Alinea 156 Parket bij de Hoge Raad 14 maart 2017

260. The question arises whether a lack of compelling reasons for restricting access to legal advice is, in itself, sufficient to found a violation of Article 6. The first three applicants have cited case-law of this Court subsequent to Salduz, cited above, which they contend makes it clear that Salduz intended to lay down a bright-line rule precluding any use at trial of statements made without legal advice (see paragraph 236 above). However, the approach taken in Salduz itself does not support this argument and the Grand Chamber in Dvorski, cited above, § 82 in fine, does not appear to have understood Salduz in this way. In its summary of the general principles applicable to the case, the Court in Salduz, § 52-54, referred to the overall fairness assessment that had to be carried out when determining whether there had been a breach of Article 6 rights. It said that the rights of the defence would “in principle” be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction, indicating that the rule, while strict, was not absolute (§ 55). It is also noteworthy that, having concluded that there were no compelling reasons to deny the applicant access to a lawyer in that case (§ 56), the Court nonetheless went on to examine the trial proceedings and, in particular, to assess the impact of the admission of statements made in the absence of a lawyer on the fairness of the proceedings as a whole (§§ 57-62).”

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