Alex Tinsley, Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

In a judgment issued on April 9, 2015, the European Court of Human Rights (ECtHR) ruled in the case of A.T. v. Luxembourg. This ruling, which will become final unless reviewed by the Grand Chamber, determined that Luxembourg violated Article 6 of the European Convention on Human Rights (ECHR). The judgment expands upon the principles established in Salduz v. Turkey and, at the urging of Fair Trials International, considers for the first time Directive 2013/48/EU on access to legal representation in criminal proceedings (the “Access to a Lawyer Directive”). This suggests a potential future convergence in how these legal frameworks are applied.

Background

The applicant, A.T., was detained and questioned by police after being surrendered to Luxembourg under a European Arrest Warrant (EAW). Upon arrival, he requested a lawyer. Police provided A.T. with information that led him to agree to questioning without legal counsel present. During this interrogation, he denied the alleged offenses. A.T. was subsequently questioned again, this time before an investigating judge, with a lawyer provided. However, he was not given the opportunity to consult with his lawyer beforehand, nor had his lawyer been given access to the case files prior to this questioning. A.T. again denied the offenses.

A.T. maintained that his right to a fair trial had been violated due to the denial of access to a lawyer. Both the appeal court and the Court of Cassation dismissed his claim, essentially arguing that he had consented to questioning without a lawyer and that there was no obligation to address any resulting disadvantage. Having exhausted all domestic legal avenues, A.T. brought his case to the ECtHR, alleging a violation of Article 6 of the ECHR.

The Legal Precedent: The Salduz Principle

The ECtHR based its decision on its 2008 judgment in Salduz v. Turkey, which established that individuals accused of criminal offenses have the right to consult with a lawyer “as from the first interrogation by police.” The court in Salduz found that the rights of the defense are irreversibly compromised if self-incriminating statements made without a lawyer present are later used in a conviction. However, this principle left several unanswered questions, some of which have been addressed in the A.T. v. Luxembourg ruling.

EU Law Enters the Equation

The Salduz ruling triggered a wave of legal challenges and reforms across Europe, even in long-standing EU member states like the UK and France. Despite this, significant practical issues persist. The ECtHR summarized Fair Trials’ position on this matter in A.T. v. Luxembourg, stating: “many suspects encounter serious difficulties in exercising this right, in particular due to legal or practical restrictions on the right of access to a lawyer, a prevalence of supposed ‘waivers’ of the right whose reliability is questionable, and ineffective remedial action by the courts to repair violations.”

These concerns are problematic given that Member States are obligated to cooperate on the basis of mutual trust. Therefore, in 2009, the EU introduced a “Roadmap,” a phased plan to implement directives addressing key defense rights using the legal basis of Article 82(2)(b) of the Treaty on the Functioning of the EU. This aimed to strengthen mutual trust among Member States. Following Directive 2010/64/EU on the right to interpretation & translation and Directive 2012/13/EU on the right to information, came the Access to a Lawyer Directive. These three directives are collectively referred to as the ‘Roadmap Directives,’ and establish minimum standards for access to legal representation.

The Roadmap Directives predominantly aim to “codify” existing ECtHR jurisprudence but, in doing so, create new standards and, as in this case, may even preempt future case law. As argued by Fair Trials in A.T. v. Luxembourg, the ECtHR has the authority to and does consider such measures when developing its case law. Therefore, the existence of the Roadmap Directives introduces significant potential for cross-fertilization between EU law and the ECHR. A.T. v. Luxembourg appears to be the first instance of this.

The A.T. v. Luxembourg Judgment

Waiving a Nonexistent Right

The ECtHR clarified that because there was no legal right to a lawyer during the initial questioning in Luxembourg at the time – this applied specifically to individuals apprehended under a European Arrest Warrant (EAW) – any alleged “waiver” of that right was invalid. The court reasoned that one cannot waive a right not granted by law.

The Need for Remedy Even Without a Confession

Having established this, the ECtHR determined that by relying on A.T.’s statements given without legal counsel and by failing to take any corrective action to address the prejudice caused by the restriction of A.T.’s right to a lawyer, the courts had violated Article 6 of the ECHR. An example of such corrective action would be the exclusion of A.T.’s statements from evidence.

It’s important to note that Luxembourg argued that no violation of Article 6 occurred because A.T. had denied the offenses. Their logic was that if no confession is given, the absence of a lawyer is inconsequential. Fair Trials countered with a more protective stance, citing Article 12 of the Access to a Lawyer Directive, which refers to “statements,” not just confessions. They argued that an individual might inadvertently incriminate themselves in other ways, such as by revealing too much or too little information, appearing confused under duress, or damaging their credibility relative to other witnesses. The ECtHR agreed with this reasoning, highlighting that A.T. had “changed his story” over the course of the proceedings and that his initial statements, though denials, were used against him. This clarification is a valuable addition to a line of cases that had primarily focused on situations involving complete silence, absolute denials, or unambiguous confessions.

Access to a Lawyer Includes Prior Consultation

However, the judgment’s most significant contribution may be its emphasis on the importance of lawyer-client consultation before questioning. This expands upon previous case law, like Navone v. Monaco and others, that established the right to legal assistance during questioning. The legal assistance provided to A.T. during questioning, without prior consultation, was deemed “ineffective” and did not fulfill the requirements of Article 6 of the ECHR.

It’s noteworthy that the ECtHR referenced Article 3(3)(a) of the Access to a Lawyer Directive, which explicitly states this requirement, in its decision. This marks the first time a Roadmap Directive has been cited in the interpretation of the ECHR, raising questions about potential future convergence and how the ECtHR will approach rulings from the Court of Justice of the EU (CJEU) concerning the Roadmap Directives.

Access to the Case File: A Question for Another Day

The ECtHR’s stance on one particular point, however, might disappoint some. Lawyers in countries like Spain, France, and Luxembourg have argued that effective legal assistance necessitates lawyers having access to case files before questioning to provide informed advice to their clients. The A.T. case presented the ECtHR with an opportunity to address whether the ECHR supports such a right. The court, or at least this particular chamber, decided against it.

Article 7(1) of Directive 2012/13/EU, which mandates access to documents crucial for challenging detention, remains relevant. While some argue this provision grants access to police case files before questioning, particularly when questioning is conducted by a judge who also makes initial detention decisions, others, including the ECtHR, maintain a narrower interpretation, limiting its relevance to the judicial review of detention. This suggests that the debate on pre-questioning access to case files is far from over.

Next Steps: Ensuring a Fair Retrial

Given the prevalence of misinformation concerning human rights, it is crucial to understand the implications of such an ECtHR judgment. A.T., accused of serious offenses, does not automatically go free. The ECtHR did not and cannot order his release or award damages. Instead, the Chamber, led by ECtHR President Dean Spielmann, simply indicated that Luxembourg should retry A.T. in accordance with Article 6 of the ECHR. Since the prosecution had additional evidence beyond the statements made without a lawyer, their case is not dismissed. The retrial should simply adhere to ECHR and EU standards, ensuring fairness.

Observations

The interaction between EU law and the ECHR has been fraught recently. In Tarakhel v. Switzerland, the ECtHR reiterated its finding that implementing the EU’s “Dublin” system for returning asylum seekers to other Member States would breach human rights protected under the ECHR. This prompted the CJEU to issue its concerning Opinion 2/13, stating that compelling Member States to scrutinize each other’s human rights compliance, despite EU law obligations of mutual trust, would undermine the EU legal order. The CJEU’s concern seems to stem from the individual invoking rights to resist cooperation in justice and home affairs, a departure from its historical focus on using Treaty rights to challenge protectionist trade practices, promote free movement, and foster closer union among Member States. This perspective could potentially limit the scope of the issue to cross-border contexts.

A more optimistic outlook is possible within the internal context, where cooperation interests are less pronounced. When the CJEU’s Elgafaji judgment acknowledged that Article 15(c) of the Qualification Directive aimed to provide additional protection against refoulement for those fleeing indiscriminate violence, the ECtHR quickly followed suit in Sufi and Elmi v. UK, affirming that the Article 3 ECHR standard was no lower, marking a departure from its previous rulings. This suggests a degree of upward harmonization.

The impact of the Roadmap Directives is yet to be seen. While the principle affirmed in A.T. v. Luxembourg – the right to consult with one’s lawyer before questioning – is widely accepted and likely would have been adopted by the ECtHR eventually, it demonstrates EU law establishing a standard that the ECtHR subsequently recognizes as existing within the ECHR framework. Observing how the CJEU will handle novel questions not explicitly addressed by existing ECtHR case law and how the ECtHR, in turn, will respond, will be intriguing.

The first case concerning the Roadmap Directives (Case C-216/14 Covaci) is currently pending. Advocate General Bot’s Opinion of 7 May 2015 presents a compelling interpretive approach: treating these “minimal rules” as fundamental and “irreducible,” advocating for their broad interpretation based on the premise that bolstering defense rights reinforces judicial cooperation, and suggesting that while national legal traditions are acknowledged within the Roadmap Directives, national procedures must ensure their effective application or risk being overturned by national courts, with the CJEU prepared to provide preliminary rulings. While the specific conclusions regarding Covaci warrant separate discussion, this proposed interpretive logic is significant. As suggested previously, the CJEU’s staunch defense of mutual trust might be accompanied by a robust approach to the Roadmap Directives to bolster that trust. Should the CJEU’s rulings be expansive, the ECtHR might be hesitant to set a lower bar, potentially influencing jurisdictions beyond the EU.

Ultimately, for any change to occur, these issues need to be brought before the courts. Initiatives such as free legal training programs and comparative legal opinions, like those offered by Fair Trials, are instrumental in disseminating knowledge across jurisdictions and encouraging novel legal arguments. The ECtHR was receptive to these efforts in A.T. v. Luxembourg, and they can be equally impactful in national cases. Participating in the evolving dynamic between EU law and the ECHR presents a valuable opportunity to improve the protection of defense rights across Europe.

Another version of this post appeared on the Fair Trials website.

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