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Netherlands: Two New Laws and Decree on Right of Access to a Lawyer

(July 7, 2017) On March 1, 2017, two new laws and a decree, all related to the right of access to a lawyer before and during police questioning of a suspect, entered into force in the Netherlands. (Legislation Access Lawyer During Police Questioning in Force, Ministry of Security and Justice website (Feb. 27, 2017).)

A law adopted on November 17, 2016, transposes into Dutch law the corresponding European Union directive on the right of access to a lawyer. According to the Dutch Ministry of Security and Justice, the new pieces of legislation balance the interests of the suspect and those of the investigation. (Id.; Act of 17 November 2016 Implementing Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the Right of Access to a Lawyer in Criminal Proceedings and in European Arrest Warrant Proceedings, and on the Right to Have a Third Party Informed upon Deprivation of Liberty and to Communicate with Third Persons and with Consular Authorities While Deprived of Liberty, STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [GOVERNMENT GAZETTE OF THE KINGDOM OF THE NETHERLANDS, Stb.] 2016 Nr. 475 (Dec. 8, 2016, in force on Mar. 1, 2017), available at OVERHEID.NL (in Dutch); Directive 2013/48/EU…, 2013 OJ (L. 294) 1, EUR-LEX.)

The second law, also adopted on November 17, 2016, amends the Code of Criminal Procedure and some other legislation by adding new provisions on the accused, counsel, and some coercive measures. (Act of 17 November 2016, Amending the Code of Criminal Procedure and Some Other Laws Relating to the Addition of Provisions on the Accused, Counsel, and Some Coercive Measures, Stb. 2016 Nr. 476 (Dec. 8, 2016), available at OVERHEID.NL (in Dutch).) The law has supplementary measures pertaining to the initial phase of a criminal investigation, e.g., it extends the period of time that a suspect may be held for questioning from six hours to nine, to further enable access to legal counsel during questioning. (Legislation Access Lawyer During Police Questioning in Force, supra.)

Finally, the Decree of January 26, 2017, provides rules to implement the participation of counsel during investigative questioning. (Besluit van 26 januari 2017, houdende regels voor de inrichting van en de orde tijdens het politieverhoor waaraan de raadsman deelneemt (Besluit inrichting en orde politieverhoor), Stb. 2017 Nr. 29 (Feb. 9, 2017), available at OVERHEID.NL.)  The legislation corresponds to a policy letter, applied by the Public Prosecution Service since March 1, 2016, that laid down rules of practice for the right to legal counsel prior to and during police questioning; it is also in line with EU regulations, decisions of the European Court of Human Rights, and case law of the Dutch Supreme Court. (Legislation Access Lawyer During Police Questioning in Force, supra.)

According to the Decree, counsel may make comments and ask questions “directly after the start and directly before the end of the questioning,” with the investigating officer in charge responsible for providing this opportunity to counsel. (Id.) During the questioning, lawyers are authorized to point out to the interrogating officer that, for example, the suspect did not understand the question asked or that the suspect’s physical or psychological state is impeding reliable continuation of the interrogation, and also to respond to the officer themselves if the suspect cannot freely make a statement, which constitutes, according to the Ministry of Security and Justice, a ban on coercive interrogations. (Id.)

The Decree also provides that the lawyer or the suspect him/herself “may ask for an interruption of the questioning, for mutual consultations” but the lawyer may “not answer any questions on behalf of the suspect, unless with the consent of the officer conducting the interrogation and of the suspect.” (Id.) The Decree indicates that the interrogating officer may, if he “considers it effective and reasonable,” permit the lawyer to play more of a role during questioning. (Id.) In addition, lawyers are to be given the opportunity to make remarks on how the questioning is represented when drawn up in the official report on the interrogation. (Id.)