CASE OF A.T. v. LUXEMBOURG
Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - claim dismissed
Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Mark Villiger
9. The applicant was born in 1973 and was detained in London at the time he lodged his application. 10. On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her. 11. On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time. 12. On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2.45 p.m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3.20 p.m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “[the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning”. The applicant was informed of the victim’s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day’s interrogation before the investigating judge. At 7.15 p.m. he was transferred to Luxembourg Prison. 13. On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows: at 9.02 a.m. the investigating judge checked the identity of the applicant – who now held accused (Beschuldigter) status – and informed him that a criminal investigation (Untersuchungsverfahren) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10.53 a.m. 14. It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim. 15. By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “version of events”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim’s statements. 16. On 7 February 2012 the criminal division of the Court of Appeal upheld the first-instance judgment. 17. The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned. 18. They pointed out that the applicant’s lawyer had complained about the fact that after the applicant’s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows: “As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel.” 19. In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings. 20. On 22 November 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. In particular, it declared ill-founded a submission under Article 6 § 3 of the Convention, on the following grounds: “Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding; Whereas, however, the Court of Appeal held that ... [see quotation in paragraph 18]; That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel; It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ...” 21. The applicant left Luxembourg for the United Kingdom (at an unspecified date), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment. 22. On 12 June 2013, in response to a request from the British authorities (the Extradition Unit of the Crown Prosecution Service) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant’s access to his lawyer before the interrogation of 18 December 2009 had not been restricted. 23. On 19 August 2013 the British court authorised the applicant’s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant’s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison.