Komentarz (w j. angielskim) autorstwa Michaela Turnera do wyroku ETPCz w sprawie Salduz przeciwko Turcji. W wyroku Trybunał stwierdził naruszenie art. 6 ust. 1 i 6 ust. 3 Europejskiej Konwencji Praw Człowieka z uwagi na użycie jako dowodu w postępowaniu sądowym wyjaśnień obciążających podejrzanego złożonych w czasie policyjnego przesłuchania pod nieobecność jego obrońcy. 

This essay will focus on the cases of Salduz v Turkey1 and Cadder v HM Advocate2 to show how the judgment of the European Court of Human Rights in the former affected the decision in the latter. It will also exemplify how the decision against Turkey led to implementation of new laws in the United Kingdom, following the ruling in the Scottish case, despite the European Court’s decision being only binding upon Turkey.

In the first case, there were found to be violations of Articles 6(1) and 6(3) of the European Convention on Human Rights, since the denial of access to a lawyer for the suspect during the custody period affected their rights to a fair trial and legal representation. This arose because the domestic law stipulated that certain “provisions were not applicable to persons accused of offences falling within the jurisdiction of the state security courts,”3 including access to a lawyer. Since the defendant was suspected of terrorism and participation in an illegal organisation, the authorities considered his offence to be within this category. However, the accused was also a minor – a class of people to whom legal representation is now obligatory, under Turkish law. It was held that the defendant’s rights were limited due to no lawyer being present during their interviews and “neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody.”4 Therefore, any confessions or information released by the suspect at that time, cannot be protected by the legislation to “justify the use of incriminating statements obtained at interviews where legal assistance has been denied, as prosecution evidence at trial.”5

As a result, the applicant was awarded just satisfaction, although there was no need for legislative change, as this was already done in 2003. Nevertheless, it is thought that such changes “were largely cosmetic, ineffective, and did not adequately address the root cause of violations found by the Court,”6 and it was recently requested that Turkey’s implementation be under enhanced supervision, so that it included simplification and better verification of the accused’s rights to legal representation.
Two years after the finding of the Turkish violation, similar circumstances arose in Scotland, when Peter Cadder appealed his case to the Supreme Court of the United Kingdom.

Originally, Scottish law did not require for there to be immediate legal assistance when the suspect was under interrogation. The pertinent issue was that – based on particular recommendations7 – the police could detain and question a person suspected of committing an offence warranting imprisonment for six hours without the presence of a solicitor and were not compelled to offer such services,8 which the Supreme Court had to analyse for any violations of the Convention – in particular the significant right against self-incrimination.

Mister Cadder was unsuccessful with his first appeal to the High Court, because its decision was based upon the ratio decidendi in the earlier case of McLean v HM Advocate9 illustrating the opinion that “if other safeguards to secure a fair trial… are in place, there is, notwithstanding that a lawyer is not so provided, no violation, in our view, of Article 6.”10 Such safeguards are the right to remain silent and the prohibition of coercion, which would otherwise render the evidence as inadmissible. After many refusals to appeal, special leave was successfully sought directly to the Supreme Court. Here, it was held that there was a violation of Article 6(3) with frequent reference to the decision in Salduz v Turkey, especially that “the rights of the defence will… be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”11 Moreover, it was felt that this decision was formulated in light of the previous Strasbourg ruling, rather than to comply with the law of England and Wales because “the principle against self-incrimination is strongly embedded in the European jurisprudence. Once that had been appreciated, there was no room for a decision based on expediency,”12 which although advantageous to Scottish independence, would not give a fair outcome.

What the above demonstrates is a court clearly trying to align its interpretations with those of the European Court of Human Rights. Despite the fact that the Salduz ruling was against Turkey and therefore applying the rule that a state must “undertake to abide by the final judgment of the Court in any case to which they are parties,”13 the United Kingdom still implemented the reasoning behind the European jurisprudence as reflected by its decision, in anticipation of how it would have been decided in Strasbourg. This shows adherence to the State’s general obligation to implement the Convention in domestic law.

In addition to this, Scotland made amendments to its laws so that it was harmonious with the principles of the European Convention on Human Rights. This was achieved by implementation of emergency legislation14, as “prior to the Cadder judgment, Scots law, unlike English law, had provided no such procedural guarantee,”15 but now the new Act repealed the older sections which limited the rights of the detained, as regards access to legal advice. Consequently, this helped soothe fears that a similar case involving a violation like the one in Salduz would be brought against Scotland.

Arguments were made that such a change was unnecessary since when one can “recognise that the right is intended to prevent compelled self-incrimination, the safeguards applied in Scottish criminal procedure… become highly relevant to the issue,”16 because Scotland had not caused the accused to incriminate themselves by only restricting their access to a lawyer, as a result of other methods in place – tape recordings, prohibition of ill treatment etc. – which observed the rights of the suspect.
To then compare this with Salduz, where there were allegations of police brutality to force a confession, there appears to be an exaggeration.

However, Scotland still had to ensure that the nation law complied with the jurisprudence of the European Court of Human Rights, following the decision in Turkey. There was always the possibility to wait for Mister Cadder to file an application because the aforementioned ruling was not binding on Scotland – as stated in Article 46 – but it is suggested for the “government to give systematic consideration to whether Court judgments against other countries have implications for UK law, policy or practice and to keep Parliament informed of any such implications.”17

To conclude, it is apparent that the power of the European Court of Human Rights over domestic law is increasing since the contracting parties are now implementing decisions which are not even binding upon them. Moreover, this can be considered advantageous as it will lead to a more unified, consistent application of convention rights because of an increase in states with legislation showing compliance with those rights, as opposed to individual judgments only affecting the one country, since no action has been brought against another.

Michael Turner

1 [2008] ECHR 1542.
2 [2010] UKSC 43.
3 Section 31 Law No. 3842.
4 (n 1) para 58.
5 J Spencer Strasbourg and Defendants’ Rights in Criminal Procedure (2011) 70(1)
  Cambridge Law Journal 14, 14.
6 Open Society Justice Initiative’s Submission to the Council of Ministers Request for 
  Enhanced Supervision in Salduz v Turkey February 2012, p 3.
7 Thomson Committee’s Report on Criminal Procedure in Scotland (Scottish Home and
  Health Department 1975).
8 Section 14 Criminal Procedure (Scotland) Act 1995.
9 [2010] SLT 73.
10 ibid, per Lord Justice General, para 31.
11 (n 2) per Lord Hope, para 47.
12 Lord Hope of Craighead Scots Law seen from South of the Border (2012) 16(1) Edinburgh
   Law Review 58, 74.
13 Article 46 of the European Convention on Human Rights.
14 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.
15 Lord Irvine of Lairg A British Interpretation of Convention Rights (2012) April Public Law
    237, 249.
16 P Ferguson Repercussions of the Cadder case: the ECHR’s fair trial provisions and
    Scottish criminal procedure (2011) 10 Criminal Law Review 743, 750.
17 Fifteenth Report of 2009-10 of the JCHR Enhancing Parliament’s Role in Relation to
    Human Rights Judgments (2010) p 3.





Bibliography
Ferguson P Repercussions of the Cadder case: the ECHR’s fair trial provisions and Scottish criminal procedure (2011) 10 Criminal Law Review 743.

Lord Hope of Craighead Scots Law seen from South of the Border (2012) 16(1) Edinburgh Law Review 58.

Lord Irvine of Lairg A British Interpretation of Convention Rights (2012) April Public Law 237.

Spencer J Strasbourg and Defendants’ Rights in Criminal Procedure (2011) 70(1) Cambridge Law Journal 14.



Open Society Justice Initiative’s Submission to the Council of Ministers Request for Enhanced Supervision in Salduz v Turkey February 2012.

Fifteenth Report of 2009-10 of the JCHR Enhancing Parliament’s Role in Relation to Human Rights Judgments (2010)

Thomson Committee’s Report on Criminal Procedure in Scotland (Scottish Home and Health Department 1975).



Cadder v HM Advocate [2010] UKSC 43.

McLean v HM Advocate [2010] SLT 73.

Salduz v Turkey [2008] ECHR 1542.



Criminal Procedure (Scotland) Act 1995.

Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

European Convention on Human Rights 1950.