Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence
| Published date | 01 November 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12227 |
| Date | 01 November 2016 |
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Responses to Salduz: Procedural Tradition, Change
and the Need for Effective Defence
John D. Jackson∗
This article examines the responses of national courts to the ECtHR’s decision in Salduz
vTur k e y that suspects be provided with access to a lawyer before they are first interrogated
by the police. It argues that harmonious application of human rights standards in criminal
proceedings should build upon common values underpinning the procedural traditions of
member states. ECtHR success in gaining acceptance for the principle of access to a lawyer
during police interrogation, anchoring it in the privilege against incr imination, is contrasted
with resistance towards giving the defence any active role during criminal investigations. It is
argued that this resistance can be overcomeby an appeal to safeguards that have long dominated
the trial process. As the investigation phase increasingly determines the outcome of criminal
proceedings, standards of fairness traditionally reserved for the trial process should be applied
also to this phase in order to provide suspects with an effective defence.
INTRODUCTION
This article aims to explore the response of national courts towards the
European Court of Human Rights (ECtHR)’s decision in Salduz vTurkey1
(Salduz) affirmed soon afterwards in a number of other decisions,2that
suspects be provided with access to a lawyer before they are first interrogated
by the police. Commentators have remarked upon the rapidly changing
position across Europe in the light of the Salduz decision as a number of
jurisdictions have introduced a clear right to legal assistance at the early stages
of police investigation when they were previously reluctant to do so.3Within
the ‘inquisitorial’ tradition especially there has long been an attachment
to a model of custodial interrogation which excludes the defence.4Salduz
∗University of Nottingham. This is a revised version of a paper presented at the EU Criminal Justice
Conference, ‘On the Road to a EU Criminal Justice System: Problems, Achievements and Prospects’
at the University of Limerick, 21-22 May 2015. Thanks are due to Dimitrios Giannoulopoulos,
M´
aximo Langer, Paul Roberts, Sarah Summers, Thomas Weigend, and the anonymous referees for
comments on earlier drafts. All errors are my own responsibility.
1 (2009) 49 EHRR 421.
2 See, for example, Panovi ts vCyprus [2008] 27 BHRC 464, Aslan and Demir vTu r k e y ECtHR 17
February 2009, Ozt¨
urk vTur k e y ECtHR 7 February 2009, Aba vTu r k e y ECtHR3 March 2009,
B¨
oke and Kandemir vTur k e y ECtHR 10 March 2009, Dayanan vTu r k e y ECtHR 13 October
2009, Pishchalnikov vRussia ECtHR 24 December 2009, Brusco vFrance ECtHR 14 October
2010.
3 E. Cape, Z. Namoradze,R. Smith and T. Spronken,Effective Cr iminal Defence in Europe (Antwerp:
Intersentia, 2010) 584.
4 See J. Hodgson, ‘The Police, the Prosecutor and the Juge d’Instruction: Judicial Supervision
in France, Theory and Practice’ (2001) 41 BJ Crim 342, 359; D. Giannoulopoulos, ‘Custodial
Legal Assistance and Notification of the Right of Silence in France: Legal Cosmopolitanism and
Local Resistance’ (2013) 24 Criminal Law Forum 291.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited. (2016) 79(6) MLR 987–1018
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Responses to Salduz
can be represented as a triumph of ‘cosmopolitan’ jurisprudence which is
encouraging national courts to engage in a transnational judicial dialogue that
reaches out beyond their domestic legal cultures and traditions.5But when we
dig a little below the surface, a more confused picture emerges. There may
have been a recognition of the principle of access but there are very different
conceptions about the scope of the right of access and what role lawyers
should in practice play when they obtain access.6In arguing the need for an EU
Directive to ensure a sufficient and consistent level of compliance with the
Salduz doctrine, the European Commission claimed that the ECtHR rulings
had been interpreted differently by different courts and where courts and
legislatures had attempted to bring procedures into line with the European
Convention on Human Rights (ECHR) they had done so in a piecemeal
fashion that had been reactive rather than proactive.7The Commission’s
proposal for a Directive was itself, however, subject to an avalanche of criticism
by certain states and led to considerable negotiation with the final agreement
falling short of the orig inal proposal in a number of respects.8This illustrates
the difficulties in achieving a harmonious application of human rights standards
in criminal proceedings across the member states of the ECHR and the EU.
Looking back on more than six years of practice since the landmark Salduz
ruling, it will be argued that for the ECtHR to be successful in achieving this
aim, it must respond to the ‘quotidian demands of local conditions “on the
ground”’9by building upon common values so that the changes it wishes to
make are firmly embedded within procedural traditions. The ECtHR’s success
in gaining acceptance for the principle of access to a lawyer during police in-
terrogation can be attributed to the court founding it upon the well-established
privilege against self-incrimination. But whatever the soundness of basing the
principle upon this rationale, the privilege against self-incrimination does not
explain the need for the more active defence role that the court and the EU
institutions would seem to envisage at this stage. For this vision to be truly
realised, it will be suggested that there needs to be an understanding of why
5 For the increasing tendency of judges to engage in transnational dialogue, see G. Canivet,
‘Trans-judicial Dialogue in a Global World’ in S. Muller and S. Richards (eds), Highest Courts
and Globalisation (The Hague: Hague Academic Press, 2010). For examples within criminal
jurisprudence, see P. Roberts, ‘Introduction’ in P. Rober ts, Theoretical Foundations of Criminal
Trial Procedure (Farnham: Ashgate, 2014) xxxii.
6 For a recent study, see J. Blackstock, E. Cape, J. Hodgson, A. Ogorodovaand T. Spronken,Inside
Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions (Antwerp: Intersentia,
2014).
7 European Commission, Impact Assessment Accompanying the Proposal for a Directive on the Right of
Access to Lawyer 20110, 8 June 2011, SEC (2011) 687 final, para 3.4.2.
8 See Directive 2013/48/EU of the European Parliament and the Council of 22 October 2013
on the right of access to a lawyer, OJ 6.11.2013 (L 294). See I. Anagnostopoulos, ‘The Right of
Access to a Lawyer in Europe: A Long Road Ahead?’ (2014) 4 European Criminal Law Review 3;
J. Jackson, ‘Cultural Barriers on the Road to Providing Suspects with Access to a Lawyer’ in R.
Colson and S. Field (eds), EU Criminal Justice and the Challenges of Diversity (Cambridge: CUP,
2016) 181.
9 P. Roberts, ‘Faces of Justice Adrift? Damaˇ
ska’sComparative Method and the Future of Common
Law Evidence’ in J. Jackson, M. Langer and P. Tillers (eds), Crime, Procedure and Evidence in a
Comparative and International Context: Essays in Honour of Mirjan Damaˇ
ska (Oxford: Hart, 2008)
328.
988 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 987–1018
John D. Jackson
what has traditionally been viewed as an investigatory phase of proceedings
is increasingly becoming in effect an adjudicatory phase requiring ‘adversarial’
safeguards reaching beyond the privilege against self-incrimination that are
embedded in the procedural traditions of member states but have traditionally
been reserved for later phases of the criminal process.
We will first examine br iefly the two procedural traditions that are
commonly associated with the member states of the Council of Europe and
the European Union and how these came to embrace the principle of defence
participation in criminal proceedings. We will then consider how the ECtHR
has succeeded in gaining acceptance for the principle of access to a lawyer
during police interrogation. Finally, we will illustrate how the application of
this principle has fallen short of the vision of an active defence that the ECtHR
has set out and, it will be argued, needs to be realised as the investigation phase
increasingly determines the outcome of the proceedings.
PROCEDURAL TRADITION AND THE PRINCIPLE OF DEFENCE
PAR TI C PAT IO N
The view that there are two dominant procedural traditions within Europe
rooted in the separate common law and civil traditions is one that is widely
shared within comparative criminal procedural scholarship, although how ex-
actly these traditions should be characterised and what labels should be given to
them is much more contested.10 It has been argued that the difficulties in reach-
ing agreement as to what the procedural elements of each tradition are or on
what the labels commonly used to describe them – ‘adversarial’, ‘accusator ial’
and ‘inquisitorial’ −actually mean should not deflect us from recognising that
there are two distinct procedural traditions whose importance should not be
under-estimated as we identify common policies and practices being developed
across different systems and as a cosmopolitan law appears to extend beyond the
reach of these traditions.11 In his study of plea bargaining, Langer has argued
that ‘adversarial’ and ‘inquisitorial’ procedural structures of interpretation and
meaning are not only the ‘lenses’ through which legal actors understand and
operate in reality, they also constitute two normative orders that indicate, to
a certain extent, how cases should be handled, what technologies should be
used and how actors of the system should behave.12 His empirical claim that
the adversarial and inquisitorial cultures remain highly predominant in Anglo-
American and civil law jurisdictions of continental Europe and Latin America
10 One of the best analyses of the way both continental and Anglo-American scholarship has tradi-
tionally used expressions such as ‘adversarial’ or ‘accusatorial’ or ‘inquisitorial’ procedure is to be
found in M. R. Damaˇ
ska’s seminal article on comparativecr iminal justice,‘Evidentiar y Barriers
to Conviction and Two Models of Criminal Procedure’ (1973) 121 University of Pennsylvania
Law Review 506, 554-578.
11 S. Field, ‘Fair Trials and Procedural Tradition’ (2009) 29 OJLS 365.
12 M. Langer, ‘From Legal Transplants to Legal Translations: The Globalisation of Plea Bargaining
and the Americanization Thesis in Criminal Procedure’ (2004) 45 Harvard International Law
Journal 1.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 987–1018 989
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