CEDH · CASELAW;COMMUNICATEDCASES;ENG — 5 avril 2017

.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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 5 April 2017   THIRD SECTION Application no. 15508/15 Javier ATRISTAIN GOROSABEL against Spain lodged on 24 March 2015 STATEMENT OF FACTS The applicant, Mr Javier Atristain Gorosabel, is a Spanish national who was born in 1970 and lives in Campos Del Rio. He is serving a prison sentence in Murcia. He is represented before the Court by Mr   O.   Peter, a lawyer practising in Geneva. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 March 2010 the applicant was arrested in France under a European arrest warrant and sent to Spain, where he was remanded in custody for allegedly, along with other individuals, belonging to the terrorist group ETA. On 20 April 2010 the applicant was released on the condition that, in the interim, he appear before the judge dealing with the case once a week. On 29 September 2010 the applicant was arrested by the Guardia Civil , as some of the other individuals charged in the same proceedings had appeared before the judge dealing with the case and evidence against the applicant had come to light. The applicant was prosecuted for allegedly being a member of ETA and storing explosives and firearms at his home in San Sebastian. The judge ordered his incommunicado detention for five days. On 4 October 2010 the applicant was brought before the Audiencia Nacional . During the trial before the Audiencia Nacional he claimed that he had been questioned in the absence of a lawyer of his own choosing while being held incommunicado, and for that reason he had made self-incriminatory statements. On 27 September 2013 the Audiencia Nacional convicted the applicant of the two crimes mentioned above and sentenced him to seventeen years’ imprisonment. The sentence was upheld by the Supreme Court on 18 March 2014. On 7 May 2014 the applicant lodged an amparo appeal before the Constitutional Court. He argued that his right to be assisted by a lawyer of his own choosing had been violated (Article 24 § 2 of the Constitution). On 7 November 2014 the Constitutional Court declared the amparo appeal inadmissible, because the applicant had failed to “specifically and sufficiently” justify the constitutional relevance of it. B.     Relevant domestic law Article 509 of the Code of Criminal Procedure (in force at the relevant time) “1.The preliminary investigating judge may exceptionally order that the suspect be held in incommunicado detention ... to avoid the suspect violating the victim’s legal rights, concealing or destroying evidence, or committing new criminal acts. 2. Incommunicado detention shall last for the period of time which is strictly necessary to implement urgent measures in order to avoid the dangers referred to in the preceding paragraph. Incommunicado detention cannot be extended beyond five days.” Article 527 of the Code of Criminal Procedure (in force at the relevant time) “Whilst incommunicado, the detainee will enjoy Article 520 rights, with these exceptions: a) His or her lawyer shall always be a legal aid lawyer. ...” COMPLAINT The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he was denied a lawyer of his own choosing whilst being held incommunicado, and that for this reason he made self-incriminatory statements, on which basis he was convicted. QUESTION TO THE PARTIES Can it be considered that the incommunicado detention regime, which only affords a detainee a legal aid lawyer as a legal representative and consequently deprives the detainee of a lawyer of his own choosing, meets the requirements established by the case-law of the Court with regard to Article 6 §§ 1 and 3 (c) of the Convention?