CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 janvier 2022

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display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sC986E16F { font-family:Arial; color:#ffffff } .s5BC6EF75 { width:21.21pt; display:inline-block } .sFEA86295 { width:128.42pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     THIRD SECTION CASE OF ATRISTAIN GOROSABEL v. SPAIN (Application no. 15508/15)       JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 (c) • Fair hearing • Use at trial of initial confession by terrorist suspect held incommunicado and denied, without individualised reasons, access to lawyer of own choice and legal-aid lawyer • Overall fairness of criminal proceedings undermined     STRASBOURG 18 January 2022   FINAL   09/05/2022       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Atristain Gorosabel v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani, President,   Georgios A. Serghides,   Dmitry Dedov,   María Elósegui,   Anja Seibert-Fohr,   Andreas Zünd,   Frédéric Krenc, judges, and Olga Chernichova, Depu ty Section Registrar, Having regard to: the application (no.   15508/15) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr Javier Atristain Gorosabel (“the applicant”), on 24 March 2015; the decision to give notice to the Spanish Government (“the Government”) of the complaint under Article 6 §§ 1 and 3 (c) of the Convention concerning the impossibility of being represented by a lawyer of his own choosing and of communicating with him before and during his detention incommunicado; the parties’ observations; Having deliberated in private on 12 October, on 30 November and on 14   December 2021, Delivers the following judgment, which was adopted on the last-mentioned date: INTRODUCTION 1.     The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he was denied a lawyer of his own choosing whilst being held incommunicado, and that for this reason he made self-incriminatory statements. His statement enabled the police to obtain the evidence on which his conviction was based. THE FACTS 2.     The applicant was born in 1970. He is currently serving a seventeen-year sentence of imprisonment for membership of a terrorist group and possession of explosives . The applicant was represented by Mr Z. Reizabal Larrañaga, a lawyer practising in San Sebastian and by Mr O. Peter, a lawyer practising in Switzerland. 3.     The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     Within the context of an initial anti-terrorist investigation carried out by investigating judge no.   2 of the Audiencia Nacional , the applicant was arrested in France under a European arrest warrant and handed over to Spain, where he was remanded in custody for allegedly, along with other individuals, belonging to the terrorist group ETA. On 8 April 2010, the applicant, assisted by a lawyer chosen by him, after denying his alleged membership of ETA, waived his right not to testify before the investigating judge. 6.     On 20 April 2010 the applicant was released on condition that he appear before the judge dealing with the case once a week. 7.     On 20 June 2010, at the Public Prosecutor’s Office’s request, the pre-trial phase was discontinued for lack of evidence against the applicant. Other investigations against ETA continued. Within the framework of new inquiries, further evidence against the applicant was found, which led to a second set of proceedings. 8.     On 28 September 2010, within the framework of the second set of proceedings, the Guardia Civil requested that investigating judge no.   2 of the Audiencia Nacional authorise eight entries to and searches of properties used by the cell of ETA to which the applicant allegedly belonged. The requested entries and searches were mainly aimed at locating two explosives depots, which investigations had revealed to have been organised and used by the applicant. Various sources of information had indicated that the applicant was a member of ETA and that he was storing a large number of explosives and firearms that were in a fit condition to be used. 9.     On 29 September 2010, at 9:45 a.m., the Guardia Civil arrested the applicant. On 30 September 2010, investigating judge no.   2 of the Audiencia Nacional authorised his detention incommunicado in order to pre-empt the potential frustration of the ongoing investigation, which was primarily aimed at the location of explosives. Simultaneously, a search was carried out at his home, where computer equipment was seized. The detention incommunicado was ordered and supervised by a judge within the framework of a judicial procedure. 10.     Once the detention incommunicado had been authorised by the investigating judge, the applicant was assigned legal aid. He was informed of his rights as a detainee – including his right not to testify against himself and his right to remain silent; however because his detention was incommunicado in nature, he was neither authorised to choose a lawyer nor to meet in private with the lawyer that had been assigned to him by way of State-funded legal aid (“legal-aid representative”) prior to his being interviewed by the police. During his detention incommunicado, the applicant gave two statements to the police, both in the presence of that legal-aid representative. 11.     On 30 September 2010, the investigating judge ordered the extension of the applicant’s detention for a period of forty-eight hours in view of the nature of the offences under investigation and the large amount of computer material found during the search of the applicant’s home. 12 .     On 1 October 2010, at 7:23 a.m., in his first statement to the Guardia Civil , the applicant stated that he had “cooperated” with ETA and that his activities during his participation in that group’s terrorist activities had included acts such as attempted kidnapping, verifying details regarding a certain businessman in order that he could be assassinated, and providing information regarding certain police officers serving in the Basque Autonomous Community so that an attack could be planned against them; he also indicated a storage room where he kept explosives. The applicant’s legal-aid representative was present during the interview, and both the legal-aid representative and the applicant signed the applicant’s statement to the Guardia Civil and a document attesting to the fact that the applicant had been informed of his rights as a detainee. Later, the applicant’s legal-aid representative repeatedly tried to make contact with his client. The Guardia Civil informed the legal-aid representative that contact with his client was legally restricted because the applicant was being detained incommunicado. After the applicant had given his statement, a search was carried out of a storage space (indicated by the applicant) in the applicant’s home used to hide explosives, and a large amount of explosive material and computer equipment relating to the activities of ETA was found. 13 .     On 3 October 2010, at 3.13 a.m., the Guardia Civil took a new statement from the applicant, as there were strong suspicions that he knew of other sites at which was stored explosive material that was in a state to be used. Again, after the agents of the Guardia Civil had read out his rights – including his right to remain silent – the applicant made a statement informing them of a hidden place at his home where he still kept a firearm, bullets, various USB keys containing several training handbooks on terrorism, and some false licence plates. He made that statement despite the opposition of his legal-aid representative, who was present and indicated his opposition to the new interview taking place. Subsequently, at the applicant’s residence, the Guardia Civil found all the equipment that had been listed by the applicant in his latter statement. 14.     During his detention incommunicado, the applicant was examined daily by a forensic doctor, to whom he reported that he had not suffered mistreatment by the Guardia Civil at any time, although he did claim that the Guardia Civil had threatened to arrest his girlfriend if he did not cooperate with them. The doctor submitted a medical report each day to the investigating judge in charge of the case. 15.     On 4 October 2010 the applicant was brought before the investigating judge, to whom he indicated that his statements to the Guardia Civil had been obtained when being held incommunicado for five days and that for this reason he had made self-incriminatory statements. On the same day, the applicant’s detention incommunicado was lifted, and he was able to appoint a lawyer of his own choosing. 16.     On 16 April 2013 the Audiencia Nacional convicted the applicant of being a member of a terrorist group and of possession of explosives . He was sentenced to seventeen years’ imprisonment. The conviction was based essentially on: material found on the seized computer material linking him to the terrorist group; the explosive material found in both his home and other places that had been indicated by him ; incriminating statements given by the applicant’s co-defendants; statements given by witnesses; and the fact that the applicant had remained silent in response to questions from the prosecution. With reference to reports by the forensic doctor, the Audiencia Nacional ruled out the possibility that the applicant had been mistreated. It   deemed that he had given his statements freely and voluntarily (see paragraphs 12 and 13 above), without coercion or pressure of any kind. 17 .     According to the judgment, it had been proved that the applicant had concealed the following effects, tools and instruments: “The following material was found in the search carried out on 1 October 2010 in a storage room used by the defendant: Six USB keys, detonators and three flap-type devices intended to activate explosive devices – [all] in perfect working order; a device intended to activate car bombs; fifty-six kilograms of potassium chlorate and 7 kg of sulphur; ammunition and pistol holsters, forty-six pistol cartridges, twenty detonator fuses; a CD, with a handbook [produced by] the terrorist group; five spent cartridges from the gun that had killed two police officers; seven spent cartridges from a gun that had killed two people; a reddish plastic with wrapping tape and rubber gloves, containing traces of the following explosive substances: ammonium nitrate, nitroglycerine and dinitrotoluene. ... During the search carried out on 3 October 2010 at the applicant’s home, the following effects, tools and instrument were found: a gun; fifty cartridges; twenty car registration plates; two detonators intended to activate [explosive] devices; a [detonator] timer; ... Among the seized computer files were found: several [copies of] handbooks [containing] instructions [on how to behave] in the event of arrest; training videos on the use of weapons, explosives and security measures; information regarding police officers and politicians; and [plans for] placing a ‘van bomb’ by a hotel.” Regarding the fact that the applicant’s legal-aid representative was not allowed, despite repeated attempts on his part, to communicate with his client, the first-instance court heard the legal-aid representative as a witness at the trial. 18.     Following an appeal by the applicant, on 18 March 2014 the judgment of the Audiencia Nacional was upheld by the Supreme Court. It   concluded that despite the applicant’s assertion that the Guardia Civil had threatened him with the arrest of his girlfriend, there was no evidence of any torture – either physical or psychological. With regard to the evidence that had been found in the applicant’s possession, the Supreme Court concluded that the large amount of material found in his possession, as well as the spent gun cartridges, revealed that not only had he stored explosives, but he had also been part of ETA. 19.     On 7 May 2014 the applicant lodged an amparo appeal with the Constitutional Court. He argued that his right to be assisted by a lawyer of his own choosing had been violated (Article 24 § 2 of the Constitution). The amparo appeal was declared inadmissible on 7 November 2014 because the applicant had failed to “specifically and sufficiently justify its constitutional relevance”. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law AND PRACTICE 20.     The relevant provisions of the Spanish Constitution read as follows: Article 17 “1.     Everyone has the right to liberty and security. No one may be deprived of his liberty otherwise than in accordance with the provisions of this Article and in the circumstances and form provided by law. 2.     Preventive detention may last no longer than the time strictly required in order to carry out the investigations aimed at establishing the facts; in any event, the person arrested must be set free or handed over to the judicial authorities within a maximum period of seventy-two hours. 3.     Everyone who is arrested must be informed immediately, and in a manner that he can understand, of his rights and of the reasons for his arrest and cannot be required to make a statement. The assistance of a lawyer is guaranteed to persons detained in police investigations or criminal prosecutions, as provided by law...” Article 24 “1.     Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights. 2.     Likewise, everyone has the right to the assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue delay and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating statements; to not declare themselves guilty; and to be presumed innocent.” 21 .     The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, provide as follows: Article 509 “1. The preliminary investigating judge or tribunal may exceptionally order that the suspect be held in detention incommunicado ... to avoid the suspect violating the victim’s legal rights, concealing, modifying or destroying evidence, or committing new criminal acts. 2. Detention incommunicado shall last [only] for the period of time that is strictly necessary in order to implement urgent measures aimed at avoiding the dangers referred to in the preceding paragraph. Detention incommunicado cannot be extended beyond five days ... 3. The decision ordering the detention incommunicado or, where appropriate, an extension thereof, shall state the grounds on which the measure was taken. ...” Article 510 “1. A detainee held incommunicado may attend, with due precautions, proceedings in which, under this law, [he or she] may intervene, provided that their presence will not undermine the purpose of their being detained incommunicado. ... 3. A detained person shall not be allowed to make or receive any communication. Nevertheless, the judge or court may authorise [contact] that does not defeat the purposes of detention incommunicado and shall, if necessary, adopt appropriate measures. 4. A person detained incommunicado who so requests shall have the right to be examined by a second forensic doctor appointed by the judge or court that has jurisdiction in respect thereof.” Article 520 “... 2. Every detained person shall be informed, in a comprehensible manner and immediately, of the facts in respect of which they are charged and of the reasons for their being deprived of liberty, as well as of the rights to which they are entitled – especially of the following: (a) the right to remain silent, not to make a statement if they do not wish to, not to answer any or some of the questions put to them or to state that they will only make a statement to a judge; (b) the right not to make a statement incriminating themselves and not to confess guilt; (c) the right to appoint a lawyer and to request his or her presence when giving a statement to the police or to a court and for [that lawyer] to be present at any identity parade in which he or she may participate. If a detainee or prisoner does not appoint a lawyer, one shall be appointed ex officio ; (d) the right to inform a relative, or any other person, of the detention and the place of custody in which he or she is being held at any time. Foreigners shall have the right to notify the consular office of their country of the above circumstances. .... 6. Assistance provided by a lawyer shall consist of: (a) requesting, where appropriate, that the detainee or prisoner be informed of the rights set out in section 2 of this Article and that a medical examination – as provided above ... be conducted; (b) requesting from the court or the civil servant who conducted the proceedings in which the lawyer has intervened, once [those proceedings] have finished, to declare or expand on any information [the lawyer] deems appropriate, as well as the recording of any incident that may have arisen while the proceedings were underway; (c) holding a private interview with the detainee at the end of any proceedings at which he or she has been present. Article 520 bis “1. All persons arrested as suspects in respect of any of the crimes referred to in Article 384 bis. will be brought before the competent judge within seventy-two hours of their arrest. However, the detention may be extended for the time needed for investigations [to be carried out], up to a maximum of a further forty-eight hours, as long as, once this extension has been requested in a reasoned manner within forty-eight hours of the arrest, this is authorised by a judge within a further twenty-four hours. Authorisation of or refusal to grant [such an] extension will be given in a reasoned decision. 2. Where a person is arrested for the reasons set out in the previous paragraph, a judge may be requested to order their detention incommunicado, and that judge must reach a reasoned decision within a time-limit of twenty-four hours. Once detention incommunicado is requested, the detainee will, in all cases, be kept incommunicado, without prejudice to their right to a defence and to the provisions of Articles 520 and 527, until the judge has issued the relevant decision. 3. During the detention, the judge may, at any time, request information and make [himself or herself] aware – personally or through [enquiries made by] the investigating judge for the district or demarcation area in which the detainee is to be found – of the detainee’s situation.” Article 527 “1. The detainee or prisoner, while [being held] incommunicado, may not enjoy the rights set out in the present chapter, with the exception of those established in Article   520, with the following provisos: a) in every instance, the lawyer will be appointed ex officio ; b) he or she shall not be entitled to the [right to contact] provided for in point d) of paragraph 2; c) neither shall he or she be entitled to the interview with his or her lawyer specified in point c) of paragraph 6.” Article 384 bis “Once an order for prosecution is final and provisional detention is ordered in respect of a crime [allegedly] committed by the person concerned or related to armed gangs or terrorist or rebel individuals, an accused person who may have held a public post or duty will automatically be suspended from exercising [that duty or post] for as long as that detention lasts.” 22.     The Code of Criminal Procedure, as currently in force (as amended by Organic Law 13/2015 of 5 October 2015), provides as follows. Article 509 “1. An investigating judge or court may, exceptionally, by means of a reasoned decision, order detention incommunicado or imprisonment in the event of any of the following circumstances: a) an urgent need to prevent serious consequences that may place the life, liberty or physical integrity of a person in danger, or b) an urgent need for immediate action on the part of the examining judge in order to prevent criminal proceedings from being compromised. 2. Detention incommunicado will last for as long as strictly necessary to take urgent legal measures aimed at preventing the risks referred to in the previous paragraph. The detention incommunicado may not last for longer than five days. In cases where imprisonment is ordered on the grounds of one of the crimes referred to in Article   384   bis or of other crimes committed in concert and in an organised manner by two or more persons, the detention incommunicado may be extended by another period of not more than five days. 3. The decision imposing detention incommunicado or, as the case may be, an extension thereof must set out the grounds on which this measure was ordered.” Article 520 “... “2. All detainees or imprisoned persons will be informed, in writing, in a simple and accessible language, in a language that they can understand, and immediately, of the acts of which they are accused and of the grounds giving rise to their imprisonment, and also of their rights, particularly the following: (a) the right to remain silent – not making a statement if they do not wish to do so or not answering some or any of the questions put to them, or declaring that they will only make a statement to a judge; (b) the right not to make a statement incriminating themselves and not to confess to their own guilt; (c) the right to appoint a lawyer, without prejudice to the provisions of paragraph 1   §   (a) of Article 527, and to be advised by [him or her] without unjustified delay. In the event that, owing to geographical distance, it is not possible for the lawyer to attend immediately, the detainee will be allowed contact with [him or her] via telephone or video conferencing, except where such contact is impossible; (d) the right of access to those elements of the proceedings that are essential in order to be able to challenge the lawfulness of the detention or deprivation of liberty. .... 6. The assistance rendered by a lawyer will consist of: (a) requesting, when appropriate, that the detainee or prisoner be informed of the rights provided in paragraph 2 and, if necessary, that the medical examination ... be carried out; (b) being present at the taking of statements from the detainee, at the recording of any examination to which [he or she is] subject to and at reconstructions of events in which the detainee takes part. The lawyer may ask the judge or official who conducted proceedings in which [the applicant] took part, after those proceedings have been completed, for a statement or clarification regarding any points that [the lawyer] considers pertinent, as well as a copy of the record of any incident that may have occurred during those proceedings; (c) informing the detainee of the consequences of giving or refusing consent to ... such legal measures as are requested ... (d) interviewing the detainee in private, including prior to making a statement to the police, the prosecutor or the judicial authority, without prejudice to the provisions of Article 527. 7. Communication between the accused and [his or her] lawyer will be confidential in nature [and conducted] under the same terms and with the same exceptions as those provided in paragraph 4 of Article 118...” Article 527 1.“In the case of situations set out under Article 509, a detainee or prisoner may be deprived of the following rights, if the circumstances of the case, so justify, (a) to appoint a lawyer of his or her choice; (b) to communicate with all or any of the persons with whom they have a right to [communicate], except with the judicial authorities, the Public Prosecutor’s Office ... and the forensic doctor; (c) to hold confidential meetings with his or her lawyer; (d) to have access to the proceedings [in question], except for [those concerning] essential elements [necessary] in order to be able to challenge the legality of [his or her] arrest. 2. Detention incommunicado or the restriction of any other right noted in the previous paragraph shall be imposed by a court order. When the restriction of rights is requested by the Judicial Police or by the Public Prosecutor’s Office, the measures provided for in paragraph 1 shall be understood to have been ordered for a maximum period of twenty-four hours. Within this time, the judge must rule on the request, as well as on the appropriateness of ordering the secrecy of the proceedings. Detention incommunicado – and the application in respect of the detainee or prisoner of any of the exceptions referred to in the previous paragraph – will be imposed by a court order that states the reasons justifying the application of each one of the exceptions to the general regime, in accordance with the provisions of Article 509. The judge will effectively control the conditions under which the detention incommunicado is carried out, for the purpose of which he or she may demand [certain] information [in order] to monitor the state of the detainee or prisoner and [whether] respect [is observed] for the detainee’s or prisoner’s rights. 3. Medical examinations of a detainee whose [contact] with all or any of the persons with whom [he or she] has the right to [communicate] is restricted will be carried out at least twice every twenty-four hours, depending on the criteria followed by the doctor [in question].” 23.     The Spanish Constitutional Court’s judgment no. 196/1987, dated 11   December 1987, dealing with the unconstitutionality of Article 527 of the Code of Criminal Procedure (as in force at the relevant time), states as follows: “... 7. The special nature or seriousness of certain crimes, or the subjective and objective circumstances surrounding them, may render it essential to conduct the police and judicial proceedings in the utmost secrecy. [Such proceedings] would be justified in order to pre-empt escape or evasion of arrest on the part of those involved in the crime under investigation or the destruction or concealment of evidence of its commission. In view of this, the Code of Criminal Procedure grants the judicial authorities exclusive power to order the detention incommunicado of a detainee. This is an exceptional measure of short duration that aims to isolate the detainee from personal relationships that might be used to transmit news of an investigation to the outside world, to the detriment of its success. In such a situation, the imposition of a legal-aid representative appears to be one more measure that the [legislature], within its capacity to regulate the right to legal assistance, has [prescribed] in order to reinforce the secrecy of criminal investigations. ... Detention incommunicado imposed under the conditions provided by law serves to protect the values guaranteed by the Constitution and allows the State to fulfil its constitutional duty to provide security to citizens, increasing their confidence in the functional capacity of State institutions. It follows that the [suspension], for a limited length of time, of the [possibility] of a detainee being held incommunicado exercising his right to freely appoint a lawyer ... cannot be considered to constitute an unreasonable or disproportionately restrictive measure, but rather a balanced reconciliation of the right to legal assistance ... with the aforementioned constitutional values. The limitation imposed on that fundamental right is reasonably balanced with the aim pursued, in accordance with the legal requirement of proportionality. This declaration does not in any way contradict the international conventions signed by Spain, whose interpretative value in relation to fundamental rights and public freedoms is enshrined in Article 10 § 2 of the Constitution. As we have already pointed out, these rights are more restrictive in terms of the provision of legal assistance to a detainee [than are the relevant provisions set out] in our Constitution ... Consequently, ... Article 527 § (a) of the Code of Criminal Procedure does not violate the essence of the right to legal assistance guaranteed to the detainee by Article 17 § 3 of the Constitution...” Relevant international law materials The Council of Europe 24.     Recommendation Rec (2006)2 of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, as applicable at the relevant time, reads, in so far as relevant, as follows: “Legal advice 23.1   All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2   Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. 23.3   Where   there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners. 23.4   Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. 23.5   A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security. 23.6   Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.” 25.     The relevant parts of the General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of 10 November 2011, entitled “Access to a lawyer as a means of preventing ill-treatment”, read as follows: “22. The CPT fully recognises that it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice. However, this should not result in the right of access to a lawyer being totally denied during the period in question. In such cases, access to another independent lawyer who can be trusted not to jeopardise the legitimate interests of the investigation should be organised. It is perfectly feasible to make satisfactory arrangements in advance for this type of situation, in consultation with the local Bar Association or Law Society. 23. The right of access to a lawyer during police custody must include the right to meet him, and in private. Seen as a safeguard against ill-treatment (as distinct from a means of ensuring a fair trial), it is clearly essential for the lawyer to be in the direct physical presence of the detained person. This is the only way of being able to make an accurate assessment of the physical and psychological state of the person concerned. Likewise, if the meeting with the lawyer is not in private, the detained person may well not feel free to disclose the way he is being treated. Once it has been accepted that exceptionally the lawyer in question may not be a lawyer chosen by the detained person but instead a replacement lawyer chosen following a procedure agreed upon in advance, the CPT fails to see any need for derogations to the confidentiality of meetings between the lawyer and the person concerned. 24. The right of access to a lawyer should also include the right to have the lawyer present during any questioning conducted by the police and the lawyer should be able to intervene during the questioning. Naturally, this should not prevent the police from immediately starting to question a detained person who has exercised his right of access to a lawyer, even before the lawyer arrives, if this is warranted by the extreme urgency of the matter in hand; nor should it rule out the replacement of a lawyer who impedes the proper conduct of an interrogation. That said, if such situations arise, the police should subsequently be accountable for their action.” The European Union 26.     Article 48 of the Charter of Fundamental Rights guarantees “respect for the rights of the defence of anyone who has been charged”. Article 52 §   3 furthermore states that the meaning and scope of that right is the same as that of the equivalent right laid down by the European Convention on Human Rights. 27.     The relevant parts of the opinion of 7 December 2011 of the European Economic and Social Committee on the “Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest” (Com(2011) 326 final. 2011/0154(COD)), provide: “3.7.2.5.1 The right of access to a lawyer cannot be dissociated from its corollary, the principle of the free choice of lawyer, pursuant to Article 6.3 c) of the European Convention of Human Rights. Having noted that the proposal for a directive makes no reference to this, the EESC proposes reiterating this principle. A derogation might be provided for in cases of terrorism and organised crime at the request of the judicial authorities; the lawyer could then be appointed by the relevant professional body.” 28.     Directive 2013/48/EU of 22 October 2013 provides, in so far as relevant, as follows: Article 3 “1.     Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2.     Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: a) before they are questioned by the police or by another law enforcement or judicial authority; b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph   3; c) without undue delay after deprivation of liberty; d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3.     The right of access to a lawyer shall entail the following: a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; ... 4.     Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9. ... 6.     In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings...” The United Nations 29.     The relevant provision of the International Covenant on Civil and Political Rights provides as follows: Article 14 § 3 (b) “Everyone charged with a criminal offence is entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.” 30.     General Comment No.   32 of the Human Rights Committee, entitled “Article   14 – Right to equality before courts and tribunals and to a fair trial”, reads, insofar as relevant, as follows: “34. The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter”. THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 31.     The applicant alleged that the fact that during the time that he had been held in detention incommunicado he had not been permitted to receive assistance from a lawyer of his own choosing, nor to communicate with him before and during his questioning by the police, had breached his right to a fair trial under Article 6   §§   1 and 3   (c) of the Convention, which, in so far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.     Everyone charged with a criminal offence has the following minimum rights: (...) (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” Admissibility 32.     The Court notes that this application is not manifestly ill-founded within the meaning of Article 35   §   3   (a) of the Convention. It furthermore notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 33 .     The applicant stated that when being questioned by the police he had been deprived of the possibility of being assisted by a lawyer of his choosing, since a legal-aid representative had been appointed to him. He claimed that he was vulnerable because he had travelled a long distance by car and he had not slept before the first police interview. Furthermore, his defence had been neither practical nor effective. The legal-aid representative had had no access to the case file, and he had not been allowed to meet with him before or after the police interview. His legal-aid representative had expressed his opposition to the applicant being required to give his second statement to the police, as he had considered that the applicant’s rights had not been respected. 34.     In the applicant’s opinion, the statements that he had given during his detention incommunicado had been unsound, and the police had used them to obtain the evidence that had later been used to justify his conviction. (b)    The Government 35.     The Government argued – citing Court’s judgment in Schiesser v.   Switzerland , 4   December 1979, § 36, Series A no. 34 – that Article 5   §   3 of the Convention did not provide that a detained person had to be represented by a lawyer when in police custody. They also submitted that when the Court examined issues concerning the criminal prosecution of individuals, it did not necessarily imply that an applicant had the right to be defended by a lawyer of his or her own choosing (see Croissant v.   Germany , 25 September 1992, §   29, Series A no.   237-B). 36.     The Government asserted that the applicant had been provided with legal assistance from the very first moment of his detention incommunicado, even though such assistance had not been required by Article 5 of the Convention. He had been informed of his constitutional rights before giving each of his statements, including his right to remain silent and his right not to incriminate himself, and had been expressly asked whether he wished to make a statement. 37.     The Government noted that the regime governing the applicant’s detention incommunicado had been decided by the judicial authorities. The legal period for which the applicant could be detained had been extended by the investigating judge owing to the existence of evidence indicating the applicant’s membership of the terrorist group ETA. Moreover, there had been some evidence to indicate that the applicant had been in charge of hiding firearms and material to be used in the preparation of powerful explosives. Therefore, there had been every reason to hold the applicant in detention incommunicado in order to (i) prevent the perpetration of offences and/or the concealment of material to be used in carrying them out, and (ii) prevent the detainee from making contact with a lawyer close to the ETA environment. 38.     The applicant’s first statement to the police had been made in the presence and with the assistance of a legal-aid representative, with the applicant’s express consent. Furthermore, while in the presence of the police officers responsible for taking the statement, the applicant had had the possibility to be orally advised by his lawyer to refrain from testifying or to refrain from testifying in a certain way. The applicant had provided details of the places where IT equipment, firearms, explosives and false licence plates used by the terrorist group in the perpetration of their attacks were hidden. Afterwards, that material had been found during the searches carried out by the Guardia Civil . 39.     The Government furthermore submitted that when the legal-aid representative had been questioned at the hearing (see paragraph 1 7 above), he had been unable to specify which of the applicant’s alleged rights had been violated. The applicant’s legal-aid representative, who had been called as a witness at the above-mentioned hearing (see paragraph 17 above) before the Audiencia Nacional , had not reported that the agents re