In an important decision, the Dutch Supreme Court recently ruled that it does not follow the conclusion of Advocate General Spronken to revise its current position on the right of a suspect to a lawyer during police questioning. Spronken’s position is based on a recent judgment of the European Court of Human Rights and the introduction of a European directive on the subject. The Supreme Court held that the directive needs to be implemented by member states before 27 November 2016. Until then, the Court will not grant this right to have a lawyer present during police interrogation based on case law. However, if the directive is not implemented on time, the Supreme Court does not exclude that it will decide differently in the future.

The Dutch Supreme Court’s position is that a suspect 18 years or older has a right to contact a lawyer before a police interrogation, but is not entitled to have a lawyer present during the interrogation.

This position is based on the judgment of the European Court for Human Rights (ECHR) in Salduz. In this case, the ECHR established that, based on the European Convention on Human Rights, a suspect must have access to a lawyer as from the first interrogation of the suspect by the police. The Dutch Supreme Court has interpreted this ruling to mean that ‘access to a lawyer’ does not imply the right to have a lawyer present during police questioning.

The judgment of the Dutch Supreme Court of 1 April 2014 concerns an American pilot, suspected of possessing a false passport, who asked for a lawyer during police interrogation, but whose request was denied.  Spronken refers to a recent judgment of the ECHR (Navone v Monaco) in which a similar situation was discussed. In this judgment, the ECHR determined that in addition to the right to consult a lawyer before an interrogation, the accused must also have the right to the assistance of a lawyer during police interrogation.

Due to the similarity between the treatment of Navone and the current procedure followed under Dutch law, Spronken is of the opinion that the current procedure violates the criteria set by the ECHR. Spronken also discussed the introduction of a new European directive (see also In context November 2013) to illustrate that the position of the Netherlands on this issue will need to change in the next few years.

The Dutch Supreme Court did not follow Spronken’s approach and dismissed the suspect’s appeal. The Dutch Supreme Court ruled that member states need to implement this new directive before 27 November 2016 in national legislation and until then, it will not grant this right to have a lawyer present based on case law. In February 2014, the Dutch Ministry of Security and Justice proposed new legislation in order to implement the directive mentioned and the Supreme Court does not exclude that if the directive is not implemented on time, it will decide differently in the future.

The Netherlands and Ireland are currently the only European countries in which suspects are not entitled to have a lawyer present during police interrogation.