Defending theHuman Rightto a Fair Trial
June 26, 2014
Dr. Bas Leeuw, assistant professor of Criminal Law and Criminal Procedure at Leiden University and LEAP member, asks whether exercising judicial restraint on the issue of the implementation of the right to access a lawyer during police questioning in the Netherlands undermines the European Convention on Human Rights.
It is no secret that the Salduz judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) – in which it found that Article 6(1) of the European Convention on Human Rights (ECHR) requires that, as a rule, access to a lawyer should be provided ‘from the first interrogation of a suspect by the police’ – got a lot of attention in Council of Europe member states. The Netherlands is no exception.
There are two main reasons for this. Firstly, lawyers are not allowed to be present during questioning of suspects by the police. Second, the judgment garnered a lot of attention because of the direct effect that Article 6 ECHR has in the Dutch legal order; traditionally, the Dutch Supreme Court follows decisions by the ECtHR and implements these into Dutch law.
The Salduz judgment started a discussion about whether the term ‘access to a lawyer’, as described by the ECtHR, also entails the right to have a lawyer present during questioning. In June 2009 the Dutch Supreme Court gave a judgment in which it dealt with the question what the effect of the Salduz judgment was for the Netherlands. In that judgment, the Court created a right to consult with a lawyer before questioning. However, the Court also concluded that it did not follow from Strasbourg case law that a suspect has the right to have a lawyer present during questioning, and that it would go beyond the powers of the judiciary to read such a right into Article 6(1). The Court noted that creating a comprehensive procedure regarding the questioning by the police should be done by the legislator. This kind of judicial restraint is common for the Court.
This judgment was by no means the end of the discussion. The ECtHR further developed its case law regarding the right to access to a lawyer. In several judgments it appeared that the ECtHR saw the presence of a lawyer during questioning as a component of the right to access to a lawyer, most recently in the case of Navone v. Monaco. In addition, Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings (the ‘Directive’) contains the right to have a lawyer present during questioning. These matters led Advocate-General Spronken to advise the Supreme Court to change it jurisprudence in a case that came before the Supreme Court in 2013.
On April 1st 2014 the Supreme Court gave its judgment in that case. The Court began by mentioning that it could not give direct effect to the Directive since the implementation deadline had not yet passed. Moving on to the ECtHR case law, the Court stuck to its previous position that granting the right to have a lawyer present during questioning falls outside the scope of judicial decision-making within the Dutch constitutional framework regulating the competences of the legislator and the judiciary. The Court further noted that no general conclusions could be drawn from the Strasbourg case law regarding the scope of the right of access to a lawyer. The Court called on the legislator to make haste with creating a legislative basis for the right to access to a lawyer. A draft bill (in Dutch) containing the right to have a lawyer present was presented in February 2014.
The restraint shown by the Supreme Court has led to a situation where real questions can be asked about whether the Dutch procedure regarding the questioning of suspects by the police is ECHR-compliant. It is now up to the legislator to speedily implement the Directive and prevent any findings of violations by the ECtHR. Unless such findings arise, no further action by the Dutch courts is to be expected.
This is a guest post written by Dr. Bas Leeuw, assistant professor of Criminal Law and Criminal Procedure at Leiden University and member of Fair Trials International’s Legal Experts Advisory Panel, and may not reflect the views of Fair Trials International.
For regular updates follow Fair Trials on Twitter or sign-up to our monthly bulletin at the bottom of the page.
Show your support and Link to us.
View our Site Map
By accessing, browsing or otherwise using this website
Fair Trials Europe is a registered public foundation in Belgium (No. 552688677).
Fair Trials Europe was founded by Fair Trials International
(a registered charity with limited liability in England and Wales, Nos 1134586 and 7135273),
together they form Fair Trials.