Case Watch: European Rights Court Lags on Access to Legal Counsel for Criminal Suspects

Over the past five years, there has been a growing international consensus around the right of suspects held in police detention to have early access to legal counsel. The principle has been included in two sets of UN guidelines—on legal aid in 2012, and on the treatment of prisoners in 2015. And the European Union’s Directive on Access to a Lawyer, in force as EU law since November last year, established a clear right for immediate access to a lawyer following arrest in all EU member states.

Yet international human rights jurisprudence on this issue is still evolving—as a result, human rights lawyers were waiting with great interest a ruling this month from the Grand Chamber of the European Court of Human Rights’ on Simeonovi v. Bulgaria, a complaint that claimed, among other things, violation of the applicant’s right to legal counsel during first three days of detention under the European Convention of Human Rights.

The ECHR Grand Chamber of 17 judges can choose to review cases of significant legal importance. In this case the Simeonovi application, lodged in 2004, had already been heard by the standard five-judge chamber. The Grand Chamber then accepted the appeal from the applicant, Lyuben Filipov Simeonov, who is serving a life sentence for a double murder and an armed robbery committed in 1999.

In his complaint, Simeonov claimed that his right to legal assistance had been violated during the first three days of his police detention because  he was informally interrogated without access to a lawyer, despite asking for legal counsel.  The police initially taunted him by saying he had watched "too many movies—this is not America”, although the right to a lawyer upon arrest was already established in the Bulgarian Constitution.

During the Grand Chamber hearing, the Bulgarian government defended itself by both denying that interrogation without counsel took place, and saying that even if the interrogation happened, it was oral and informal (and therefore was not a part of Simeonov’s casefile). Thus, any information potentially obtained was not taken into account and did not prevent a fair trial. When he was finally allowed to meet with his lawyer, it was only in the presence of police investigators.

On May 12, the Grand Chamber, in a 12 to 5 vote, sided with the Bulgarian government. The judges ruled that absence of ‘’legal assistance in police custody did not irremediably infringe the fairness of criminal proceedings’’ in this particular case. The judges cited the lack of proof that a lawyerless interrogation actually took place and noted that any information obtained was not used to secure conviction. They noted that Simeonov had two formal interrogations while being assisted by a lawyer of his own choice, after which he voluntarily confessed to the crime. At the same time, the Grand Chamber noted that although the absence of legal assistance did not irremediably affect the outcome of the criminal proceedings, the judges did think that access to counsel was indeed restricted by the police, since there was no information in the casefile about whether his rights were properly explained to him by the police, and whether he voided his right to a lawyer during the early detention period.

The ruling was a setback for those who had been hoping that the court would further develop the principles laid out in its 2008 Salduz v. Turkey ruling, in which the Grand Chamber ruled that people detained in police stations have a right to access a lawyer mainly to minimize the risk of self-incrimination that could be used in securing conviction. The Salduz ruling led to a number of countries, including Ireland, changing their laws to comply with the new standard.

But being deprived of early access to a lawyer creates other risks that go beyond the risk of self-incrimination. It also minimizes the risk of ill-treatment while in police detention, and ensures that other rights are not violated, such as access to medical care if needed, or notification of family members about arrest.

Considering the gravity of the charges against Simeonov and that the right to a lawyer upon arrest was already a part of Bulgaria’s legislation, the Court could have underscored the importance of immediate access to a lawyer and ensuring that police makes one available immediately, instead of just stating that it was ‘’restricted’’ and that it did not affect the outcome of the case anyway even if informal interrogation took place.

 Of course it is almost impossible to establish what really happened during those first three days of detention now, almost two decades later. But research conducted by the Open Society Justice Initiative and other rights organizations reveals that one of the weakest points of the criminal justice process is what happens in police custody during first hours and days of arrest. Rights abuses, such as the mistreatment and harsh conditions that Simeonov also complained of, are most common during that time. That is why the Open Society Justice Initiative advocates so strongly for universal minimum criminal justice standards; clear procedural guidelines for the arresting police, to ensure detainees clearly understand their rights; diligent management of custody records to prevent informal arrests and interrogations; and access to a lawyer and legal assistance immediately following arrest.

Despite the disappointing outcome from the Grand Chamber, what happened to Simianov in 1999 would now be a breach of Bulgaria’s obligations under the new EU law—regardless of the impact on the outcome of the case. Unusually, human rights law has for once been overtaken by legal developments on the ground.