Right to legal assistance during police interrogation

Suspects of a crime carrying a prison sentence of six years or more will have the right to legal assistance during police questioning. The police may only refuse counsel to be present if this is necessary in the interests of the investigation. In that case, the interview must be recorded on video or audio tape.

This is evident from a legislative proposal from Minister Opstelten and State Secretary Teeven (of the Ministry of Security and Justice) that was sent today to various bodies for their opinion, including the Police, the Public Prosecution Service, the Council for the Judiciary and the Netherlands Bar Association. The measure is especially important because the statement made by the suspect during the preliminary investigation also impacts on his further trial.

Based on an instruction of the Board of Procurators General of 1 April 2010 in connection with rulings by the Supreme Court and the European Court of Human Rights (ECHR) suspects could already request legal assistance prior to their first police interview. This right has also been included in the new legislation. In addition, provisions have been included to improve the quality of the record of the suspect’s statement. It will also be allowed to record the questioning of witnesses and suspects on audio and/or video tape, and the suspect will have the right to add a written statement to the record. The legislative proposal leaves room, also in combination with the presence of a counsel, to expedite proceedings, where possible, for instance by a disposal by the Public Prosecutor or by accelerating the decision to prosecute.

A suspect may only waive his right to legal assistance during police questioning after having consulted his counsel first about this matter. If it concerns an offence carrying a sentence of less than six years, he may also do this without consulting his counsel. In that case it usually concerns less serious offences, such as shoplifting or wrecking a bus shelter, which in principle can also be settled by means of a punishment order issued by the Public Prosecutor.

For minors it is even more important that they can have legal assistance in time. For that reason the Minister and the State Secretary propose that minor suspects always consult a counsel prior to their first police interview. They also have the right to legal assistance during that interview, but they may waive that right after consultations with their lawyer. In addition, Minister Opstelten and State Secretary Teeven take the position that legal assistance to minors should always be provided by lawyers. Currently, minor suspects still have the option to choose a counsel or a counsellor.

Furthermore, suspects will not only be informed of their right to remain silent, but also of their other rights. This concerns the possibility of legal assistance, including the possibility of consulting a lawyer. The suspect will be informed of which offence he is accused and that he is entitled to assistance of an interpreter, if he has insufficient command of the Dutch language.

The provision of legal assistance and assistance of interpreters may result in arrested suspects having to wait longer for the interview to begin. This time is deducted from the interview time (now limited to six hours), which can be disadvantageous to the suspect and may adversely affect the investigation. Therefore, in future arrested crime suspects may be detained for investigations for up to nine hours. With this measure the Minister and the State Secretary also want to prevent that suspects whose interrogation cannot be finalized in time are taken into custody too quickly.

They are aware that the proposed measure impacts on the entire investigative process, especially the interrogation. For that reason they are having an impact analysis performed to identify the possible consequences of the presence of counsel during the police interrogation. In addition, consultations will be held with the police, the Bar and the Public Prosecution Service about the exact practical implementation of the new measure. Minister Opstelten and State Secretary Teeven will take the results of the consultation round and the impact analysis into account in their decision-making about the legislative proposal, which they want to submit to the Cabinet after the summer.