Ibrahim and Others v. UK: Watering down the Salduz principles?

Published date01 June 2018
Date01 June 2018
DOI10.1177/2032284418778149
AuthorErgul Celiksoy
Subject MatterArticles
Article
Ibrahim and Others v.UK:
Watering down
the Salduz principles?
Ergul Celiksoy
University of Nottingham, UK
Abstract
The European Court of Human Rights (the ECtHR or ‘the Court’) has gradually developed
considerable jurisprudence affirming the right to access a lawyer prior to or during police inter-
rogation, with Salduz v. Turkey marking a turning point in setting out a strong position on this right
(i.e. the Salduz principles). However, in Ibrahim and Others v. United Kingdom (Ibrahim), the ECtHR
expressed that there was a need for further clarifications of the Salduz principles, indicating that
there is a two-stage assessment regarding whether any restriction on early access is compatible
with the fair trial rights ensured in Article 6 of the European Convention on Human Rights (the
ECHR or ‘the Convention’). This article discusses whether the decision in Ibrahim represents
a retreat from the Salduz principles (and a less robust position on the ECHR) by the ECtHR.
Keywords
Right to access a lawyer, police custody, police interrogation, custodial legal advice, Salduz,Ibrahim
and Others,Salduz principles, Salduz test, overall fairness assessment
Introduction
The European Court of Human Rights (ECtHR) has gradually recognized the right of access to a
lawyer during the pretrial stage in criminal cases, although the nature of this right has not been
formally posited in the European Convention on Human Rights (ECHR). Having taken a relatively
conservative approach in its early jurisprudence,
1
the milestone decision in Salduz v. Turkey (2008)
Corresponding author:
Ergul Celiksoy, School of Law, University of Nottingham, University Park, University of Nottingham, Nottingham, Not-
tinghamshire, NG7 2RD, UK.
E-mail: ergul.celiksoy@nottingham.ac.uk
1. Sarah J. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights
(Oxford, Portland: Hart Publishing, 2007) at 151.
New Journal of European Criminal Law
2018, Vol. 9(2) 229–246
ªThe Author(s) 2018
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/2032284418778149
njecl.sagepub.com
NJECL
NJECL
affirmed that as a rule suspects should be provided with the right of access to lawyer in police
custody unless there are compelling reasons for not doing this.
2
In its subsequent jurisprudence, the
Court clarified these principles and laid down new standards on many occasions, but some issues
have been left unresolved by the Court, for example, the meaning of ‘compelling reasons’. In
Ibrahim (2016), the ECtHR admitted that further clarifications were needed for the Salduz prin-
ciples, stating that the principles require a two-stage test to assess whether a restriction on the right
to access a lawyer is compatible with the right to a fair trial.
3
In the first stage, the Court assesses whether there were compelling reasons for a restriction; in
the second stage, it evaluates the impact of the restriction on the overall fairness of proceedings and
decides whether the proceedings as a whole were fair. While not explicitly stated in the judgment,
it is clear that the first stage particularly concerns events taking place during the pretrial phase of
the criminal proceedings. In contrast, the second stage requires an ex post facto assessment of both
pretrial events and the conduct of the trial by the Court, not least to consider how evidence
garnered during the investigatory phase was subsequently treated (particularly information dis-
closed during interrogations without legal consultation).
4
In this respect, in the Ibrahim judgment,
the ECtHR explained the meaning of ‘compelling reasons’ and indicated what approach should be
taken in assessing the overall fairness of the proceedings as a whole.
What was surprising in Ibrahim was that the ECtHR held that the restriction of the right to
access to lawyer in police custody without ‘compelling reasons’ would not in itself comprise a
breach of Article 6(3)(c) of the Convention, which conversely was implicitly held to be a general
principle in the Salduz principles. Another controversial interpretation of the ECtHR in this ruling
was that the use of statements made without access to a lawyer per se does not violate the right to
access to lawyer under Article 6, and there is no need for a special remedy such as exclusion of this
evidence in the case file. Consequently, while the Court succeeded in clarifying the principles set
out in previous case law, particularly regarding the understanding of compelling reasons, it appears
that in Ibrahim, the ECtHR departed from the general principles adumbrated in Salduz and marked
a significant suspension of the application of the right to access a lawyer. Therefore, this article
discusses whether the ECtHR watered down the Salduz principles in Ibrahim.
The following section briefly demonstrates pre-Ibrahim jurisprudence on the right to access to
lawyer in police custody in order to explain the latent position of the Court prior to 2016, and what
principles were provided by Salduz and subsequent case law. These explanations contribute a
comprehensive discussion of the position taken by the ECtHR in Ibrahim and Others.
‘Diluting the principles while clarifying them: Ibrahim and Others’ section analyses the Ibra-
him judgment of the ECtHR to elaborate what clarifications have been made and whether the
ECtHR diluted the Salduz principles while clarifying them. To this end, the section first explains
the meaning of ‘compelling reasons’, whose clarification was the underlying concern in Ibrahim,
then it discusses whether or not there is a need for an assessment of overall fairness in every case
regardless of whether there were compelling reasons, as the ECtHR ruled in Ibrahim. Third, it
analyses the Simeonovi v. Bulgaria
5
judgment in order to demonstrate the negative consequences
2. [2008] ECHR 1542.
3. [2016] ECHR 750 para 257.
4. [2016] ECHR 750 para 257, Joint Partly Dissenting Opinion of Judges Hajiyev, Yudkivska, Lemmens, Mahoney, Silvis
and O’leary para 5.
5. [2017] ECHR 438.
230 New Journal of European Criminal Law 9(2)

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT