Onder 6.7 Parket bij de Hoge Raad 8 juli 2016

40. In its Salduz v. Turkey judgment ([GC], no. 36391/02, §§ 54-55, ECHR 2008), the Court stressed the importance of the investigation stage for the preparation of criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. In order for the right to a fair hearing to remain sufficiently “practical and effective”, Article 6 § 1 requires, as a rule, access to a lawyer as from the first questioning of a suspect by the police, unless it is demonstrated in the particular circumstances of the case that there are compelling reasons to restrict this right. In the present case, the applicant’s lawyer was allowed to enter the hearing room during the questioning of the applicant, however, this was a passive presence without any possibility at all to intervene to ensure respect for the applicant’s rights. Furthermore, the restriction imposed concerning access to a lawyer was systematic, pursuant to section 31 of Law no. 3842, and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. Accordingly, the Court concludes that the mere presence of the applicant’s lawyer in the hearing room cannot be considered to have been sufficient by Convention standards.

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