before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.12 The result of this approach is that the ECtHR will take account of what takes place at the pre-trial stage in the specific areas governed by Article 6(3), but it will do so only once the national proceedings are over when it can assess the overall impact of the pre-trial issue. Essentially, if something goes wrong in the initial stages, primary responsibility rests with the Contracting States to put it right, and the ECtHR will step in only afterwards. As a result, ECtHR complaints under Article 6(3) brought when the criminal case is still ongoing will usually be dismissed as inadmissible.13 The above point underlines that principles under Article 6(3)(c) concerning the right of access to a lawyer at the early stages of criminal proceedings will, by definition, be developed by reference to the proceedings as a whole. This is reflected in the core statement in Salduz v. Turkey which we will consider below: the violation of Article 6 – in the sense of the ECtHR finding a country in violation of the ECHR – only happens when the national system fails to remedy the earlier failure to provide access to a lawyer. So there is not, and essentially cannot be, a self-standing violation of Article 6(3)(c) arising from something that happens early in the proceedings alone. As we will see later, there may be an interest in arguing for a slightly different approach under the Directive. 4. The right to silence under Article 6 Before considering the core principle around Article 6(3)(c), it is important to remind oneself that the right to silence is also protected by Article 6. Although it is not specifically mentioned in Article 6(3), the ECtHR has consistently recognised that it forms part of the requirements of a fair trial: The Court also reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.14 This is important to bear in mind for present purposes because of the function the ECtHR sees in the role of the lawyer: it is – not exclusively, but in particular – to ensure respect for the right of the suspect not to incriminate himself. This is the clearest reason why early violations of the right of access to a lawyer should be remedied in the way incriminating statements made in the absence of a lawyer are handled, and why only exclusionary rules may be effective for this purpose. We will come back to this in the discussion concerning remedies below (see Part I). 5. The core principle in Salduz v. Turkey Against the above legal framework, the ECtHR reached its decision in the key case of Salduz v. Turkey, on which this Toolkit will place a significant focus: 12 For example Imbriosica v. Switzerland App. No 13972/88 (Judgment of 24 November 1993), paragraph 36. The case of Casse v. Luxembourg App. No 40327/02 (Judgment of 27 April 2006) is the only one the author knows of in which the ECtHR has a violation of a specific guarantee of Article 6(3) in isolation. Fair Trials sought to persuade the ECtHR to follow this approach more generally in the case of Candido Gonzalez Martin v. Spain App. No 6177/10 (Admissibility decision of 15 March 2016) (see the intervention) but it declined to do so. Casse v. Luxembourg should probably be seen as an outlier; it is arguably more akin to a finding of a violation of the right to a trial within a reasonable time due to the failure ever formally to initiate proceedings at all. 14 Pishchalnikov v. Russia, cited above note 10, paragraph 71. 13 8