c) the right to Legal Advice; for the first time an arrested person, prior to interrogation, shall have the right to consult in private a lawyer of his own choice in person or by telephone, for a maximum period of one hour (art. 355AT).

Bill No. 28 published in the Government Gazette of 26 June 2001 to amend the Criminal Code (hereinafter referred to as ‘the Bill’) retained with no changes the above-reproduced provision of the White Paper. Act No III of 2002 also contained no variations to the original text as contained in the White Paper. Hence all three versions of article 355AT of the Criminal Code – though still not yet in force - are identical. The other three provisions introduced in the Criminal Code by article 74 of Act No. III of 2002 also not yet in force, will not be studied in this short note even if they cannot subsist without the right to legal advice during police detention. As drafted the right to legal advice during police detention is allowed only if the rule of inference applies to the pre-trial stage, including police detention. This means that a court or jury may draw inferences as to corroboration of evidence of guilt from the accused’s failure to mention any fact when interrogated by the Police during detention.

The question which has to be asked at this stage is the following: is article 355AT on the right to legal advice during police detention in line with the European Convention on the Protection of Human Rights and Fundamental Freedoms? The answer can only be arrived at from an examination of the provisions of the Convention itself and from a study of the applicable jurisprudence of the European Court of Human Rights.

 Neither the European Convention on Human Rights and Fundamental Freedoms nor any of the Protocols added thereto specifically and unequivocally grant a person held in police detention the right to legal advice. This notwithstanding, the European Court of Human Rights has identified such a right within the broader right to a fair trial as contained in Article 6(1) of the Convention. This identification of the right to legal advice during police detention has evolved over time as evidenced from the incremental approach adopted by the Court at founding such human right, even if such an audacious pronouncement took its time to mature. Indeed, it is in the Salduz v. Turkey judgment that this right has been elaborated in great depth in the Court’s jurisprudence. Nevertheless, this right is conceived by the Court as not being an absolute one but one which is subject to restrictions for good cause which do not deprive the accused of a fair hearing.

The first judgment of relevance to the discussion on the right to legal advice during police detention is is Airey v. Ireland. Here the Court when discussing Article 6, paragraph 1, of the European Convention on Human Rights and Fundamental Freedoms held that ‘The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. This statement was further developed in the Artico v Italy judgment wherein the Court qualified its statement by added that ‘this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive’. In Imbrioscia v Switzerland the Court moved on to hold that ‘The right set out in paragraph 3 (c) of Article 6 is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1’ and, further, that while ‘it confers on everyone charged with a criminal offence the right to "defend himself in person or through legal assistance ...", Article 6 paragraph 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial.’

In John Murray v the United Kingdomthe Court opined that ‘Article 6 especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (art. 6-3)’ and that ‘the manner in which Article 6 para. 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case’. In addition, the Court was of the view that ‘National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing.’ The same point was made in Magee v the United Kingdom where the Court was of the opinion that ‘to deny access to a lawyer for such a long period and in a situation where the rights of the defence were irretrievably prejudiced is – whatever the justification for such denial – incompatible with the rights of the accused under Article 6.'

In Brennan v the United Kingdom the Court recapitulated in paragraph 45 the main points it had made in previous case law as follows:

‘Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions’

‘The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case.’

‘although Article 6 will normally require 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 restriction for good cause.’

‘The question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing.’

In a latest judgment, that of Salduz v Turkey, the Court sitting as a Grand Chamber, made the following points:

‘52.  National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances.

53.  These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards … which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.

54.  In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (Can v. Austria, no. 9300/81, Commission's report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006-..., and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the CPT (paragraphs 39-40 above), in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.