CEU Electronic Theses and Dissertations, 2016
| Author | Holman, Roel |
|---|---|
| Title | Access to a lawyer during interrogation in criminal procedures in the Netherlands and the United Kingdom; An analysis of the influences of international obligations on domestic protection of the right to access to a lawyer |
| Summary | This thesis explores the development of the right to access to a lawyer in the United Kingdom and the Netherlands, and the influence that European Court of Human Rights judgments and the EU directive on the right to access to a lawyer (Directive 2013/48/EU) have played on these developments. Distinguishing between the right to have a consultation with a lawyer prior to the first interrogation and the right to have a lawyer present during interrogation, some interesting differences have been found. These rights have developed along very different lines in the United Kingdom and in the Netherlands. Whereas the United Kingdom introduced these rights in the 1980s after internal issues with police practices, the rights were largely absent in the Netherlands until the recent ECtHR judgments and the EU Directive prompted and required the Netherlands to introduce these rights. This difference is reflected in the way these rights are regulated in both countries. Whereas the United Kingdom has had an extensive legislation that comprehensively addresses the issues – in line with their international obligations – the Netherlands has been more reluctant to implement the right to access to a lawyer. The Salduz judgment of the European Court of Human Rights in 2008 was the starting point of change in the Netherlands, as the legislation until than had become unattainable. Following this judgment, the Netherlands has reluctantly started to introduce the rights in a very narrow reading of the judgments. This has meant that the guideline regulating the right to access to a lawyer in the Netherlands was arguably from its implementation too narrow. Most notably, the narrow reading of Salduz by the Dutch Supreme Court meant that no right to have a lawyer present during an interrogation was implemented. In light of a number of more recent ECtHR judgments, as well as the EU directive, the guideline is clearly outdated and is again unattainable. This has also been recognized by the Netherlands, that has in February 2015 designed a draft law expanding the rights set in the guidelines in an attempt to implement these more recent changes. However, a number of issues have not been adequately addressed in the draft law. While the lawyer is now allowed to be present during interrogation, his function has been limited to the point that he cannot play a meaningful role for the suspect. An additional concern has been identified with regards to a time limit that the Netherlands has set in which the lawyer has to be at the police station within two hours before the police may decide to proceed and interrogate a suspect without having had the possibility to discuss his case with a lawyer first. Another issue has to do with the conditions set for free legal aid, that are too narrow, and may lead a large group of suspects that are not eligible for free aid to choose to waive their right to a lawyer. Based on the ECtHR case law, the EU directive and the law in the United Kingdom, a number of recommendations have been made for the Netherlands to ensure compliance with their international human rights obligations. |
| Supervisor | Bárd, Károly |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2016/holman_roel.pdf |
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