Case of Van de Kolk v. The Netherlands
“Applying those principles to the present case, the Court observes at the outset that it is not in dispute that, having been arrested on suspicion of distribution of child pornography and finding himself in police custody, the applicant was charged with a criminal offence within the meaning of Article 6 § 3 of the Convention (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein). As such, the guarantees laid down in Articles 6 §§ 1 and 3 (c) as interpreted by the Court entailed that he had, inter alia, a right to be assisted by a lawyer during police interviews (see Beuze, cited above, §§ 133-34), unless there were compelling reasons to restrict that right (see Beuze, cited above, §§ 142-43). (…)
32. The Court notes that when the applicant at the start of the police interview on 20 August 2009 indicated that he wished to be assisted by his lawyer, he was told that that was not possible (see paragraph 9 above). The Court does not discern from the material in the case file that there were any compelling reasons for the restriction of the applicant’s rights. Rather, it would appear that the only reason not to allow the applicant’s lawyer to be present at the interview was the fact that at the relevant time there was no right in the Netherlands providing for legal assistance during police questioning to adult suspects (see paragraphs 17-18 above). The Court has previously held that such a general and mandatory restriction on the right to be assisted by a lawyer during the pre-trial phase of criminal proceedings does not constitute a compelling reason (see Salduz, cited above, § 56, and Beuze, cited above, §§ 138 and 142).
33. Whilst the absence of compelling reasons does not lead in itself to a finding of a violation of Article 6 (see Ibrahim and Others, cited above, § 262), such absence weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The burden of proof falls on the Government, which must demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 165).
34. In the present case the Government have not advanced any argument in substantiation of a claim that the applicant nevertheless had a fair trial. That being the case, the Court considers that the aforementioned burden of proof has not been discharged, a finding which is sufficient to enable it to conclude that the failure to allow the applicant to be assisted by his lawyer during the police interviews on 20 August 2009 rendered the proceedings as a whole unfair.
There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.”