On 8 June 2011 a draft EU directive regarding the right of suspects to legal counsel before and during police interrogations was sent to the Council and the European Parliament. This directive is the third part of a comprehensive package of EU legislation aimed at strengthening the rights of suspects in criminal proceedings as set out in the so-called Stockholm Program. Previously, a first EU directive was adopted on the right to interpretation and translation. A second EU directive on the right to information of a suspect's rights and charges is currently in progress.
In anticipation of the EU directives a draft bill was proposed in the Netherlands on 15 April 2011. The draft bill inter alia provides for the following:
- A suspect can request legal counsel before interrogation.
- A suspect with a possible sentence of six years imprisonment or more has a right to legal counsel during police interrogations. The suspect can waive this right only after consultation with legal counsel. If the maximum penalty for the crime in question is less than six years imprisonment, a waiver is possible without consulting with legal counsel.
- Investigating officers must not only inform a suspect of the right to remain silent, but also on the right to legal counsel and, if necessary, the right to an interpreter. The suspect must also be informed of the grounds for suspicion and the expected course of the criminal proceedings.
The Dutch legislator has acknowledged that the right of access to legal counsel may lead to undue delays. As investigating officers cannot proceed with an interrogation when waiting for legal counsel, the maximum time permitted to hold a suspect for investigation before deciding upon custody, including the time it takes to interrogate, is extended to nine hours (as compared to the current six hours). The Minister of Public Safety and Justice is aware of the draft bill's possible impact and has ordered an impact analysis of the same. The bill is expected to be introduced by the end of the summer.
Notably, the draft EU directive as proposed on 8 June 2011 prescribes that all suspects have the right to legal counsel during police interrogations. The draft provides that the legal counsel shall have the right to ask questions, request clarification and make statements during interrogations, which shall be recorded in accordance with national law. The draft Dutch bill is less extensive as it only provides for access to legal counsel during interrogations if the maximum penalty for the relevant crime is six year imprisonment or more. As such, the current draft bill may be amended to remove this difference.
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