European Court fails to protect fundamental safeguard against torture

Tuesday, June 6, 2017

In a much-anticipated judgment, the recent Simeonovi v. Bulgaria judgment of the Grand Chamber of the European Court of Human Rights is seen to significantly weaken the bedrock principle that the right to access a lawyer on arrest is a fundamental and minimum protection against abuse.

In the case, Mr. Simeonov was denied access to a lawyer for the first three days of his police detention. Yet the Grand Chamber reasoned that the failure to provide Simeonov with access to a lawyer at a time when he was vulnerable to coercion was not sufficient to constitute a denial of his rights to a fair trial.

Significantly, the Grand Chamber recalled that Bulgaria had not been able to provide evidence to show whether Simeonov had been interviewed during the period in which we was held without a lawyer. And as a lawyer was later made available to him, and as the prosecution did not rely on evidence collected in the absence of a lawyer, the Grand Chamber of the European Court could not consider that the fairness of Simeonov’s trial was irredeemably prejudiced such that it should be regarded as unfair overall.

The APT submitted a third party intervention in the case. Our intervention argued that the right to access a lawyer was so fundamental to the protection of an accused person that the denial of the right should be regarded as a breach of the European Convention on Human Rights (ECHR) even in circumstances where no evidence was obtained.

While various human rights actors have been critical of the judgment, the most compelling criticism of all has come from the separate dissenting opinions of judges in the case itself. I will not dwell on the reasons given in these two separate opinions, except to note that both set out in greater detail than is possible here why the legal reasoning of the majority in this case was flawed.

While others have examined the impact on the right to a fair trial, I will analyse the judgment from the impact it will have on the prevention of torture.

Experience demonstrates that the first hours of police detention are the period when torture and other ill-treatment are most likely. This is a time when a detainee is likely unaware of his or her rights, under the complete control of State authorities and the time when the police are more inclined to use forms of coercion to obtain a confession and secure a quick conviction.

It is now well-established that lawyers play a fundamental role in the first hours of police detention to safeguard the rights of detained persons against torture, coercion, and other forms of abuse (protected in article 3 of the ECHR). Evidence also points to the fact that lawyers serve to generate greater access to a range of related safeguards, such as medical examinations, access to family, as well as challenge arbitrary detention (article 5 ECHR). This protective and preventive role is in addition to the critical role lawyers also routinely have in challenging evidence collected unlawfully, and in preparing an effective defence (article 6 ECHR).

The multiple functions undertaken by lawyers in the first hours of police detention illustrate why the denial of access to a lawyer must be a breach of a person’s rights under the European Convention.

The reasoning in Simeonovi asks us to accept that restrictions on access to a lawyer might be justified in a review of the ‘overall fairness’ of the trial. However, the weight of competing authorities from the European Court and other respected jurisdictions demand that this cannot be the correct test. Even if a criminal trial of an accused person is procedurally fair overall (which is unlikely, given the fundamental breach), it does not follow that any denial of access to a lawyer respected other rights of an accused person, including the absolute prohibition against torture.

The majority opinion in Simeonovi also finds that the State did not keep sufficient records that would enable it to conclude whether the rights of Simeonov were prejudiced. This is a very shaky argument, as it gives States a carte blanche to ‘lose’ records and other details that might later be the subject of an investigation.

Torture is always practiced behind closed doors, and evidence of abuse is often entirely within the control of the State authorities. To relieve States of responsibility in cases where it fails to record whether fundamental safeguards were implemented would ‘drive a coach and horses’ through the intended regime of protection. Certainly, we could see States misplacing detention records more regularly as a result.

Without doubt, the European Court of Human Rights will be invited to reconsider this important principle before too long. As it stands, the Simeonovi judgment reduces the standard of protection for criminal suspects at the time when they are most vulnerable. It is hoped that this low-watermark of human rights protection for the European Court will be quickly reversed.