készíti: Gellért Ádám
email/elérhetőség: gadam107@yahoo.com

“The only necessary for "evil" to triumph is for a few good men to do nothing”

2011. december 23., péntek

Védőről való lemondás a nyomozati kihallgatásnál, a gyanúsított jogai, a bizonyítékok felhasználása a brit LB előtt (EJEB Salduz-biztosítékok)

Nagy Britannia Legfelsőbb Bírósága 4:1-es arányú decemberi döntésében (McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 54) a következőket mondta ki:

“In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal [21], and must be attended by the minimum safeguards commensurate to the importance of the right [27]. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States [37-44]. There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police [45].”

Az LB októberben egy hasonló ügyben pedig megállapította, hogy (HM Advocate v P (Scotland) [2011] UKSC 44):

“the Salduz principle is not restricted to admissions made without access to legal advice during police questioning (Gafgen v Germany (2010) 52 EHRR 1).The question is whether the rule extends to evidence derived from a detainee’s answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in his police interview [9]. In this case, the statement allegedly made by the accused to his friend in the telephone call was at least partly incriminatory, in relation to the fact of sexual intercourse taking place at the locus. But this of itself does not make it inadmissible. The assumption is that the police would not have obtained this evidence but for what the accused told the police when he was arrested. If that is the case, the question is whether the fact that the source of the friend’s information was the accused himself renders the friend’s evidence inadmissible [15]. In Gafgen, the ECtHR noted that there is no clear consensus about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence [22]. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear [23], and there have been no other cases dealing with the issue since Gafgen. Strasbourg has not, however, suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accused’s rights under Article 6(1) and (3)(c).”

Egy másik október elején meghozott döntésben (HM Advocate v Ambrose & Ors (Scotland) (Joined cases) [2011] UKSC 43) a bíróság szintén a Salduz-szabályokat értelmezte:

„The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply.”

„The correct starting point when considering whether the person’s Convention rights have been breached is to identify the moment at which he is ‘charged’ for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that.”

Nincsenek megjegyzések: