Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer
| DOI | 10.1177/2032284419879228 |
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| Author | Ergul Celiksoy |
| Subject Matter | Articles |
Article
Overruling ‘the Salduz
Doctrine’inBeuze v Belgium:
The ECtHR’s further
retreat from the Salduz
principles on the right
to access to lawyer
Ergul Celiksoy
University of Nottingham, UK
Abstract
In November 2018, the Grand Chamber of the European Court of Human Rights delivered its
judgment in the case of Beuze v Belgium. Relying on Ibrahim and Others v the United Kingdom,the
Grand Chamber held that the Salduz principles require a two-stage test of analysis, and hence,
ruled out that systematic statutory restriction of a general and mandatory nature would in itself
constitute an automatic violation of Article 6 § 3(c) of the European Convention on Human Rights.
However, the Beuze judgment appears to be very controversial, since the Grand Chamber failed to
put forward any convincing reason why it departed from previous case law, particularly Dayanan v
Turkey and other judgments against Turkey. In their separate opinion, the concurring Judges in
Beuze were concerned that the Beuze judgment overruled ‘Salduz itself and all other cases that
have applied the Salduz test’, and thus, ‘actually distorts and changes the Salduz principle and
devalues the right that the Court established previously’. This article analyses the Beuze judgment
in the light of the Court’s recent jurisprudence in order to examine whether it contradicts and
dilutes the principles previously set out. Further, it discusses the implications of the new standards
established in Ibrahim and Others and in subsequent cases, particularly Beuze. Particular attention is
paid to the questions of how ‘fair’ is the application of overall fairness assessment in every case,
how may the Court’s changing direction of approach concerning the right to access to a lawyer
affect the increasing trend of recognition thereof, as a rule, by the contracting states, and finally, to
what extent the new principles, especially those established in Beuze, comply with Directive 2013/
48/EU on the right of access to a lawyer.
Corresponding author:
Ergul Celiksoy, PhD Researcher, School of Law, University of Nottingham, NG9 2RD Nottingham, UK.
E-mail: ergul.celiksoy@nottingham.ac.uk
New Journal of European Criminal Law
2019, Vol. 10(4) 342–362
ªThe Author(s) 2019
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DOI: 10.1177/2032284419879228
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Keywords
Beuze v Belgium, right to access to lawyer, custodial legal assistance, systematic statutory
restriction, Salduz,Ibrahim and Others,Dayanan
Introduction
[U]pholding the so-called ‘Salduz doctrine’ is important in order to preserve the integrity of the judicial
process and thus the values of civilised societies founded upon the rule of law.
1
In recent years, there have been significant developments in the jurisprudence of the European
Court of Human Rights (ECtHR or the Court) concerning the right to access to a lawyer at the
pretrial stage of criminal proceedings. In 2016, the Grand Chamber of the ECtHR held in Ibrahim
and Others v the United Kingdom
2
that the Salduz principles require a two-stage test of analysis to
assess whether a restriction on the right to access a lawyer is compatible with the fair trial rights
3
In the
first stage, the Court assesses whether there are compelling reasons for a restriction; in the second
stage, it evaluates the impact of the restriction on the overall fairness of the proceedings.
4
In 2017,
the Grand Chamber applied this two-stage test of analysis to Simeonovi v Bulgaria and found no
violation of Article 6 § 3(c), although the applicant in this case was denied accessing to a lawyer
without any compelling reason.
5
Following the Ibrahim and Others and Simeonovi rulings, the
ECtHR delivered its judgment in the case of Beuze v Belgium in November 2018, where the
applicant was subject to a systematic and mandatory restriction on his right to access to a lawyer
at the investigation stage.
The Beuze case is very important, as therein the ECtHR had to explain
whether that clarification [as to the two stage test of analysis made in Ibrahim and Others] is of general
application or whether, as claimed by the applicant [in Beuze], the finding of a statutory restriction is, in
itself, sufficient for there to have been a breach of the requirements of Article 6 §§ 1 and 3 (c).
6
Even though the facts of the Beuze case were quite different from both Ibrahim and Others and
Simeonovi and quite similar to Salduz v Turkey
7
and Dayanan v Turkey
8
in terms of the nature of
the restriction imposed on the applicant’s right to access a lawyer (i.e. a systematic statutory
restriction), the majority in Beuze insisted on applying the two-stage test of analysis as set out
in Ibrahim and Others.
9
The majority held that according to the Salduz principles, a systematic
1. Beuze v Belgium [2018] ECHR 925, Joint Concurring Opinion of Judges Yudkivska, Vuˇcinic´, Turkovic´ and Hu
¨seynov,
para 5.
2. [2016] ECHR 750.
3. ibid para 257.
4. Ergul Celiksoy, ‘Ibrahim and Others v. UK: Watering Down the Salduz Principles?’ (2018) 9(2) New Journal of
European Criminal Law 229, 239–241.
5. [2017] ECHR 438.
6. Beuze (n 1) para 116.
7. [2008] ECHR 1542.
8. [2009] ECHR 2278.
9. Beuze (n 1) paras 137–141.
Celiksoy 343
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