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31.01.2022

The lack of legal protection measures during pre-trial and court proceedings causes irreparable damage to the right to defense

Obstructing the accused's access to a lawyer without providing individualized reasons undermined the fairness of the subsequent criminal proceedings, since the initial indictment was accepted as evidence. And the lack of legal protection measures during the trial caused irreparable damage to the right to defense.

Such conclusions were reached by the European Court of Human Rights in the case "Atristein Gorosabel v. Spain" (application No. 15508/15), reports "ECHR. Ukrainian Aspect" .
Atristain Gorosabel was arrested in France and extradited to Spain in 2010 on suspicion of crimes related to the terrorist group ETA.
In order to conduct an impartial investigation, the court decided to keep him incommunicado. Although the suspect was assigned a free lawyer, he could not speak to him and was prohibited from seeing any lawyer.
During the police interrogation, he stated that he "partially worked with ETA in the kidnapping attempt, providing information about police officers, etc. Subsequently, A. Gorosabel stated that in his apartment there is a stash of firearms, cartridges, various media containing training manuals on terrorism, as well as fake license plates. The police found these things.
The suspect was examined daily by a doctor, who testified that he had not been ill-treated. At the same time, the man told the doctor that the police threatened to arrest his girlfriend.
Incommunicado detention was abolished in 2010.
In 2013, A. Gorosabel was found guilty of crimes by the court. In the verdict, the court referred to material evidence and witness statements, including those allegedly hidden by him in his home, as well as his self-incriminating statements. The court stated that the accused was not ill-treated and made his statements freely.
Since the appeal against the verdict was not successful, A. Gorosabel appealed to the European Court of Human Rights. Relying on Article 6§1 (right to a fair trial) and 3 (c) (right to legal aid of one's own choice) of the Convention, he complained that he had been denied access to a lawyer during his incommunicado detention of their own choosing during police questioning.
The Court in Strasbourg reiterated that Article 6 applies not only to proceedings in court, but also during pre-trial proceedings. Access to a lawyer must be ensured when there is an "accusation of committing a criminal offense".
The ECtHR also found that there was no individual assessment and justification by the authorities of the need to limit the applicant's access to a lawyer of his own choice, and even a complete absence at some point. And the decision on incommunicado detention, although in accordance with the law, was at the same time too general in nature.
The statements made by the applicant at the police station formed an important basis for his conviction. And the domestic court did not consider the complaint that the free lawyer could not contact the applicant at that time. In the sense of the general fairness of the proceedings, preventing the applicant's access to a lawyer at the appropriate time, as well as access to a lawyer of his own choice without providing individualized reasons, undermined the fairness of the subsequent criminal proceedings. Because the initial indictment of the accused was accepted as evidence. The lack of legal protection during the trial caused irreparable damage to his defense rights.
Therefore, there was a violation of Article 6 §§ 1 and 3 (c) of the Convention. The ECtHR ruled that Spain should pay the applicant 12,000 euros in compensation for moral damages.
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