Opinion: Salduz under pressure

POSTED: 04/3/14 4:20 PM

The Salduz-arrest, a ruling from the European Human Rights Court that gives suspects the right to see an attorney before their first interrogation by the police and to have the attorney present during interrogation, is under pressure in the Netherlands – and by extension in the Kingdom.

The Supreme Court ruled yesterday that this right must be regulated by law. The question whether this form of legal assistance is allowed has been a hot topic among criminal law attorneys for years. The attorneys hoped that the Supreme Court would give them the green light. If that happened, the practice in the Netherlands would fall in line with European jurisprudence and with the current EU-guideline.

Last year Attorney-General Taru Spronken gave a positive advice to the Supreme Court. Until now, the Supreme Court has only ruled that a suspect is entitled to contact with an attorney before the first interrogation.

In yesterday’s ruling, the highest court in the kingdom stated that “it is up to the legislator to handle the required legal regulation of assistance during interrogation vigorously.” If no such legislation is forthcoming, the Supreme Court noted, it may rule differently on future cases.

Based on the Salduz-arrest the supreme courts in France and England ruled in the past that attorneys must be admitted to police interrogations. The Netherlands and Ireland are the only two EU-member states that still have not regulated this by law.

The actual case the Supreme Court ruled on is about an American pilot who was suspected of holding a forged passport. The American had asked in vain for an attorney to be present during his interrogation by the police.

Let’s flash back to what we wrote about the Salduz-arrest on October 15, 2010 on this page. It begins with an explanation of how this arrest came about.

Police in Turkey arrested Salduz, a 17-year-old Turkish boy, on the suspicion that he had taken part in an unlawful demonstration supporting the PKK and of hanging up a banner.

Under police interrogation, Salduz made a confession, but he later retracted that statement with the public prosecutor and the judge of instruction. He claimed that police had pressured him and that he had been beaten during the interrogation. Only after he had been in front of a public prosecutor did Salduz get the opportunity to talk to a lawyer. The court sentenced Salduz to 2.5 years in prison and based its ruling among others on the defendant’s statement to the police.

The young Turk took his case to the European Court for Human rights, claiming that his right to a fair trial had been violated because he did not have legal counsel during the interrogation by the police, while the statement he made there and which he later retracted had been used by the court as evidence.

The Court ruled that a suspect is entitled to access to a lawyer from the moment interrogation by the police begins. Deviating from this rule is only possible in exceptional cases, based on urgent reasons. The rights of the defense are in principle irrevocably violated when incriminating statements are used as evidence, while these statements have been made while the defendant did not have access to a lawyer.

Based on a European Court ruling of April 1, 2010, suspects within the Netherlands are entitled to the following. When a suspect is arrested, she or he must have spoken with a lawyer before the police interrogation begins, during the first six hours before the police investigation.

The Netherlands is of course far away, but the effect of the Salduz-arrest comes closer to the Caribbean, because mr. J.J.M. Wijnen, a policy advisor at the Justice Ministry, said in October 2010 in a meeting with the Bar Association in St. Maarten that the Salduz-arrest will be applied in the BES-islands.

Contact with a lawyer within the first six hours after an arrest in Saba and Statia is a bit of a stretch because there are no lawyers on these islands – they have to come from St. Maarten. To overcome this physical handicap, the Justice Ministry will install video conferencing equipment on both islands, and in St. Maarten.

This way, suspects will be able to have access to an attorney within those first six hours.

But does Salduz also impact legal procedures in St. Maarten? It seems rather odd to have such a ruling applied to two neighboring islands, former part of the Netherlands Antilles, and not here.

Also in October 2010, attorney Cor Merx brought the Salduz-arrest into play for the defense of Alain Duzant, a charter boat captain who made an aborted drug run to Anguilla in August of that year. Police interrogated Duzant before giving him the opportunity to speak with an attorney.

Judge Keppels acknowledged these rights. But she added that such a violation ought to lead only to the exclusion of evidence. That did not help Duzant, because he repeated his confession in court.

But the case of the 17-year-old Turkish boy whose rights were violated in a faraway country, does have a lasting impact on the way local law enforcement has to deal with its suspects.

In a comment on the Salduz-arrest in February 2009, Kester Aalfet pointed out in the Volkskrant that the discussion about admitting lawyers to police interrogations has been going on for decades in the Netherlands. Proponents, Aalfet wrote, point out that the police interrogation is the most critical phase of the preliminary investigation. “The presumption of innocence and the right not to make incriminating statements against one-self make little sense without legal assistance. A confession at the police station, even if it is retracted later on, is of crucial interest for a successful prosecution.”

Aalfet wrote that detectives have always heavily resisted the presence of a lawyer during interrogations. They claim that their presence interferes with finding the truth. Even the Supreme Court, in a 1983 ruling, stated that attorneys are not entitled to attend the police interrogation.

All this is water under the bridge since the November 27, 2008 Salduz-arrest. Defendants in St. Maarten ought to be aware of their rights in this respect, and act accordingly when they get in trouble with the law.

Yesterday’s Supreme Court ruling seemingly puts this right in jeopardy again and put the possible consequences of not abiding by the Salduz-arrest in the hands of individual judges.



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