Defending theHuman Rightto a Fair Trial
March 31, 2016
This guest post by Gwen Jansen, a Dutch criminal lawyer and LEAP member, explores the current status of the right to a access to a lawyer during police interrogation in the Netherlands, which has previously been discussed by LEAP members Jozef Rammelt, Wouter van Ballegooij and Bas Leeuw. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.
On 1 April 2014 the Dutch Supreme Court concluded that arrested suspects do not have the right to access to a lawyer during police interrogation. According to the Supreme Court it is the task of the legislator to grant this right in accordance with the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings. In practice this meant that in certain cases a lawyer was effectively banned from the hearing. Also, courts throughout the Netherlands have systematically denied requests to exclude incriminating statements made in absence of a lawyer as evidence.
Since the Directive was passed, there are no signs that this right will soon be introduced in the Netherlands and certainly not by the implementation deadline on 26 November 2016.
This right gained momentum as a result of the Supreme Court’s decision of 22 December 2015, which referred to several cases brought to the European Court of Human Rights (ECtHR) where the Strasbourg court had ruled that a lack of legal assistance during police questioning violated the rights attributed to the suspect by Article 6 of the European Convention of Human Rights (ECHR).
It was the opinion of the Supreme Court that, in the interest of legal certainty, the rules concerning legal assistance identified in the judgement of the Supreme Court of 1 April 2014 were tightened. The Supreme Court assumed that a suspect who has been arrested has right to legal assistance during every police questioning, but that they can unequivocally waive this right.
This Supreme Court’s reasoning was hopeful, but it hit a snag when it concluded that the lack of legal assistance during police questioning amounts to a procedural error. It is then up to the trial judge—when a defense is raised in this regard—to assess whether this procedural error should be sanctioned and, if so, which sanction is most appropriate. As long as the Directive is not implemented into Dutch law, or the implementation deadline for said Directive has not yet lapsed, the sanction for the non-presence of a lawyer during police questioning does not necessarily constitute exclusion of evidence. A reduction of the sentence or a mere acknowledgement of the procedural error in question should not be excluded.
Secondly, the Supreme Court determined that the rule which gave a suspect the right to legal counsel during police questioning will come into effect as of 1 March 2016, taking into account that the interviewing police officers—up until the present judgement—could not foresee a tightening of rules, and that it may not be presumed that they will immediately become familiar with the contents of this judgement and the implications thereof for legal practice.
In other words, these two considerations have led to much more uncertainty. What is the situation with interviews that took place before 22 December 2015 and between December 2015 and March 2016? What sanction will be adequate? Is this Supreme Court decision not contrary to the case law of the ECtHR or the EU Directive?
However, in practical terms, the Netherlands has a lot to achieve. As per the new ministerial policy, lawyers are not allowed to intervene during interrogation, which raises questions about whether his presence leads to an effective defense. Moreover, in many cases financial compensation for legal aid is low and insufficient.
The criminal bar association asked the District Court of The Hague to intervene in summary proceeding. The Court decided on 31 March that it is necessary to ask preliminary questions to the Supreme Court about the lawyer’s role during police questioning, but rejected a request to deliberate on whether legal counsels are underpaid.
This is a guest post written by Gwen Jensen and may not reflect the views of Fair Trials. Gwen Jensen is a criminal lawyer practising in the Netherlands, and a member of the Fair Trials-coordinated Legal Experts Advisory Panel (LEAP).
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