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NEWS

Access to a lawyer in the Netherlands: a never ending story?

editor - December 13, 2016 - access to a lawyer

The transposition deadline for the EU Directive on the Right of Access to a Lawyer expired on 27th November 2016. In some countries, such as the Netherlands, the Directive has filled a gap in domestic legislation, whilst leading to quite some adjustments in the national jurisprudence. Gwen Jansen, a criminal lawyer practising in the Netherlands and a member of our Legal Experts Advisory Panel (LEAP), has reported on the most recent developments in the country. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.

On 15th November 2016, the Dutch Senate approved legislation transposing the Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings (“the EU Directive”). This is an especially interesting development in the Netherlands, as the country lagged behind most EU Member States as regards access to a lawyer during police interrogations. In fact, no domestic legislation enshrined the right to be assisted by a lawyer at the police station before the transposition of the EU Directive. There is quite some history to the legal assistance during police interrogations in the Netherlands, which began with a Supreme Court (Hoge Raad) decision in April 2014. At that time, the Court stated that, in the absence of law, it would not interfere with the role of the parliament by upholding the right to a lawyer during police interrogations.

dutch-flagThe next year, on 22nd December 2015, however, the Court partially went back on itself with another important decision about the right to have access to a lawyer during police questioning. In addressing the lack of any legislative change, the Court stated that the right to legal assistance should be deemed to exist irrespective of whether legislation implementing the Access to a Lawyer Directive had been passed. At the time of the decision, the EU Directive had not been transposed yet into Dutch law. Concurrently, the Court ruled that this right would have been available not before 1st March 2016, which marked the transposition deadline for the EU Directive. This was meant to give time for police authorities to put in place the necessary arrangements, as the law enforcement agencies were not immediately familiar with the contents of the judgement and its implications for the legal practice.

Almost a year later, in its judgment of 6th September 2016, the Supreme Court clarified the reasoning of its 22nd December decision, highlighting that the right to legal assistance was not intended to apply retroactively. In its view, this right would only apply to cases following the December 22nd judgment. In addition, a breach of the right to have access to a lawyer from the date of the judgment until 1st March 2016 would not automatically lead to the exclusion of evidence. At present, there is no case law demonstrating how this is dealt with in practice.

On 13th September 2016, the Supreme Court ruled on the preliminary questions referred by the District Court of the Hague (Rechtbank 's-Gravenhage) in a summary proceeding about the lawyer’s role during police questioning. The Supreme Court emphasised that the rules contained in the transposition bills are sufficient to guarantee an effective right to an access to a lawyer and that these rules are in compliance with the provisions of the EU Directive.

According to the transposition bill, the lawyer has the right to:

  • Make comments and ask questions prior and during the questioning by the police;
  • Make a request for interrupting the interrogation for consultation; and
  • Make statements when:
    • The suspect does not understand the question;
    • The interrogating officer does not comply with interrogation procedure; or
    • The physical or mental condition of the accused is such that it prevents a justified continuation of the interrogation.

Despite recent developments, the role of lawyers during police interrogation is not yet defined. The issue has been tentatively regulated by the Ministry of Security and Justice in a regulation on the organisation and conduct of police interrogations, which is currently waiting for advice from the Council of State (Raad van State).

Yet again, to be continued?

As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials. If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. FB iconClick to share this story on Facebook

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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