As for the ECHR interpretation of Convention art. 6 and 3., Enea vs. Italy and Mole vs. Italy sets the principles that defence rights can be partly sacrified on the bìground of compelling needs to protect the public interest to security, that is pretectig the ongoing of the investigation.
Decisions Salduz vs. Turkey and Simons vs. Belgium (the latter inadmissible) also stated that the right to counsel is not absolute from the moment of arrest, and may be delayed by ahtorities on grounds of public security.
As for the Italian law, the power to delay access to counsel is set in procedure code art. 104, §§ 3 and 4. This article was applied to all three suspects.
You're joking right? The Simons vs Belgium judgement does not say what you're saying but the complete opposite.
"The Court noted that, according to its case-law, accused persons had the right to be assisted by a lawyer from the start of their time in police custody or pre-trial detention, and when being questioned by the police or the investigating judge. While some restrictions on that right might be justified in certain conditions, the fact of being unable to obtain the assistance of a lawyer in such circumstances by virtue of a rule of domestic law was incompatible with the right to a fair trial."
http://hudoc.echr.coe.int/sites/fra-press/pages/search.aspx?i=003-4068142-4761275
The appeal by Ms. Simons relied on violations of articles 5 and 6. It was considered inadmissible only in terms of article 5. In terms of article 6 there was an obvious violation as stated in the decision but it was not considered because
the trial was still ongoing.
MDDVS,
You have indeed found the error in what Machiavelli is posting. Here are some quotes copies from Simons v Belgium, 71407/10 28/08/2012
31. This case-law clearly expresses the following principle: first, a person “charged with a criminal offence”, within the meaning of Article 6 of the Convention, is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge; secondly, whilst a restriction of this right may in certain circumstances be justified and be compatible with the requirements of that Article (see, by way of example, Hovanesian v. Bulgaria, no. 31814/03, 21 December 2010), any such restriction that is imposed by a systemic rule of domestic law is inconsistent with the right to a fair trial.
32. The Court would observe, however, that this is one of the principles of the right to a fair trial, specifically deriving from Article 6, paragraph 3, of the Convention, which secures among other things the right for a person “charged with a criminal offence” to have legal assistance of his own choosing. It is not one of the “general principles” implied by the Convention, which are, by definition, transversal in nature.
The Court further points out that the general principles implied by the Convention to which the Article 5 § 1 case-law refers are the principle of the rule of law (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004‑VII) and, connected to the latter, that of legal certainty (see, among other authorities, Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000 III), the principle of proportionality (see, for example, Enhorn v. Sweden, no. 56529/00, § 36, ECHR 2005-I) and the
principle of protection against arbitrariness (which is, moreover, the very aim of Article 5 – see, inter alia, Erkalo, cited above, § 52).
33. Thus,
whilst the statutory inability for a person “charged with a criminal offence”, who is deprived of his liberty, to receive legal assistance from the beginning of his detention affects the fairness of the criminal proceedings against him, it cannot be inferred from that sole fact that his detention breaches Article 5 § 1 of the Convention for failure to satisfy the requirement of lawfulness inherent in that provision.
34. In the light of the foregoing, having examined the application under Article 5 § 1 of the Convention, the Court finds that it is manifestly ill-founded and must be rejected....
In simpler language, the ECHR is stating that lack of a lawyer during interrogation is indeed a violation of Convention Article 6.3c with 6.1 (fair trial), but it is not necessarily a violation of 6.3c with 5.1 (right to liberty).
In this case, the police had found a man who had a knife wound. A woman, Ms. Simons, at the scene identified the man as her partner and stated, apparently without questioning by police, that she had stabbed him. She was arrested and placed in detention based upon Belgian law, but had not been assisted by a lawyer at that point. However, the ECHR found that was not a violation of Article 5.1; in my opinion, because it otherwise conformed to Belgian law and was not arbitrary. Here is some of the Belgian government argument, which the ECHR apparently accepted:
...from the time of her interview by the police, on 13 March 2010, she had been notified, in accordance with Article 47 bis of the Code of Criminal Procedure, of the fact that her statements could be used in evidence,
that she was entitled to ask for a verbatim record to be made of any questions put to her, together with her answers, and to request any supplementary investigative act or interview, that she could use documents in her possession and could have documents included in the case file or deposited in the registry. She had received a copy of her statement to the police. She had been examined, from 14 March 2010, by an independent and impartial investigating judge, who had informed her of her rights, and in particular her right to “choose a lawyer” for the remainder of the proceedings. She had then, on 18 March, 14 April and 12 May, assisted by her lawyer, appeared before the Committals Division of the Liège Court of First Instance, for a decision on whether her detention should be extended, and she had had the right to appeal against such decision. The Government further argued that
the applicant had not claimed to have been subjected to pressure during the first phase of her detention with the aim of eliciting a confession, that she herself had spontaneously acknowledged the facts prior to her initial interview, that she had not requested the assistance of a lawyer at that time or when first examined by the investigating judge, and that
she had not withdrawn her confession.
Note the highlighted text in the para. above. The police had made a verbatim transcript of her interview with them, and provided it to her. She had not claimed to have been coerced or pressured during police questioning. She had confessed to stabbing her partner before any questioning. She did not withdraw her confession.
These facts are different than those of the Amanda Knox case in each detail and as a whole.
