CEDH · CASELAW;CLIN;ENG — 2 mars 2010

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Poland - 54729/00 Judgment 2.3.2010 [Section IV] Article 6 Criminal proceedings Article 6-1 Impartial tribunal Successive performance by the same judge of investigative and judicial duties in respect of the same minor: violation   Article 6-3-c Defence through legal assistance Use in evidence of confession to police of a minor who had been denied access to a lawyer: violation   Facts – The applicant, who was a minor at the material time, was arrested at his home and taken to the police station for questioning in connection with the murder of another minor. He was questioned for about five hours, during which he initially denied any involvement in the crime and subsequently confessed to it. He confirmed his confession when he was questioned by the family-affairs judge, but in the absence of his lawyer. The latter made several unsuccessful requests to meet his client. Approximately six weeks after his arrest the applicant had his first meeting with his defence counsel, during which he was informed of his right to remain silent and not to incriminate himself. Subsequently the Youth Court found the applicant guilty as charged and ordered his placement in a reformatory for six years. An appeal by the applicant was dismissed by the regional court, which acknowledged irregularities regarding the rights of the defence but held that these had not had a decisive effect on the content of the judgment having regard to the evidence other than the applicant’s statements to the police. An appeal by the applicant on points of law was also dismissed. Law – Article 6 § 3 (c): During the preliminary investigation – which had lasted about six months – the applicant’s lawyer had submitted eight applications to the family-affairs judge for leave to meet with his client. Only two of those applications had been granted. Despite having been appointed promptly, the applicant’s lawyer had only been able to discuss the case with his client once during the entire investigation. On only one occasion during the preliminary investigation, namely, approximately three months after it had been commenced, had the applicant’s lawyer been able to acquaint himself with the case file. The inevitable conclusion was that during the preliminary investigation the applicant’s defence rights had been considerably curtailed. The applicant’s first police interview, during which he had confessed to the crime, and his two subsequent examinations by the family-affairs judge, had been conducted without the applicant being able to discuss the case with his lawyer beforehand. Accordingly, the authorities had obtained his confession before the applicant, who was supposed to have the benefit of the presumption of innocence, had been informed of his right to remain silent and not to incriminate himself. Given that the applicant had been fifteen years old at the material time and had had no criminal record, it was difficult to maintain that he could reasonably have known of his right to request legal representation and of the consequences of the lack of representation during examination as a murder suspect. During that period, which had been decisive for the outcome of the proceedings, the applicant had remained isolated in the children’s home and, moreover, had been deprived of contact with his family for some time. He had inevitably been affected by the restrictions imposed on his ability to have access to his lawyer because his confession that had served as a basis for his conviction had been obtained in the absence of his defence lawyer. That consideration sufficed for the Court to find that the applicant’s trial had not been fair. Conclusion : violation (unanimous). Article 6 § 1: The order made at the end of the preliminary investigation and in which the family-affairs judge had committed the applicant for trial before the Youth Court had been based on the judge’s finding that “the evidence gathered during the investigation indicated that the applicant had committed the crime”. Having regard to the content of the order, it followed that the question on which the judge had ruled prior to the opening of the judicial phase of the proceedings had overlapped to a large extent with the matter on which he had subsequently had to rule when sitting on the trial bench as a member of the Youth Court. It was therefore difficult to maintain that the judge had not had any preconceived ideas about the matter on which he had subsequently been required to rule as president of the bench of the Youth Court hearing the case. During the investigation he had made ample use of the extensive powers conferred on him by the Law governing the procedure applicable to juveniles. Accordingly, after the decision had been made of the judge’s own motion to open the proceedings, the judge had himself conducted the evidence-gathering procedure at the end of which he had decided to commit the applicant for trial. Referring to its finding of a violation of Article   6 on account of the breach of the principles of fairness during the investigation conducted by the family-affairs judge, the Court did not see how the fact that the same judge had subsequently presided over the trial bench that had found the applicant guilty of the offence could in this case contribute to safeguarding the best interests of the child that the applicant had then been. Conclusion : violation (unanimous). Article 41: EUR 10,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes