The right to legal assistance at the police interview means that a suspect may consult a lawyer before the interview and that the lawyer may be present during it. It is one of the most important safeguards in the pre-trial stage.
Legal basis
Since 1 March 2017 the regime has been contained in Articles 28 to 28e of the Dutch Code of Criminal Procedure, implementing Directive 2013/48/EU. It derives from the Salduz case law of the European Court of Human Rights. Article 28b requires the police to put an arrested suspect of an offence carrying pre-trial detention in contact with a lawyer. Article 28d confers the right to assistance during the interview. Additional safeguards apply to vulnerable suspects and minors; minors cannot validly waive the right. Where the right is breached, the statement may be excluded from the evidence under Article 359a.
How it works in practice
The lawyer speaks to the suspect before the interview, discusses the case and advises on the right to silence. During the interview the lawyer may comment on the questioning, ask for clarification and request a break for consultation. The right can be waived, but that must be done unequivocally and knowingly and is recorded; a waiver obtained under pressure at the police station does not always stand.
Where it goes wrong
Suspects waive the right thinking the interview will be over sooner, and then say something that damages their position. A second problem arises with interviews as a witness or as a party to an administrative supervisory investigation, where the right to assistance is regulated differently even though the investigation is in fact already directed at the person. Third, no lawyer is engaged where the invitation to an interview does not involve arrest.
Related terms
The right connects to the right to silence and the caution, to police custody and to procedural defects.
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