CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 6 juin 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s21B97EC1 { width:25.99pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB4D5CB4E { width:4.94pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .s7A5A2521 { font-family:Arial; font-size:10pt; font-weight:bold; font-style:italic } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   406   6.6.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF AVERILL v. UNITED KINGDOM   In a judgment [1] 1 notified in writing on 6 June 2000 in the case of Averill v. the United Kingdom, the European Court of Human Rights held unanimously that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3(c) (right to legal assistance), of the European Convention on Human Rights. However, by six votes to one, the Court held that there had been no violation of Article 6 § 1 (right to a fair trial) or 6 § 2 ( presumption of innocence ). Under Article 41 (just satisfaction), the Court awarded the applicant 5,000 pounds sterling for legal costs and expenses.   1.   Principal facts   The applicant, Liam Averill, an Irish citizen, was born in 1965. He escaped from the Maze Prison, Northern Ireland, in 1997 and is currently still at large.   Mr Averill was detained on 24 April 1994 under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 in connection with a double murder in the town of Garvagh, Northern Ireland. Access to a solicitor was deferred during the first twenty-four hours of his detention and he did not respond to police questioning about his movements at the time of the murder, nor about fibres found on his hair and clothing which matched those found on balaclavas and gloves discovered in the burnt-out car used by the gunmen. The applicant was informed before the start of each interview that he was not obliged to answer questions but that his failure to mention any fact on which he relied in his defence in court might be treated in court as supporting any relevant evidence against him.   He was eventually charged on 1 May 1994 with the Garvagh murders. At his trial before a judge sitting alone the applicant gave evidence about his whereabouts at the time of the killings and offered an explanation for the presence of the fibres on his hair and clothing. He called witnesses in support of his defence. On 20 December 1995 he was convicted. The judge was persuaded by the weight of the forensic evidence linking the applicant to the killings. He also drew very strong adverse inferences from the applicant’s silence in the face of police questioning.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 24 March 1997. The case was transmitted to the European Court of Human Rights on 1   November 1998 and declared admissible on 6 July 1999. Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Loukis Loucaides (Cypriot), Pranas Kūris (Lithuanian), Françoise Tulkens (Belgian), Karel Jungwiert (Czech), Sir   Nicolas Bratza (British), Hanne Sophie Greve (Norwegian), Judges ,   and also Sally Dollé , Section Registrar .   3.   Summary of the judgment   Complaints   The applicant complained that his right to a fair trial guaranteed under Article 6 of the European Convention on Human Rights had been breached on account of the decision of the trial judge to draw an adverse inference from his silence in custody and in view of the decision to deny him access to a solicitor during the first twenty-four hours of his detention.   Decision of the Court   Article 6 § 1 in conjunction with Article 6 § 3(c)   The Court considered that the refusal to allow the applicant to consult a lawyer during the first twenty-four hours of his interrogation must be considered incompatible with the rights guaranteed by Article 6. It noted in this connection that the terms of the caution administered to him created a dilemma about how to conduct his defence: to speak or hold his silence, with possible prejudice being caused to him irrespective of the option chosen. For the Court, in these circumstances, the concept of fairness enshrined in Article 6 required that the applicant should have had the benefit of the assistance of a lawyer at the initial stages of police interrogation. As it transpired, the trial judge did in fact draw a very strong adverse inference from the applicant’s silence during questioning.   The Court accordingly found a breach of Article 6 § 1 taken in conjunction with Article 6 §   6(3)(c).   Article 6 §§ 1 and 2   The Court recalled with reference to its John Murray v. the United Kingdom judgment [2] that whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation. It reiterated in line with the principles contained in the John Murray judgment that it would be incompatible with the fundamental importance of the right to silence to base a conviction solely or mainly on an accused’s silence. Nevertheless, it is obvious that the right cannot and should not prevent that an accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.   Against this background, the Court observed that safeguards were in place to prevent impermissible use being made of the applicant’s silence in custody. For example, the trial judge was under no legal obligation to draw an adverse inference and he had to give reasons for his decision to draw an adverse inference, which reasons were reviewed on appeal. In the Court’s opinion, the decision of the trial judge to draw an adverse inference must be seen as only one of the elements upon which he found that the charges against the applicant had been proved beyond reasonable doubt. It noted in this connection that the prosecution case against the applicant was strong, especially the incriminating forensic evidence, and that the applicant’s and his witnesses’ testimony to the court in effect only served to weaken the case for the defence. In any event, the Court further observed that, in the circumstances, the applicant could have been expected to provide answers to the questions put to him in custody.   For the above reasons, the Court concluded that there had been no violation of either Article 6 §§ 1 or 2 of the Convention in respect of the adverse inferences drawn at the applicant’s trial from his silence during police questioning.   Article 41   The Court awarded the applicant the sum of GPB 5,000 in respect of costs and expenses.   Judge Loucaides expressed a partly concurring partly dissenting opinion and this is annexed to the judgment.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. 1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.     [2] Judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I