Salduz and Brusco go European

POSTED: 09/26/11 7:13 PM

The Netherlands is not happy with a plan by the European Commission to establish minimum standards for the presence of attorneys in criminal investigations. Justice Commissioner Viviane Reding wants to guarantee suspects in all 27 member states the right to the presence of an attorney from the moment they are arrested until the conclusion of their trial.

Currently, suspects in the Netherlands are only entitled to have a lawyer present before their first interrogation by the police. Only minors have the right to demand legal assistance during all interrogations.

The Dutch base their objections to the proposal on one motive only: money. The costs for legal assistance will go through the roof if the European measure is implemented. Most suspects in the Netherlands are unable to pay for a lawyer so they call on state-appointed legal assistance.

Earlier this week, the Netherlands expressed its concerns in a letter to the Polish EU-presidency, together with Belgium, France, the United Kingdom and Ireland. The five countries claim that Reding’s proposal will affect the efficiency of police-investigations in a negative way. The minimum standards need  the approval of a majority of the member states and the European Parliament.

The European Human Rights Court has already established the rights of defendants to the presence of an attorney in two different rulings. The so-called Salduz-arrest of November 27, 2008, establishes a suspect’s right to an attorney during the first six hours after his arrest and before the police begins with interrogations.  This right is also acknowledged in St. Maarten.

The Brusco-arrest of October 14 of last year goes a few steps further than Salduz: it recognizes the right of a suspect to an attorney before and during the first interrogation by the police alnd also during subequent interrogations.

While the European Human Rights Court has established there rights, the Netherlands and four other countries want to get around these rulings, simply because abiding by them would be too expensive.

That is obviously not a reasponable attitude. The state already has the monopoly on prosecuting people and the balance of power during investigations heavily favors the prosecution. Suspects are in a weak position because they usually do no know their rights and when they are informed about them, they quite often do not understand their implications.

To restore the balance of power, to create a level playing field, the Human Rights Court has now ruled in two crucial cases in favor of suspects. If playing by these rules is going to cost the state a lot of money, so be it. That a rich country like the Netherlands opposes the European plan to put guarantees for suspects in place based on financial arguments is just incredibly weak.


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