Right to a Fair Hearing and Pre-Trial Access to Legal Assistance

Salduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008)

The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police.


In late May 2001, 17 year old Turkish national Yusuf Salduz (the applicant) was taken into custody by Anti-Terrorism Branch police officers suspected of having been involved in an unlawful demonstration supporting an illegal organisation, the PKK (Workers’ Party of Kurdistan), and for hanging an illegal banner from a bridge in April 2001.

No lawyer was present at his interrogation.  The applicant signed a statement which included the charges against him and notifying him of his right to remain silent.  In accordance with Turkish security laws, the applicant was not provided with legal representation.

In the applicant’s statement during this interrogation, he admitted his involvement in the youth branch of HADEP (the People’s Democracy Party) and his participation in the demonstration organised by HADEP in support of the PKK.  He also admitted to having written the banner in April 2001.

Medical reports, written a few hours after arrest and after his interrogation, stated that there were no traces of ill-treatment on the applicant’s body.

The day after the interrogation, the applicant was brought before public prosecutor where he explained that he wasn’t a member of a political party, had not participated in the illegal demonstration nor made the illegal banner.  Before the investigating judge, the applicant retracted his initial statement to the police, alleging that the statement was extracted under duress after being beaten and insulted whilst in police custody.  The applicant again denied that he had been involved in the illegal demonstration, and instead had been visiting a friend.  After being remanded in custody, the applicant was then allowed access to a lawyer.

The applicant was convicted at trial and sentenced to four and half years imprisonment, reduced to two and half as he had been a minor at the time of the offence.  The court did not accept the applicant’s denial of involvement, and held his confession to police to be substantiated.

The applicant appealed to Turkey’s highest court, alleging breaches of arts 5 and 6 of the Convention.  The appeal was dismissed and the applicant appealed to the European Court.


The Court found that art 6 was applicable to pre-trial proceedings, as the fairness of a subsequent trial can be seriously prejudiced by failure to comply with the provisions in art 6.

One of these provisions, art 6(3)(c), enumerates the right to legal assistance in criminal proceedings as ‘one of the fundamental features of a fair trial’.

The Court highlighted the importance of recognising this right in the investigation stage of criminal proceedings, as evidence and preparation during this stage determines ‘the framework in which the offence charged will be considered at the trial’, and emphasised this importance given the particular vulnerability of the accused during the investigatory proceedings and the complexity of evidentiary laws.

The Court considered its previous case of Imbrioscia v Switzerland (24 November 1993, Series A no. 275) to support the application of art 6 to pre-trial investigations; in that case the Court held that the Convention is designed ‘to guarantee, not rights that are theoretical or illusory, but rights that are practical and effective’.

In this case, the Court provided an exception to the scope of art 6 for cases where the particular circumstances provide compelling reasons to restrict this right.  However, the Court further qualified that, in these circumstances, regardless of the justification, the rights of the accused under art 6 must not be unduly prejudiced.  The Court noted that this occurs where ‘incriminating statements made during police interrogation without access to a lawyer are used for a conviction.’

Article 6 does not preclude a person from waiving their rights if they have been fully informed of their rights.

A salient feature of this case was the applicant’s age.  The Court considered numerous international law materials in determining the requirements of legal assistance to minors in police custody.  It was held that providing access to a lawyer for minors in custody is fundamentally important, even though the law restricting legal access in this particular case was systematic.

Relevance to the Victorian Charter

Under s 25(2)(b) of the Victorian Charter, a person charged with a criminal offence is entitled to ‘have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her’.  Further provision for legal assistance is made under ss 25(2)(e)-(f).  The Salduz decision potentially solidifies the scope for a right to legal representation in pre-trial investigation and the inadmissibility of evidence which is provided by these sections.

Currently, under s 464C(1) of the Victorian Crimes Act, police must inform a suspect of his or her right to communicate with a legal practitioner, except in situations of urgency concerning the safety of others.  However, evidence collected without regard to this section is not expressly excluded from proceedings, and only covers the period ‘before any questioning or investigation’ begins.  Salduz, however, indicates that the right to receive legal assistance commencing from the point of being detained is encapsulated within the right to a fair hearing.

The impact of the proposed changes to the Evidence Act are yet to be fully seen.  Sections 135(a) and 137 provide that evidence which is unfairly prejudicial may be rendered inadmissible.  Although not expressly provided for, the interpretation of what is unfairly prejudicial may now be required to follow the reasoning in Salduz.  This application is provided for in s 138(3)(f), which disallows the admission of evidence obtained contrary to the International Covenant on Civil and Political Rights.  Although Salduz deals with the European Convention, the ICCPR, to which Australia is party, has a corresponding provision in art 14.

Alexandra Phelan and Peter Henley, Human Rights Law Group, Mallesons Stephen Jaques