Investigating crime; and ensuring the integrity of the criminal process Page 87 compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused’. In this case, the applicant had been affected by the restrictions on access to a lawyer in that his statement to the police had formed the basis for the conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could have remedied the situation in the opinion of the Court. 257 ■ In Panovits v Cyprus, the pre-trial questioning of a minor in the absence of his guardian and without being sufficiently informed of his right to receive legal representation was held to have violated his rights of defence under Article 6(3)(c) in conjunction with Article 6(1). The confession had been treated as voluntary and thus admissible as evidence, and although it was not the sole evidence on which the applicant had been convicted, it had constituted a significant element. For the Court, ‘the passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation’. While he had been cautioned before being interviewed, ‘it was unlikely that a mere caution in the words provided for in the domestic law would be enough to enable him to sufficiently comprehend the nature of his rights’. Nor had subsequent proceedings remedied the nature of the detriment suffered at pre-trial stage. The conclusion was that there had been a violation of Article 6(3)(c) in conjunction with Article 6(1), while the subsequent use at the trial stage of the applicant’s confession was also considered to have given rise to a separate violation of Article 6(1). 258 ■ In Aleksandr Zaichenko v Russia, in contrast, the absence of legal representation at the time the applicant made self-incriminating statements following a roadside check of his vehicle had disclosed ‘no significant curtailment of the applicant’s freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings’. He had neither been formally arrested nor interrogated while in police custody, but had made the statements at the time of the inspection of the vehicle and in public before two witnesses. 259 257 Salduz v Turkey, judgment of 27 November 208 at paragraphs 50-63. 258 Panovits v Cyprus, judgment of 11 December 2008 at paragraphs 64-77 and 84-86. 259 Aleksandr Zaichenko v Russia, judgment of 18 February 2010 at paragraphs 46-51.
The European Convention on Human Rights and Policing Page 88 The admissibility of irregularly obtained evidence in subsequent criminal proceedings Whether evidence improperly obtained should be admissible in subsequent criminal proceedings is generally a matter for domestic courts. Thus even where it is shown that police officers have obtained evidence in violation of domestic law, or even where this has given rise to a violation under the Convention and has led this evidence in a criminal trial, this will not in itself render the criminal proceedings unfair if other guarantees have ensured that the rights of the defence have been respected (such as whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use, whether the admissions made by the applicant were made voluntarily, and whether the circumstances in which the evidence was obtained cast doubt on its reliability or accuracy). 260 ■ In Schenk v Switzerland, the applicant had been convicted of incitement to murder his wife partly on the basis of a recording of a conversation made with him but taped without his knowledge or consent. He complained that the use of unlawfully obtained evidence had rendered his trial unfair. The Court did not ‘exclude as a matter of principle and in the abstract that unlawfully obtained evidence ... may be admissible’, but its task centred upon an assessment of the fairness of the trial. In this case, the rights of the defence had not been disregarded: the applicant had sought unsuccessfully to challenge the authenticity of the recording and also its use in evidence; further, the conviction had not been solely based upon the recordings. In the circumstances, the Court considered that the trial had not been unfair. 261 ■ In Khan v the United Kingdom, the applicant had been one of a number of visitors to the house of an individual who was being investigated for drugs trafficking and in which the police had installed a listening device. At one point during a conversation which was being recorded, the applicant had admitted dealing in drugs. During his trial, the applicant had sought to challenge the admissibility of the evidence obtained through the surveillance, but after the judge had considered the question of admissibility and had declined to exercise his powers to exclude this, the applicant had pled guilty to an alternative charge. Although the Court accepted there had been a violation of the applicant’s Article 8 rights, it did not find that there had been an unfair trial within the meaning of Article 6. On this point, the Court 260 Khan v the United Kingdom, judgment of 12 May 2000 at paragraphs 36-37. 261 Schenk v Switzerland, judgment of 12 July 1988 at paragraphs 46-47.