Het Salduzacquis in verhouding tot de Belgische ondervragingscultuur: Waarom de focus op dwang in het Belgische strafrechtelijke traject verruiming behoeft in het licht van een positieve vrijheidsconceptie

Onderzoeksoutput: PhD Thesis

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Over the past decade, Belgian inquisitorial legal tradition has been striving to understand the depth of the European Court of Human Right’s (ECtHR) decision in Salduz that ‘fairness’ requires that suspects be provided with access to a lawyer before they are first interrogated by the police. In Salduz the ECtHR insists that such access to a lawyer contributes “to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.” In this study, I attempt to do three things. In chapter 1 I show that the Court in Salduz offers an account of the right to legal assistance at the early stages of police investigation that turns out to be surprisingly similar to philosophically important issues left unaddressed by mainstream efforts to shed light on the meaning and significance of the right to a fair trial. Central is the idea that the right to legal assistance should ultimately be interpreted in light of a positive conception of liberty. My argument then moves to three chapters that focus on implementation and interpretation of Salduz in Belgium. This account of the ‘Salduz-law’ (Salduzwet), the case law of the Supreme Court of Belgium (Hof van Cassatie) and dominant views among Belgian authors commenting upon the ECtHR’s case law attempts to show that the right to legal assistance is being considered as instrumental to the prohibition of the use or threat of force or other forms of coercion against the suspect, i.e. to a negative conception of liberty. Lastly, the next chapters proceed on the assumption that Salduz does not seek to move away from inquisitorial procedural style; I offer ways of explaining the right to legal assistance that show a negative conception of liberty does not suffice for our understanding of how Salduz has transformed the idea of the right to a fair trial.
Chapter 1 presents an overview of the Salduz jurisprudence of the ECtHR. The only way to adjudicate the debate over the meaning of Salduz, it is argued, is to defend a positive conception of liberty as the guiding principle in which all the arguments for the right to legal assistance are grounded, and to see how justification of this right fares in comparison with other views. Each person, the Court holds, has an interest in rights that are ‘practical and effective’. However, absence of assistance of a lawyer at police interrogation is incompatible with this underlying philosophy, since the evidence obtained at this stage may significantly work against the accused at trial. Although the ECtHR suggests that assistance of a lawyer protects against ill-treatment of the suspect the real innovation, it is argued, is that the Court satisfies the interest of equality of arms and envisages an active role of lawyers at the investigation stage. The Court, in other words, emphasizes that the right of access to a lawyer at this stage not only warrants against egregious forms of arbitrary ill-treatment by the police but contributes to the suspect’s capacity for informed agency, especially in light of the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at trial.
In chapters 2 to 4, the main purpose is to show that despite its clear rationale the Salduz judgment was not met with enthusiasm in Belgium; the inherently inegalitarian features of Belgian inquisitorial procedure, it is argued, defy the basic principle of equality of arms. Although suspects are given the right of access to a lawyer at the investigation stage the Salduz-law is minimally responsive to the equal advancement of interests-requirement the ECtHR attempts to realize in Salduz. Among other features, the law restricts duration of consultation with a lawyer before questioning to a maximum of thirty minutes and the assistance during interrogation is confined to a passive role; the law enumerates a range of ‘forbidden actions’ that cannot be undertaken by the lawyer during questioning such as whispering or making contact with the suspect. I show that the Belgian law is tied to the principle of negative liberty: assistance of a lawyer at the investigation stage is instrumental to avoidance of the evidence being obtained through methods of coercion. The trouble is that there has been no reckoning on the part of legislature, national courts and doctrine of the Salduz judgment beyond the right of access to a lawyer as a means to preserve the right of a suspect not to incriminate himself; in other words, the pursuit of Salduz in Belgium is confined to preventing wrongdoing by police officers and physical ill-treatment during interrogation.
Tantamount to acceptance of the equality of arms doctrine of the ECtHR is that the idea of an active role
of lawyers at the investigation stage not only serves to help defend the rights of the suspect at the initial
stages of police interrogation but also gives perspective on the institutional structure of Belgian procedure.
In the chapters 5 to 7 I therefore work with the assumption that legal assistance does not work against the
inquisitorial system of substantive fact-finding and that the right needs not be viewed as a feature of accusatorial (adversarial) procedure. As Jackson and others (see above, at no 99) intimate, opponents of Salduz in inquisitorial procedure sometimes seem to be talking about something else because their assessment of the judgment is not only different but happens to be directly opposite to the exact wording of Salduz, where the ECtHR emphasizes that the evidence obtained at the investigation stage determines the framework in which the offence charged will be considered at trial and the suspect at that time finds himself in a vulnerable position; since the inquisitorial procedure is driven by a wish to locate fact-finding in the investigation stage, one wonders how effective (active) defence of a lawyer at this stage is contrary to the interests of justice.
The purpose of chapter 8 is to show how the right of access to legal assistance must be conceptualized to guide the establishment of fair trials in an inquisitorial legal tradition. To uphold the fundamental values associated with the right to a fair trial, i.e. the privilege against self-incrimination and the right of silence on the one hand and the exercise of equality of arms on the other, it is argued that inquisitorial procedure must focus on the republican theory of freedom as non-domination.
Originele taal-2Dutch
Toekennende instantie
  • Vrije Universiteit Brussel
  • De Hert, Paul, Promotor
  • De Ruysscher, Dave, Promotor
Datum van toekenning15 dec 2021
StatusPublished - 2021

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