CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 avril 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 22 April 2016   THIRD SECTION Application no. 27787/15 Olten Edmund GAMBIER against the Netherlands lodged on 4 June 2015 STATEMENT OF FACTS 1.     The applicant, Mr Olten Edmund Gambier, is a Dutch national, who was born in 1976 and lives in Amsterdam. He is represented before the Court by Mr J.J. Weldam, a lawyer practising in Utrecht. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant was arrested on 11 June 2012 at 2.22 p.m. on suspicion of having shoplifted 131 tubes of toothpaste on 15 May 2012. The applicant was taken into police custody at 5.20 p.m. 4.     Shortly after he had been taken into police custody the applicant was informed of his right to consult a lawyer prior to being questioned and of the possibility to be assigned a lawyer free of charge for this purpose. The applicant stated that he indeed wished to be assigned a lawyer free of charge. At 8.40 p.m. the police commenced questioning the applicant without a lawyer having come to the police station to provide him with legal assistance. At the beginning of the interview the applicant was reminded by the police investigators of his right to remain silent. In the course of the interview he confessed that he had stolen about twenty tubes of toothpaste. The interview ended at 9.40 p.m. and the applicant was released from police custody later that same day. 5.     In the course of the subsequent trial, which took place before a single-judge chamber ( politierechter ) of the Midden-Nederland Regional Court ( rechtbank ), the applicant’s lawyer argued that his confession should be excluded from the evidence, as it had been obtained without the applicant having had the opportunity to consult a lawyer and without his having waived that right. The applicant himself did not appear at the hearing, but had authorised the lawyer to represent him. 6.     On 18 March 2013 the applicant was convicted of shoplifting and sentenced to 30 hours’ community service and to a suspended term of one week’s imprisonment. The conviction was, inter alia , based on the applicant’s confession to the police, the Regional Court considering that the Legal Aid Duty Roster Service (“the Duty Roster Service” – piketcentrale ) had been duly notified at 5.30 p.m. and that questioning had started at 9.30   p.m. because no lawyer had appeared and it had not been possible to wait any longer. 7.     The applicant lodged an appeal with the Arnhem-Leeuwarden Court of Appeal ( gerechtshof ). He submitted, inter alia , that the case file did not contain a copy of the notification to the Duty Roster Service and that the defence had therefore been unable to ascertain that such a notification had indeed been made. The police ought at the very least to have made enquiries with the Duty Roster Service about the absence of a lawyer prior to starting to interview the applicant. Since there had been no special circumstances on the basis of which it would have been permissible to restrict the right of access to a lawyer, there had been a breach of Article   6   §   3 (c) of the Convention, which, under national law, constituted non-compliance with a procedural requirement ( vormverzuim ) and, pursuant to established domestic case-law, that ought to have led to the exclusion of the evidence obtained in that manner. At the hearing before the Court of Appeal the applicant again did not appear, but was represented by his lawyer. 8.     On 29 July 2013 the Court of Appeal quashed the Regional Court’s judgment, convicted the applicant of shoplifting and sentenced him to 30   hours’ community service and to a suspended term of one week’s imprisonment. The Court of Appeal rejected the applicant’s argument that his confession should not be used in evidence because he had not had access to a lawyer prior to the police interview. It held that the Duty Roster Service had been informed at 5.30 p.m. of the applicant’s wish to consult a lawyer and that questioning had commenced at 8.40 p.m., as by 7.30 p.m. no lawyer had appeared. As the police had acted in accordance with the instructions in force, procedural requirements had been complied with. The Court of Appeal held in addition that in view of the relatively minor level of seriousness of the criminal offence at issue, the applicant’s deprivation of liberty should be kept as short as possible. 9.     The applicant lodged an appeal on points of law with the Supreme Court ( Hoge Raad ), arguing once more that his confession ought to have been excluded from the evidence as it had been obtained without his having been able to consult a lawyer. 10.     The Supreme Court dismissed the appeal on points of law on 9   December 2014. It held, inter alia , as follows: “4.5     A suspect who has been arrested by police can claim under Article 6 of the Convention an entitlement to legal assistance, which entails that he be given the opportunity to consult a lawyer prior to being questioned by police about his involvement in a criminal offence. The arrested suspect should be informed of his right to consult a lawyer before the first interview begins. Except in the case where he, either explicitly or implicitly, but in any event unequivocally, waives that right, or where compelling reasons exist within the meaning of the case-law of the European Court of Human Rights, he will, within reasonable limits ( binnen de grenzen van het redelijke ), have to be offered the opportunity to effectuate that right. If an arrested suspect has not, or has not within reasonable limits, been given the opportunity to consult a lawyer prior to being questioned by police, this will in principle constitute non-compliance with a procedural requirement within the meaning of Article 359a of the Code of Criminal Procedure ( Wetboek van Strafvordering ), which, after a plea to that effect, should as a rule lead to the exclusion from the evidence of statements made by the suspect before he was able to consult a lawyer. ... 4.6     Whether in a particular case an arrested suspect was ‘within reasonable limits’ given the opportunity to exercise his right to consult a lawyer will depend on the circumstances of the case. ... the Court of Appeal based its judgment that this had been the case on the fact that the two-hour period laid down in the Instructions on Legal Assistance and Police Questioning ( Aanwijzing rechtsbijstand politieverhoor ) had been complied with and that the case was of relatively minor seriousness, as a result of which the deprivation of liberty was to be as short as possible. The judgment of the Court of Appeal is not incomprehensible and, having regard to what has been adduced on behalf of the suspect in this connection, it does not require further reasoning.” B.     Relevant domestic law and practice 1.     Legal assistance to suspects held in police custody 11.     Article 40 of the Code of Criminal Procedure (“the CCP”) provides, in so far as relevant, as follows: “1.     The board of the Legal Aid Council ( Raad voor Rechtsbijstand ) may assign the provision, in rotation, of legal assistance to suspects taken into police custody to registered lawyers who have expressed their willingness to provide such services. 2.     If a lawyer who has been granted such an assignment under the preceding paragraph is available for the provision of legal assistance to a suspect taken into police custody then he shall act as defence counsel for the suspect for the duration of the police custody. The public prosecutor or an assistant public prosecutor shall promptly inform the lawyer of the police custody. ... 5.   The second ... paragraph will not apply if the suspect has a chosen defence counsel.” 12.     After the Court’s judgment in the case of Salduz v. Turkey ([GC], no.   36391/02, ECHR 2008), the Supreme Court changed its case-law as regards the right of access to a lawyer, in three judgments of 30 June 2009 (ECLI:NL:HR:2009:BH3079; ECLI:NL:HR:2009:BH3081; and ECLI:NL:HR:2009:BH3084). It held as follows: “2.7.1.     If an arrested suspect has not, or has not within reasonable limits, been offered an opportunity to consult a lawyer prior to the first interview, this will in principle constitute non-compliance with procedural requirements within the meaning of Article 359a of the CCP. 2.7.2.     ... Therefore, having regard, among other things, to the finding of the European Court of Human Rights set out in paragraph 55 [of its judgment in the case of Salduz v.   Turkey ], ... such non-compliance with procedural requirements should, after a plea to that effect, as a rule lead to the exclusion from the evidence of incriminating statements made without access to a lawyer, except in the situations referred to in the considerations above relating to a waiver by the suspect of the right to consult a lawyer and to the compelling reasons indicated by the European Court of Human Rights.” 13.     On the basis of these judgments of the Supreme Court, the Board of Procurators General ( College van procureurs-generaal ) of the public prosecution service drew up the Instructions on Legal Aid and Police Questioning ( Aanwijzing rechtsbijstand politieverhoor , “the Instructions”), which are instructions within the meaning of section 130 § 4 of the Judiciary Organisation Act ( Wet op de rechterlijke organisatie ). The Instructions entered into force on 1 April 2010. Pursuant to the Instructions, the police have to inform a suspect of his or her right to have access to a lawyer before questioning him or her. If a suspect does not unequivocally waive his or her right to consult a lawyer, the Legal Aid Duty Roster Service must be notified by the police without undue delay. The lawyer assigned by the Duty Roster Service must then report to the police station within two hours, during which period of time the police are not allowed, save in exceptional circumstances, to start the interview. 14.     The Legal Aid Council has drawn up model regulations concerning the Duty Roster Service. According to these Regulations, as in force at the relevant time, the police must notify the Duty Roster Service of a suspect’s wish to receive legal assistance prior to being questioned. The Duty Roster Service assigns a lawyer and informs the assigned lawyer of the police notification. The lawyer thus assigned should arrive at the police station in which the suspect is being held within two hours of the police notification. 2.     Sanctions for non-compliance with procedural requirements by criminal investigation authorities 15.     Article 359a of the CCP reads, in so far as relevant, as follows: “1.     The Regional Court may, if it appears that procedural requirements were not complied with during the preliminary investigation which can no longer be remedied and the law does not provide for the legal consequences thereof, determine that: a.     the severity of the sentence shall be mitigated, in proportion to the gravity of the non-compliance with procedural requirements, if the harm or prejudice caused can be compensated for in this manner; b.     the results obtained from an investigation in which there was a failure to comply with procedural requirements may not be used as evidence of the offence as stated in the indictment; c.     the prosecution shall be declared inadmissible if, owing to a procedural error or omission, there cannot be said to be a trial of the case which meets the principles of due process. 2.     In its application of the first paragraph, the Regional Court shall take into account the interests served by the infringed rule and the gravity of the procedural error or omission and the harm or prejudice caused by it. ...” Pursuant to Article 415 § 1 of the CCP, Article 359a of that Code also applies to proceedings before a Court of Appeal. COMPLAINT The applicant complains that Article 6 §§ 1 and 3 (c) of the Convention was violated, given that a statement made by him to police without his having been able to consult a lawyer was used in evidence against him.   QUESTIONS TO THE PARTIES 1.     Can it be ascertained   –     whether the notification that the applicant wished to be assigned a lawyer was received by the Legal Aid Duty Roster Service ( piketcentrale ); –     why no lawyer appeared at the police station within two hours of that notification; and –     whether a lawyer appeared at the police station at any time after those two hours had elapsed?   2.     Did the applicant have a fair trial in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was his right to have access to a lawyer respected, as required by Article 6 § 3 (c) of the Convention?