The right of access to a lawyer during a police interrogation should be implemented into national legislation by 27 November 2016 at the latest. Before the legislator converted the Directive into national law, the Supreme Court ruled at the end of 2015 that as of 1 March 2016 an apprehended suspect is entitled to assistance from a lawyer during a police interrogation. Following this ruling, the Public Prosecutor published policy rules on the role of the lawyer during the interrogation. These policy rules make the right to be effectively involved in the interrogation is an illusion. The lawyer is unjustly allocated too few powers, making it impossible to guarantee fundamental aspects of the defence. Many lawyers believe that the way in which assistance is arranged during a police interrogation is a detrimental shortcoming that is contrary to Union Law. This has led to a proceeding at the District Court of The Hague. How legal assistance is to be provided during interrogation unfortunately still remains unclear. The interlocutory proceedings court has limited itself to putting a preliminary question to the Supreme Court concerning the scope of this right.
The minimum guarantees applicable to the right to legal assistance are laid down in an EU directive of 2013. One of these guarantees is the right to have a lawyer present during the interrogation. The EU directive explicitly states that a lawyer may effectively be involved in the interrogation. The EU directive builds on the case law of the European Court of Human Rights. This case law establishes standards for the right of access to a lawyer. The Supreme Court has already summoned the legislator in 2014 to expeditiously effect the implementation of the required statutory regulations for legal assistance during interrogation. A legislative proposal to implement the EU directive has been submitted to the House of Representatives. Before national legislation was established, the Supreme Court had already ruled that an apprehended suspect is entitled to a lawyer during a police interrogation. This also has positive consequences for FIOD cases. Because it is no longer a matter of doing a favour but rather an obligation to enable a lawyer to effectively participate in the interrogation. This enables us as a law firm to guarantee that the suspect’s interests within the criminal proceeding are represented fairly and diligently during questioning.
The full effectiveness of Union Law
The national law should be interpreted as much as possible in the light of the EU directive to guarantee the ensuing obligations.1 In so doing, the government should take appropriate measures to guarantee compliance with the obligation to legal assistance during interrogation. This obligation applies to all public authority bodies, including the legislator and the judiciary.2 It should follow from the definitive national legislation that a lawyer should effectively be involved in a (police) interrogation. However, the Directive has not yet been converted into national legislation. According to the Court of Justice, a Directive only extends to persons with legal rights via national law. This means that a suspect may not rely on these provisions from the Directive directly.
Powers too restricted for a somewhat discouraged counsellor
According to the Minister of Security and Justice’s response to the Parliamentary questions, the lawyer will be assigned a wide spectrum of powers and will have ample of opportunity to participate in the interrogation.3 If follows from the EU Directive that member states can take practical measures and that participation in an interrogation should be exercised in compliance with the procedures in the national law. The national procedures will, however, have to be without prejudice to the actual exercising and the essence of the relevant law.4 The minister does not address these restrictions of Union Law in his response to the Parliamentary questions. One might wonder whether a lawyer may in fact be given the opportunity to provide legal assistance during the police interrogation, if, among other things, commentary may only be made before and after the interrogation. The role of a lawyer is limited to the beginning and end of the interrogation and three specifically described situations (ban on exerting coercion, clarification of questions and continuation of interrogation cannot proceed due to suspect’s condition). How can a lawyer with such a subordinate and minor roll represent the interests of a suspect effectively during the interrogation?
Preliminary question to the Supreme Court
The judgement of the interlocutory proceedings court offers no solution. The scope of the right to the legal assistance with respect to the lawyer remains unclear. An important point in our opinion is that the ruling confirms that the Public Prosecutor’s policy letter limits the lawyer’s role during the interrogation.5 As the Directive has not yet been implemented into national legislation, the fulfilment of this right cannot be derived from the Directive. The question on which the interlocutory proceedings court must decide is therefore whether the temporary arrangements that have been made in response to the Supreme Court’s ruling (Legal assistance during interrogation ruling) are compatible with the standard established under the Supreme Court’s ruling on legal assistance during interrogation. This is why the interlocutory proceedings court is applying to the Supreme Court with a preliminary question as to whether the restrictions ensuing from the Public Prosecutor’s policy letter are compatible with the standard established under the Supreme Court (Legal assistance during interrogation ruling).
We cannot emphasise enough how important it is that the rights that ensue from the Union Law be effectively guaranteed. We believe that it is not only a duty, but also a counsellor’s obligation, to protect the fundamental rights of his client. This means that a counsellor should be able to intervene during the police interrogation if a lawyer deems this is necessary in the interests of the client. The Dutch Bar Association has drawn up a protocol and interpreted the scope of the right to legal assistance during interrogation, which we will observe for the time being.
1 See ground for the decision 20.
2 See ground for the decision 26.
5 See ground for the decision 4.6.