2. The core principle, developed a. ‘Access to a lawyer’: the content of the right Exactly what ‘access to a lawyer’ means depends largely upon the role of the lawyer. This was expressed (somewhat obliquely) by the ECtHR in Dayana v. Turkey18 soon after Salduz: An accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned. Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. (…) Counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention. Sometime later came the case of A.T. v. Luxembourg,19 in which Fair Trials intervened. It established that the right of access to a lawyer includes the right to a private consultation prior to questioning by the investigative judge: The Court emphasises the importance of a consultation between counsel and client before the first questioning by the investigative judge. It is at this point that crucial discussions can take place, even if this means no more than counsel reminding the person of their rights (…) Counsel must be able to provide assistance which is concrete and effective, and not only abstract by virtue of his presence (…) [our translation]. As will be discussed later in this Toolkit, it remains to be seen to what extent limitations placed upon a lawyer’s ability to intervene and participate in questioning may lead to violations of Article 6. Arguments about this before national courts will currently be better anchored in the Directive. b. ‘Incriminating statements’ The concept of an ‘incriminating statement’, the use of which for a conviction will infringe Article 6, is, in a classic case, fairly simple. For example, in Salduz and many subsequent cases, the ECtHR has dealt with confessions by the persons charged, who effectively admit committing the offence. However, it is important to bear in mind that there may be more to the concept than this. In particular, statements not directly incriminatory per se may be adverse to a person’s defence if they are used in that way (eg. denials in different terms which are contrasted to impugn a suspect’s credibility). The ECtHR recognised this in the context of criminal proceedings where use was made of earlier statements obtained under non-criminal compulsory powers: Testimony obtained under compulsion which appears on its face to be of a nonincriminating nature – such as exculpatory remarks or mere information on questions of fact – may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or 18 19 Dayanan v. Turkey App. No 7377/03 (Judgment of 13 October 2009). A.T. v. Luxembourg, cited above note 8. 11