When assisting a suspect during an interrogation, a lawyer has more right to intervene than the police sometimes allow. This is what criminal lawyer Michael Berndsen says. This is because the Dutch rules have not yet been adapted to European guidelines. ‘Interim consultations must also be allowed.’
Image: Criminal lawyer Michael Berndsen from Meijers Canatan.
by Joost van der Wegen
According to the legal rules that the police apply, the counselor is actually only allowed to make comments at the beginning and end of the interrogation, Berndsen writes in a blog. In between, he may only ask for clarification or indicate that a suspect does not understand something.
The lawyer explains when the lawyer may deviate from this, according to the law: ‘In exceptional cases he may intervene if unacceptable pressure is exerted by the interrogators. According to those rules, the counselor must address the investigators and should therefore not even say anything to his client in between.’
In practice there is usually more room, but sometimes the police adhere to these rules and discussions arise. That is why Berndsen emphasizes that the strict rules of the police have now been overtaken by higher rules: ‘For a number of years it has been clear that the European Convention on Human Rights (ECHR) gives the defense lawyer much broader powers. And because an international treaty takes precedence over national rules, that treaty takes precedence.’
According to the European Court, the counselor may actively assist the suspect during the interrogation and intervene to defend the suspect’s rights. This also concerns, for example, the right to remain silent.
The Dutch rules are therefore too limited, according to Berndsen. ‘The counselor may indeed adopt an active attitude, address his client and intervene during all phases of the interrogation. His actions must be aimed at serving the interests of the client and exercising his rights.’
It is not entirely clear where exactly the boundaries lie. ‘Therefore this must be assessed on a case-by-case basis. If a suspect has consciously chosen to remain silent, but is nevertheless tempted to give an answer, the lawyer may remind him of his right to remain silent. Even if that happens twenty times. Interim consultations must also be allowed. Exchanging glances with the lawyer to answer or not answer a question is also directly related to receiving good legal assistance and the right to a fair trial.’