Unravelling Salduz and the EU: Grand Chamber judgment of Beuze v. Belgium on the right of access to a lawyer

This guest blog post was written by Cedric Serneels, Teaching Assistant & Researcher at Institute for European Law, KU Leuven

On 9 November 2018, the Grand Chamber of the European Court of Human Rights delivered its long-awaited judgment in the case of Beuze v. Belgium. In the present case, the Court was confronted with the question when a restriction on the right of early access to a lawyer in criminal proceedings renders those proceedings unfair and thus constitutes a breach of Articles 6(1) and 6(3)(c) of the European Convention. The majority ruled that under the principle established in Salduz v. Turkey a systematically applied general and mandatory restriction on the right of access to a lawyer will only amount to a breach of Article 6 ECHR when it compromises the overall fairness of the criminal proceedings. Accordingly, the mere existence of such a restriction does in itself not constitute a violation of the Convention. In a Concurring Opinion, analysed below, it is asserted that the majority interpreted Salduz in a way that departs from and even contradicts that judgment’s original meaning and that it adopted a much more relative — and thus less protective — approach without sufficient justification. While the Court was unanimous in finding a violation of the Convention, the soundness of its legal reasoning has thus been fiercely contested. Further, it will be argued that this ruling is particularly interesting for EU lawyers as well, as it provides an example of the two-directional interplay between EU fundamental rights law and the Convention.

Facts of the case

On 17 December 2007, Mr Beuze (applicant) was arrested and taken into custody by the French police in execution of a European arrest warrant issued by a Belgian investigating judge for charges of premeditated murder on his former girlfriend, M.B. (later on in the proceedings charges against the applicant were extended also to include the attempted premeditated murder of C.L.). After his surrender to the Belgian authorities on 31 December 2007, the applicant was questioned, first while in police custody and subsequently by the investigating judge, both times without the assistance or prior consultation of a lawyer. He was only allowed to consult a lawyer once the investigating judge had taken the decision to remand him in custody. That general and mandatory statutory restriction on the applicant’s right of access to a lawyer was, at that time, enshrined in the Law on Pre-Trial Detention. As the ECtHR’s Salduz ruling had not yet happened, the issue of conformity with the Convention did not arise at this stage.

Although the applicant was from then onwards assisted by a lawyer, that lawyer could not attend the police interviews (5 in total), examinations by the investigating judge (3 in total), interrogations by the Crown Prosecutor (2 in total) or other investigative acts (including a reconstruction at the scene of the crime) conducted throughout the pre-trial judicial investigations. During the various interviews, the applicant made multiple detailed statements and changed his account of the events several times (especially as to the person that had killed his girlfriend) which influenced the line of questioning. By a judgment of 31 August 2009 by the Indictment Division of the Mons Court of Appeal, the applicant was committed to stand trial before the Assize Court.

At the start of the trial in the Assize Court of Hainaut Province, on 1 February 2010, the applicant filed a submission in which he requested that the statements made without legal assistance and the ensuing investigative acts should be annulled and that the prosecution case should be declared inadmissible on the grounds of a breach of his rights of defence. To that end, Mr Beuze relied mainly on the ECtHR’s ruling in Salduz which was only rendered in November 2008, i.e. Mr Beuze’s contested interviews in the absence of a lawyer were conducted prior to Salduz. Both pleas were dismissed by the Assize Court, finding that the proceedings as a whole could still meet the fairness standard under the Convention. At the close of the trial, eight days later, the jury found Mr Beuze guilty, of premeditated murder and attempted premeditated murder and sentenced him to life imprisonment.

Subsequently, the applicant lodged an appeal against the Assize Court judgments before the Belgian Court of Cassation, alleging a violation of Article 6(3) (c) ECHR. That Court rejected the applicant’s argument that a violation of the Convention provision in question would automatically flow from a general and mandatory restriction of a statutory nature on the right of access to a lawyer in the pre-trial stage of criminal proceedings. It ruled that the overall fairness had not been vitiated, especially given the fact that the statements made by the applicant during interviews in police custody were not of a self-incriminating nature and that, as regards the rest of the pre-trial investigation, he had never been compelled to incriminate himself. Therefore, on 26 May 2010, the Court of Cassation ruled that the Assize Court had not erred in law.

Court

From the outset, the Court recalls its seminal ruling in Salduz v. Turkey, where it had established that the right under Article 6(3)(c) ECHR becomes applicable as soon as there is a ‘criminal charge’ — a concept autonomously interpreted by the Court — and, in particular, from the time of the suspect’s arrest. Every suspect or accused thus enjoys, as a rule, a right to prior (confidential) legal consultation and physical presence of his or her lawyer while in police custody and during the whole pre-trial phase of criminal proceedings in relation to all interviews, including the very first police interrogation, and other investigative acts in which they participate. It is next observed that this right is, however, not absolute and can be derogated from for compelling reasons. The Court recognizes that, generally speaking, two types of restrictions can be distinguished in the cases brought before it. They can either be statutory restrictions of a general and mandatory nature (a Salduz-type situation), or stem from a targeted case-specific decision of the competent national authorities (an Ibrahim-type of situation: e.g. in case of terrorism-related crime). In both instances, a restriction can only be justified insofar there exist exceptional circumstances/compelling reasons, the restriction is of a temporary nature and it is based on an individual assessment of the particular circumstances of the case.

In its ruling in Beuze v. Belgium, the Court clearly attempts to clarify the relationship between its ruling in Salduz and some recent developments in its post-Salduz jurisprudence — the rulings in Ibrahim and other v. UK and Dayanan v. Turkey in particular — and systematize its approach as to when a restriction constitutes a breach of Article 6(3)(c) of the Convention. Recently, in Ibrahim and others, the ECtHR held that a context-specific restriction on the right of access to a lawyer of a suspect in police custody without compelling reasons would not in itself comprise a breach of the right to a fair trial (and could still be remedied). In the Beuze judgment, the Court states that its case law since the Salduz ruling has developed in a ‘linear’ way. In other words, it is asserted that the Salduz principle should be understood as having meant from its inception that a restriction on the right of early access to a lawyer in criminal proceedings, even if general and mandatory in nature and regardless of its justifiability, will only amount to a breach of Article 6 ECHR when it compromises the fairness of the trial in globo. That means only when it cannot be compensated for in practical terms — as opposed to in the abstract — by other procedural safeguards under domestic law. As a result, an identical compulsory two stage-test needs to be conducted under Article 6(3)(c) ECHR in both scenarios (‘general’ or ‘particular’ restrictions) (Beuze v. Belgium, §141). It must be cumulatively assessed: (1) if a restriction on the right of early access to a lawyer actually exists and whether it is justifiable; (2) what has been the impact of evidence obtained in the absence of a lawyer on the overall fairness of the criminal proceedings. As regards the linkage between both limbs of the test, the Court restates its previous finding in Ibrahim and Others that the intensity of its fairness review will depend on the existence of compelling reasons. Non-justifiable, systematic and general or context-specific, restrictions warrant very strict scrutiny of the overall fairness (Beuze v. Belgium, §145). In more practical terms, the overall fairness review of the proceedings must be carried out on a case-by-case basis and according to a non-exhaustive list of criteria set out in Ibrahim and others (Beuze v. Belgium, §150). On this point, the Court reaffirms its finding in Ibrahim and Others that the use of a (incriminating) statement made in absence of a lawyer at the trial stage is but one of the criteria that must be taken into consideration in assessing the overall fairness. The use of such statements in itself will not automatically render the proceedings unfair. The Court acknowledges that it has in the pre-Ibrahim period decided cases — of which Dayanan is best known — where it did not separately examine the overall fairness of the proceedings. Rather it found that a systematically applied general and mandatory restriction on the right of access to a lawyer had led, ab initio, to a violation of the Convention. In its judgment in Beuze, the Court explicitly departs from this line of case law and firmly rejects the argument that Salduz had laid down an absolute rule of that nature (Beuze v. Belgium, §144).

When applied to the case at hand, the Court points out that the Government had failed to demonstrate the existence of any compelling reasons which could have justified the general and mandatory restriction on the applicant’s right which in turn warrants a very strict scrutiny in the overall fairness assessment. As a result, it concludes that the denial of access to a lawyer in the pre-trial stage had not been cured or compensated for in the further course of the proceedings. In finding the criminal proceedings against the applicant to be unfair as a whole, the Court attaches particular importance to the combination of the following factors. First of all, the Court refers to the extensive character — both material and temporal — of the restrictions. Secondly, it holds that the substantial impact of the applicant’s detailed statements (although not incriminating sensu stricto) made in the absence of legal assistance on his position at the trial stage had not been properly accounted for by either the Assize Court, or by the Court of Cassation. In that regard the Court observes: (1) on the part of the Assize Court, that it did not only allow those statements as evidence but also failed to give a warning or provide guidance to the jury as to the weight to be given to the statements made without legal assistance in relation to other evidence; (2) on the part of the Court of Cassation, that it upheld the Assize Court’s judgment despite the decisive impact of those detailed statements on the jury’s finding that one of the attempted murders with which the applicant had been charged had been premeditated (Beuze v. Belgium, §§193-194). The Court, unanimously, established the existence of a violation of Articles 6(1) and 6(3)(c) of the Convention in the present case.

Joint concurring opinion

While at first sight the judgment seems to make an important contribution to the systematization of the Court’s approach and the consistency of its case law; the underlying legal reasoning is not unequivocally endorsed and even fiercely disputed. In a joint concurring opinion, Judges Yudkivska, Vučinić, Turković and Hüseynov express their concern that the present judgment “actually distorts and changes the Salduz principle and devalues the right that the Court established previously.They assert that the majority overruled and watered down the Salduz principle under the guise of consistent interpretation. By presenting the ruling in Ibrahim and Others as a ‘consolidation’ of the Salduz principle, the Court would essentially equate two restriction scenarios (general and mandatory vs. targeted and individualised restrictions) that are fundamentally different as regards their intrusiveness and apply to them an identical fairness test regardless of their justifiability. In more concrete terms, the protection scheme provided for by Article 6(3)(c) ECHR is deemed to be considerably weakened, because non-justified general and mandatory restrictions on the right of early access to a lawyer could still be cured later on. This would, according to the concurring judges, run counter to the more protective rule of automatic breach of the Convention that was introduced in Salduz.

In the view of the concurring judges, a correct interpretation of the Court’s previous case law on the matter leads one to conclude that different(iated), though overlapping and complementary, tests should be applied in Salduz-type situations and Ibrahim-type situations. Accordingly, when systematically applied, and thus non-justified, general and mandatory statutory restrictions are in play, a more absolute — and thus less holistic — approach would be in order: “the Salduz judgment considered [Article 6(3)(c) of the Convention] to have been violated, without any need for a subsequent overall fairness analysis, in a situation where the lack of compelling reasons coincided with a general and mandatory statutory restriction of the right of access to a lawyer.” When, on the other hand, a suspect or accused had during the pre-trial stages been subject to (a) either a justifiable general and mandatory restriction or (b) a more targeted and individualised restriction, regardless of whether it was justified by compelling reasons, the two-stage test should be adopted, be it with varying degrees of scrutiny in the overall fairness assessment (Joint Concurring Opinion, §18). The concurring judges conclude that this distinction allows them to articulate the interrelationship between the judgments in Salduz, Ibrahim and Others and Dayanan in a coherent and consistent manner, without there being any need to denounce the latter ruling as an accident de parcours.

Comment

The judgment in Beuze v. Belgium can be discussed from multiple (legal) angles. From the EU law perspective, we are mainly interested in the potential two-directional interplay between EU fundamental rights law and the Convention that the ruling seems to imply.

Besides the protection derived from Article 6(3)(c) ECHR, the right of access to a lawyer in criminal proceedings is, amongst other legal instruments, also enshrined in primary and secondary EU law. Following up on its 2009 ‘Stockholm Roadmap’,[1] the European Union has over the last couple of years adopted multiple directives providing for minimum safeguards to be enjoyed by suspects and accused persons in criminal proceedings anywhere in the Union. This minimum harmonization of domestic criminal procedure is founded on Article 82(2) TFEU and aims to strengthen the mutual trust between member states (in each other’s system of criminal justice and respect for fundamental rights) and facilitate mutual recognition of judgments and judicial decisions. One of the instruments adopted on that basis is Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.[2]

Recital 12 of this directive explicitly states that it “[builds] upon Articles 3, 5, 6 and 8 ECHR, as interpreted by the European Court of Human Rights, which, in its case-law, on an ongoing basis, sets standards on the right of access to a lawyer.” A first, and rather straightforward, observation in this regard is that the ECtHR’s interpretation of Article 6(3)(c) of the Convention put forward in the present ruling is liable to exert significant influence in the EU legal order. The Court of Justice of the European Union (CJEU) has on many occasions reaffirmed the ‘special significance’ of the Convention in the EU legal order[3] and reinforced it — in accordance with Article 52(3) of the EU Charter on Fundamental Rights — as a baseline in the interpretation of the EU Charter and EU legislative instruments giving further expression to specific Charter rights. It follows from the above that when the CJEU is asked in the future to provide guidance on the interpretation of Articles 47-48 of the EU Charter and, by extension, Directive 2013/48/EU by means of a preliminary ruling, the present ruling might serve as an important and authoritative source of inspiration (e.g. as regards the criteria to assess the overall fairness of criminal proceedings).[4]

On the other hand, and less obviously perhaps, this judgment seems to evidence influence of EU fundamental rights law on the Convention system as well. Others have already pointed out that the Roadmap Directives, since they create more specific and protective standards at some points, may “anticipate the case law of the Strasbourg Court”. Indeed, previous case law of the ECtHR has used Directive 2013/48/EU as a normative argument in its interpretation of Article 6(3)(c) of the Convention (see: A.T. v. Luxembourg, as discussed here and Ibrahim and Others, §264). The Beuze ruling is particularly interesting in this regard, because the Concurring Judges in their Opinion seem to criticize the majority ruling not only for its lack of proper (textual) analysis of previous case law, but also for not having adequately incorporated EU law, and Directive 2013/48/EU more specifically, in its legal reasoning.

The main argument for the ‘alternative’, more absolute, reading of Article 6(3)(c) of the Convention put forward by the Concurring Judges is based on paragraph 56 in fine of the Salduz ruling. The Concurring Opinion strongly emphasises that in that specific passage the Court, before it proceeded with an overall fairness examination, concluded that restrictions on access to a lawyer provided for on a systematic basis by statutory provisions “[as such] already fell short of the requirements of article 6.” The Concurring Opinion derives from this that “the Grand Chamber decided unanimously to depart from the traditional holistic approach and opted for a finding of an automatic violation” (Joint Concurring Opinion, §6-7).

When carefully reading this Concurring Opinion it appears, however, that the four judges complemented or ‘supported’ this argument of precedent with a comparative argument based on Directive 2013/48/EU. The Directive is referred to in the Concurring Opinion as a detailed articulation and even clarification of Strasbourg case law and the Salduz principle more specifically “with the aim of strengthening them and ensuring their practical effectiveness” (Joint Concurring Opinion, §26). That wording seems to indicate that the Concurring Judges used the Directive in a self-referential manner. Put differently, they ostensibly had recourse to the Directive — which was adopted on 22 October 2013 (i.e. well before the ECtHR’s ruling in Ibrahim and others, but after the Dayanan case) — as a proxy to (re-)establish the ‘original’ meaning and rationale of the Salduz-doctrine.

Although not made explicit in the Concurring Opinion, the EU law argument relied upon to substantiate the more absolute — and less holistic — interpretation of Salduz presumably goes as follows: Article 8(1)(d) of the Directive provides that derogations from the right of access to a lawyer at the pre-trial stage of criminal proceedings will only be in conformity with that directive when they ‘do not prejudice the overall fairness’ of those proceedings. In other words, that provision establishes a two-stage fairness test. The fact that Articles 3(6) and 8(2) of the Directive only refer to ‘temporary and duly reasoned restrictions authorised on a case-by-case basis’ as potentially justifiable restrictions (insofar they coincide with compelling reasons) and do not consider general and mandatory restrictions of a statutory nature seems to suggest that only restrictions of the former type warrant a two-stage overall fairness assessment. Restrictions of the latter type, at least if not justifiable, could consequently be presumed to be, ab initio, in violation of the Directive and thus the Salduz principle upon which it builds. Compelling (textual) evidence for this can be found in one of the concluding paragraphs in which it is stated that the Court must apply a strict approach to a blanket prohibition on the right to legal assistance; otherwise we will end up in conflict with the overall direction of both the case-law of the Court and EU law(Joint Concurring Opinion, §24; emphasis added by the author).

In sum: The Concurring judges very convincingly argued that the majority ruling in Beuze v. Belgium leads to a regression of the level of protection under Article 6(3)(c) of the Convention which neither finds support in previous case law, nor is sufficiently justified on other grounds. To that end, the four judges, inter alia, adduce that the interpretation adopted by the majority contradicts the wording of Directive 2013/48/EU, an EU law instrument proclaiming itself as an articulation of the Salduz-doctrine. Nonetheless, under the interpretation set forth in the present judgment member states of the Council of Europe can deny early access to a lawyer in criminal proceedings in a systematic and indiscriminate way without automatically violating the Convention (though not necessarily without ab initio violating Union law for those states that are also EU member states). Put differently, the ruling in Beuze clearly tilts the balance in favour of the contracting states and the swiftness of criminal investigations, at the cost of individual protection.

[1] Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ [2009] C295/1).

[2] Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings (OJ [2013] L294/1).

[3] E.g. ECJ, C-46/87 and C-222/88, Hoechst, ECLI:EU:C:1989:337, para. 13

[4] E.g. ECJ [GC], C-612/15, Criminal Proceedings against Nicolay Kolev and others, ECLI:EU:C:2018:392, paras. 104-106.

3 thoughts on “Unravelling Salduz and the EU: Grand Chamber judgment of Beuze v. Belgium on the right of access to a lawyer

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