Judgment of the Supreme Court of the Netherlands
of 22 December 2015 (ECLI:NL:HR:2015:3608; available via ) (extract)
(thanks to Gwen Jansen and Thom Dieben, lawyers, for the translation)
[…]
5. Assessment of the request to refer the case for a preliminary ruling
5.1 The appeal memorandum requests that – should the ground of cassation fail – the Supreme Court refer the case to the Court of Justice of the European Union (hereinafter: CJEU) for a preliminary ruling pursuant to art. 267 of the Treaty on the Function of the European Union (hereinafter: TFEU) in order to get clarity on the question if, and if so, to what extent, a suspect has a right to have a lawyer present during the police interview on the basis of “the fundamental rights as general principles of the law of the European Union (Community law) where necessary in conjunction with the provisions of the EU Charter on Fundamental Rights (inter alia art. 47 and 48)”.
5.2. Taking into account that and why the ground of cassation fails, the situation that an answer to the questions raised can be relevant for a settlement of the dispute does not arise in this case and for this reason a request for a preliminary may be refrained from. The request in this regard is therefore denied.
5.3 It should be noted in this regard that as long as the EU has not become a party to the ECHR, the fundamental rights protected by the ECHR have not been formally incorporated by in the EU’s legal order and for this reason EU law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by the ECHR and a rule of national law (Cf. CJEU EU 24 April 2012, C-571/10, ECLI:EU:C:2012:233, par. 62 (Kamberaj), and CJEU 26 February 2013, C-617/10, ECLI:EU:C:2013:105, par. 44 (ÅkerbergFransson)).
6. Further consideration of the right to assistance by a lawyer during police questioning
6.1 With a view to future cases where the question could arise as to whether a suspect has a right to legal assistance during police questioning, the Supreme Court remarks the following.
6.2. In its judgement of 1 April 2014, ECLI:NL:HR:2014:770, NJ 2014/268 the Supreme Court held that the right of a suspect to be assisted by counsel during police questioning (the so-called "assistance during questioning") cannot unequivocally be deduced from the judgements of the European Court of Human Rights (ECtHR) d.d. 24 October 2013, nos. 62880/11, 62892/11 and 62899/11 (Navone et al.c. Monaco). This right also does not follow from Directive no. 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 (OJ L 294) which has not yet been implemented into Dutch law.
The Supreme Court further established that the fact that the ECtHR has in several concrete cases decided that the absence of legal assistance in relation to the interview of the suspect by the police under certain circumstances constitutes a violation of art. 6, par. 3, sub c in conjunction with art. 6, par. 1 ECHR, does not lead to the conclusion that – different from what was held in the judgement of the Dutch Supreme Court d.d. 30 June 2009, ECLI:NL:HR:2009:BH3079, NJ 2009/349 – the making of the necessary policy, organizational and financial choices - and thus the setting up of a general framework - currently has come within the ambit of the task of the Supreme Court to shape the law. However, the legislator was called on to take up the introduction of the required legal framework for "assistance during questioning" without undue delay. It was also noted in this judgement that it cannot be excluded that the absence of a general statutory framework may, in time, lead to a different assessment in future cases in which questions regarding the content and scope of the right to "assistance during questioning" are put the Supreme Court.
6.3. It has to be established that the ECtHR – more than six years after the 2009 judgement and one and a half years after the judgement of 2014 whereas a statutory framework for the right to assistance during questioning has not yet been established – has decided in several cases that a lack of legal assistance during police questioning can be considered a violation of the rights attributed to the suspect by art. 6 ECHR. Although the ECtHR has never explicitly and without reservation held that the fact that the suspect’s lawyer was not present during police questioning will lead to said violation under all circumstances, it is in the interest of legal certainty that, in light of the aforementioned casuistical case law of the ECtHR, that the Supreme Court will now proceed with a tightening of the rules concerning legal assistance identified in the judgement of the Supreme Court of 1 April 2014, ECLI:NL:HR:2014:770, NJ 2014/268.
In view of this, the Supreme Court will henceforth assume that a suspect who has been arrested has right to legal assistance during police questioning, except in cases where there are pressing reasons to restrict this right. The suspect can expressly or tacitly but in any event unequivocally waive this right. This means that prior to the first police interview, the suspect has to be informed of his right to legal assistance. It should be noted that this assistance does not only concern the first interview but also the subsequent interviews.
The Supreme Court comes to this rule tightening for the following reasons.
If, now or in future cases where this issue will be relevant for a settlement of the dispute, the Supreme Court were to refer the case for a preliminary ruling on the issue at hand, an effective and speedy criminal justice system would be severely impaired in an extraordinary manner because resolving other cases where a similar issue were to arise are threatened with long and unacceptable delays. The negative consequences of this would have a major impact because the issue of legal assistance during police questioning plays a role in a large number criminal cases. It would be undesirable if the judicial authorities would reasonably feel obligated to await the outcome of the preliminary ruling of the CJEU. By tightening the rules on legal assistance this, in the eyes of the Supreme Court, unacceptable consequence will be prevented.
The Supreme Court has also taken into account in its assessment that said Directive will be implemented into Dutch law in due course (and in any event will have to be implemented into Dutch law no later than 27 November 2016) so that it may be assumed that the necessary policy, organizational and financial choices have been made in the meantime.
6.4.1. If a suspect who has been arrested has not been given the opportunity to be assisted by counsel during police questioning, this will, in principle, constitute a procedural error [vormverzuim] as referred to in art. 359a Sv [Dutch Code of Criminal Procedure (DCCP)]. In light of the interpretation that was given to this provision in the judgement of the Supreme Court of 30 March 2004, ECLI:NL:HR:2004:AM2533, NJ 2004/376, the trial judge – when a defence is raised in this regard – will have to asses if this procedural error should be sanctioned and, if so, which sanction is most appropriate. In this regard, he will have to take into account the factors mentioned in the second paragraph of art. 359a DCCP. After all, the sanction will have to be justified by these factors. One of these factors is the gravity of the procedural error.
6.4.2. In its judgement of 30 June 2009, ECLI:NL:HR:2009:BH3079, NJ 2009/349, the Supreme Court decided that in cases where a suspect who has been arrested has not – or in any event not within reasonable boundaries – been afforded the right to consult a lawyer prior to the first police interview, this constitutes a procedural error [vormverzuim] as referred to in art. 359a DCCP, as a result of which, in light of the case law of the ECtHR, an important provision (of procedural criminal law) has been violated to a considerable extent, which – when a defence is raised in this regard – should, on the basis of this same case law, in principle lead to exclusion from evidence of all statements of the suspect made before he has been accorded an opportunity to consult a lawyer. This concerns the possibility of the suspect to determine his procedural attitude during the interview. Such a procedural error will generally be graver than the non-attendance of a lawyer during the interview.
This means that – as long as the Directive mentioned under 6.2 has not been implemented into Dutch law, or the implementation deadline for said Directive has not yet lapsed – the sanction on the non-attendance of a lawyer during police questioning does not necessarily have to be exclusion from evidence. It should be noted in this regard that art. 359a DCCP does not exclude the possibility of – depending on the circumstances of the case – a reduction of the sentence or a mere acknowledgement of the procedural error in question.
6.4.3. In assessing the gravity of the procedural error it is furthermore of specific importance that the police officers carrying out the interview reasonably did not have to expect that an opportunity to be assisted by a lawyer during police questioning had to be accorded to the suspect. It should be taken into account in this regard that these police officers – up until the present judgement – could not foresee the tightening of the rules concerning legal assistance during questioning mentioned above under 6.3 and that it may not be assumed that they will immediately become familiar with the contents of this judgement and the implications thereof for the legal practice. The Supreme Court therefore assumes that as of 1 March 2016, the rule that a suspected who has been arrested has a right to legal assistance during police questioning will be effectuated.
7. Conclusion
Because the ground of appeal cannot lead to cassation and because the Supreme Court is of the view that there is no reason to quash the judgement under review propriomotu, the appeal is rejected.
8. Decision
The Supreme Court rejects the appeal.
Opinion of Advocate-General G. Knigged.d. 29 September 2015 (ECLI:NL:PHR:2015:1996; available via
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4. The ground of cassation
4.1 The ground of cassation, which is accompanied by an elaborate explanation, in essence complains that the statement made by the accused to the Royal Marechaussee on 8 October 2008 without having been accorded the opportunity to consult a lawyer and without a lawyer being present during questioning, was wrongfully used by the Court of Appeal to support a conviction.
4.2 The accused was convicted for importing and having at his disposal a movie clip on his mobile phone which qualifies as child pornography. This conviction is inter alia supported by the statement made by the accused on 8 October 2008 to the Royal Marechaussee.
4.3 A brief study of the case file leads me establish the following facts. The suspect was arrested and remanded into custody [in verzekeringgesteld] on 2 October 2008 in relation to the aforementioned offence. He was interviewed about this offence by the Royal Marechaussee on 2 October 2008, by the Investigative Judge on 3 October 2008 (in relation to the prosecution’s demand to order the accused’s pre-trial detention for another 14 days [vorderingbewaring]) and again by the Royal Marechaussee on 8 October 2008. It cannot be deduced from the case file that at any moment the suspect was informed of his right to consult a lawyer. The official record [process-verbaal] of the interview by the Investigative Judge indicates that present during the interview was the suspects lawyer, mr. S. Tamraoui. Finally, the official record [process-verbaal] of the interview by the Royal Marechaussee on 8 October 2008 contains as the statement of the suspect, among other things, the following:
“I would like to see my lawyer. […] I have spoken to her, a young woman, for about three minutes. She was here.”
[…]
4.6. The Court of Appeal took the view that a suspect who has been arrested by the police can derive from art. 6 ECHR a right to consult a lawyer prior to the first police interview but that this does not include the right to have a lawyer present during the police interview. This view is in accordance with the current case law of the Supreme Court. After all, the Supreme Court is of the view that it cannot be deduced from the case law of the ECtHR that an adult suspect has a right to have a lawyer present during police questioning.[1] The Supreme Court stuck to this position in its decision of 1 April 2014, ECLI:NL:HR:2014:770, NJ 2014, 268 annotated by Prof. Schalken, despite a conclusion to the contrary by my colleague Spronken.
4.7. The ground of cassation is divided into several sub complaints. […]
4.10. Secondly, it is argued that, contrary to the consistent case law of the Supreme Court, art. 6 ECHR does include a right of the suspect to have a lawyer present during police questioning. This position is supported by a reference to the aforementioned conclusion of my colleague Spronken in the case that lead to the judgement of the Supreme Court d.d. 1 April 2014 and by quotations from critical commentaries on this judgement, and is followed by an invitation to the Supreme Court to revisit its Salduz case law. I was unable to deduce any new insights – I would not qualify the fact that the judgement of 1 April 2014 does not enjoy wide support as such – in this argumentation. Something that I dare call a sense of reality leads me to conclude that the Supreme Court will see no reason to accept this – presented as such – invitation and will stick to its position that art. 6 ECHR does not include a general right to have a lawyer present during police questioning.
4.11 The other sub complaints of the ground of cassation, namely that there has been a violation of (the general principles of) Community Law, the EU Charter on Fundamental Rights and the provisions of Directive 2013/48/EU are in essence a repetition of the argument that art. 6 ECHR provides for a general right to legal assistance during police questioning. I will allow myself to limit my response to a remark that these complaints will have to share the same fate as the complaint discussed above.
4.12 On the basis of the current case law of the Supreme Court it cannot be said that the position of the Court of Appeal that the statement made by the accused on 8 October 2008 to the Royal Marechaussee does not misinterpret the law and it is also not incomprehensible. This means that in light of the current case law,
5. Request to refer the case for a preliminary ruling
5.1 In case the ground of cassation does not succeed, the drafters of the appeal memorandum request the Supreme Court to, pursuant to article 267 of the Treaty on the Functioning of the European Union (hereinafter: TFEU), refer the case to the CJEU for a preliminary ruling. The questions to be asked could then clarify if, and, if so, to what extent, the rights guaranteed by art. 6 ECHR, which pursuant to art. 6 of the Treaty on European Union (hereinafter: TEU) automatically constitute general principles of EU law, include a right to be assisted by counsel during police questioning.
5.2. The appeal memorandum argues that the criminalization of the possession of child pornography in art. 240b of the Dutch Penal Code (DPC) constitutes an implementation of Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography and the successor of that framework decision, namely Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA.
That argument is correct in my opinion, and so is the argument that by prosecuting and punishing the accused for a violation of art. 240b DCP, EU law is being implemented as referred to in art. 51, par. 1 of the Charter on fundamental rights of the European Union (hereinafter: the Charter). This article, which concerns the field of application of the Charter, is seen by the CJEU as a confirmation of its existing case law regarding the field of application of the fundamental rights guaranteed by EU law.[2] Pursuant to art. 6, par. 3 TEU, the rights guaranteed by the ECHR (including the right to a fair trial ex art. 6 ECHR) constitute general principles of the European Union. The same applies, of course, to the fundamental rights guaranteed by the Charter (Cf. art. 6, par. 1 TEU). Art. 48, par. 2 of this Charter guarantees to anyone charged with a criminal offence “respect for the rights of the defence”. All this means that the CJEU can pronounce an opinion on the question of a right to legal assistance during police questioning can be derived from art. 6 ECHR and art. 48, par. 2 of the Charter.[3]
5.3 The authors of the appeal memorandum argue, rightly, that the Supreme Court is obligated to refer questions on the interpretation of (art. 6 ECHR as a general principle of) EU law for a preliminary ruling if the issue does not qualify as a so-called acteclairor acteeclairé. What it boils down to is, therefore, if the issue qualifies as an acteclairor acteeclairé. As far as I was able to ascertain, the CJEU has never decided on the question of whether a right to have a lawyer present during police questioning can be derived from art. 6 ECHR, as a general principle of EU law. Additionally, in my view, the situation cannot be characterized as one where there reasonably can be no doubt as to how the questions should be answered. If I am correct, that is also the Supreme Court’s opinion. In the aforementioned judgement of 1 April 2014, it held: