Court/Judicial body: European Court of Human Rights
Date: November 27, 2008 CRC
Provisions: Article 37: Torture and deprivation of liberty
Other international provisions:European Convention on Human Rights ( Article 6: Right to a fair trial)International Covenant on Civil and Political Rights ( Article 14: Administration of justice)
Domestic provisions: Turkish Code of Criminal Procedure (articles 135, 136 and 138)
Background: Salduz, a 17 year-old boy, was taken into custody on suspicion of having participated in an unlawful demonstration in support of an illegal organisation. While being interrogated, he confessed to the suspected offences before the public prosecutor and the investigating judge. He was later allowed access to a lawyer and sentenced on the alleged facts. He complained that his defence rights had been violated as he had been denied access to a lawyer while he was in police custody.
Issue and resolution: Right to legal assistance and children in conflict with the law. The Court ruled that denying legal assistance to Salduz while he was held and interrogated in police custody was a violation of his right to a fair trial.
Court reasoning: The police should provide access to a lawyer from the first interrogation of a suspect unless there are very compelling reasons not to in particular circumstances. In this case, the Turkish government’s only justification for denying Salduz access to a lawyer was that he was accused of committing an offence related to national security. Furthermore, despite Salduz contesting the accuracy of the statement he made to the police without legal advice, it was relied upon to convict him. This was, therefore, a clear violation of the right to a fair trial under the European Convention on Human Rights. In particular, in view of Salduz’s young age, the Court noted the fundamental importance of providing him with legal assistance and the government’s obligation to do so under international treaties, including the CRC.
Excerpt citing CRC and other relevant human rights United Nations Convention on the Rights of the Child 34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows: “ States Parties shall ensure that: … (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” General comment No.10 of the Committee on the Rights of the Child, dated April 25, 2007 (CRC/C/GC/10) 35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows: “ 49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge … … 52. The Committee recommends that the States parties set and implement time limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.” Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey, dated July 9, 2001 (CRC/C/15/Add.152.) 36. The relevant part of this text provides as follows: “ 66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.” … 60 Finally, the Court notes that one of the specific elements of the instant case was the applicant’s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody, [footnote 33, citing the Convention on the Rights of the Child and the Concluding Observations of the Committee on the Rights of the Child] the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor.
Follow up: The Court’s finding that all suspects have the right to access a lawyer during police questioning except in extraordinary circumstances has led to further legal challenges on a national level, including in Scotland, where suspects taken into police custody have no right to access a lawyer (
For more information, see: http://www.heraldscotland.com/news/crime-courts/legal-test-case-could-end-with-hundreds-of-criminals-set-free-1.927441).
CRIN comments: CRIN believes this decision is consistent with the CRC, and that children detained by the police must in all circumstances be given “prompt access to legal and other appropriate assistance” as Article 37 clearly requires.
Citation: (2009) 49 EHRR 19
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-89893