CEDH · CASELAW;CLIN;ENG — 11 décembre 2008

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Cyprus - 4268/04 Judgment 11.12.2008 [Section I] Article 6 Criminal proceedings Article 6-1 Fair hearing Undermining of the applicant's defence by sentencing of his lawyer for contempt of court: violation   Article 6-3-c Defence through legal assistance Failure to inform the applicant, who was a minor, of his right to consult a lawyer prior to first police questioning: violation   Facts : In the context of a criminal investigation, the police contacted the applicant's father and invited him and the applicant to attend the Limassol police station. At the time the applicant was just over 17 years old. When they arrived at the station, the Police Director explained to the father, in the applicant's presence, that there was evidence linking the applicant with the commission of murder and robbery and that an arrest warrant had been issued against him. The arresting officer then entered the Director's office, showed the arrest warrant and arrested the applicant, who was then taken to a separate room for questioning. Meanwhile, the Director explained to the applicant's father that the case was serious and that they should seek the assistance of a lawyer. A few minutes later, while the applicant was already being questioned, they were informed that the applicant had confessed his guilt. The applicant was then charged with manslaughter and robbery. Several days following the questioning in the police station he noted in an additional written statement: “I did not hit him [the victim] with the stone but only kicked him a couple of times”. At the trial, the applicant claimed that his confession had been involuntary and the result of deception and threats by the police, but the Assize Court rejected that argument and concluded that his confession had been valid and as such was admissible in evidence. The applicant's complaint about the absence of legal counsel during the initial questioning was also dismissed because he had never requested a lawyer. At one of the hearings of the main trial, while cross-examining a witness, a confrontation occurred between the applicant's lawyer, Mr Kyprianou, and the court (see, for the relevant facts, Kyprianou v. Cyprus [GC], no.   73797/01, ECHR 2005‑XIII; judgment of 15 December 2005 reported in Information Note no. 82). Even though the lawyer wished to step down from the case, the court refused his request. Subsequently, Mr Kyprianou was found to be in contempt of court and sentenced to five days' imprisonment. He remained the applicant's counsel for the rest of the trial. However, he insisted that another lawyer address the court concerning the applicant's request for the withdrawal of the judges with whom Mr Kyprianou had a conflict. That request was eventually dismissed. On 10 May 2001 the Assize Court found the applicant guilty of manslaughter and robbery, on the basis of his confession and additional written statement placing him at the time and scene of the crime and confirming that he had used force against the victim. He was sentenced to two concurrent sentences of imprisonment of fourteen and six years. The applicant appealed against the first-instance judgment, repeating his arguments as to the involuntary nature of his confession and complaining about the partiality of the Assize Court on account of his counsel's conflict with the judges at the trial. The Supreme Court dismissed the applicant's appeal and upheld his conviction. Law : Article 6   §   3   (c) – Lack of legal representation at the initial questioning : The concept of fairness enshrined in Article 6 required that the accused be given the benefit of the assistance of a lawyer right from the initial stages of police interrogation. Since at the time of the police questioning the applicant was 17 years of age, it was unlikely that he could have been aware of his right to legal representation before making any statement. It was also unlikely that he could reasonably have appreciated the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning a murder. Even though the authorities appeared to have at all times been willing to allow the applicant to be assisted by a lawyer if he so requested, they had failed to make him aware of his right to request the assignment of a lawyer free of charge if necessary. Even though the applicant's confession under initial police questioning had not been the sole evidence on which his conviction was based, it nevertheless constituted a significant element thereof and was decisive for the prospects of his defence. In view of the above, the lack of sufficient information on the applicant's right to consult a lawyer before his questioning by the police, especially given his age and the fact that he was not assisted by his guardian during the questioning, constituted a breach of his defence rights. Conclusion : violation (six votes to one). Article 6   §   1 – (a)     Use of applicant's confession at the trial : As already stated, the applicant's confession obtained in the above circumstances constituted a decisive element of the prosecution's case against him which substantially inhibited the prospects of his defence at trial and which was not remedied by the subsequent proceedings. While it was not the Court's role to examine whether the evidence in the applicant's case had been correctly assessed by the national courts, it considered that his conviction was based to a decisive extent on the applicant's confession, corroborated largely by his additional written statement. The extent to which that additional written statement had been tainted by the breach of his rights of defence due to the circumstances in which the confession had been taken was not addressed by the trial court and remained unclear. In such circumstances, the Court could not but conclude that the use in trial of the applicant's confession obtained in circumstances which breached his rights to due process had irreparably undermined his rights of defence. Conclusion : violation (six votes to one). (b)     Assize Court's treatment of the applicant's counsel : The central question raised under this head was whether the nature of the Assize Court's interference with the defence counsel's exercise of his duties, combined with the deficiencies found by the Grand Chamber of the European Court as to the trial judges' treatment of the applicant's lawyer, were such as to cast doubt on the fairness of the applicant's trial. In this connection, the Court observed that the applicant's lawyer and the judges of the Assize Court had engaged in various disagreements over the course of the trial, as a result of which his lawyer had been found in contempt of court. While the Court did not doubt that the judges of the Assize Court were determined to exercise their functions in an impartial manner, it reiterates that in its judgment in the Kyprianou case it concluded that the judges' personal conduct had breached the subjective test of impartiality. Consequently, the personal conduct of the judges in the case undermined the applicant's confidence that his trial would be conducted in a fair manner. Although the contempt proceedings were separate from the applicant's main trial, the fact that the judges were offended by the applicant's lawyer when he complained about the manner in which his cross-examination was received by the bench undermined the conduct of the applicant's defence. Moreover, the Court noted that the refusal of Mr Kyprianou's request for leave to withdraw from the proceedings due to the fact that he felt unable to continue defending the applicant in an effective manner had exceeded the limits of a proportionate response given the impact on the applicant's rights of defence. The “chilling effect” on Mr Kyprianou's performance of his duties as defence counsel was demonstrated in particular by his insistence that another lawyer should address the court in respect of the request for the continuation of the proceedings before a different bench. Conclusion : violation (five votes to two). Article 41 – The Court ordered a retrial or the reopening of the proceedings.   © 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