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.