Strasbourg Observers

Does the Court really expand European fair trial rights standards in criminal proceedings with Wang v. France and Dubois v. France on ‘voluntary’ police interviews of suspects?

August 23, 2022

By Anna Pivaty

On 22 April 2022 the European Court of Human Rights (hereafter ‘ECtHR’ or ‘the Court’) (Chamber) has issued two judgments – Wang v. France and Dubois v. France – on the rights of persons interviewed by the police ‘voluntarily’, meaning: upon invitation by police without placing them under arrest. The Court’s press release implies that the judgments strengthen the rights of suspects interviewed by police by ‘requiring observance of the safeguards applicable to police custody’ also when suspects attend police interviews voluntarily. The judgments concern in particular the right to legal assistance (art. 6 (3) (c) of the European Convention on Human Rights (ECHR)). Earlier ECtHR case law had indeed raised some uncertainty about whether the right to legal assistance applies to persons questioned by police about a (potential) criminal charge without being placed in police custody (cf. Salduz v. Turkey and Alexander Zaichenko v. Russia). In the two French judgments under review, the Court confirmed that the right applies also to non-custodial suspect interviews. But can these judgments really be viewed as strengthening European fair trial rights’ standards?

In this blog I argue that the practical impact of these judgments on the state of fair trial rights’ protection in Europe will be limited, or that it would result in dilution rather than strengthening of the respective suspects’ procedural rights.


Both cases brought to the Court originate from France and they involve criminal convictions for illegal exercise of the medical profession. Ms Wang was accused of practicing acupuncture, which in France falls under medical practice, without possessing a respective professional qualification recognised in France. Mr Dubois, who was dental technician, was accused of placing dental crowns on his patients, which can only be performed by dental surgeons. Both applicants were invited for an interview by police after receiving information about their potentially illegal activities from the respective medical professional associations. 

Both applicants were interviewed by police under the so-called audition libre regime. They were informed that they were free to leave at any time, but were not informed of their right to silence nor of their right to legal assistance. Ms Wang whose native language was Chinese and who had lived in France since 5 years, was interviewed without an interpreter. Both applicants made detailed self-incriminating statements during their interviews. Both were convicted, their statements to police being used (among other pieces of evidence) in their conviction. Ms Wang was ordered to pay a fine of five hundred euros and four hundred euros in damages to the respective professional association. Mr Dubois was sentenced, by appeal court, to eighteen months’ imprisonment, suspended, with a three-year probation period and an obligation to repair damages resulting from the offence and a prohibition to exercise dentistry.

The ‘old’ French audition libre regime

The French audition libre regime in place at that time (the interviews took place in 2013 and 2014) had been fiercely criticised by lawyers, who argued inter alia that suspects interviewed ‘voluntarily’ by police should have the same rights as suspects placed in police custody (garde à vue). Attendance of interview can hardly be considered ‘voluntary’, where refusal to attend or to submit to questioning will result in being arrested. Besides, there were indications that audition libre was used by French police to circumvent the requirement to grant procedural rights to interviewed suspect. As the ECtHR also mentions, in 2010, about half of suspects in France had been interviewed under the audition libre regime instead of being placed in custody (see para. 21 Dubois).

Despite these criticisms, the provisions concerning audition libre were initially declared in conformity with the Constitution by the French Conseil Constitutionnel in 2011. In 2014, however, the French government was obligated to revamp the audition libre regime when transposing the EU Directive 2012/13/EU on the right to information in legal proceedings. This directive required that all suspects interviewed by police (notwithstanding of whether they were placed in custody) should be informed about their rights to silence and to be assisted by a lawyer. Yet, because the interviews of Ms Wang and Mr Dubois took place before the respective provisions entered into force, French courts have (for the most part) dismissed their claims of breach of their right to a fair trial during their audition libre and upheld their convictions. Both applicants complained to ECtHR, relying on art. 6 paras. 1 and 3 (right to a fair trial/right to legal assistance), alleging that they were convicted on the basis of statements given during a voluntary police interview, during which they had not been informed of their right to remain silent. Ms Wang had also not been assisted by an interpreter during her interview.

The ECtHR reasoning

In its reasoning, the Court relied on the two-step test first introduced in Ibrahim and others v. UK, which it has been applying to complaints related to lack of legal assistance in police custody and the use of resulting statements for conviction since then. The test consists of two questions: 1. whether there were compelling reasons to restrict the right to legal assistance (para. 258, Ibrahim and others); 2. whether the proceedings on the whole were fair, taking into account a range of possible ‘counterbalancing factors’ which could compensate the lack of fairness (paras. 260, 274, Ibrahim and others). The absence of compelling reasons to deny the right to legal assistance and the use of the resulting statements for conviction would not automatically result in breach of art. 6, but the Court must apply ‘a very strict scrutiny’ when assessing the overall procedural fairness (para. 265, Ibrahim and others). The Court has further interpreted the test inter alia in Simeonovi v. Bulgaria and Beuze v. Belgium stating for instance that even where restrictions of the right to legal assistance at pre-trial stage are of general and systematic nature – as with regard to the ‘old’ French regime of audition libre – the overall procedural fairness must still be assessed.

Applying this reasoning to the two French cases under analysis, the Court arrived at the conclusion that there was a violation of arts. 6 (1) and (3) (c) in the case of Ms Wang, but not in the case of Mr Dubois. In both cases, the Court found that there were no compelling reasons for restricting the right to legal assistance during the audition libre. It has then proceeded to assessing whether the proceedings on the whole were fair. In the case of Ms Wang the Court answered in the negative, based on the following factors: 1) Ms Wang was in a vulnerable position due to her language difficulties and because she was not afforded the right to interpretation during the interview; 2) her resulting self-incriminating statement was central to her conviction (as witness statements of her patients, which were meant to be exculpatory, were used to support the accusation); and 3) her appeals were rejected by French courts without considering their merits. The Court has therefore concluded that art. 6 was violated in the case of Ms Wang, granting her monetary compensation, and declaring that it does not consider it necessary to apply any other remedy (such as a new trial).

In the case of Mr Dubois the Court arrived at a different conclusion. It found that: 1) Mr Dubois was not in a particularly vulnerable position during the interview 2) that his conviction was supported by other evidence inter alia written invoices, witness statements, and the fact that he had been convicted in the past of similar offences, and thus that his statement was only ‘incidental’ to the conviction; and that 3) domestic courts did consider his allegations of unfair trial on the merits, and the court of first instance has even excluded his statement from evidence (this exclusion was subsequently overturned by the appeal court).


The right to legal assistance during non-custodial interrogations is recognised in both the EU Directive 2012/13/EU on the right to information in criminal proceedings (art. 3 (1) (a)) and the EU Directive 2013/48/EU on the right to legal assistance in criminal proceedings (art. 3 (2) (a)). Therefore, the new ECtHR judgements are unlikely to result in any change of legal regimes of those EU Member States that have transposed the respective Directives. In France, the right is guaranteed by the Law transposing the Directive 2012/13/EU of 27 May 2014 (the respective provisions entered into force from 1 January 2015).

However, because the Wong and Dubois judgments follow the line of Ibrahim and others v. UK, they speak to the uncertain relationship between EU law and ECtHR standards with regard to breaches of suspects’ right to legal assistance at police interviews, the use of resulting statements for conviction, and remedies for the respective procedural irregularities (Pivaty 2018; Soo 2016). As argued elsewhere, Ibrahim and others has effectively overturned the earlier Grand Chamber judgement of Salduz v. Turkey (Celiksoy 2018). In Salduz, the Court has ruled that the use of police interview statements obtained from suspects whose right to legal assistance was not guaranteed to support a conviction, would result in a breach of art. 6 ECHR. The very use of such statements to support a conviction would render the entire proceedings unfair. According to the post-Ibrahim case law, the use of pre-trial suspect statements obtained in breach of the right to legal assistance would not any longer automatically render the proceedings unfair. As mentioned above, such unfairness should be established after considering the possible counterbalancing factors. Thus, it may very well be, as it happened in several cases before the ECtHR (inter alia in Ibrahim and others, Simeonovi, Beuze and Dubois), that the Court would establish no violation of art.  6, even if it considers that the right to (pre-trial) legal assistance was not respected.  

This situation creates uncertainty regarding the interpretation of the respective EU law, particularly the provisions concerning remedies for violations of the right to pre-trial legal assistance (art.  12 Directive 2013/48/EU) (Soo 2017). Although the scope of the right under the respective EU Directive is quite clear, the provision on the appropriate remedies for violations of this right is open to interpretation. Although the European Commission had initially proposed, in line with the Salduz ruling, that violation of the right to legal assistance during police interview should generally lead to the exclusion of the respective statements, the adopted text of the Directive is less equivocal on this point. The final text of art. 12 does not mention a ban on the use of evidence as such, but states that Member States should ‘have an effective remedy under national law in the event of a breach of the rights under this Directive’ (art. 12 (1)) and that ‘[w]ithout prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects…or of evidence obtained in breach of their right to a lawyer…,the rights of the defence and the fairness of the proceedings are respected.’ (art. 12 (2)).

Thus, Member States have a certain degree of discretion in choosing an appropriate remedy. According to the post-Ibrahim ECtHR case law, exclusion of evidence does not have to follow automatically when the right to legal assistance at police interview is breached – and certainly not in cases where there is sufficient other evidence to reach a conviction. Given that the ECtHR case law is an authoritative source for the Council of Europe member states, and given that the CJEU itself is obligated to take into account the respective ECtHR case law when interpreting EU law provisions as follows from art. 53(2) of the EU Charter on Fundamental Rights, it is likely that art. 12 of Directive 2013/48/EU will be interpreted by EU Member States and/or CJEU as not requiring exclusion of self-incriminating statements obtained from suspects during police interviews without ensuring their right to legal assistance, unless the use of statements resulted in gross unfairness, tainting the entire proceedings. 


This position in my view does not take due account of the interest of perceived procedural justice in criminal proceedings. Research has shown that suspects’ perceptions of whether they were treated fairly is more important for their perceptions of legitimacy of the criminal justice system, than their perceptions of fairness of the outcome. Respect of the right to legal assistance is an important factor in perceived procedural fairness. What is more, it can be argued that detailed statements describing the modus operandi and/or the mens rea of the incriminated crime(s) obtained from suspects by police of the kind given by Mr Dubois and Ms Wang, would always be an important piece of prosecution evidence, notwithstanding of the existence of other supporting evidence (see also the dissenting opinion of judge Mourou-Vikström in Dubois). For the reasons enumerated above, it would have been preferable, in my view, for the Court to rule that non-exclusion of the respective statements on itself had tainted the fairness of the entire proceedings, and thus resulted in a violation of art. 6 ECHR. Such a finding, in my view, better aligns with the intention behind the corresponding EU law provisions. Besides, it would not bar conviction in those cases where there is substantial incriminating evidence, but it would arguably improve the perceptions of fairness of the proceedings – and consequently, of the legitimacy of criminal courts – even for those suspects, who are eventually found guilty of the incriminated crime(s).

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