Right to lawyer during police interrogations clarified - Dutch Hoge Raad's interpretation destroyed.

The problem

When the European Court of Human Rights (ECtHR) decided Salduz v. Turkey (Appl. no. 36391/02, 27 November 2008) in 2008, the Dutch political and legal worlds buzzed with the question of how to properly implement this landmark decision. The Court in Salduz gave States Parties to the European Convention of Human Rights (ECHR) a simple directive: ensure that everyone charged with a criminal offense has access to a lawyer during police interrogations. The Court based this mandate on Article 6 of the ECHR, which holds:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"

In Salduz, the Court explained that Article 6

"requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction" (paragraph 55).

The solution?

Despite the Court's ruling in Salduz, the Dutch Hoge Raad (the Dutch supreme court) decided to interpret the Court's intent slightly differently. In 2009, the Hoge Raad held that Salduz did not meant that national legal systems had to give the accused the right to have a lawyer present at interrogations. According to the Hoge Raad, all Article 6, as interpreted in Salduz, required was that those charged with criminal offenses were able to consult a lawyer before the accused is interrogated (HR 30 June, NJ 2009, 350. Raadsman bj politieverhoor. LJN BH 3081. Paragraph 2.5).

The Hoge Raad's solution ensured that the Dutch police did not have to change their interrogation procedures too drastically and coincided with the Dutch Minister of Justice's interpretation of Salduz.

The ECtHR destroys the Hoge Raad's interpretation

Last month, three years after the European Court of Human Rights' case and two years after the Dutch Hoge Raad's decision on this matter, the ECtHR delivered Sebalj v. Croatia (Appl.no. 4429/09, 28 June 2011). And this case proved the Hoge Raad's interpretation wrong.

In Sebalj the ECtHR clarified its earlier position, holding simply that because Sebalj did not have a lawyer present during interrogation, and because he had not waived his right to have a lawyer present,

"the Court finds that there has been a violation of Article 6 §§ 1 and 3(c) of the Convention on account of the applicant’s questioning by the police on 9 November 2005 without the presence of a defence lawyer" (para. 257).

The decision was unanimous. Could the Court have been any clearer? I think not.

Conclusion

If a member state does not give some one charged with a criminal offense a lawyer to be present with the charged during the police interrogation - Article 6 § 1 and 3(c) of the ECHR has been violated. Period.

What does this mean? This means that the Dutch government is going to have to deal with hundreds if not thousands of complaints alleging violation of Article 6. Based on the ECtHR's decision in Sebalj it seems that the proper compensation for interrogating someone without having given them the right to have a lawyer present during the interrogation is a ground for exclusion of evidence gotten during that interrogation (see Sebalj para. 258-265). How could the Netherlands have avoided this situation? A good faith interpretation of the law in the first place would have gone a long way toward mitigating the effects of this recent decision. But the Hoge Raad decided at the time that a "static" interpretation of the law (see A.A. Franken, Zunigheid Troef p. 1-2) was a good way to avoid unnecessary damage. How wrong the Hoge Raad was.