Criminal law could be considered an unlikely area of interest for business lawyers. However, over the course of the past decade, criminal sanctions have been introduced in many areas of law such as environmental law, IP/IT law, tax law, employment law, transport law, urban and regional planning, social security and employment law, etc. Companies and their advisors must be able to deal with this new reality. This month, three new codes on criminal sanctions in business law (covering Belgian, Luxembourg and international law) will be published. In this context, we would like to take this opportunity to bring to your attention an important change to the Belgian rules of criminal procedure regarding the presence of an attorney during the pre-trial phase.

Miranda Warning: not only on television

The Constitution of the United States and the European Convention on Human Rights are both based on the same philosophical traditions. Indeed, many of the same rights are enshrined in both documents. The landmark US case on the constitutional right to an attorney during questioning and the right to remain silent in order to avoid self-incrimination dates back to 1969. In Miranda v. State of Arizona,[1] Ernesto Arturo Miranda signed a full confession while being questioned in police custody. During the trial that followed, his confession was produced as evidence and Mr. Miranda was sentenced to 20 years in prison. His attorney decided to appeal on the ground that Mr. Miranda had not been advised of his right to remain silent and to request an attorney. The case was eventually brought before the US Supreme Court after the lower court's decision was upheld on appeal by the Arizona Court of Appeal.

On the question of the coercive nature of custodial interrogation by the police, the Supreme Court, following Chief Justice Earl Warren, ruled that: "The foremost requirement, upon which later admissibility of a confession depends, is that a four-fold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that, if indigent he has a right to a lawyer without charge".

As a result of this decision, when the police make an arrest they must now advise the suspect of his or her rights, including the right to remain silent and the right to an attorney. This is known as the Miranda warning.

European Court of Human Rights: Salduz v. Turkey

On 29 May 2001, Mr. Salduz, a 17-year-old Turkish man, was arrested on suspicions of participation in an illegal demonstration of the PKK (the Kurdistan Workers' Party). He was questioned by the police, without a lawyer being present, and admitted having taken part in the demonstration. Before the court, he claimed that his confession had been extracted from him under duress. Mr. Salduz was sentenced on 5 December 2001 to 4 years and 6 months in prison.

Mr. Salduz brought his case before the European Court of Human Rights, claiming that his due process rights (Art. 6 ECHR) had been violated in that he had not been provided with the written opinion of the Principal Public Prosecutor of the Court of Cassation and had been denied access to a lawyer while in police custody.

The Grand Chamber of the European Court of Human Rights ruled as follows on 27 November 2008:

"In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. (…) In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer(…) the Court finds that in order for the right to a fair trial to remain sufficiently 'practical and effective', Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. 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”.

In this decision, the European Court of Human Rights makes it clear that each Member State must comply with these rules. Turkey, just like France or Belgium, must modify its rules of criminal procedure in order to provide for the right to a lawyer as from the outset of criminal proceedings (especially during police interrogation).

Belgium

As the law currently stands, and according to recent Supreme Court case law (Court of Cassation, 13 January 2010, 31 March 2010, and 5 May 2010), it is not possible to have an attorney present during the investigation stage due to the need to protect the confidentiality of the information gathered and of the investigation itself (Arts. 28quinquies and 57 §1 Code of Criminal Procedure). Nevertheless, according to Article 47bis of the Code of Criminal Procedure, the person being charged must be informed of his or her right to request investigative measures and of the fact that anything s/he says may be used against him/her. The preventive detention law provides that the accused may not communicate with his or her lawyer until after the first hearing before the investigating magistrate. Thus, the accused is without counsel until a relatively late stage in the proceedings, by which time a hearing has already been held and a transcript thereof drawn up.

France faces the same difficulties as Belgium; indeed, the French Supreme Court rendered three landmark decisions on 19 October 2010 regarding the transposition of the Salduz doctrine into French law.

In short, the law should be modified to make the presence of an attorney during pre-trial questioning obligatory.

Conclusion

Belgium must reform its rules of criminal procedure with respect to the right of the accused to be assisted by counsel. Indeed, it is essential that an attorney be present during pre-trial questioning or at a pre-trial hearing in order to mitigate the risk of self-incrimination. In the business world, this change in the legislation and case law is important since more and more criminal sanctions are being introduced in different areas of law which directly affect businesses.

In this regard, we are pleased to announce the publication this month (by Editions Larcier) of a series of three new codes of, respectively, Belgian, Luxembourg and international criminal business law. These codes can be used to identify the possibilities for - and risk of - criminal sanctions in all areas of business law.