Assistenza legale e CEDU
Estratto delle pronunce della Corte Europea dei Diritti umani che ritengono l'assistenza effettiva di un avvocato per chiunque venga accusato sia elemento fondante di un processo equo.
Factsheet – Police arrest / Assistance of a lawyer
The Court has repeatedly held that the right of any person charged with a criminal offence to be effectively defended by a
lawyer is a fundamental element of a fair trial
Article 6 § 3 (c) of the European Convention on Human Rights: “Everyone charged with
a criminal offence has the right to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require”.
Imbrioscia v. Switzerland
24 November 1993
Although the “primary purpose” of Article 6 of the European Convention on Human
Rights in criminal proceedings is “to ensure a fair trial by a ‘tribunal’”, it does not follow
that it has no application to “pre-trial proceedings” (§ 36 of the judgment).
The Court has reiterated the above principle many times.
John Murray v. the United Kingdom
While accepting the possibility of restrictions (although Article 6 “normally require[s] that
the accused be allowed to benefit from the assistance of a lawyer already at the initial
stages of police interrogation”, “this right, which is not explicitly set out in the
Convention, may be subject to restrictions for good cause” (§ 63 of the judgment)), the
Court held that in this case, in the context of application of the 1987 Northern Ireland
(Emergency Provisions) Act, it was “of paramount importance for the rights of the
defence [for] an accused [to have] access to a lawyer at the initial stages of police
interrogation” (§ 66).
Elements taken into account by the Court:
• Whether or not the applicant has made incriminating admissions in the absence of
That was not the case in the Brennan v. the United Kingdom judgment of
16 October 2001: no violation of Article 6 §§ 1 or 3 (c) of the
Convention because, unlike the situation in the John Murray case, no inference
was drawn from what the applicant had said or declined to say during the first
24 hours of his detention when no lawyer was present.
• Whether or not pressure was exerted on the applicant in the absence of a lawyer.
See the Magee v. the United Kingdom judgment of 6 June 2000, § 40. In this
case the Court found a violation of Article 6 § 1 taken together with
Article 6 § 3 (c): the applicant had not had the benefit of access to a lawyer
who could play the customary role of “counterweight” to the intimidating
atmosphere in which he had been held while in police custody, and the
statements he had made at that time had been central to his conviction.
Salduz v. Turkey
27 November 2008 (Grand Chamber)
Charged with, and subsequently convicted of, participation in an unauthorised
demonstration in support of the PKK (the Workers’ Party of Kurdistan, an illegal
organisation), the applicant, in the absence of a lawyer, made a statement while in
police custody admitting his guilt.
Violation of Article 6 § 3 (c) (right to legal assistance) taken together with
Article 6 § 1 (right to a fair trial): The Court held that even though the applicant had
been able to contest the charges at his trial, the fact that he could not be assisted by a
lawyer while in police custody had irretrievably affected his defence rights, especially as
he was a minor.
“[A]ccess to a lawyer should be provided as from the first interrogation of a suspect
by the police, unless it is demonstrated in the light of the particular circumstances of
each case that there are compelling reasons to restrict this right” (§ 55 of the
Dayanan v. Turkey
13 October 2009
The applicant, who was charged with, and subsequently convicted of, being a Hezbollah
member, did not have the assistance of a lawyer while he was in police custody.
Violation of Article 6 § 3 (c) (right to legal assistance of own choosing) taken
together with 6 § 1 (right to a fair trial): The Court held that that restriction (which
was systematic, as it was prescribed by the relevant provisions of Turkish law) of the
right of an individual deprived of his liberty to have access to a lawyer was sufficient for
it to be able to conclude that there had been a violation of Article 6, even though the
applicant had remained silent while in police custody.
Brusco v. France
14 October 2010
The applicant, who was suspected of having masterminded an aggression, was taken
into police custody and questioned as a witness, after being made to swear to tell the
Violation of Article 6 §§ 1 and 3 (right to remain silent and not to incriminate
oneself): According to the Court, the applicant was not a mere witness but a person
“charged with a criminal offence”, and as such should have had the right to remain silent
and not to incriminate himself, guaranteed by Article 6 §§ 1 and 3. The situation was
aggravated by the fact that the applicant was not assisted by a lawyer until his
20th hour in police custody. Had a lawyer been present, he would have been able
to inform the applicant of his right to remain silent.
Pishchalnikov v. Russia
24 September 2009
Arrested on suspicion of aggravated robbery, the applicant was interrogated – both on
the day of his arrest and immediately on the following day – in the absence of a lawyer,
although he had clearly indicated a defence counsel he wanted to represent him. During
these interrogations he confessed to having taken part in the activities of a criminal
group which included among others a murder and kidnapping, crimes for which he was
Violation of Article 6 § 3 (c) in conjunction with Article 6 § 1: The Court found
that the lack of legal assistance to the applicant at the initial stages of police questioning had affected irreversibly his defence rights and undermined the possibility of him receiving a fair trial.
Yesilkaya v. Turkey
8 December 2009
The applicant was refused access to a lawyer while in police custody, although he had
denied any involvement in the offences imputed to him by the interviewing officers.
Violation of Article 6 § 3 (c) taken together with Article 6 § 1.
Boz v. Turkey
9 February 2010
The applicant complained in particular of the fact that he did not have access to a lawyer
while in police custody.
The Court reiterated that systematic restriction of access to a lawyer pursuant to the
relevant legal provisions breached Article 6.
Aleksandr Zaichenko v. Russia
18 February 2010
Convicted of stealing diesel from the company for which he worked as a driver and
sentenced to a suspended prison sentence, the applicant complained that his conviction
had been based on admissions he had made to police before the trial in the absence of a
No violation of Article 6 § 3 (c) taken together with Article 6 § 1: Although the
applicant had not been free to leave when he was stopped on 21 February the
circumstances of the case disclosed no significant curtailment of his freedom of action
sufficient to activate a requirement for legal assistance at that stage. The police’s role
had been to draw up a record of inspection of the car and to hear the applicant’s
explanation as to the origin of the cans. That information had then been passed to an
inquirer who had in turn compiled a report on the basis of which his superior had decided
to open a criminal case against the applicant. At that stage (2 March 2001) the applicant
was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to
sign the act of accusation and waived his right to legal assistance, indicating that he
would defend himself at the trial.
Bouglame v. Belgium
2 March 2010 (decision on the admissibility)
The case concerned the denial of legal assistance to the applicant while in police custody
on charges relating to international drug trafficking. He was subsequently acquitted of
the charges by the first instance court whose judgment was confirmed on appeal.
Application declared inadmissible (manifestly ill-founded): Having been acquitted, the
applicant could no longer claim to be a “victim” of a violation of Article 6 of the
Yoldas v. Turkey
23 February 2010
The applicant complained that he had not been assisted by a lawyer while in police
No violation of Article 6 §§ 1 and 3 (c): The applicant’s waiver of the right to be
assisted by a lawyer had been free and unambiguous.
Nechiporuk and Yonkalo v. Ukraine
21 April 2011
The first applicant complained in particular about the unfairness of the proceedings
against him, notably that his conviction for a number of offences, including premeditated
murder for profit committed following a conspiracy with a group of persons, had been
based on statements made without the assistance of a lawyer.
Violation of Article 6 §§ 1 and 3 (c): It was undisputed by the parties that the
applicant had not become legally represented until having spent three days in detention.
The applicant had confessed several times to murder at the early stage of his
interrogation when he was not assisted by counsel, and had undoubtedly been affected
by the restrictions on his access to a lawyer in that his confessions to the police were
used for his conviction.
Huseyn and Others v. Azerbaijan
26 July 2011
The case concerned the complaint by four opposition activists about the unfairness of
criminal proceedings brought against them for their role in clashes between
demonstrators and the police.
As to the applicants’ legal assistance upon their arrest, the Court noted that three of
them had been questioned without a lawyer, and without having expressly waived their
right to legal assistance. Such a restriction had clearly infringed their defence rights at
the initial stage of the proceedings, in violation of Article 6 § 1 taken together with
Article 6 § 3 (c).
Panovits v. Cyprus
11 December 2008
The case concerned in particular the failure to inform the applicant, who was a minor, of
his right to consult a lawyer prior to first police questioning.
Violation of Article 6 §§ 1 and 3 (c).
Güveç v. Turkey
20 January 2009
The case concerned in particular the inability of a minor defendant to participate
effectively in his criminal trial and lack of adequate legal representation.
Violation of Article 6 § 1 in conjunction with Article 6 § 3 (c).
Adamkiewic v. Poland
2 March 2010
The case concerned in particular the use in evidence of confession to police of a minor
who had been denied access to a lawyer.
Violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1.
Dushka v. Ukraine
3 February 2011
The case concerned the unlawful detention and questioning without a lawyer of a 17year
old’s. The applicant alleged that he was tortured in police custody in order to make
him confess to a robbery.
The Court found that such practice, especially given the applicant’s vulnerable age,
qualified as inhuman and degrading treatment, in violation of Article 3 of the
Convention. In particular the fact that the confession had been made in a setting lacking
such procedural guarantees as the presence of a lawyer, and had then been retracted
upon release, pointed to the conclusion that it might not have been given freely.
This factsheet does not bind the Court and is not exhaustive