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Defence Rights during the Phase of Police Interrogation in the EU

Defence Rights during the Phase of Police Interrogation in the EU. Taru Spronken. iiiRG Conference and Masterclass 3-5 July 2013 Maastricht University. ECtHR STRASBOURG. European Convention of Human Rights standards – Right to Silence.

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Defence Rights during the Phase of Police Interrogation in the EU

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  1. Defence Rights during the Phase of Police Interrogation in the EU Taru Spronken iiiRG Conference and Masterclass 3-5 July 2013 Maastricht University

  2. ECtHR STRASBOURG

  3. European Convention of Human Rights standards – Right to Silence • The right to silence is a fundamental feature of the right to fair trial, and lies at the heart of the notion of a fair trial – but can be restricted for good cause • Information about the right should be given when it arises (probable cause/suspicion)Zaichenko v Russia ECtHR 18 February 2010 No 39660/02

  4. European Convention of Human Rights standards – legal assistance • Suspect has a right to have lawyer present during interrogation Mader v Croatia ECtHR 21 June 2011 No. 56185/07 • Limited case-law on what the lawyer may or should do in interrogations, but: • Lawyer’s task is to ensure respect for right of suspect not to self-incriminate Salduz v Turkey ECtHR GC 27 November 2008 No. 36391/02 • Suspect entitled to the complete range of interventions inherent in legal assistance Dayanan v France ECtHR 13 October 2009 No. 7377/03

  5. ECJ LUXEMBOURG

  6. STOCKHOLM PROGRAMME 2009 Measure A: Translation and Interpretation. Measure B: Information on Rights and Information about the Charges. Measure C: Legal Advice and Legal Aid. Measure D: Communication with Relatives, Employers and Consular Authorities. Measure E: Special Safeguards for Suspected or Accused Persons who are Vulnerable. Measure F: A Green Paper on Pre-Trial Detention.

  7. Three studies and one on the way 2007 2010 2010 2013 Inside police custody empirical study

  8. Common problems suspects rights in the EU • Practices that circumvent the right to silence • Overuse of pre-trial detention, and lengthy periods in pre-trial detention • Failure to guarantee in practice the right to legal assistance at the investigative stage • Failure to guarantee the right to information as to charge

  9. Legal assistance Identified problems: • lack of procedures and structures to ensure timely assistance • limits on choice of lawyer • lack of, or ineffective, enforcement mechanisms • variable, and sometimes poor, quality and no quality assurance mechanisms • structural and cultural factors that disadvantage the defence

  10. Legal aid Without legal aid, most suspects and defendants will not have legal assistance. • complicated, unclear and/or slow application methods • inadequate remuneration • appointment mechanisms that threaten independence With consequences for – • availability • access • quality

  11. Legal assistance during police interrogation in the Netherlands

  12. 60 years of debate • Caution is sufficient • No right to consult lawyer before or during interrogation

  13. Schiedam Park Murder 22 June 2000

  14. Experiment in Amsterdam and Rotterdam 1 juli 2008-1 juli 2010 Protocol • 30 minutes consultation before interrogation • Position in interrogation room • No eye contact • No time out • Lawyer should remain passive and can only interfere in case of undue pressure

  15. 27 November 2008 Salduz v. Turkey ECtHR 27 November 2008

  16. Principles Salduz-doctrine • Art. 6 ECHR is applicable in pre trial criminal proceedings • the right to legal assistance is a fundamental aspect of fair trial • Access to legal assistance should be provided from the first police interrogation • rationale legal assistance: • Protection against undue pressure • Right not to incriminate oneself • Exceptions only in very limited situations

  17. Important sanction: exclusion of evidence Par. 55 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.

  18. Debate after Salduz Interpretation of: “access to a lawyer” “assistance during interrogation”

  19. Regulation NL after Salduz judgment as from 1 april 2010 • Right to consultation before interrogation (30 minutes) • Assistance during police interrogation only for juveniles

  20. Legislative proposal NL april 2011 • Duty to inform suspect of rights • Right to consult lawyer during 30 min. previous to first interrogation if suspect is detained at the police station. • Free legal assistance in case of suspicion of crimes that can be punished with more than 4 years of imprisonment • Lawyer may be present during police interrogation in case of suspicion of crimes punished with ≥ 6 year imprisonment + all juveniles • Waiver of rights • Presence of lawyer may be refused if interests of investigation so require.

  21. EU Directive on the right of access to a lawyer text adopted 28 May 2013 • Legal assistance irrespective of deprivation of liberty • Before and during all interrogations

  22. 2013 Inside police custody empirical study • Four EU jurisdictions – France, Scotland, the Netherlands and England and Wales • Three procedural rights - interpretation and translation, right to information and the Letter of Rights, right to legal assistance • Observation and interviews lawyers and police in eight field sites accross the four jurisdictions during 2-5 months. • Developing training guidelines for lawyers and police officers • Recommendations for legislative and policy changes to ensure better enforcement of EU directives

  23. The value of mixed training Example: * Disclosure * Interventions during interrogation

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