830 citiri

Afirmațiile generale realizate de instanțele naționale, aici inclusiv ÎCCJ, și dreptul de a fi asistat de un avocat

45. In the present case, the Government argued that the applicant had been assisted by defence lawyers who had been able to raise his complaints before the domestic courts (see paragraph 35 above). Indeed in Ibrahim and Others (cited above, § 274, point (c)) an important factor considered by the Court in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings was whether the applicant “had the opportunity to challenge the authenticity of the evidence and oppose its use”. In this connection, the Court notes that the applicant in the current case complained before the domestic courts of the lack of access to a lawyer during his initial questioning by the police and requested that his initial statement be excluded from the evidence to be considered during the trial (see paragraph 14 above). He reiterated his complaint in the appeal and cassation proceedings (see paragraphs 18 and 20 above). The Tulcea County Court and the Constanţa Court of Appeal did not address the applicant’s specific allegation and merely mentioned, in a general manner, that he had had access to a lawyer when he had been formally informed of the charges against him and throughout the proceedings (see paragraphs 17 and 19 above). The High Court of Cassation and Justice, deciding on the applicant’s case with final effect, considered that all the statements taken during the pre-trial stage of the proceedings had been in compliance with the law since the applicant had not been detained and therefore legal representation had not been mandatory in his case (see paragraphs 23 and 24 above). The Court considers that in making only general statements and invoking the non-mandatory aspect of the legal representation in the applicant’s situation the domestic courts did not repair the consequences resulting from the absence of a lawyer during the applicant’s initial questioning by the police (see, mutatis mutandis, Sîrghi, cited above, § 52; and contrast Ibrahim and Others, cited above, §§ 282-284).
58. Having regard to the above considerations, the Court is not satisfied that the applicant received a fair trial. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) and (e) of the Convention.
63. The Court reiterates that the most appropriate form of redress for a violation of Article 6 § 1 would be to ensure that the applicant, as far as possible, is put in the position in which he would have been had this provision not been disregarded (see Saldüz, cited above, § 72, and the cases cited therein). The Court finds that this principle also applies in the present case. Consequently, it considers that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 § 1 of the Convention, should the applicant so request.

Curtea Europeană a Drepturilor Omului
(Hotărârea din data de 30 octombrie 2018, K. C. împotriva României, cererea nr. 45060/10, CE:ECHR:2018:1030JUD004506010)

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