Access to a lawyer
II. RELEVANT DOMESTIC ... LAW AND PRACTICE A. Relevant provisions concerning the right to legal assistance and the discovery of an offence while being committed 58. The articles of the Code of Criminal Procedure that are relevant for the present case read as follows : Article 171 on the right of suspects or accused persons to legal assistance “ (1) Suspects or accused persons have the right to legal assistance throughout the criminal proceedings, and the judicial authorities shall inform them of that right ... ” 59. The Constitutional Court has confirmed on a number of occasions that the prosecution is not obliged to ensure the provision of legal assistance in the context of measures taken at the preliminary investigation stage, on the ground that no evidence capable of being used during the subsequent criminal proceedings can be gathered at this stage ( judgments nos. 141/1999, 210/2000 and 582/2005). Article 224 §§ 1 and 3 on the preliminary investigation “ 1. The prosecuting authority may take any measure of preliminary investigation. ... 3. The report concerning the taking of any measure of preliminary investigation shall constitute valid evidence.” Article 467 on the discovery of an offence while it is being committed “ (1) The prosecuting authority dealing with the case shall draw up a report setting out the various aspects of the offence committed. The statements of the suspect and other persons questioned shall also be recorded in the report.” ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 66. The applicant ... also complained that he had not been notified of his right to remain silent and that he had not been assisted by a lawyer during his first questioning by the prosecutor immediately after the discovery of the offence while being committed, or at least that he had not been informed of that right. He further observed that he had not been informed of the accusations against him. ... 67. The applicant relied on [Article] 6 §§ 1 and 3 ... (c) ... of which the relevant parts read as follows: “1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) 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; ... ” ... B. Merits 1. The necessity of being assisted by a lawyer during questioning in the context of a procedure concerning the discovery of an offence while being committed and the failure to notify the right to remain silent ( a) The parties ’ submissions 86. The applicant took the view that he should have been assisted by a lawyer when he gave his first statement as recorded in the report concerning the discovery of an offence while being committed, pointing out that this document had constituted a very important item of evidence for the prosecution in securing his conviction. He also complained that he had not been informed beforehand of the accusation against him, of his right to remain silent or of his right to legal assistance. 87. The Government argued that the report concerning the discovery of an offence while being committed did not constitute the sole evidence on which the applicant ’ s conviction had been based, so the fact he had not had legal assistance at the relevant stage in the proceedings did not entail a violation of Article 6 of the Convention. They added that the applicant had been informed very promptly of his right to defend himself or to benefit from legal assistance. Thus, on the very day of the discovery of the offence, during his first questioning by the prosecuting authorities, and subsequently throughout the proceedings, the applicant had been assisted by a lawyer of his choosing. ( b) The Court ’ s assessment ( i) Applicable principles 88. The Court reiterates 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, for which the Convention does not expressly provide, may be subject to restrictions for good cause ( see Salduz [ v. Turkey [GC], no. 36391/02,] § 52 [, ECHR 2008] ). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction, because the individual concerned will be personally affected by the restrictions ( see Salduz, cited above, §§ 55, 58 and 62, and Pishchalnikov v. Russia, no. 7025/04, §§ 70 and 90, 24 September 2009 ). 89. The Court further finds that, in accordance with Article 467 of the Romanian Code of Criminal Procedure concerning the discovery of an offence while being committed, the prosecuting authority draws up a report in which the statements of the suspect and other persons questioned are recorded. It also notes that the applicant ’ s statement as recorded in that report was a different act from the first statement that he later gave after he was formally charged. 90. The Court reiterates that its task is not to ascertain in abstracto whether the Romanian legal system in respect of the procedure for the discovery of an offence while being committed is compliant with the Convention, but to examine whether there has been a violation in the precise case before it. Similarly, it will examine the proceedings as a whole before the domestic courts to ascertain whether the absence of a lawyer at the time of those statements personally affected the individual concerned and breached his right to a fair hearing ( see Tsaggarakis v. Greece (dec.), no. 45136/06, 10 September 2009). ( ii) Application of those principles to the present case 91. In the present case, the Court observes that, in the light of the domestic law, the applicant did not have the right to be assisted by a lawyer while the investigators were questioning him in the context of the procedure concerning the discovery of an offence while being committed, because he did not yet have the status of suspect or accused person. 92. The Court notes that the purpose of the said procedure is to catch a suspect in the act of committing an offence and that an official report is drawn up to record the suspect ’ s statement at the time of being caught. In this connection, it takes the view that the investigators must confine themselves to asking questions about the material aspects of the acts observed during the discovery of the offence and avoid transforming this statement-taking into a fully-fledged interview on the charges. 93. In the present case, the Court notes that in the said report the investigators recorded the material elements observed during the discovery of the offence, such as the objects found, their contents and the results of forensic examinations, and noted the applicant ’ s replies to their questions. In his replies the applicant admitted that he had received an envelope from N.D. He also described what he had been doing at the time of the investigators ’ arrival, explaining that he had been looking for documents on his desk and was about to leave the room when he was apprehended by the prosecutor ’ s representatives. 94. The applicant did not indicate that he was aware of the contents of the envelope. In addition, he was not questioned about the circumstances or reasons which had led N.D. to leave the envelope on his desk or about any agreements he may have had with her. 95. The Court further observes that, from the time he was formally charged, later on the same day, the applicant was assisted by a lawyer of his choosing, who then assisted him in all his statements before the prosecuting authority and the High Court. In all his statements the applicant denied the charges. The Court observes, however, that he never disputed the content of his remarks as noted in the report concerning the discovery of the offence. 96. The Court notes, lastly, that the report concerning the discovery of the offence while being committed constituted one of the items of evidence used by the High Court in finding the applicant criminally responsible. However, the High Court took the report into account as evidence that the applicant had been caught in the act of committing an offence, without regarding the applicant ’ s remarks as a separate statement on the charges. Moreover, the High Court noted that the applicant had always denied the charges. The Court thus concludes that the applicant ’ s remarks as noted in the report concerning the discovery of the offence did not adversely affect him ( see, mutatis mutandis, Stanca v. Romania, no. 34116/04, § 62, 24 July 2012, and Minculescu v. Romania (dec.), no. 7993/05, § 84, 13 November 2012). 97. The Court further notes that the applicant was informed of the substance of the accusations against him from the time of his first interviews and that after being remanded in custody he was represented by lawyers at all stages of the proceedings ( contrast Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009 ). 98. Lastly, the Court emphasises that the applicant did not allege, before either the domestic courts or this Court, that he had given his initial statements under duress ( contrast Salduz, cited above, § 17). 99. Having regard to the foregoing, the Court finds that in the present case there has been no violation of Article 6 §§ 1 and 3 ( c) of the Convention. ...
The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant’s questioning by the police under the flagrante delicto procedure. Observing that under Romanian law where a person is “caught in the act” of committing an offence, the investigating authorities must confine themselves to questions about the material evidence found at the scene of the flagrante delicto and must not question the person about his involvement in a criminal offence, it found that the investigating authorities had not overstepped the mark in the applicant’s case. It also noted that when the applicant had been questioned by the anti-corruption prosecutor about the offence he had had access to a lawyer. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the procès-verbal. The Court therefore found that the use of those statements at trial could not be said to have prejudiced the fairness of his trial. The Court also noted in conclusion that the applicant had never alleged that his very first statements recorded in the procès-verbal had been the result of duress or ill treatment.