of these opinions is my partly dissenting opinion in Simeonovi (cited above) and the other is a joint dissenting opinion I authored with Judge Pinto de Albuquerque in Farrugia (cited above)[12]. In particular, we criticised in Farrugia the second approach explained above, on the basis that it interprets the Article 6 § 3 (c) right in a manner that is contrary to its wording, object and purpose, and that diminishes the importance of this right to the extent that its core is seriously, if not mortally, affected. We further considered this approach to be a retrogression of the relevant human right, contrary to the principle of effectiveness.

3. Whichever of these two Grand Chamber case-law approaches were to be followed in the present case, the conclusion would be to find a violation of Article 6 § 3 (c)
   1. What would be the conclusion in the present case by following John Murray and Salduz?

8.  As indicated in paragraphs 69-70 of the present judgment, there was a restriction on the applicant's right of access to a lawyer and there were no compelling reasons to restrict that right. The judgment reiterates that a general and mandatory restriction on this right during the pre-trial phase of criminal proceedings does not constitute a compelling reason (ibid.). It adds that the Government have not demonstrated the existence of any exceptional circumstances which could have justified the restrictions on the applicant's right, and that it is not for the Court to ascertain such circumstances of its own motion. Furthermore, it is to be noted that Salduz was decided on 27 November 2008, thus many years before 12 and 13 January 2014, when the applicant was questioned by the police without his lawyer being present. It is also to be noted that the right to legal assistance prior to and during police interviews was not safeguarded by legislation in the Netherlands until 1 March 2017 (see paragraph 42 of the judgment), thus, after Ibrahim, cited above, which was decided on 13 September 2016. The enactment of this legislation was due to the case-law of the Court as well as to Directive 2013/48/EU of the European Parliament and of the Council of the European Union (see paragraphs 40-42 of the judgment). Undoubtedly, such a long delay of almost ten years (between 27 November 2008, the delivery of Salduz, and 1 March 2017, when the legislation entered into force) to safeguard in Netherlands legislation the right to legal assistance prior to and during police interviews, was inexcusable. This is all the more true as the minimum right to have access to a lawyer under Article 6 § 3 (c) is so clear that no member State should have waited for the case-law of the Court to be developed, as it has been since Salduz, before complying with a clear and imperative provision of the Convention[13].

9.  Consequently, since there were no compelling reasons to restrict the applicant's right of access to a lawyer, the restriction being general and statutory in nature, there could be no stage two under the Salduz test for the examination of the overall fairness of the trial in the present case and, therefore, a violation of Article 6 § 3 (c) must be found.

2. What would be the conclusion in the present case by following Ibrahim and Others, Simeonovi and Beuze?

10.  My conclusion would again be to find a violation of Article 6 § 3 (c) of the Convention if this approach were to be followed.

11.  I will first quote the conclusion reached by the Grand Chamber in Beuze on the overall fairness question and then examine whether the same applies in the present case:

"(θ) Conclusion as to the overall fairness of the proceedings

193.  In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant:

(a)  The restrictions on the applicant's right of access to a lawyer were particularly extensive. He was questioned while in police custody without having been able to consult with a lawyer beforehand or to secure the presence of a lawyer, and in the course of the subsequent judicial investigation no lawyer attended his interviews or other investigative acts.

(b)  In those circumstances, and without having received sufficiently clear prior information as to his right to remain silent, the applicant gave detailed statements while in police custody. He subsequently presented different versions of the facts and made statements which, even though they were not self-incriminating stricto sensu, substantially affected his position as regards, in particular, the charge of the attempted murder of C.L.

(c)  All of the statements in question were admitted in evidence by the Assize Court without conducting an appropriate examination of the circumstances in which the statements had been given, or of the impact of the absence of a lawyer.

(d)  While the Court of Cassation examined the admissibility of the prosecution case, also seeking to ascertain whether the right to a fair trial had been respected, it focused on the absence of a lawyer during the period in police custody without assessing the consequences for the applicant's defence rights of the lawyer's absence during his police interviews, examinations by the investigating judge and other acts performed in the course of the subsequent judicial investigation.

(e)  The statements given by the applicant played an important role in the indictment and, as regards the count of the attempted murder of C.L., constituted an integral part of the evidence on which the applicant's conviction was based.

(f)  In the trial before the Assize Court, the jurors did not receive any directions or guidance as to how the applicant's statements and their evidential value should be assessed.

194.  The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance (see Schatschaschwili, cited above, § 124). In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole.

(iv)  General conclusion

195.  Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention."

12.  Much of what is said in Beuze above in evaluating the overall fairness of the trial (see paragraph 193, sub paragraphs (a), (b), (c), and (e)) is also relevant mutatis mutandis to the present case.

13.  The restriction on the applicant's right of access to a lawyer was particularly excessive.

14.  All of the statements given by the applicant in the absence of a lawyer were accepted as evidence by the domestic courts without conducting an appropriate examination of the circumstances in which those statements had been given.

15.  More specifically, no assessment of the consequences, for the applicant's defence rights, of the lawyer's absence during his police interviews was made by the domestic courts, nor did they proceed with any proportionality test. That was also what had happened in Artistain Gorosabel v. Spain[14], where, however, the same Section which decided the present case, Section III, did find a violation of Article 6 §§ 1 and 3(c):

"71.  The Court accordingly considers that the lack of an individual decision on the part of the investigating judge on the specific consequences for the applicant of the impossibility to have access to his lawyer before the interviews, coupled with the absence of appropriate remedial measures during the trial, undermined the fairness of the criminal proceedings brought against the applicant, when considered as a whole, and irretrievably prejudiced his defence rights, as far as he could not receive advice from his representative.

72.  In sum, the objective consequence of preventing the applicant's legal-aid lawyer from having access to him at the relevant time as well as from being assisted by a lawyer of his own choosing without giving individualised reasons was such as to undermine the fairness of the subsequent criminal proceedings in so far as the applicant's incriminating initial statement was admitted in evidence (Dvorski, cited above, § 111).

  Conclusion

73.  The Court therefore finds that in the circumstances of the present case there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention."

The above case concerned the right under Article 6 § 3 (c) for the applicant to have access to a lawyer of his own choosing. In that case, the applicant was provided with a legal-aid representative, and his complaint was that he wanted to be assisted by a lawyer of his own choosing. In the present case, the applicant was without any lawyer at all during the police interviews. Thus what is held by the Court in the above-cited case holds even more true in the present case, where the applicant was left completely unprotected, without a lawyer at all.

16.  The evidence given by the applicant during the time he was without a lawyer played an important role in the indictment and in his conviction by the Regional Court for manslaughter, and, subsequently and most importantly, in his conviction by the Court of Appeal for the murder of his ex-wife (see, inter alia, paragraph 31 of the judgment). In this connection, it is relevant to say that the Court of Appeal called into question the applicant's retraction of part of that evidence. As the Court observed in paragraph 68 of the John Murray judgment (cited above), it is not for it to speculate on what the applicant's reaction, or his lawyer's advice, would have been had access not been denied during the initial period. As matters stand, the applicant in that case as well as in the present one was undoubtedly directly affected, regardless of anything else, by the denial of access and the ensuing interference with his defence rights.

17.  Regrettably the judgment in the present case, in its conclusion as to the overall fairness of the proceedings (see paragraph 86), did not include the above factors in its assessment but only some other factors, which, though relevant, such as the lack of vulnerability of the applicant, were not referred to by the Grand Chamber in Beuze in setting out its reasons for finding a violation of Article 6 §§ 1 and 3 (c). Consequently, the overall fairness approach of the present judgment is piecemeal, selective and arbitrary, and most importantly, lacks important factors which should have been taken into account and assessed.

18.  An additional consideration that should have been taken into account in the present case when assessing the overall fairness of the trial is that the statements made by the applicant in the interviews without his lawyer on 12, 13 and 20 January 2014 had consequences for the rest of the trial, beyond merely their content, namely the fact that the applicant's credibility was negatively impacted in the eyes of the domestic courts, and that further evidence against him, namely the victim's body, some of her belongings and two tarpaulins, was found as a result of his statements. In the eyes of the domestic courts, the applicant's credibility was affected by what he said to the police without a lawyer. This is made clear by the domestic court's response to the applicant's attempt to retract part of his statement from his interviews on 12 and 13 January on the basis that it had been untruthful and based on assumptions: the court judged that the retraction was unconvincing and unsubstantiated (see paragraph 29 of the judgment). All that was said by the applicant during his police interview, as well as his credibility in general, was relevant to the domestic court's determination of his intention to kill his ex-wife, and to the Court of Appeal's decision to convert his manslaughter conviction to a murder conviction. The fact that the applicant alleged that he did not premeditate the murder of his ex-wife and that the Court of Appeal ultimately convicted him of murder shows that the credibility of the applicant was in question.

As mentioned above, not only did the evidence given without a lawyer being present contribute to the applicant's conviction in and of itself, and by negatively impacting his credibility, it also led to the discovery of further evidence. Indeed, he stated in his first interview, without his lawyer being present, that he wished to cooperate and show the police locations that were relevant to the investigation. Then, still without his lawyer, he led the police to the body of the victim, the victim's bag with some of her belongings, and two discarded tarpaulins. The police then gathered this forensic evidence which was used to convict the applicant. Therefore, the evidence used against the applicant which was connected to the breach of his guarantee of access to legal assistance goes beyond the mere content of the statements given during the police interview: it also includes the forensic evidence which was only discovered because the applicant provided information in the absence of a lawyer.

19.  A further restriction on the applicant's right under Article 6 § 3 (c) was that, though he was allowed to meet his lawyer prior to the police interview, domestic law only provided for a thirty-minute-long consultation (see paragraph 55 of the judgment), which is excessively brief. Given that there was no lawyer present during the police interviews or the on-site visit, a meeting of such a short length cannot act as a counterbalancing factor for the breaches of Article 6 § 3 (c)[15]. The Court does not address the fact that this meeting was so short: instead, it deems that the applicant failed to substantiate that the time allowed for the consultation with the lawyer to prepare for the interview was insufficient. However, given the seriousness of the accusation made against the applicant, and the possibility of a lengthy prison sentence resulting from a conviction, it is clear that a thirty-minute meeting is insufficient. This is made worse by the fact that the applicant was not informed that he was being investigated for murder until after his consultation with the lawyer: therefore, he was unable to obtain legal advice on the element of premeditation.

This restriction is rendered especially egregious because in this case, the consultation that the applicant had with his lawyer prior to the police interview was considered by the Supreme Court to have compensated for the Court of Appeal's error in law, which otherwise would have warranted cassation (see paragraph 35 of the judgment). The Supreme Court deemed that the Court of Appeal had erred in law by requiring a further explanation as to why a breach of procedural rules in relation to the exercise of the right to consult a lawyer should lead to the exclusion of evidence, and that while this was a well-founded ground of appeal, it did not warrant cassation because the applicant had consulted with his lawyer prior to the first police interview. Thus the consultation is given considerable importance in remedying the Court of Appeal's error in law, even though it represents in itself a restriction on the right of access a lawyer due to its brevity.

20.  It would be an absolute degradation of the minimum right to have access to a lawyer if the Court were to accept that a recording of the police questioning of a defendant could be a replacement for the requirement to have a lawyer present during that interview. Nor could such a recording be used as a counterbalancing factor for a shortfall in guaranteeing the minimum right, as the present judgment regrettably does (see paragraph 84 of the judgment). During the discussion of the circumstances in which the evidence was obtained and the degree and nature of any compulsion, the Court took express note of the fact that the interviews were all "audiovisually recorded" (see paragraph 76). While it is true that the presence of a lawyer at a police interview decreases the chance that a defendant will be coerced or intimidated, a lawyer's role in an interview goes further than preventing coercion. In Beuze (cited above, §§ 125-129), the Court noted that the aims underlying the right of access to a lawyer included safeguarding against coercion and ill-treatment of suspects by the police, but also preventing miscarriages of justice, ensuring the equality of arms between the investigating or prosecuting authorities and the accused, and ensuring respect for the right of the accused not to incriminate himself, by inter alia objecting to questions by the police whenever necessary. Therefore, while a recorded interview can help in holding the police to account for any intimidation, it cannot make up for the proactive legal help that having a lawyer in the interview would facilitate and that the right of access to a lawyer is intended to provide.

It would also be a degradation of the minimum right to have access to a lawyer if one were to accept that informing the defendant of the right to remain silent could be a replacement, or a counterbalancing factor, for this minimum right. Indeed, the proper exercise of the right to remain silent is contingent on effective legal assistance: these rights are distinct but also complementary[16]. As I also argued elsewhere, a complaint that one of the Article 6 guarantees was breached (in the present case, the guarantee under Article 6 § 3 (c)) cannot be answered by showing that another Article 6 guarantee (in the present case, the implicit guarantee of Article 6 § 1 of the right to remain silent), was not breached.[17]

21.  The Court in the present case should also have taken into account what is said in Beuze, namely that the absence of compelling reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation.

22.  As stated in paragraphs 193-194 of Beuze, the burden of the Government to prove the existence of the overall fairness of the domestic proceedings, in the absence of compelling reasons to justify the restriction on the right of access to a lawyer, is a stringent one (requiring "very strict scrutiny"). This being considered, and in view of the above important factors - which are not the only ones - taken together, I assess that the trial overall was not fair.

23.  Accordingly, in my submission, by following the Beuze approach it can be said that there has been a violation of Article 6 §§ 1 and 3 (c).

4. Normative view on the concept of the overall fairness of a trial, free from any compromising of the minimum right under Article 6 § 3 (c) - as compared with the current case-law general approach

24.  The normative view on the concept of overall fairness supports the idea that any restriction of the right of access to a lawyer amounts, in and of itself, to a violation of Article 6 § 3 (c), without any further examination. This view is based on the fact that no reference is made in this provision to "compelling reasons" for a restriction nor to public interest, nor to any permissible restriction or limitation (like those in the second paragraph of Articles 8-11) to be balanced against the right in question. In fact, this is the most orthodox view, and the most compatible with the wording and the aim of Article 6 and with the principle of effective protection of the right concerned. In contrast, any other view, adopting a balancing approach as regards the minimum rights in Article 6 § 3, can be labelled, to adopt Ashworth's expression, "heresy"[18], as it is not in line with the wording and aim of Article 6 and the principle of effectiveness[19].

25.  The Court in paragraph 147 of Beuze pointed out that "the principle of placing the overall fairness of the proceedings at the heart of the assessment is not limited to the right of access to a lawyer under Article 6 § 3 (c) but is inherent in the broader case-law on defence rights enshrined in Article 6 § 1 of the Convention".

26.  Based on this conceptualisation of overall fairness as being relevant to the assessment of all defence rights enshrined in Article 6 § 1, there are, at present, two opposite views. The first view, which represents the current case-law view of the Court[20], supports the idea that the specific guarantees under Article 6 are not ends in themselves, but serve only as definitional assistance, contributing to ensuring the overall fairness of a trial, which is determined through a balancing exercise in the light of a broader perspective, considering the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident. According to this view, however, it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage of the proceedings[21].

27.  The second view and, in my humble submission, the only Convention compatible one which is addressed in the normative argument, strongly critiques the first view, for, among other aspects, overriding the wording of Article 6 § 3 and its aim. This view, which is endorsed by renowned academics[22] and in some of my separate opinions[23], has been reflected in the past in some case-law of the Court[24]. It maintains that all specific guarantees are independent elements or components of the concept of a fair trial, and each one, being a stand-alone right, should be respected as such. Therefore, any shortfall in the securing of a specific guarantee would lead to a violation per se, without any weighing-up of any factors or considerations[25].

28.  While only the current case-law approach is specifically known as the approach of the "overall fairness of the trial", I consider both of these approaches as relating to the overall fairness of the trial. "Overall" literally means taking everything into account. So, in the context of a trial, "overall fairness", literally and properly means fairness in every respect, as supported by the normative view, rather than "fairness" lacking in some respects, which is "outweighed" by other considerations, as endorsed by the current case-law approach.

29.  I have argued elsewhere[26] that there can be no safeguard for a lack of a safeguard, in the sense that there can be no counterbalancing safeguard or factor capable of compensating for the absence or breach of another safeguard. In this connection, as insightfully argued by Pikis, J., "no deviation or shortfall of a fair trial should be countenanced"[27]. The guarantees of Article 6 are intricately linked, creating a robust framework that upholds the right to a fair trial. Therefore, in my submission, a trial can only be fair overall when all its guarantees are satisfied, and therefore when it is fair with regard to all its guarantees; it cannot be fair overall when any one guarantee is lacking. In other words, fairness or overall fairness is the objective of Article 6, and this can only be achieved by acknowledging the importance and securing the fulfilment of every guarantee of Article 6 and giving each of them a practical and effective interpretation and application. The notion of fairness is inextricably connected with the principle of effectiveness, which is enshrined in Article 6 and requires that all guarantees be fully respected. The notion of overall fairness of a trial and the principle of effectiveness not only work together but also ultimately merge under the norm of effectiveness of the right to a fair trial.

30.  According to the normative view, no balancing should be allowed between the minimum right restricted and other considerations, including the public interest. On the contrary, by following the approach of Beuze as well as the approach of the present judgment, the Court regrettably allows the public interest to be counted twice, in the first stage of the test, by examining public interest considerations through the lens of "compelling reasons", and in the second stage of the test, by allowing for the consideration of the public interest as a relevant factor in the fairness assessment[28].

31.  By following the normative view, no conflict arises between the minimum right of Article 6 § 3 (c) and the public interest. By following Salduz, such conflict arises only when there are compelling reasons to restrict the minimum right and in such a case the compelling reason of public interest supersedes the minimum right only to the extent that it does not allow it to be considered as automatically breached without a fairness assessment. By following Beuze, such conflict arises irrespective of whether there are compelling reasons or not and - regrettably, most usually as in the present case - the public interest supersedes the minimum right.

32.  Before ending this discussion, it is interesting to refer to what Goss, a strong supporter of the normative view, argues in favour of adopting it:

"Importantly, it is possible to imagine an alternative approach to Article 6: one in which the Court regarded the 'minimum rights' in Article 6 as 'minimum rights' instead of mere helpful interpretative examples. The assessment of whether such a minimum right had been violated could focus on the facts and law relevant to the specific minimum right, rather than a broader range of factors. The Court could reject public interest balancing of those minimum rights as unsupported by the text of the ECHR, or, if that was thought unrealistic, the Court could instead explain the textual basis for public interest balancing and limit Governments to a single opportunity to advance justification arguments. In such an alternative jurisprudence, the violation of a minimum right explicitly protected by the ECHR could be regarded as the violation of an ECHR right.

While this 'retrogression'[29] has arisen in the context of Article 6(3)(c), the logic of the Court's reasoning is equally applicable to other Article 6 rights. The Court, has, for example, explicitly cited Beuze in recent cases on Article 6(1) in explaining the need for an assessment of the proceedings as a whole. The unfortunate legacy goes beyond Article 6(3)(c). At this rate, there may be very little need for the text of Article 6 at all: the Court can simply opt instead for an overall assessment in every case. Perhaps the concern about these phenomena should also go beyond Article 6, as Samartzis argued with respect to some of the older case law:

'the overall fairness assessment can be viewed as a pathology of the Court's proportionality analysis, an instance of spillover into Article 6 cases of the Court's general tendency to determine its conclusions on the basis of ad hoc balancing.'"[30]

33.  My only minor disagreement with the above quotation is that no imagination is required for someone to consider an alternative approach to Article 6 where the Court would regard the "minimum rights" in Article 6 as genuine "minimum rights" instead of mere helpful interpretative examples. This is so, because, as already mentioned, there is an existing line of case-law where the Court has indeed treated minimum rights as minimum rights (see paragraph 27 and note 23 above), as well as where certain Article 6 § 1 guarantees which, when breached, can lead by themselves to a violation, without examining other complaints (see note 20 above).

34.  One last point should be made in discussing the normative view and criticising the current case-law approach, also demonstrated in Simeonovi, Ibrahim and Beuze (all cited above), and the concept of the overall fairness of the trial. The normative view avoids the absurdity of the current case-law approach of mixing up procedure with the merits and substantive justice when discussing procedural fairness. The hybrid defect-curing balancing test of the current case-law view is a paradox as it contradicts the conventional sequence in legal proceedings. In traditional practice, a court should only delve into the merits of a case after ensuring that procedural fairness has been firmly established. However, the current case-law approach allows for a premature consideration of the merits, even before the procedural aspects have been adequately addressed. This reversal of the expected order creates a paradoxical situation where substantive matters are given precedence over procedural fairness and integrity. I cannot explain this point better than by citing Trechsel:

"In fact, if we want to save the administration of criminal justice as an activity generating justice, we must give procedural justice an independent weight, a value fully detached from the outcome."[31]

35.  In conclusion, by following the normative view, the finding of a violation of Article 6 § 3 (c) is unavoidable in the present case, and can be reached even more simply than by following Salduz (cited above), because according to this view, no examination is needed as to whether there were compelling reasons for the restriction of the right of access to a lawyer.

5. Conclusion

36.  I have shown that whichever of the three views I were to follow, that in Salduz, or that in Beuze, or the normative view, my conclusion would be the same, namely, to find a violation of Article 6 § 3 (c) of the Convention.

37.  Regrettably, as explained above, the Court applied Beuze in the present case in an erroneous manner, concluding that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention. The title of Goss' article, namely, "The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze" is not at all unrealistic, reflecting the point that the case-law of the Court on Article 6 § 3 (c) evolves each time in a manner which is less and less favourable to the right to a fair trial. The retrogression is even worse because it relates not only to the interpretation of Article 6 § 3 (c) but also to the erroneous application of the relevant factors of an assessment of overall fairness, as has occurred in the present case[32].

38.  In my submission, the worst problem with the Court's current case-law approach to interpreting trial fairness is its tendency to compromise guarantees that are lacking or breached by using various excuses under the guise of overall fairness, rather than addressing specific breaches directly. Through such a retrogression, watering down the relevant right, the Court conflates procedural fairness with substantive justice. In the present case, the Court should have addressed the issue of the specific guarantee provided for in Article 6 § 3 (c) separately, not together with Article 6 § 1, and should have found a violation of that provision. And, of course, such a violation of the specific guarantee of a minimum right should automatically constitute a breach of the general right to a fair trial under Article 6 § 1[33].

39.  On a more country-specific note, as regards the right to legal assistance under the Dutch criminal procedure, Van Voorhout ends her book entitled Ineffective Legal Assistance - Redress for the Accused in Dutch Criminal Procedure and Compliance with ECHR Case Law, by making the following "call on all involved persons and their institutions":

"Concerted action is necessary, because the right to an effective defence is not only an individual right of the accused but also a procedural guarantee for the fairness of the trial as a whole."[34]

[1] Directive 2013/48/EU of the European Parliament and of the Council of the European Union on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.

[2] A term which has an autonomous meaning under the Convention, see Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017.

[3] See more on the content of the right of access to a lawyer in Beuze v. Belgium [GC], no. 71409/10, §§ 133-136, 9 November 2018.

[4] See Laura Hoyano, "What is balanced on the scales of justice? In search of the essence of the right to a fair trial", in Criminal Law Review 2014, 1, at p. 13.

[5] See Delcourt v. Belgium, no. 2689/65, § 25, 17 January 1970; Moreira de Azevedo v. Portugal, no. 11296/84, § 66, 23 October 1990.

[6] This summary of the two approaches is made in paragraphs 2-3 of the joint dissenting opinion I wrote with Judge Pinto de Albuquerque in Farrugia v. Malta, no. 63041/13, 4 June 
2019.

[7] John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996-I.

[8] Salduz, cited above, § 52. It is to be clarified that the additional very brief statements made by the Court in Salduz about the substance of the case were guided purely by excessive caution, ex abundanti cautela, as I explained in paragraph 9 of my partly dissenting opinion in Simeonovi, cited above. What I said there was cited with approval in the joint concurring opinion of Judges Yudkivska, Vučinić, Turković and Hüseynov in Beuze, cited above.

[9] The judges referred specifically to the cases of Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009; Boz v. Turkey, no. 2039/04, § 35, 9 February 2010; Yeşilkaya v. Turkey, no. 59780/00, § 31, 8 December 2009; Stojković v. France and Belgium, no. 25303/08, §§ 51-57, 27 October 2011; Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, §§ 80-85, 24 October 2013; and Borg v. Malta, no. 37537/13, §§ 59-63, 12 January 2016.

[10] Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/05 and 40351/09, ECHR 2016.

[11] See for a critique on these judgments, Ryan Goss, "The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze", in Human Rights Law Review, 2023, 23, 1 et seq.

[12] A favourable analysis of this opinion is offered by Ryan Goss in his article, "The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze", cited above, at pp. 3 and 15-22.

[13] The applicant in paragraphs 6-8 of his written observations, in reply to the observations of the Dutch Government, pertinently remarked the following: "6. In other words: your Court considered it relevant in Beuze that the police interviews had taken place a year before Salduz (2008) and the trial had been concluded six years before Ibrahim et al. (2016). The same cannot be said of the Applicant's case. The police interviews and the on-site visit with the police officers took place more than 5 years after Salduz. The Hoge Raad der Nederlanden ('Supreme Court') delivered its judgement in the Applicant's case almost a year after Ibrahim et al. In fact, that judgement was extensively relied on in the grounds of appeal submitted to the Supreme Court on behalf of the Applicant. Nevertheless, that court saw no reason to change course. 7. Additionally, your Court held in Beuze that it 'has found in a number of cases that suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings (see -�) 8. Literally all of the judgements referred to by your Court here were delivered before the police interviews took place in the Applicant's case. The Government's contention that at the time of these interviews 'such a right [had not] arisen from the Court's case law' is thus plain wrong."

[14] Artistain Gorosabel v. Spain, no. 15508/15, 18 January 2022.

[15] See, mutatis mutandis, Olivieri v. France, no. 62313/12, § 31, 11 July 2019.

[16] See Navone and Others v. Monaco, nos. 62880/11 et al., § 74, 24 October 2013.

[17] See also paragraph 72 of my separate opinion in Snijders v. the Netherlands, no. 56440/15, 6 February 2024.

[18] See Andrew Ashworth, "Security, Terrorism and the Value of Human Rights" in B. Goold and L. Lazarus (eds), Security and Human Rights (Oxford: Hart Publishing, 2007), 203, at p. 215. See also Laura Hoyano, "What is balanced on the scales of justice? In search of the essence of the right to a fair trial", cited above, at p. 13.

[19] See also paragraph 80 of my dissenting opinion in Snijders, cited above.

[20] See, inter alia, Edwards v. the United Kingdom, no. 13071/87, § 34, 16 December 1992; Stanford v. the United Kingdom, no. 16757/90, § 24, 23 February 1994; Mirilashvilli v. Russia, no. 6293/04, §§ 164-165, 11 December 2008; Panovits v. Cyprus, no. 4268/04, §§ 66 and 77, 11 December 2008; Taxquet v. Belgium [GC], no. 926/05, §§ 84 and 93-100, 16 November 2010; Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, §§ 118, 143, 146 and 152-165, 15 December 2011; Dvorski v. Croatia [GC], no. 25703/11, §§ 81-82 and 103-113, 20 October 2015; Schatschaschwili v. Germany [GC], no. 9154/10, §§ 101 and 161-165, 15 December 2015; Blokhin v. Russia [GC], no. 47152/06, §§ 194 and 211-216, 23 March 2016; Ibrahim and Others, cited above, §§ 250-252, 274, 280-294, and 301-311; Lhermitte v. Belgium [GC], no. 34238/09, §§ 69 and 83-85, 29 November 2016; Correia de Matos v. Portugal [GC], no. 56402/12, §§ 118, 120, and 160-168, 4 April 2018; Beuze, cited above, §§ 120-122, 147; Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 90-95, 18 December 2018; Doyle v. Ireland, no. 51979/17, §§ 71-72, 23 May 2019; Akdağ v. Turkey, no. 75460/10, § 47, 17 September 2019; Radzevil v. Ukraine, no. 36600/09, § 77, 10 December 2019; Stephens v. Malta (no. 3), no. 35989/14, §§ 55-56 and 78, 14 January 2020; Pervane v. Turkey, no. 74553/11, §§ 26-33, 8 September 2020; Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 122, 28 October 2020; Negulescu v. Romania, no. 11230/12, § 43, 16 February 2021; Hasáliková v. Slovakia, no. 39654/15, § 60, 24 June 2021; Nevzlin v. Russia, no. 26679/08, §§ 134-136, 18 January 2022; Hamdani v. Suisse, no. 10644/17, §§ 28-29, 28 March 2023 (where the Court noted that there had been an evolution in its case-law on the right to free assistance from a lawyer, referring to the previous case-law, including Pakelli v. Germany, no. 8398/78, §§ 41-42, 25 April 1983 cited above); Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 366, 26 September 2023; Snijders, cited above, § 55; and Škoberne v. Slovenia, no. 19920/20, §§ 99, 103, and 109-111, 15 February 2024.

[21] See Akdağ, cited above, § 47 and Beuze, cited above, § 121. Ryan Goss ("The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze", cited above, at p. 10), rightly wonders "why a violation of one of the 'minimum rights' of Article 6 does not count as a 'specific factor' so 'decisive as to enable the fairness of the trial to be assessed' in isolation", adding that "[t]he Court has strayed from the explicit text of the ECHR".

As I argued in paragraph 8 of my partly concurring, partly dissenting opinion in Yüksel Yalçınkaya (cited above), I can name at least four guarantees in respect of which the Court does not search for counterbalancing safeguards if the guarantee in question is lacking. These are the three institutional and explicit guarantees of a tribunal established by law, of an independent tribunal, and of an impartial tribunal, as well as the guarantee of not using evidence obtained by torture, the latter being an implicit guarantee. Regarding the first three, the institutional guarantees, the Court's practice, when finding that one of them is breached, is not to proceed to examine any other complaints under Article 6 but to consider the trial unfair, finding a violation of the said provision (see, for the guarantee of a tribunal established by law, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 295 and point 2 of the operative provisions, 1 December 2020; see, for the guarantees of an independent and impartial tribunal, Ergin v. Turkey (no. 6), no. 47533/99, §§ 54-56, 4 May 2006, and Çıraklar v. Turkey, no. 19601/92, §§ 40-41, 28 October 1998). Turning now to the guarantee of not using evidence obtained by torture, the Court will find a violation of Article 6 when such evidence has been taken, thus considering the trial as unfair, even if the admission of the evidence in question had not been decisive in securing the suspect's conviction (see Jalloh v. Germany [GC], no. 54810/00, §§ 104-05, 1 June 2010), and, of course, without examining any other complaint under Article 6.

[22] See, inter alia, Ryan Goss, Criminal Fair Trial Rights - Article 6 of the European Convention on Human Rights (Bloomsbury, 2016), at p. 125; Ryan Goss, "The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze", cited above, at pp. 6-9, 12, 22-23; Ryan Goss, "The Undermining of Article 6 ECHR", in Philip Czech, Lisa Heschl, Manfred Nowak and Gerd Oberleitner (eds), The European Yearbook on Human Rights (Intersentia, 2019), 295 at pp. 298-299, 304, 311-312; Andreas Samartzis, "Weighing Overall Fairness: A Critique of Balancing under the Criminal Limb of Article 6 of the European Convention on Human Rights", in Human Rights Law Review, 2021, 21, 409, pp. 410-414, 416-421; Nikos Vogiatzis, "Interpreting the Right to Interpretation under Article 6 (3) (e) ECHR: A Cautious Evolution in the Jurisprudence of the European Court of Human Rights", in Human Rights Law Review, 2022, 22, 1, at pp. 12-16, 23-25; Stefan Trechsel (with the assistance of Sarah J. Summers), Human Rights in Criminal Proceedings (Oxford University Press, 2006), at pp. 84-89; Stefan Trechsel, "The Character of the Right to a Fair Trial", in John D. Jackson and Sarah J. Summers (eds), Obstacles to Fairness in Criminal Proceedings - Individual Rights and Institutional Forms (Hart, Oxford, 2018), 19, at pp. 23-26; Paul Lemmens, "The Right to a Fair Trial and its Multiple Manifestations", in Eva Brems and Janneke Gerards (eds), Shaping Rights in the ECHR - The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge University Press, 2013), 294, at pp. 313-314; Ioannis Sarmas, "Fair Trial and Search for Truth in the Case Law of the European Court of Human Rights", in Robert Spano, Iulia Motoc, Branko Lubarda, Paulo Pinto de Albuquerque, M. Tsirli (eds), Fair Trial: Regional and International Perspectives, Liber Amicorum Linos-Alexandre Sicilianos (Anthemis, 2020), at p. 500; Georghios M. Pikis, Justice and the Judiciary (Martinus Nijhoff Publishers, 2012), at § 145 (p. 63); and Yvonne McDermott, Fairness in International Criminal Trials (Oxford University Press, 2016), at pp. 36-37 and 39.

[23] See inter alia, paragraphs 28-50 of my partly dissenting opinion in Xenofontos and Others v. Cyprus, no. 68725/16 et al., 25 October 2022; paragraph 9 of my partly concurring, partly dissenting opinion in Yüksel Yalçınkaya, cited above; and paragraphs 71-86 of my dissenting opinion in Snijders, cited above. This view is also clearly presented by Judge Van den Wyngaert in her minority opinion in an ICC case, namely, Prosecutor v. Katanga (Judgment, Case No. ICC-01/04-01/07, 7 March 2014, § 311): "It is not good enough that most of the trial has been fair. All of it must be fair".

[24] See Luedicke, Belkacem and Koç v. Germany, no. 6210/73 et al, §§ 38-50, 28 November 1978; Pakelli, cited above, §§ 41-42; Öztürk v. Germany, no. 8544/79, §§ 57-58, 21 February 1984 (Plenary); Hadjianastassiou v. Greece, no. 12945/87, §§ 31-37, 16 December 1992; Daud v. Portugal,  no. 22600/93, §§ 32-33, 43, 21 April 1998; Radio France and Others v. France, no. 53984/00, § 24, 30 March 2004; Isyar v. Bulgaria, no. 391/03, §§ 48-49, 20 November 2008 and Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, §§ 34, 48, 20 January 2009 (reversed, however, by the Grand Chamber, on 15 December 2011). It is irrelevant that these cases deal with minimum rights other than the right of access to a lawyer, as the principle is the same and the concept of the "minimum right" is the same as well.

[25] Under this view, however, there are three exceptions, namely, the guarantees of a public hearing at trial and of the public pronouncement of judgments, which are subject to express limitations or exceptions provided for in Article 6 § 1, and the implied guarantee of access to a court, which is subject to regulation by the State.

[26] In my partly concurring, partly dissenting opinion in Yüksel Yalçınkaya, cited above, § 7, and in my dissenting opinion in Snijders, cited above, § 72.

[27] See Georghios M. Pikis, Justice and the Judiciary, cited above, at § 145, p. 63.

[28] See Ryan Goss, "The Undermining of Article 6 ECHR", cited above, at p. 311.

[29] Taking this term from my joint dissenting opinion with Judge Pinto de Albuquerque in Farrugia, cited above, which is referred to in a note.

[30] See Ryan Goss, "The Disappearing 'Minimum Rights' of Article 6 ECHR: the Unfortunate Legacy of Ibrahim and Beuze", cited above, at pp. 22-23.

[31] See Stefan Trechsel, "Why Must Trials be Fair", in Israel Law Review, Vol. 31, Nos. 1-3, 1997, 94, at p. 110.

[32] For another regrettable retrogression of a minimum right, namely the right to examine and have examined witnesses, safeguarded by Article 6 § 3 (d) of the Convention, see paragraphs 64-70 of my dissenting opinion in Snijders, cited above.

[33] When this specific guarantee is breached, not only is the guarantee of procedural fairness, which is an element of the definition of the general right to a fair trial under Article 6 § 1, automatically breached, but the principles of equality of arms and adversarial proceedings, which are implicit guarantees of Article 6 § 1, are also violated. On the nexus between equality of arms and Article 6 § 3 (c), see Omkar Sidhu, The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the European Convention on Human Rights (Intersentia, 2017), at pp. 197-201 and 235.

[34] See Jill Coster Van Voorhout, Ineffective Legal Assistance - Redress for the Accused in Dutch Criminal Procedure and Compliance with ECHR Case Law (Brill, 2017), at p. 605.