Case Watch: Salduz Fever Sweeps Europe

In “Case Watch,” staff of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.

Something strange is happening in Europe. After years of inaction, governments are suddenly getting serious about arrest rights. Across the continent, many countries are grappling with how to reform rules on the treatment of suspects in police custody to ensure arrested people access to a lawyer before being questioned.

Why the unexpected enthusiasm? The answer, in a word, is “Salduz.”

In 2008, European Court of Human Rights issued a groundbreaking decision in case of Salduz v. Turkey. The court held that people detained at police stations have the right to access a lawyer. If people are interrogated by the police without getting the benefit of legal assistance, this could be a violation of their fundamental right to a fair trial.

Since 2008, the court has reiterated the Salduz standard time and time again, in a consistent line of jurisprudence. Furthermore, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has also been vocal on this issue, stressing that access to a lawyer in the period immediately following arrest is a "fundamental safeguard against ill-treatment.”

These “Salduz” reforms, as they are widely known, are finally taking hold. Faced with a binding law and criticism for failure to fall in line, numerous governments—including France, the Netherlands, Scotland and Belgium—are currently in the process of implementing far-reaching reforms to bring their justice systems in line with the European minimum standards.

Scotland was one of the first to move. The Scottish High Court initially tried to wriggle out of their obligations under Salduz, claiming that the case was open to interpretation and did not apply to Scotland. But the UK Supreme Court slammed the decision and held that the Scottish practice of detaining a person for six hours without a lawyer was unacceptable. One of the judges in the case, Lord Hope, remarked dryly in his judgment, “It is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure.” The day after this decision, Scotland brought in emergency legislation to introduce a right of access to legal advice before being questioned, and created a police station advisory scheme to facilitate this right.

Similar dramatic changes have come in France. After years of court battles, last week the notoriously tough and unfair system of garde á vue—in which suspects could be held for two days with minimal access to a lawyer and without being informed of their right to silence—was dismantled by a decision of the French Constitutional Council. In scenes that were referred to as “revolutionary,” lawyers descended on police stations over the weekend to exercise their hard-fought right to assist arrested people. One lawyer, who was called to one of the first cases under the new rules, said that it was as important "as the storming of the Bastille."

Similar reforms are occurring in the Netherlands and Belgium, with many countries finally recognizing that a system where police can refuse to allow a suspect access to a lawyer before questioning is incompatible with their obligations to provide fair trial rights.

The Open Society Justice Initiative is working with partners across Europe to promote and implement Salduz reforms. Last year the Justice Initiative produced a study, Effective Criminal Defence in Europe, which compared access to effective defense in criminal proceedings across nine European jurisdictions and made recommendations for reform.

While the recent developments have been a step in the right direction for many European countries, the struggle is far from over. During the reform process, some countries have held on to critical limitations on what a lawyer can do during the early stages of arrest, such as allowing only a 30-minute consultation, or not allowing the lawyer to attend their client’s interrogations. Other countries in Europe are still dragging their feet and delaying the inevitable reforms.

Through advocacy, technical assistance, and strategic litigation, the Justice Initiative will continue to put a spotlight on arrest rights and push for reform to ensure that people accused of crimes are defended effectively across Europe, and that their human rights are protected.

Last year, the UK Supreme Court gave a warning that there is “no room for any escape from the Salduz ruling.” It seems that, one by one, European countries are realizing this.

18 Comments

wow, fantastic blogging!

I just wanted to thank OSI for this very well-written and informative article.

Is there any change in the procedure in other countries, especially in Central and Eastern Europe? Or did they already comply with Salduz?

Thank you for your comment, Tim. This question raises some very interesting issues. Indeed, in many European countries, people do not enjoy full and unrestricted access to legal assistance during the first stages of arrest. But, as you've identified in your question, we can see a split between two different groups of countries.

The first group consists mostly of the countries in Central and Eastern Europe and the former Soviet Union bloc. The criminal legislation of these countries was modernized during the democratic transition. As a result, on the legislative level, these countries provide for a broad (at least in theory) right to legal assistance. And some of these countries, for example Bulgaria, introduced detailed practical safeguards to guarantee access to a lawyer after arrest. However, in many of these countries, no matter how good legislation is, sometimes it just does not translate into practical rights on the ground. In many Central and Eastern European countries, the “rights” you have on paper might not be practical and effective in reality.

The second group of countries mostly contains the so-called “old” European democracies, which often have an inquisitorial tradition of criminal process. Surprisingly, in this group, we often see that the legislative right to access legal assistance is even more limited. But as detailed in the blog post, there is a great amount of momentum towards change at the moment.

If you would like to know more, one of the best sources of information I can refer you to is the “Effective Criminal Defence” study, linked in the blog above. You’ll find an Executive Summary online which gives a great summary of the issues in defence rights for Hungary, Poland, Belgium, England and Wales, Finland, France, Germany, Italy, and Turkey. You can also access individual country reports if you want to drill a bit deeper into a particular jurisdiction.

Thank you, Marion, for your swift and detailed response.

I will definitely take a look at the "Effective Criminal Defence" study, and in the meantime, please keep up all the good work!

And where does this 'Salduz' reform stand on the rights of suspected terrorists, held on suspicion only?

Thank you for your question Marc. You've identified one of the most common exceptions to the rule. Many countries throughout Europe have exceptions in their legislation allowing for a person to be held without access to legal counsel in terrorism cases. Sometimes this is for extended periods - Spain, for example, allows a person to be held for five days without access to a lawyer.

Salduz - and ECHR case law that came after Salduz - all acknowledge that the right to a lawyer is not an absolute right. Salduz says that access to a lawyer should be provided "unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right". The ECHR hasn't yet given any guidance to States about whether terrorism charges are enough of a "compelling reason" to fall within this exception.

In my personal view, I do not think it is legally or ethically right to restrict a person's right to a fair trial based solely on what charges they are suspected of. Whatever tools a government has to fight terrorism; it shouldn’t be at the expense of eroding procedural safeguards in our justice system. Eliminating rights for “bad” people is not the answer.

The term 'exceptions' always worries me when talking legal. 'Exceptions' were made in the Bush/Cheney Energy Bill which allowed Halliburton to conduct hydraulic fracturing across the US. 'Exceptions' in the 1974 Privacy Act allow governments to access private data - this directly links to terrorism speculations, coincidentally.

So who is it that places these exceptions? What are the regulatory protocols in place with regards to the semantics of said exceptions, is there an overseeing body dedicated to monitoring them? and in the case of the human rights topic which lines your post, Can Salduz usurp the preposterous misuse of the law that is holding someone without legal representation?

Exceptions to legal principles can be problematic, it’s true. But so can absolutes. It’s rare for laws to be black and white, with no room for exceptions.

It’s worth highlighting that the Salduz ruling does have an extra level of safeguards. The ECHR says that, even in cases where there are compelling reasons to restrict this right, incriminating statements made during police interrogation without access to a lawyer cannot be used for a conviction. Later ECHR cases clarified that these statements should be removed from the case file entirely.

Of course, that’s not entirely an answer. In terrorism cases, you still have a person being interrogated by the police without being able to access legal advice, unlikely to know his or her rights, and more vulnerable to arbitrary detention, torture and enforced disappearance. We recognize that this is a serious problem, and detention without a lawyer for terrorist suspects is one of the Justice Initiative’s key issues for litigation. If you would like to read more about our work in the area of challenging human rights violations linked to national security and counterterrorism operations, please see here: http://www.soros.org/initiatives/justice/focus/national-security

Great article!
I wonder what could be those "compelling reasons" that according to the ECHR could restrict access to a lawyer before or during police interrogation. I see a great danger in the fact that the ECtHR did not reflect more on what it meant by this. The risk that the lawyer would gain access to information protected on national security grounds? Personal safety of a lawyer? Special urgency to proceed with the interrogation which rules out the possibility to wait for a lawyer (e.g. if the victim's life is in danger)?
I am afraid that this lack of precision would give even more liberty to the countries (supposedly) implementing the Salduz judgement to introduce further exceptions. This is what is in fact happening now in Scotland, France, Belgium and in the Netherlands.
For example, in all these countries the draft implementation legislation proposes the so-called "interests of the investigation" exception to the presence of the lawyer during the first police interrogation. That effectively means that police may decide to turn down a lawyer's request to be present at the interrogation because this may inconvenience them in getting the information from the suspect freely.
There is a great danger in this provision. It may lead to the practice where lawyers would be allowed in the interrogation room only on the condition that a suspect would "cooperate" and respond to the police questions. This is totally at odds with the right to remain silent, and with the whole logic behind the lawyer's role as a defender of the suspect's interests.

I agree with you, Anna, there is a danger in leaving domestic jurisdictions with too much discretion to create exceptions to the rule. We may be in a better situation had the ECHR had given some guidance about what might constitute "compelling reasons".

Right now, countries like France, Belgium, and the Netherlands are taking important steps towards changing their systems for the better, and they should be congratulated for that. These aren’t easy or cheap reforms for a government to implement. I suspect, though, as the reforms play out in practice, that we will start seeing further challenges to the limitations and exceptions in the laws.

"was dismantled by a decision of the French Constitutional Council"

Actually the decision is from the French supreme court (Cour de cassation) on April 15th 2011.

Thanks for your blog.

Thank you for the clarification, Andrew.

I really do wonder if the Eurocrats have thought this through ? Their decision may have very averse effects on security. How are they going to apply the Salduz consequence in the context of the massive arrests in London now ?

Interestingly the UK is the leader in this field. If anything, Europe is following the UK's lead.

Since 1986, England has had a system in place to ensure that people who have been arrested get early access to a lawyer. So nothing will change with these new arrests in London. Everybody who has been arrested on suspicion of being part of the riots should have their right to get legal help respected, just as they have for the past 25 years.

How do you think this has adverse effects on security?

Interesting post!
I'm writing my legal psychology thesis about the police interview outcomes when legal aid has or has not been given to suspects. I'm trying to elaborate on the basic principles underlying the right to legal aid. So far I found the equality of arms principle, protection against coerion by authorities and the privilege against self-incrimination and the right to remain silent. It seems a bit to simple to state that legal aid simply facilitates the protection against self-incrimination by informing the suspect about his right to remain silent and thereby reducing the chance of coercion by authorities. Therefore I'm looking for a critical review on this reasoning. Could you help me with your own insights and possibly some literature/blogs/articles etc? (Excuse me for my English, I'm not a native speaker)

Thank you for this highly interesting blog. My position is not that of a lawyer but as an academic whose research focusses on the investigative interviewing and/or interrogation practices of those who have the responsibility of investigating criminal offences such as police officers and other law enforcement agencies. I would be really interested to learn the current point of developments by each member state in response to the Salduz rulling (there is mention of a blog but I am not sure that I can locate it. Equall, I would be highly appreciative of any correspondence from those who can provide this information in regard to one or more countries.

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