ii. Seek remedies for the infringement As noted above, the appropriate remedy for the infringement of the right of access to a lawyer should be (at a minimum) one which ensures the relevant evidence is not taken into account for the purposes of a conviction. To the greatest extent possible, the argument has to be that the limitation on the lawyer’s participation is, in effect, equivalent to denying the lawyer’s presence outright and should lead to a similar consequence.  Seek a remedy (see earlier comments / the Using EU Law Toolkit)  Argue:  The lawyer has a wide-ranging role which, in the particular context of police questioning, relates in particular to the protection of the suspect against infringements of his right to silence and against self-incrimination (see the Salduz and Dayanan cases). The limitations placed upon the lawyer’s participation in this case (either due to the legal limits or the application of the law) meant that the lawyer was unable to exercise that function effectively.  There has therefore been a breach of Article 3(3)(b) of the Directive.  Accordingly, in accordance with Article 12, in the assessment of statements made by the suspect, the rights of the defence and fairness of proceedings must be respected. This should be read in light of the general case-law of the ECtHR according to which a breach of Article 6 occurs where incriminating statements obtained in absence of a lawyer are used for a conviction. The ECtHR has already made clear that the failure to enable a lawyer to be present in questioning will lead to a breach of Article 6 on that basis (Navone and Others v. Monaco). Due to the restrictions applied in this case, the position is comparable to the absence of the lawyer and incriminating statements must not be used for a conviction. Exclusionary / nullity rules must therefore be used to remove the statements from consideration altogether.  This includes directly incriminatory statements such as confessions. It also includes statements not directly incriminatory per se, but on which reliance can be placed to undermine the suspect’s credibility (A.T. v. Luxembourg; Saunders). In order to ensure the fairness of the proceedings, these should not be relied upon in any way detrimental to the accused. b. Cross-border (European Investigation Order) issues There is already some recognition in the case-law of the ECtHR that the questioning of a person in one country in the absence of a lawyer (or a valid waiver of that right) may lead the country that subsequently uses confessions obtained in that context to infringe Article 6 ECHR: Stojkovic v. France and Belgium26 concerned a case in which a person was questioned in Belgium by virtue of a letter rogatory issued by a French investigative judge, indicating that the person should be heard as an ‘assisted witness’, that is a person who is not formally accused but against whom there is evidence plausibly supporting their participation in an offence. The person was heard in Belgium without the 26 Stojkovic v. France and Belgium App. No 25303/08 (Judgment of 27 October 2011). 19