CEDH · CASELAW;CLIN;ENG — 9 avril 2015

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Luxembourg - 30460/13 Judgment 9.4.2015 [Section V] Article 6 Article 6-3-c Defence through legal assistance Lack of access to case file prior to first hearing before investigating judge: no violation Inability to communicate with lawyer prior to first hearing before investigating judge: violation Facts – In October 2009 the Luxembourg public prosecutor’s office called for the opening of a judicial investigation against the applicant on charges of rape and indecent assault of a minor under 16. In December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant and was surrendered to the Luxembourg authorities. On his arrival in Luxembourg he was questioned by the police without legal assistance. The next day he was examined by an investigating judge in the presence of a lawyer who had been assigned to assist him that very morning. Before the judge the applicant gave detailed statements and maintained those that he had given to the police. He was convicted by the domestic courts and is currently serving his sentence. In its judgment the trial court referred to the various statements given by the applicant, taking them into account in its reasoning, finding that he had kept changing his account of events. Law – Article 6 § 1 in conjunction with Article 6 § 3 (c): The Court found a violation on account of the absence of a lawyer from the initial interrogation of the applicant by the police. Turning to the applicant’s first appearance before the investigating judge, the Court considered that it had to separate the question of the lawyer’s access to the file from that of lawyer-client communication. (a)     Lack of access to the file – Under the Luxembourg Code of Criminal Procedure, the authorities allowed access to the file only after the end of the first appearance before the judge. Restrictions on access to the case file at the stages of the opening of criminal proceedings and of the police or judicial investigation might be justified by, among other things, the need to preserve the secrecy of the authorities’ information and to protect the rights of others. In the present case, it was reasonable for the authorities to justify the lack of access to the file by reasons concerning the protection of the interests of justice. In addition, even before being charged, suspects were free to organise their defence, including by exercising their right to remain silent. They were then entitled to consult the file after the first appearance before the investigating judge and to choose their defence strategy throughout the criminal proceedings. A fair balance was therefore struck by guaranteeing access to the file after the end of the first appearance, throughout the judicial investigation and trial. Article 6 of the Convention could not be interpreted as guaranteeing an unlimited access to the file in criminal proceedings prior to the first appearance before the investigating judge in situations where the national authorities had sufficient reasons, relating to the protection of the interests of justice, not to undermine the effectiveness of the enquiries. Consequently, the assistance of a lawyer at the time of the first hearing by the investigating judge had not been rendered ineffective by the lack of prior access to the file. Conclusion : no violation (unanimously). (b)     Lack of lawyer-client communication – The Court noted the importance of consultation between lawyer and client prior to the first appearance before the investigating judge, for it was on that occasion that crucial exchanges could take place, if only so that the lawyer could remind the client of his rights. That was particularly true where, as in the present case, the applicant had been interviewed by the police the previous day without a lawyer and the lawyer then assigned to him had been appointed only on the very morning of his appearance before the investigating judge. Lawyers had to be able to provide assistance that was effective and practical, not abstract, by their presence at the first appearance before the investigating judge. To that end, a lawyer-client consultation had to be guaranteed unequivocally by the legislature. That had not been the case, however, under Luxembourg law. It was clear that in the present case the record of the hearing stated that a lawyer had been appointed that very morning by the investigating judge, but did not indicate the existence of any period of time during which such a consultation could have taken place. It was thus impossible to verify that the applicant had been able to converse with his lawyer before the hearing in question or had thus received effective legal assistance. In addition, a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) , issued following visits that had been made precisely during the year of the events in the present case, stated that almost all the prisoners interviewed by the delegation had, according to them, seen a lawyer for the first time when they appeared before the investigating judge, and had been able to converse confidentially with the lawyer only after that hearing. Conclusion : violation (unanimously). Article 41: The most appropriate form of redress would be a re-trial; claim in respect of non-pecuniary damage rejected.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes