Merx on Salduz

POSTED: 04/3/14 4:25 PM

Yesterday this newspaper reported on this page about the Salduz-arrest and how the Supreme Court is of the opinion that the Netherlands has to regulate Salduz by law. For details we refer to yesterday’s issue. Today attorney Cor Merx shines his light on the matter from a personal point of view.

“In 2010 I gave a lecture about Salduz with an overview of the state of affairs at the time. After that, there has been a lot of fuss, but everything remained the way it was. The attorney is not allowed to attend the interrogation of an adult detained suspect.

The facts of the matter

Before dealing with Salduz, first a look at the practical side of the matter. Yesterday, the article in Today focused on a ruling from the Supreme Court about Salduz. The article also explained what Salduz is all about. I will not repeat that here.

The case was about the American pilot of a cargo plane that was on its way home from Dubai. He did not have space anymore in his passport for (immigration) stamps and then decided to tear a page with a Chinese visa from it.

The Royal Marechaussee established that the pilot had a forged passport in his possession (not saying that he had forged it). He was arrested and detained for two days before he was released with a summons to appear in court (this is normal procedure at the prosecutor’s office).

Next thing he knows, he is sentenced to a fine of €100 (about $140).

The question is: was this really necessary?

In other words: should you arrest someone for this, detain him, and prosecute him as well?

Let us estimate the costs versus the benefits, and let us consider whether a different solution would have been possible.

Transport from Schiphol to place of interrogation. Transport to place of detention. Interrogations (estimated at 2 hours) by the police.

The court hearing in First Instance: a bailiff calling the case, a court that handles it; then, the Appeals Court does the same.

Then there is the Supreme Court that has to say something about the case. Because it has all taken longer than necessary (undue delay) a compensation of a percentage of the amount would be called for. The Supreme Court does not do this, because the amount of the fine is €100. The conclusions of the Supreme Court and the Attorney General take 52 pages.

Is it okay if I estimate this at €50,000, or around $85,000? In that case, the revenue is meager compared to the cost, namely €100. Could this case have been handled differently?

I think that possibility exists. This is also the opinion of Attorney General Spronken who says in his conclusions under point 9 that he finds that prosecution could have been omitted. The Appeals Court is allowed to a marginal review of the prosecution’s freedom to prosecute a case. It concludes: this is about a suspicion of a crime and an important legal matter, namely the trust that one must be able to have in documents for crossing borders. The society must be able to trust that documents for crossing border are genuine and this is an international as well as a national interest. At the same time, the appeals court is of the opinion that it could have been handled differently and it imposes a €100-fine. This way the court indicates how “serious” the case is – in spite of the stuck up words about international trust.

How does it work in St. Maarten

Recently someone was arrested at the airport who was part of the crew of a boat. He arrived by plane from Brazil. He presented a passport and immigration noticed that three pages in it stemmed from an American passport. He was arrested, interrogated and sent away with a summons to appear in court. This is about someone who is young, travels a lot, comes from abroad and therefore cannot have a conviction for fraud.

As his attorney, I contacted the prosecutor’s office and explained the situation. I proposed to settle for a conditional dismissal because the man was in the meantime in Venezuela. He is allowed to come here to attend his trial though.

What happened? Immigration officers in Brazil noted that there were no pages left in his passport they could stamp. The officer told him that this was not her problem and that he had to find a solution. He had to stay at immigration and his girlfriend was allowed to leave with his passport. Later it turned out that the girlfriend had stuck three pages from her passport in her friend’s passport. The immigration officer stamped the passport with a big smile and my client was allowed to travel to St. Maarten.

Question: why was he not arrested for fraud in Brazil?

After consultation with the prosecutor’s office, it was decided that my client would not get his passport back and that he could prevent further prosecution by paying a $1,000-fine (a policy dismissal). This means to say: what is the point of prosecuting someone who has already left relative to the importance of the case and the fact that the fraud took place in Brazil? What is the interest of St. Maarten to prosecute such a case?

This way, the matter was over and done with and everybody was happy. Immigration was happy, the prosecutor’s office was happy, the government was happy and the client as well because officially he does not have a criminal record and he is able to continue traveling.

If we compare these cases the conclusion must be that one could learn something in the Netherlands from the way the prosecutor’s office in St. Maarten handles its cases. In the Netherlands it costs more than $85,000, in St. Maarten the authorities receive $1,000 for a similar fact.

The legal side of the matter

As stated before, Today’s editor has already explained Salduz.

There have been dozens of rulings that seemed to indicate that the attorney was allowed to be present during interrogations. All those rulings have been interpreted by legal minds in cases that had to do with Salduz but that did not really allow that the attorney would (be allowed to) be present at the interrogation.

I have already said in 2009 that the opinions about this issue differ. The police and the prosecutor’s office are not proponents, but lawyers and defendants are. Asked about my opinion: I am not a proponent either (I have my reasons for this).

Every time a ruling arrives, the tendency is to explain it in such a way as if the attorney would be allowed to do more than consulting. This is however not the case. Also in this case the Supreme Court says that there are more rulings from  the European Human Rights Court that indicate that the attorney should be present during interrogation, but that every case has to be assessed individually.

The attorney general wonders whether the Supreme Court ought to come back from its consistent jurisprudence that from a Strassbourgean jurisprudence cannot be deducted that an adult, detained suspect is entitled to assistance from an attorney during a police interrogation. He presents the following arguments for a change of direction: a recent ruling from the European Human Rights Court of October 24, 2013  – Navone e.o. vs. Monaco – and the fact that on October 22, 2013, the Guideline 2013/48/EU about the right to access to an attorney in criminal procedures has been formally accepted and that this has reached the Publication Paper.

The attorney general in this case proposes that the attorney be present during the interrogation and refers to jurisprudence of the European Human Rights Court and European guidelines.

The importance of the existence of European guidelines and their influence on St. Maarten have been brought up before in a LAR-case (Veen/Nelissen) in a procedure about the status of a European citizen relative to the national ordinance admission and expulsion.

In the nineties, the same happened with the reluctant acceptance of the European Human Rights Treaty by the former Netherlands Antilles and Aruba. It has been declared law.

In this case, the Supreme Court says that governments are allowed to take their time to regulate the question whether an arrested adult is entitled to an attorney during his interrogation.

On June 30, 2009, three rulings came down from the Supreme Court (LJN BH3079, BH3081, BH3084).

The initial discussion created two camps: the proponents of the right to the presence of an attorney during interrogation and on the other side the minimal opinion:  no, only the right to consultation.

The Minister of Justice has indicated in an letter to the Second Chamber that the code of criminal procedures needs to be amended. The Board of attorney generals came thereafter with an instruction that I will not discuss extensively because developments went fast after that.

The ruling from the Supreme Court is not all that surprising, especially because the minister (as legislator) has already taken the initiative, possibly also in the European context.

The attorney general makes a point where he is completely right and that is a consistent point of order during court hearings in St. Maarten: did the defendant give up his right to consultation by an attorney. Several times it appears during a court hearing that defendants have not done this explicitly. That is a reproach that could be made towards the Appeals Court. Only the Supreme Court says: that has not been established so it does not apply. How is it possible that two people with common sense are able to have a different opinion about the same facts? Only jurists are able to do this.

The situation in St. Maarten

We hear a lot that our code of criminal procedures is outdated, but articles like 48 and 49 SV do not exist in the Netherlands.

This means that based on current law our legislator has already provided assistance before the start of an interrogation, long before Salduz came into the picture.

The question remains however: is the attorney allowed to be present at the police interrogation?

Article 48 Sv paragraph 4 says: no, unless he was interrogated at the Judge of Instruction. That would mean in our country that the attorney, after the review by the Judge of Instruction on the third day after the arrest should be admitted to the interrogation.

This is further confirmed solidly in article 49 Sv that says: in all cases where the suspect is heard according to this law book, he is authorized to be assisted by an attorney. This authority is also in place in cases where the defendant is not capable to be heard in person.

It cannot be clearer than that for St. Maarten. The problem is in the interpretation of the contradiction between article 48 paragraph 4 and article 49 Sv.

Maybe it is time for the dean of the Bar Association to bring up this point in consultations with the authorities. Unity is strength.”

Cor Merx

Further details about this issue are available from the law office of Cor Merx

 

 

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