Nechiporuk and Yonkalo v. Ukraine: another case confirming the doctrine of “early access to lawyer”

April 25, 2011 at 7:54 pm Leave a comment

In Salduz v. Turkey the European Court of Human Right held that the right to access to legal counsel since the moment of the first investigation can be restricted for “good cause”. In the recent Nechiporuk and Yonkalo v. Ukraine one of the applicants has been denied fair trial when he was not allowed to be advised and represented by a lawyer during an administrative arrest. The Ukrainian government objected that the evidence (coerced confesion) collected at this stage is not crucial for the fairness of the criminal investigation because at trial the defendant was properly represented.

ECtHR rejected outright this line of argument and ruled violation of Article 6(3) amid other counts of violation of the European Convention on Human Rights:

“The Court emphasises that, although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). As a rule, access 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 (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008). The right to defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (ibid).

 The Court has consistently viewed early access to a lawyer as a procedural guarantee of the privilege against self-incrimination and a fundamental safeguard against ill-treatment, noting the particular vulnerability of an accused at the early stages of the proceedings when he is confronted with both the stress of the situation and the increasingly complex criminal legislation involved. 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 (see Salduz, cited above, § 54).”

Read the text of Nechiporuk and Yonkalo v. Ukraine here

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Entry filed under: Access to Justice, Human Rights, Legal Advice, Rule of Law, Ukraine.

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