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The shifting terrain for suspects’ rights in Europe – the right to legal assistance saga in the Netherlands

editor - May 23, 2016 - LEAP

We’ve previously covered the developments in The Netherlands around access to a lawyer, including in these posts by Bas Leeuw, Wouter van Ballegooij, Jozef Rammelt, and more recently from Gwen Jansen. Here, in a slightly longer form than our usual pieces, Dr Dimitrios Giannoulopoulos and Kelly Pitcher provide a fresh perspective on the developments.

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On 22 December 2015, the Dutch Supreme Court handed down a judgment in which it held that, as of 1 March 2016, all suspects should have the right to be assisted by a lawyer when questioned by the police.[1] In earlier decisions in June 2009 and April 2014, the Court had recognized a right to consult with a lawyer prior to questioning, but stopped short of recognizing a right to have a lawyer present during questioning. The transition from the earlier judgements to the December 2015 one merits attention, as it sheds light on the shifting terrain for suspects’ rights in Europe, particularly as a result of the increasing grip of EU Roadmap Directives and ECHR jurisprudence upon national conceptions of fair trial rights.

Judicial developments in the Netherlands in the wake of the seminal Salduz v Turkey jurisprudence of the European Court of Human Rights (ECtHR) were (and to some extent remain) out of tune with the jurisprudential and legislative responses in most other European countries. Particularly idiosyncratic of these developments is the level of judicial restraint that the Dutch Supreme Court has exhibited in this area. In its 2009 and 2014 judgments, it held that it was not within its judicial powers to draw up specific rules on legal assistance (due, in part, to the policy, organizational and financial aspects involved), whereby it effectively left the matter to the legislator. We can compare this approach with a more interventionist (and internationalist) approach underpinning the judgment of the UK Supreme Court in Cadder v HM Advocate, which left no room to doubt that the Scottish legislation depriving the suspect of the right to access to a lawyer was incompatible with article 6 of the Convention. We could also look at judgments of the Conseil constitutionnel (Constitutional court) and the Cour de cassation (court of cassation or ‘supreme court’) in France, which categorically held that the suspect could not be questioned in the absence of his lawyer. Strong judicial endorsement of Salduz in these two countries was key to quickly legislating the right to have a lawyer present during questioning. Judicial restraint in the Netherlands, on the other hand, seems to have contributed to the considerable delay in giving recognition to the right. As observed in a previous blog on the right to legal assistance in the Netherlands, the judicial restraint displayed by the Dutch Supreme Court in this area is problematic from the perspective of ECHR-compliance. The French and UK examples reinforce this point. The story of the implementation of Salduz in various European countries so far has the judiciary as its protagonist, with governments playing second fiddle.

dutch-flag-513659_960_720The Dutch Supreme Court’s own change of direction in its December 2015 judgment provides further illustration of the judiciary’s crucial role in the implementation of ECHR jurisprudence. This judgment finally took the step of requiring that the right be de facto implemented, thus opening the way for the enactment of legislation (still pending in parliament). It is instructive to pinpoint here the role of the EU Directive on the right to access to a lawyer in making this pivotal development happen. The Supreme Court expressly took into account among other things ‘the fact that the Directive will, in the foreseeable future, be implemented in Dutch law (and in any event no later than November 27, 2016)’.[2] The Court was equally conscious of the damaging effect that potential requests for preliminary rulings from the ECJ – past the deadline for transposition – would exercise upon the Dutch criminal justice system, causing ‘lengthy and unacceptable delays’ in live criminal cases. In other words, the Directive seems to have played a major role in reversing the status quo on custodial legal assistance in the Netherlands, succeeding notably where Strasbourg jurisprudence had failed, and all this before even the Directive obtained direct effect through transposition there. This is a perfect illustration of the ability of the Roadmap Directives to transform procedural rights in Europe, in parallel with Strasbourg jurisprudence and even asymmetrically at times, in the exceptional cases where the national jurisdiction may have disregarded ECHR jurisprudence for one reason or another.

As a postscript, we must add that in its December 2015 judgment the Dutch Supreme Court also addressed the closely related issue of the exclusion of statements obtained in the absence of a lawyer from the interrogation. The Court drew a distinction between statements obtained in violation of the right to have a lawyer present when questioned by the police and statements obtained in violation of the right to consult with a lawyer prior to interrogation, finding that only violations of the right to consultation will, as a rule, lead to the exclusion of any statement obtained thereby. A normative foundation for the distinction between these closely interconnected aspects of the right to access to a lawyer cannot be easily located in the logic of the opinion. Normatively, there is nothing that separates the right of consultation from the right to legal assistance during questioning, and so one has to ask what could possibly justify drawing a distinction at the level of remedies. This rather seems to be a case of the Supreme Court giving (the right to legal assistance during questioning) with one hand and taking away with the other.

[1] HR 22 december 2015, ECLI:NL:HR:2015:3608, r.o. 6.3 and 6.4.3, NJ 2016/52 m.nt. AH Klip.

[2] ibid, r.o. 6.3.

This is a guest post written by Dr Dimitrios Giannoulopoulos and Kelly Pitcher, and may not reflect the views of Fair Trials. This is an abridged version: to read a more in-depth critique of these issues, you can download the full version here

Dr Giannoulopoulos is College Associate Dean at Brunel University London, an Academic Fellow of the Inner Temple and a member of the Legal Experts Advisory Panel (‘LEAP’). He may be contacted through email on [email protected], and on Twitter and LinkedIn.

Kelly Pitcher is Assistant Professor at the Department of Criminal Law and Criminal Procedure at Leiden University in the Netherlands

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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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