Paskal v Ukraine: ECHR 15 Sep 2011

The applicant, a serving policeman with a university degree in law was arrested on suspicion of robbery. He signed a procedural rights notification form and noted that he wished to appoint a lawyer whom he named as his advocate. He was then questioned, without a lawyer being present, about the robbery just after he had explicitly expressed that wish. It was argued that this was a case of an implied waiver.
Held: The Court was mindful in a number of its judgments of the vulnerable position of a suspect vis-a-vis the investigative authorities and had emphasised the paramount importance of access to a lawyer before the first questioning as a means to counter the imbalance between the parties. Recalling the Grand Chamber’s observations in Salduz, that neither the letter nor the spirit of article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial, as long as a waiver of the right is given in an unequivocal manner and was attended by safeguards commensurate to its importance, it addressed the question whether the waiver constituted ‘an act of the applicant’s free will and informed procedural choice’. The fact that the applicant was a policeman and a lawyer himself might not mean that he was not vulnerable and in need of an advocate’s support. But the level of his expertise could not be discounted in assessing whether his consent to participate in the particular questioning was well-informed. The court concluded that the waiver was effective as he was not coerced to give any statement in defiance of his will.

Judges:

Dean Spielmann, P

Citations:

Unreported, 15/09/2011, 24652/04

Links:

HUDOC

Statutes:

European Convention on Human Rights 6

Cited by:

CitedMcGowan (Procurator Fiscal) v B SC 23-Nov-2011
The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
Held: It was not incompatible with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 04 May 2022; Ref: scu.449899