SIMONS v. BELGIUM 71407/10 Decision 28/08/2012
This case is a decision, not a judgment. It was inadmissible.
This is a case about a woman, Ms. Simons (and the State of Belgium). Police were summoned to a place to find a man had been stabbed. Ms. Simons, who was there, stated that she had stabbed the man, who was her partner.
The case was brought under Article 5.1. That is, Ms. Simons was taken into custody, but that is not the same as being convicted of a crime (Article 6 would apply). The Salduz case and others related to it are about being convicted in a trial on the basis, in whole or substantial part, of statements made without benefit of counsel (violation of Article 6.3c with 6.1). So this case is apparently not advanced to the point of being comparable to Salduz; the ECHR does not know what will be presented at the trial, if it is held.
excerpts (note para. 30, re Brusco):
2. On 13 March 2010 the Liège police were informed that a man had been stabbed with a knife. At the scene, the applicant told the police officers that the victim was her partner and that she herself had inflicted the wounds. The officers found a trail of blood leading to her home, where they discovered other traces of blood and a blood-stained kitchen knife.
4. The applicant was arrested that same day at 4 p.m. She was interviewed by investigators between 11.59 p.m. and 2.32 a.m. as a “suspect”. She was not assisted by a lawyer and – she alleged – was not informed beforehand of her right to remain silent, but her rights as provided in the “Franchimont Act” of 12 March 1998 were read to her prior to the interview. She was thus informed 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 any documents in her possession, provided the questioning was not delayed, and that, during or after her interview, she could have documents included in the case file or deposited in the registry. The applicant confessed to being the perpetrator of the stabbing and, in response to the investigators’ questions, gave a detailed account of the incident, explaining in particular that it had followed an argument, of which she described the context and circumstances.
5. The next day, from 11.08 a.m. to 11.34 a.m., the applicant was questioned by an investigating judge. She was not assisted by a lawyer and – she alleged – was not informed of her right to remain silent. She confirmed the statements she had made to the police. The investigating judge then informed her that she was being charged with attempted murder, with intent, and that she had the “right to choose a lawyer”.
.....
30. ... In the Brusco judgment (cited above, §§ 45 and 54), the Court added that the right of a person in police custody to be assisted by a lawyer from the beginning of that measure, and during the interview itself, is all the more important where he or she has not been notified by the authorities of the right to remain silent.
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 pursuant to Article 35 §§ 3 (a) and 4 of the Convention
& that if it had RS would have used it to his advantage in the trial.