In MARTIN v. ESTONIA 35985/09 30/05/2013, the ECHR found a violation of Articles 6.1 with 6.3c. The relevance to the AK – RS case includes a demonstration of how the ECHR infers police misconduct from even seemingly subtle violations of legally authorized procedures by the authorities.
Martin, 18 years old on July 1, 2006, was arrested July 19, 2006 and detained on suspicion of murdering a 16-year old schoolmate. Martin initially denied having committed a murder, but after about 2 weeks in police custody had been apparently induced by the police to waive his right in a writing (two differing copies exist in the file) to the defense lawyer, Javre, chosen by his parents, and instead accepted a public-aid lawyer, R., chosen by the police. On the day the public-aid lawyer met with him, Martin confessed to the murder and demonstrated how he had committed it during a police-guided reconstruction at the crime scene on that day (Aug. 7) and the next (Aug. 8). The police had not followed the prescribed legal procedures of notifying the private lawyer that he had been replaced, which would include a court hearing to verify that the accused had replaced his private lawyer on his own volition, and then obtaining a public-aid lawyer selected by the bar association, rather than by the police.
Further details of the case shows varying statements by Martin. The case file contains two documents dated Aug. 7 and 8, respectively, the first denying the crime and the second confessing to it. Police videotaped a confession by Martin in the presence of lawyer R on Aug. 10. However, on Aug. 11, a new lawyer, G., was authorized for Martin by a client agreement. On Aug. 28 Martin was interrogated in the presence of lawyer G. and denied committing the murder. Martin was brought to trial, with lawyer Javre as defense counsel, and was convicted of murder largely on the basis of his confessions. On appeal, the appeal court found that the specific details of Martin's confessions were not admissible, but affirmed Martin's conviction in large part upon the “general knowledge” that he had confessed.
The ECHR inferred that because the police had not followed the formal, legal procedures for the replacement of the lawyer, but rather informal and irregular procedures, Martin had been deprived of the legal representation of his choice during the interrogation in which he confessed. The conviction, even relying only on the “general knowledge” that he had confessed, was thus unfair. Therefore, there was a violation of Article 6.1 with 6.3c.
Here are some excerpts from the judgment:
91. The Court further notes, in this connection, that the haste with which the procedural measures were carried out on 7 August 2006 is unexplained. It appears that the investigation proceeded immediately after the applicant had terminated Mr Järve’s services: his interrogation started at 8.05 p.m. and the subsequent crime scene reconstruction lasted until almost midnight (see paragraph 17 above). Against that background, the applicant’s allegation about pressure exerted by the investigator does not appear misplaced.
....
93. Based on the above elements, in particular the authorities’ failure to make use of the formal procedure for the removal of counsel in case there were doubts about a conflict of interests on his part and their reliance, instead, on informal talks with the applicant, the applicant’s young age as well as his apparent instability, which prompted his subsequent psychiatric and psychological expert examination on two occasions, and also the seriousness of the charges, the Court is not satisfied that the applicant’s wish to replace counsel of his own (his parents’) choosing could be considered genuine in the circumstances of the present case. It considers that there was an infringement of the applicant’s right to defend himself through legal assistance of his own choosing. Having made that finding, the Court considers it unnecessary to further deal with the issue that at a later stage of the pre-trial proceedings the applicant was interrogated twice without the presence of counsel.
94. The Court recalls in this connection that the guarantees in paragraph 3 (c) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision, which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, mutatis mutandis, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, both with further references). The Court has also had regard to the subsequent use of statements made by the applicant during the preliminary investigation in breach of his defence rights. The Court notes that there is no dispute that that evidence was used against the applicant by the County Court. The Court of Appeal, having found that the County Court had unduly relied on the applicant’s pre-trial statements, excluded all such statements from the body of evidence. However, on the basis of an analysis of the remaining evidence it found that the applicant’s conviction was nevertheless safe.
95. The Court notes in this context that, despite excluding the applicant’s pre-trial statements, the Court of Appeal considered that there was nothing to prevent the use of such “general knowledge”. It went on to observe that the confession of murder had to a large extent been the reason why the applicant had been committed to trial with a murder charge, and the investigative measures had been carried out on the basis of that knowledge (see paragraph 48 above).
96. The Court considers that the exclusion of the pre-trial statements from the body of evidence reveals the importance that the Court of Appeal attaches to securing a suspect’s defence rights from the early stages of the proceedings. Although tainted evidence as such can be left aside in the subsequent proceedings, in the present case the Court of Appeal’s decision nevertheless demonstrated that the consequences of the breach of defence rights had not been totally undone.
97. In the light of the above considerations, the Court concludes that the applicant’s defence rights were irretrievably prejudiced owing to his inability to defend himself through legal assistance of his own choosing.
It follows that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
Is that flirting?