Voluntary waiver of right to assistance of a lawyer
II. RELEVANT DOMESTIC LAW 26. A description of the relevant domestic law concerning the right to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27 ‑ 31, 27 November 2008). 27. Under Article 135/ a of the Code of Criminal Procedure in force at the time of the applicant ’ s arrest, statements were to be given by the accused of his or her own free will. Methods such as ill-treatment, torture, induced fatigue, the administration of drugs, torment and deception that “impairs the will of the accused” were proscribed. Statements that had been obtained through such methods could not be used in evidence, even if the accused had agreed to their use. 28. Article 238 of the same Code empowered the criminal courts to refuse to admit any unlawfully obtained evidence. Furthermore, Article 254 of the same Code explicitly stated that evidence that had been obtained unlawfully could not be used by the courts. 29. Article 148 of the new Code of Criminal Procedure (“the CCP”) (Law no. 5271) in force as of 1 June 2005 reads as follows: “The statement of the suspect and the accused should be based on his or her own free will. Physical or psychological interference capable of undermining [the free will], such as ill-treatment, torture, the administration of drugs, induced fatigue, torment and deception, duress, threat, or use of other equipment, shall be prohibited. No benefit that is contrary to law shall be promised. Statements that were obtained through such methods shall not be used in evidence even if consent has been given [by the accused or the suspect] for their use. Statements taken by the police in the absence of a lawyer shall not be relied on [for conviction] unless the suspect or the accused verifies them before a judge or a court. ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 30. The applicant alleged, in particular, that she had not had a fair trial on account of the denial of access to a lawyer while in police custody and the use by the trial court of her statements allegedly obtained under duress and in the absence of a lawyer. The Court will examine her complaints under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] 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;” 31. The Government contested that argument. A. Use of the applicant ’ s police statements taken under alleged duress 32. The Government raised a plea of non-exhaustion of domestic remedies in respect of the applicant ’ s complaint that her statements allegedly taken under duress had been relied on by the trial court to convict her. In that connection, the Government maintained that the applicant had failed to raise that complaint either explicitly or at least in substance before the Court of Cassation. Consequently, the Government requested that the Court reject that complaint under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 33. In response, the applicant maintained that the Government ’ s objection had been in contravention of the spirit and the settled case-law of the Court under Article 6 of the Convention. She accordingly invited the Court to dismiss the Government ’ s objection. 34. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies, given that this part of the application is in any event inadmissible for the following reasons. 35. The Court observes that the applicant has not submitted any evidence demonstrating that she was subjected to physical pressure while in custody. Nor did she argue that she had been unable to obtain, or had been prevented from obtaining, any such evidence. In this connection, the Court notes that the two medical reports included in the case file indicated no signs of ill-treatment on the applicant ’ s body and at no stage of the domestic proceedings or during the proceedings before the Court did the applicant challenge the veracity of these reports or allege that the doctors who had issued them had failed to examine her properly. Moreover, the Fatih public prosecutor ’ s office issued a decision not to prosecute in respect of her complaints of ill-treatment while in police custody owing to lack of evidence. The Court therefore considers that the applicant has failed to lay the basis of an arguable claim in respect of her allegations that she was subjected to duress while giving statements to the police (see Kaytan v. Turkey, no. 27422/05, § 50, 15 September 2015). 36. It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. B. Access to a lawyer during police custody 1. Admissibility 37. The applicant complained that she had been denied legal assistance while in police custody. 38. The Government contested that claim. 39. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) The parties ’ submissions 40. The applicant reiterated her claims. 41. The Government pointed out that the present case was different from that of Salduz in that the applicant had been free to have legal assistance when giving statements to the police, as the statutory restriction on the right of access to a lawyer had already been lifted. The Government stated that although the applicant had promptly retracted her statements to the police, her retraction had not been convincing and consistent as, in their opinion, the medical reports issued in respect of her had been more important than her allegations. Moreover, there had been no element indicating that the applicant had not validly waived her right to legal assistance. To support that contention, the Government referred to Yoldaş v. Turkey, no. 27503/04, §§ 51 ‑ 54, 23 February 2010, and argued that the applicant ’ s statement form had indicated that no lawyer had been requested. Thus, the statement form, which the applicant had signed, should be sufficient to show that the applicant had validly waived her right to a lawyer when giving statements to the police. They further pointed out that İ.A., who had also been arrested during the same period with the applicant, had benefited from the assistance of a lawyer. In the view of the Government, this refuted the applicant ’ s allegation that she had been denied the assistance of a lawyer. 42. As to the fairness of the criminal proceedings against the applicant, the Government submitted that the applicant ’ s police statement had not been the sole evidence constituting the basis for her conviction. In that connection, they pointed out that the applicant, who had given detailed statements in relation to her connection with the PKK, had failed to provide a convincing explanation as to why she lived together with İ.A. and why she had a piece of paper with R.B. ’ s phone number on it. The applicant had had the opportunity to challenge the authenticity of the evidence and to oppose its use. 43. Furthermore, the domestic courts had examined the evidence in an objective manner and addressed the objections put forward by the applicant. The procedural guarantees had been sufficient in the instant case. Lastly, taking into account the proceedings as a whole, the fact that the applicant ’ s lawyer had been absent during her custody had not seriously impaired her right to a fair trial. As such, the Government invited the Court to conclude that there had been no violation in the instant case. (b) The Court ’ s assessment (i) General principles 44. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016); Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017); and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018). 45. The Court reiterates that the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as the assistance of a lawyer is equally important at this point of the interview. The lawyer ’ s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police (see Soytemiz v. Turkey, no. 57837/09, § 45, 27 November 2018). 46. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, § 115). It follows that a waiver of the right to a lawyer, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, § 118, 18 December 2018). 47. The Court further reiterates that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others v. the United Kingdom, cited above, § 251 ). Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case (see Murtazaliyeva, cited above, §§ 117 ‑ 18). (ii) Application to the present case 48. The Court observes at the outset that the present case differs from Salduz, where the restriction on the applicant ’ s right of access to a lawyer stemmed from Law no. 3842 and was thus systemic. In other words, there was no blanket restriction on the applicant ’ s right of access to a lawyer in police custody, as at the time of her arrest Law no. 3842 – which had provided for a systemic restriction on access to a lawyer in respect of people who had been accused of committing an offence that fell within the jurisdiction of State Security Courts – had already been amended. For that reason, from 15 July 2003 onwards it had been legally possible for suspects to have access to a lawyer when giving statements to the police, the public prosecutor and the investigating judge subject to the condition that they had asked for one. 49. The legal question before the Court is whether the applicant validly waived her right of access to a lawyer before giving statements to the police on 14 November 2003, as it is not disputed between the parties that the applicant was represented by a lawyer when giving statements to the public prosecutor and the investigating judge. 50. Turning to the particular circumstances of the case, the Court observes that according to the statement form dated 14 November 2003, which the applicant signed, she was informed of her rights, including her right to have legal assistance and her right to remain silent at the time her statements were taken. The first page of the same record where the applicant stated that she did not want a lawyer or to remain silent includes a printed phrase stating “No lawyer sought” and a box next to it is marked with a printed “X”. Moreover, the Court notes that it was essential that the applicant be clearly informed about the consequences of not requesting the assistance of a lawyer. The Government have not demonstrated that the applicant received any specific information to that effect. 51. In that connection, the Government relied on the Yoldaş judgment (cited above) to support their argument that the applicant had validly waived her right to a lawyer when giving statements to the police. In their reading of that judgment, the Court considered the applicant ’ s statement form, which had been signed by him and according to which he had not asked for a lawyer, as an unequivocal waiver. Therefore, the same approach should also be maintained in the instant case in view of the applicant ’ s declaration to the effect that she had not asked for a lawyer on the statement form, which she had signed. 52. The Court takes note of the following factors in relation to its Yoldaş judgment (cited above, §§ 52-53). Firstly, it is important to reiterate that in Yoldaş the Court did not adjudicate the validity of the applicant ’ s waiver on the basis of a single isolated element, namely the applicant ’ s signature on the statement form explaining the rights of arrested persons, including the right to remain silent and the right to legal assistance. In fact, it was a combination of facts such as the applicant ’ s undisputed signature on the statement form and on the form concerning the rights of suspects and accused ( şüpheli sanık hakları formu ), his handwritten note on another record that he would not wish to see his family while in custody, and more importantly the trial court ’ s scrupulous examination of the applicant ’ s police statements and its subsequent refusal to convict the applicant in respect of six offences that were based solely on his police statements. In the light of those factors, the Court, after carrying out a holistic assessment of the circumstances of that case, with an emphasis on the trial court ’ s scrutiny of the applicant ’ s allegation that he had been denied legal assistance when giving statements to the police, and after having observed that there had been nothing in the proceedings to suggest that the applicant ’ s waiver of legal assistance while in police custody had not been free and unequivocal, concluded that the waiver had been valid and that there had been no violation of the applicant ’ s rights under Article 6 §§ 1 and 3 (c) of the Convention. 53. In the view of the Court, the present case cannot be rejected on the basis of Yoldaş as it differs from it in certain important aspects. First of all, the applicant ’ s statement form in the instant case did not bear a handwritten note by her (compare Sharkunov and Mezentsev v. Russia, no. 75330/01, § 104, 10 June 2010). Secondly, the applicant in Yoldaş retracted his police statements only during the course of the trial, whereas in the instant case the applicant immediately retracted her police statements as soon as she had access to a lawyer both before the public prosecutor and the investigating judge, and maintained that position before the trial court (see Dvorski v. Croatia [GC], no. 25703/11, § 102, ECHR 2015). Furthermore, as will be examined below, the trial court does not appear to have subjected the applicant ’ s police statements to scrutiny when using those statements to convict her. As a result, the Court dismisses the Government ’ s argument based on Yoldaş. 54. On that account, the applicant ’ s situation appears to resemble that of the applicant in the case of Ruşen Bayar v. Turkey (no. 25253/08, 19 February 2019), who was tried and convicted in the same set of criminal proceedings as the applicant in the instant case. In that case, the Court held, inter alia, that the Government were not able to show the validity of the applicant ’ s waiver of his right to a lawyer on the basis of the documents he had signed while in police custody, given that the applicant had contested the content of his police statements first of all during his appearance before the public prosecutor and subsequently throughout the entire proceedings (see Knox v. Italy, no. 76577/13, § 126, 24 January 2019). The Court is mindful of the probative value of documents signed while in police custody. However, as with many other guarantees under Article 6 of the Convention, those signatures are not an end in themselves and they must be examined by the Court in the light of all the circumstances of the case (see Ruşen Bayar v. Turkey, cited above, § 121). In addition, the use of a printed waiver formula may represent a challenge as to ascertaining whether the text actually expresses an accused ’ s free and informed decision to waive his or her right to be assisted by a lawyer. 55. In the instant case, the Court is of the view that the applicant ’ s immediate statements to the doctor at the end of her police custody on 17 November 2003 that the police had hit her head, threatened to kill and rape her and had driven their car into her, as a result of which she had fallen unconscious, and her statements to the public prosecutor that she had had to sign the police statements as a result of the violence and coercion on their part, are weighty indications against the conclusion that she had waived her right to a lawyer in accordance with the Convention standards when giving statements to the police on 16 November 2003. This remains so despite the fact that the Court has already declared inadmissible the applicant ’ s complaint that she was subjected to duress while in police custody as being manifestly ill-founded, because the absence of any element suggesting that the applicant was subjected to ill-treatment or was otherwise coerced into making incriminating statements is not, in itself, sufficient to conclude that the waiver in a given case is valid for the purposes of a fair trial under Article 6 of the Convention (see Bozkaya v. Turkey, no. 46661/09, § 45 in fine, 5 September 2017). 56. Furthermore, the Court observes that the first page of the applicant ’ s statement form in the instant case also included the information that she was literate. That said, however, according to the third page of the same record the applicant stated that she had not attended school. Likewise, at the hearing held on 17 March 2004, the applicant stated before the trial court that she was illiterate and that she had been forced by the police to sign her statements. 57. In this context, the Court finds it useful to reiterate that additional protection should be provided for illiterate detainees with a view to ensuring that the voluntary nature of a waiver is reliably established and recorded (see Şaman v. Turkey, no. 35292/05, § 35, 5 April 2011). The Court also notes that the applicant was accused of being a member of an illegal organisation, which is a very serious charge, and faced a heavy penalty. Yet, the trial court did not take any reasonable steps to verify this crucial point, specifically whether the applicant was illiterate, despite the fact that the applicant had brought that matter to its attention at the hearing held on 17 March 2004. 58. While the Court notes that some of the documents found on the applicant included handwritten numbers which forensic experts concluded had been handwritten by the applicant, it is not entirely convinced that those factors were sufficient to establish that the applicant was not illiterate. 59. However, the fact remains that the trial court failed to carry out an assessment of the above-mentioned circumstances in relation to the validity of the applicant ’ s waiver of her right to legal assistance (see Savaş v. Turkey, no. 9762/03, § 68, 8 December 2009). 60. Moreover, although the Government argued that the fact that İ.A., who had been arrested on the same day as the applicant, had been able to benefit from legal assistance and had refuted the applicant ’ s allegations, the Court notes that their statements were taken on different dates and by different police officers. Under these circumstances, the mere fact of being in the same police station and having been arrested on the same day is not sufficient to refute the applicant ’ s contention. Therefore, the Court is unable to subscribe to that argument (compare Imbras v. Lithuania (dec.), no. 22740/10, § 65, 10 July 2018). 61. In view of the conflicting circumstances as to the validity of the applicant ’ s waiver of her right to legal assistance and several years on from the events in issue, the Court is not in a position to establish whether the applicant ’ s waiver was a valid one, especially in view of the fact that it is in the first place the national authorities ’ duty to establish in a convincing manner whether the applicant ’ s confessions and waivers of legal assistance were voluntary (see Türk v. Turkey, no. 22744/07, § 53, 5 September 2017). Therefore, it considers that the Government have failed to demonstrate that the applicant validly waived her right to a lawyer when giving statements to the police. (c) Whether there were “compelling reasons” to restrict access to a lawyer 62. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Simeonovi, cited above, § 117). 63. The Court notes that the Government have not offered any compelling reasons for the restriction of the applicant ’ s access to a lawyer on 14 November 2003 when she gave statements to the police. It is not for the Court to undertake of its own motion to determine whether there had been any compelling reasons to restrict the applicant ’ s right of access to a lawyer. (d) Whether the overall fairness of the proceedings was ensured 64. The Court will now examine whether the overall fairness of the criminal proceedings against the applicant was prejudiced by the absence of a valid waiver of legal assistance when the applicant gave statements to the police and the subsequent admission by the trial court of those statements to secure her conviction. As there were no compelling reasons to restrict the applicant ’ s right of access to a lawyer when she was giving statements to the police, the Court must apply a very strict scrutiny to its fairness assessment (see Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). More importantly, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Simeonovi, cited above, § 132, and Ibrahim and Others, cited above, § 265). 65. The Court reiterates that in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected (see Ibrahim and Others, cited above, § 274 for a non ‑ exhaustive list of factors when assessing the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings), in particular whether the applicant was given the opportunity of challenging the admissibility and authenticity of the evidence and of opposing its use (see Panovits, cited above, § 82). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Pavlenko, cited above, § 116). 66. Furthermore, the Court reiterates that it was in the first place the trial court ’ s duty to establish in a convincing manner whether or not the applicant ’ s confessions and waivers of legal assistance had been voluntary (see Dvorski, cited above, § 109, and Türk, cited above, § 53). In that connection, the Court also notes that Turkish law sets out a very strong procedural safeguard in Article 148 § 4 of the Code of Criminal Procedure capable of remedying the procedural shortcomings in relation to the use of police statements taken without a lawyer being present irrespective of whether a suspect had waived his or her right to legal assistance or not. Pursuant to that provision, the police statements taken without a lawyer being present should not have been used by the trial court unless they had been confirmed before a court or a judge (see Ruşen Bayar, cited above, § 128). 67. In the view of the Court, the above-mentioned facts of the instant case were capable of raising at least a prima facie case in relation to the validity of the applicant ’ s waiver of the right to have legal assistance when giving statements to the police, which was required to be addressed by the national authorities. With that in mind, the Court also observes that the applicant made very detailed self-incriminatory statements to the police and confessed to her crimes. According to the documents in the Court ’ s possession, that was the only occasion on which the applicant made self-incriminatory statements. The applicant promptly retracted those statements as soon as she was represented by her lawyer on 17 November 2003 and retracted her police statements before the public prosecutor, the investigating judge and the trial court (see Ruşen Bayar, cited above, § 129, and Pishchalnikov v. Russia, no. 7025/04, § 88, 24 September 2009). 68. Nevertheless, as was mentioned above, the trial court did not conduct any examination as regards the validity of the applicant ’ s waiver or the statements she had made to the police in the absence of a lawyer. In the absence of any such assessment, the Court is unable to conclude that the applicant had the opportunity to meaningfully challenge the authenticity of the evidence and to oppose its use despite the fact that she was represented by a lawyer throughout the trial (compare Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 131, 10 November 2016). Hence, the Court is not satisfied that the applicant ’ s complaint received an appropriate response from the national courts and considers that fair procedures for making an assessment of the issue of legal assistance proved non-existent in the present case (see Rodionov v. Russia, no. 9106/09, § 167 in fine, 11 December 2018). 69. Moreover, the trial court used the applicant ’ s police statements when finding her guilty of membership of a terrorist organisation and eventually in sentencing her to six years and three months ’ imprisonment. As is apparent from the trial court ’ s reasoned judgment, the Court considers that it cannot be ruled out that the applicant ’ s statements formed an integral part of the evidence upon which her conviction was based. 70. Against such a background, the Court is of the view that the absence of a close scrutiny by the national courts of the circumstances surrounding the applicant ’ s waiver and the fact that this flaw was not remedied by any other procedural safeguards during the proceedings rendered the trial as a whole unfair (see Bozkaya, cited above, § 53, and Türk, cited above, § 58). 71. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 74. The Government submitted that the applicant ’ s claims were excessive. 75. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure to have the domestic proceedings reopened in the event that the Court finds a violation of the Convention, the Court makes no award under this head ( see Bayram Koç, cited above § 29). B. Costs and expenses 76. The applicant claimed 5,022 Turkish liras (TRY – approximately EUR 1,570), which constituted the legal fee inclusive of value-added tax for the proceedings before the Court. 77. She also claimed TRY 600 for expenses relating to postage, translation and stationery which she had incurred before the proceedings (approximately EUR 187). In support of her claims, the applicant submitted the scale of fees of the Union of Bar Associations of Turkey. 78. The Government invited the Court to dismiss the applicant ’ s claims under costs and expenses due to her failure to submit any documents to support those claims. 79. The Court reiterates that it has already held that mere reference to the Bar Associations ’ scale of fees without submitting any other document was not sufficient to comply with Rule 60 § 2 and 3 of its Rules and dismissed the claims relating to costs and expenses on that ground (see Hülya Ebru Demirel v. Turkey, no. 30733/08, § 61, 19 June 2018). In the instant case, regard being had to the fact that the applicant only submitted the Union of Bar Associations of Turkey ’ s scale of fees to support her claims, the Court decides not to any award under this head.
The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. Although it rejected as inadmissible the applicant’s complaint about her conviction on the basis of police statements taken under duress because of lack of evidence of ill-treatment, it found that the Turkish Government had failed to show that a printed “X” next to “no lawyer sought” on her statement form had amounted to her validly waiving her right to a lawyer during custody. In point of fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her statements. Nor was the Court satisfied with the national courts’ response to the applicant’s complaint. They had neither examined the validity of the waiver nor the statements she had made to the police in the absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced.