EIT:n suuri jaosto arvioi oikeutta avustajan käytön rajoittamiseen lyhyeksi aikaa poikkeustilanteessa

Euroopan ihmisoikeustuomioistuimen (EIT) suuri jaosto on eilisessä tuomiossaan äänestyksen jälkeen katsonut, että kolmen valittajan oikeutta oikeudenmukaiseen oikeudenkäyntiin ei loukattu epäämällä heiltä muutamaksi tunniksi avustajan käyttö kuulusteluissa pakottavasta tarpeesta poikkeuksellisessa terrorismirikosepäilyä koskevassa tilanteessa, kun taas yhden valittajan oikeuksia tältä osin loukattiin.

EIT arvioi niin enemmistön tuomiossa kuin useammassa äänestyslausumassa tilannetta Lontoon pommi-iskujen tutkinnassa ja oikeudenkäynneissä vuonna 2005. Kolmen valittajan osalta EIT päätyi katsomaan, että oikeutta avustajaan oli voitu pakottavasta tarpeesta johtuen väliaikaisesti rajoittaa poikkeuksellisessa tilanteessa, kun valittajille lisäksi oli kerrottu heidän oikeuksistaan vaieta ja oikeudesta avustajaan – vaikkakin jälkimmäistä oikeutta ajallisesti lykättiin. Yhden valittajan osalta tilanne oli faktoiltaan toisenlainen, ja EIT katsoi hänen oikeuksiaan loukatun.

EIT:n lehdistötiedotteesta:

In [a] Grand Chamber judgment in the case of Ibrahim and Others v. the United Kingdom (applications nos. 50541/08, 50571/08, 50573/08 and 40351/09) the European Court of Human Rights held, by 15 votes to two, that there had been no violation of the rights of three applicants (Mr Ibrahim, Mr Mohammed and Mr Omar) under Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the European Convention on Human Rights. However, the Court held, by 11 votes to six, that there had been a breach of those provisions in respect of the fourth applicant, Mr Abdurahman. Concluding that it did not follow from the Court’s finding of a violation that Mr Abdurahman had been wrongly convicted, it being impossible to speculate as to the outcome of the proceedings had there been no breach of the Convention, the Court awarded no compensation to him for pecuniary or non-pecuniary damage. An award was made for Mr Abdurahman’s legal fees.

On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene. The first three applicants, Mr Ibrahim, Mr Mohammed and Mr Omar, were later arrested on suspicion of having detonated three of the bombs. They were questioned by the police in urgent “safety interviews” before having had access to legal advice. They were subsequently convicted of conspiracy to murder. They complained before the Court about the temporary delay in providing them with access to a lawyer and the admission at their subsequent trials of statements made in the absence of lawyers. In respect of these applicants the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. There had therefore been compelling reasons for the temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair.

The position with regard to Mr Abdurahman, the fourth applicant, who also complained about the delay in access to a lawyer, was different. He was initially interviewed as a witness, and therefore without legal advice. However, it emerged during questioning that he had assisted a fourth bomber following the failed attack. At that point, according to the applicable code of practice, he should have been cautioned and offered legal advice. However, this was not done. After he had made a written witness statement, he was arrested, charged with, and subsequently convicted of, assisting the fourth bomber and failing to disclose information after the attacks.

In his case, the Court was not convinced that there had been compelling reasons for restricting his access to legal advice and for failing to inform him of his right to remain silent. It was significant that there was no basis in domestic law for the police to choose not to caution Mr Abdurahman at the point at which he had started to incriminate himself. The consequence was that Mr Abdurahman had been misled as to his procedural rights. Further, the police decision could not subsequently be reviewed as it had not been recorded and no evidence had been heard as to the reasons behind it. As there were no compelling reasons, it fell to the Government to show that the proceedings were nonetheless fair. In the Court’s view they were unable to do this and it accordingly concluded that the overall fairness of Mr Abdurahman’s trial had been prejudiced by the decision not to caution him and to restrict his access to legal advice.

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