Fair Trials intervention highlights essential role of lawyer

19.12.2017
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The right to a lawyer is, for anyone accused of a crime, the gateway to a fair trial. Most people going through the legal system aren’t experts, and it can be a terrifying and confusing experience. That’s why the presence of someone who understands the system is so important.

Fair Trials has submitted an intervention in the case of Beuze vs. Belgium, which could have wide-ranging effects on the right to early access to a lawyer in criminal cases across Europe. APADOR-CH is also a signer of the intervention.

The right to a lawyer is a key element of international and regional standards for a fair trial. In 2008, the European Court of Human Rights concluded in Salduz v Turkey that while there may sometimes be compelling circumstances that justify denying someone access to a lawyer, anything that a suspect says without a lawyer present cannot be used for the purpose of convicting them at trial. This groundbreaking decision had a significant impact. Individual EU states amended their criminal procedure codes; the EU passed its own law making the Salduz principle directly enforceable in member states’ courts; and police across the EU were required to recognize that bypassing a suspect’s right to a lawyer was futile, as any evidence collected would be worthless.

But the post-Salduz wave of reform hit the rocks in September 2016, when the Court allowed concerns about security threats to push it off course. A case involving four men convicted of terrorism offences, following a failed attack on the London Underground in July 2005 (Ibrahim and Others v UK), came before the Court. In line with UK law, the four men were refused legal representation during initial “safety” interviews. The Court had to decide whether this refusal—and the subsequent use of evidence collected during those initial interviews—represented a violation of the defendants’ right to a fair trial.

Fair Trials, in its submission to the Court,  did not take issue with the denial of access to a lawyer—after all, it was believed the four accused knew the whereabouts of unexploded bombs and that taking their initial statements promptly could help prevent an attack. However, the submission argued that the evidence obtained during the interviews should not have been used in the subsequent criminal trials.

Unable to reconcile the Salduz principle with the conclusion it felt compelled to reach, the Court set about re-writing the rules, significantly weakening the protection of the right to a lawyer in the process. It decided that excluding evidence collected from an accused without their lawyer present would not be automatic, as required by Salduz.

This change in approach wasn’t, however, limited to terrorism cases, with the Court now applying it across the board in all “access to lawyer” cases. The door was therefore opened for all Council of Europe States to argue that they can rely on evidence obtained without a lawyer in all sorts of circumstances. The shift by the Court from applying the relatively clear Salduz rule to reliance on a test which is far less predictable in its application had the potential for regressive impact, particularly in countries where torture and mistreatment in police custody are pervasive and the preventative role of lawyers most necessary.

The Beuze case is a chance for the Court to underline the importance of the right to a lawyer from the outset of police custody, and to align the standards under ECHR and EU law in order create a comprehensive system of protection of this fundamental right. It is within this context that Fair Trials has made its intervention, and hopes that the Court takes the opportunity it has been given.