49. The Court notes that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001‑II). As a rule, access to a lawyer should be provided from the first questioning of a suspect by the police, unless it can be demonstrated in the light of the particular circumstances of each case that there were compelling reasons to restrict this right (see Salduz v. Turkey [GC], cited above, § 55). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (ibid.).
50. Turning to the facts of the present case, the Court notes that the applicant’s first formal questioning as a suspect in the murder of O.K. took place in the evening of 28 June 2005, in the presence of the lawyer M. However, it is clear from the applicant’s submissions, and was not rebutted by the Government, that the day before that questioning he had already been placed in unrecorded police custody and questioned concerning his involvement in the murder in issue. As can be seen from the case file, on 27 June 2005 he signed a statement at the police station attesting to his involvement in the crime against O.K. In addition, on 28 June 2005 the applicant was questioned by the investigator at the prosecutor’s office, who recorded his detailed self-incriminating submissions as “explanations”. The timing of this questioning is unclear. However, absent any clarifications from the Government, the Court accepts the applicant’s version, according to which the questioning preceded his formal arrest on that date.
51. It follows that by virtue of the above-mentioned principles as enshrined in the Court’s case-law, the applicant was entitled to have access to a lawyer during his questioning on 27 and 28 June 2005. However, at that time he was questioned without a lawyer and there is no record indicating that before the questioning sessions in issue he was notified of his right to obtain legal assistance. On the facts of the case, the Court does not find any compelling reason justifying such a restriction of the applicant’s right of access to a lawyer. It follows that this right was not respected during the period in issue.
52. In so far as the applicant alleges that his confession statements should have been excluded from the body of evidence, the Court notes that the applicant repeatedly gave confession statements in presence of two lawyers and did not retract them until the third lawyer was admitted in the proceedings. There is also no proof that the initial confessions given by the applicant without a lawyer were extracted by ill-treatment or under the threat thereof. On the other hand, the Court notes that at the time when the applicant volunteered his original confessions, he might not have been fully aware of their significance, as the initial charges against him concerned non-aggravated murder only. Once they were reclassified as aggravated murder, rape and robbery he chose, possibly on the advice of his lawyer, to remain silent and subsequently retracted his confessions. What is even more important is that the original confessions which, as noted above, were obtained in breach of the applicant’s right to legal assistance, formed part of the case file. Thus, they affected the investigation strategy and set the framework within which the applicant’s further defence had to be mounted. It follows that regardless of whether the applicant chose to retract or maintain these confessions, the initial breach of his right to defence could not be remedied by the mere fact that he was subsequently provided with legal assistance. It necessitated further remedial action on behalf of the authorities involved.
53. Nevertheless, the domestic courts relied on the applicant’s confessions as the main basis for his conviction and failed to act upon his complaints about a breach of his right to defend himself. It is true that the confession statements were not the sole basis for the applicant’s conviction. However, absent any court ruling as to the role of the initial submissions obtained from the applicant in breach of his right to legal assistance and included in the case file, this breach was not remedied in the judicial proceedings.
54. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the restriction of the applicant’s right of access to a lawyer during his initial questionings and the use of his self-incriminating statements as a basis for his conviction.
