In mid-September 2021, Belgium was convicted by the European Court of Human Rights (ECtHR) for a violation of the right to a fair trial (Article 6 ECHR) because, in short, the person in question was not entitled to any rights during his interrogations in 2003. had been assisted by a lawyer. The person was awarded damages of EUR 14,000. Since the introduction of Article 47bis of the Code of Criminal Procedure (following the Salduz judgment handed down by the ECtHR at the end of 2008) everyone has the right to the assistance of a lawyer during an interrogation.
Confrontation with the police or the judiciary can cause a lot of stress and uncertainty for a citizen. The suspect is in a particularly vulnerable position and the lawyer has a crucial role in such scenarios. It is from this point of view that the European Court chose at the time to require the presence of a lawyer at an interrogation as part of the right to a fair trial. The superiority of the interrogator, who has extensive knowledge of the file and the regulations and who by definition radiates power and authority, can be balanced by the presence of the lawyer. We would like to clarify what the presence of the lawyer can mean in concrete terms, among other things.
Confidential consultation
Before a suspect can be obliged to make a statement to the police, the suspect has the right to a confidential consultation with a lawyer of his choice. If the suspect has been deprived of his/her liberty, this consultation may take a maximum of 30 minutes.
This is a relatively short time that we always try to spend as usefully as possible. On the one hand, we try to reassure the suspect, build a relationship of trust and inform him/her as fully as possible about his/her rights and the possible further procedure. On the other hand, it is also important that we collect as much information as possible from the suspect about the situation and what happened, so that we can devise a strategy together to ensure that the interrogation runs as smoothly as possible and that the situation of deprivation of liberty can be resolved as quickly as possible. to undo.
In addition, we also think it is important that the suspect feels heard and that he confides in us, keeping in mind our professional secrecy.
interrogation
According to the law, the purpose of the assistance of a lawyer during an interrogation is to allow supervision of:
- The prohibition of self-incrimination: one cannot be forced to incriminate oneself by making incriminating statements against oneself.
- The right to remain silent: one cannot be compelled to answer the questions or to make a statement either. The suspect always has the right to choose not to answer certain questions without this (in theory) having a negative consequence.
- The way in which the suspect is treated and whether no unauthorized pressure/coercion is being exerted by the police.
- The way in which the statement is acted upon by the police services.
If we establish breaches of the above guarantees, we can always intervene during the interrogation and address the police services about this. We can also ask whether this can be recorded in the official report.
The law also clearly states what the lawyer cannot/should not do: he/she may not answer in place of the suspect and he/she may not hinder the course of the interrogation.
For example, we try to meet this – at times when we determine that the suspect is having a hard time – by asking the police services to repeat or clarify the questions asked, by possibly requesting a drink or pee break, etc.
Our ultimate goal is to ensure that the suspect's story is accurately and with the right nuances on paper as it was intended by the suspect (and not as interpreted by the police).
A first interrogation is often the basis for a further/deeper investigation. Its impact should not be underestimated. It is for this reason that the legislator has built in the safeguards described above, which must also be strictly observed.
The presence of a lawyer during a first interrogation can allow the lawyer to react quickly and to shed light on the other side of the coin (e.g. by having documents attached, having certain persons questioned, etc.) so that the file can be steered in another direction and no time is lost. We therefore advise our clients to always consult a lawyer.
