On 27 November and 11 December 2008, the ECHR rendered two decisions which concern a sensitive issue in the Netherlands: a suspect’s right to be represented by counsel during police interrogation. At present, Dutch law does not, in principle, recognise such right. The ECHR decisions, Salduz v. Turkey3 and Panovits v. Cyprus4 (the “ECHR Decisions”), have led to intensified debates in both the legal journals and case law on their respective scope and implications for Dutch criminal procedure. The debates centre around the question whether it can be concluded from the ECHR Decisions that a suspect is entitled to counsel’s (physical) presence while being questioned. The answer depends on the meaning of the term “access to a lawyer” and “assistance of a lawyer” as used in the ECHR Decisions. If the ECHR Decisions indeed recognise a right to counsel’s presence during interrogation, this would have major consequences for the Dutch criminal justice system, as it is at present not structured to accommodate this right.
Several developments have taken place within the Dutch criminal justice system since the publication of the ECHR Decisions. The Public Prosecution Service has sent a non-binding advice to all Public Prosecution Services on how to act. The advice in essence denies that a suspect’s counsel should have physical access to the suspect during interrogation. In several instances, judges have had to rule on a defendant’s reliance on the ECHR Decisions, which has led to differing decisions, varying from a denial that Salduz v. Turkey involves a right to counsel’s presence during an interrogation5 to a more balanced approach, in which it was held that Salduz v. Turkey does not automatically include such right, but that further review is needed in this respect.6
The Netherlands Supreme Court has not yet ruled on the implications of the ECHR Decisions under Dutch law. Three cases are, however, now pending and judgments are not expected before 30 June 2009.7
It appears that there is more consensus on the conclusion that under Dutch law, the ECHR Decisions do call for further (legislative) elaboration of a suspect’s lawyer’s position in the first phase of interrogation. In a letter to the Second Chamber of Parliament of 15 April 2009, the Dutch Minister of Justice confirmed that he shares this conclusion and announces that he is considering implementing various elements in this respect. With regard to the actual (physical) presence of counsel during interrogation, the Minister announced that he will await the outcome of an experiment currently being conducted in Amsterdam and Rotterdam, where the presence of counsel during interrogation is being tried out. The experiment will not be completed until 2010.