Is the European Court of Human Rights
Carving out a Stronger Legal Protection for
Persons at Interrogation? An absolute right to counsel at interrogation for Minors?
Can we use Salduz et al to expand right to counsel at interrogation in U.S.?

• January 16, 2014
• Elizabeth Clarke

• 2008 decision arising out of 17 year old arrested during a political demonstration. Questioned by police – no lawyer. Case went up to European Court of Human
Rights, which overturned the conviction based on the failure to provide a lawyer at interrogation as required, the court reasoned, under Article 6 of the European
Convention on Human Rights.
• Salduz Court also cited articles 37 and 40 of Convention on Rights of the Child.
• Subsequent rush across Europe to comply with Salduz.
• In general, Salduz interpreted to require immediate access to a lawyer if detained….especially in case of minor.

• 17 year old taken into custody at 10:15 night for participating in illegal demonstration by illegal organization that day and a month earlier hanging illegal banner from bridge.
• Examined by doctor in hospital at 12:30 am and no sign of ill treatment.
• Interrogation began about 1:00 am – no lawyer – Salduz was reminded of charge against him and of his right to remain silent. Salduz admitted involvement in organization, admitted involvement in demonstrations and hanging banner, and named other persons involved in organization.
• Handwriting sample taken and could not establish writing on banner was that of Salduz.

• On same day Salduz brought before prosecutor and judge. Salduz then retracted his statement to the police and claimed it was made under duress – that he had been beaten and insulted. He denied engaging in any illegal behavior….said just in neighborhood to visit a friend.
• Finally, Salduz given a lawyer.
• Salduz found guilty and appealed.

• The recommendation of the Committee of Ministers to Member
States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice
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(Rec (2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers' Deputies, in so far as relevant, reads as follows:
“15.
Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor ...”

• (i) Convention on the Rights of the Child
• 34. Article 37 of the Convention on the Rights of the Child
(CRC), in so far as relevant, reads as follows:
• “States Parties shall ensure that: ...
• (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance , as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

• Article 6 § 3 (c) of the European Convention on Human
Rights , which provides:
• “3. Everyone charged with a criminal offence has the following minimum rights:
• ...
• (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

• …the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph
51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right .

• Finally, the Court notes that one of the specific elements of the instant case was the applicant's age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody (see paragraphs 32 36 above), the Court stresses the fundamental importance of providing access to a lawyer where the person in custody is a minor .

• Must understand the growth of international human rights, and
• The complex interaction between U.S. rights and the expansion of similar rights under international law.

• Two world wars left Europe beyond devastated – many nations lost two generations of young men and thereby lost their future as nations. Families torn apart, family members killed, many refugees.
• Children across Europe homeless, and many orphans.
• These devastating challenges forced governments to rethink laws and policies.
• Example – France drafted a new Juvenile Code following
WWII, beginning with a preamble that roughly translates that France has too few children to not do everything possible for every child.

• Around a clear set of human rights for all persons.
• Around the development of an international organizations and bodies to oversee the implementation of human rights.
• The United Nations
• The International Criminal Court at the Hague
• Etc.

• With nation building came the drafting of constitutions and bodies of laws for new nations.
• From Eastern Europe, across Africa, and across South
America ….. New nations with new constitutions
• Nations reviewed the U.S. constitution and Bill of Rights, but
• Many nations pulled instead from the more robust and widely adopted body of international human rights.

• Of the U.S. beginning the international march toward human rights, but
• Lagging behind on the international interpretation and implementation.
• This is what happened with Salduz.
• The USSC decision in Miranda clearly the catalyst for
Salduz, but
• The subsequent erosion of the Miranda rights to counsel/against self-incrimination through caselaw allowing waiver is the warning – serving as the model for development of a stronger, more impregnable right(s) in
Salduz et al.

• Look to European adoption and implementation of
Convention on the Rights of the Child.
• If you leave familiar with only one international document, leave familiar with the CRC.

• More nations participated in signing ceremony than any previous UN human rights treaty.
• Went into force more quickly and received more ratifying votes than any other treaty.
• More nearly replicates the wide range of human rights envisioned in the 1948 Universal Declaration of Human
Rights than any other treaty.
• Ratified today by all but 3 nations (U.S., Somalia and
South Sudan).
• U.S. signed under Clinton – needs Senate to ratify.

• Began at initiation of Poland – Polish proposal to create a treaty protecting children’s human rights in celebration of the 1979 International Year of the Child.
• In US – Reagan was President. Cold War still ongoing with German still separated into East and West.
• Effort set Poland apart as the only Eastern Bloc country to undertake the drafting of a human rights instrument – so critical to its independence.
• U.S. participated in drafting – but U.S. delegate (under
Reagan) stated in 1983 that the U.S. would never ratify but was participating in the drafting process only to ensure the other countries had a better treaty.

• Initiated Seven articles including:
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Article 10 – Family reunification
Article 19 – Protection from Abuse
• Article 25 – Review of Placement
….
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And proposed:
Article 13 – Freedom of expression
Article 14 – Freedom of religion
Article 15 – Freedom of association and assembly
Article 16 – Right to privacy.

• CRC drafted on consensus – altho U.S. the only nation to object to raising the minimum age for children in armed combat to 18, the U.S. effectively blocked this provision – leading to a compromise to set the age at 15 for armed combat.
• Yet Today – US has ratified the Conventions two optional protocols, one on sale of children and the other on children in armed conflict – which raises the age to 18 as minimum age for children in armed combat.
• And today, because the U.S. has not ratified the CRC it cannot be a member of the Committee on the Rights of the Child that reviews nations’ reports on compliance.

• Places it outside the world community on issues of children’s rights
• Among other international ramifications, U.S. ability to argue that another country has not lived up to its obligations under the CRC is seriously compromised.
This is a concrete problem in light of the US. Inclusion of the shortcomings of States Parties to the Convention with regard to children’s rights in its annual survey of human rights abuses. ( Cynthia Price Cohen)

• European courts implementing Salduz vigorously with strong emphasis on waiver only if “knowing & intelligent”
• In one court decision Pishchalnikov v Russia (2009) the court took note of the lack of self confidence as a factor -that the suspect possibly did not know how to end the interrogation…..according to the European Court of
Human Rights, it is not only a suspect’s lack of knowledge and experience that can require a lawyer to assist him, but also a suspect’s lack of self-confidence.

• Cadder v. HMA (2010) – went all the way up to UK
Supreme Court – 20 year old from Glasgow convicted of assault & breach of peace – conviction relied in part on confession given without a lawyer. Appeal relied on
Salduz, and court agreed that conviction had to be overturned.
• Since Cadder , new legislation in Scotland:
• Gives suspects in detention the right to legal advice before and during questioning – allows for counsel over phone but primarily for initial counsel to make sure don’t waive right to counsel
• Length of time suspect can be held doubled from 6 hours to 12
(with possibility of extending to 24).
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Not retroactive
Within a year, nearly 900 suspects walked free – charges dropped because of Cadder ruling

• Majority of states allow for access to lawyer during police interview
• Those that did not at time of Salduz:
• Belgium
• France
• Ireland
• Netherlands
• Implementation efforts in France and in Netherlands

• Series of false confessions, but
• Push back to apply Salduz as minimally as possible.
• Push back w. cost of lawyers – reduced legal fee in order to have budget cover more lawyers, but…..
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• First test case involved a minor,and court noted that
Minors form an exception: they do have the right to have a lawyer or other "person of trust" with them in the room.

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In the light of these findings, and as one decision has followed the other in Strasburg, bit by bit the Dutch strategy of damage control has been eroded until, in his comments on Brusco, even the minister of justice and security himself reluctantly concedes that it can by no means be ruled out that "in future" the rights embodied in article 6 will include the right to not only consult a lawyer prior to and during police interrogations but also to have one present in the interrogation room."
Indeed, during a recent symposium on the research, where representatives from the police and several academics spoke out vehemently against the idea, the head of the prosecution service gave a remarkable speech. He called on the government and the courts to give up what he termed a last ditch stand and to accept "the inevitable". Even if the European Court never utters the words "right to the physical presence of a lawyer", he declared, it is only a matter of time before the category of vulnerable suspects to whom it already affords that right has become so large, that in practice Article 6 can be said to embody the general principle that the right to have a lawyer attend the police interrogation is fundamental to a fair trial. "Whether we like it or not, the sooner we are prepared for it, the better".:
Chrise Brants Utrecht University

• Europe looked to U.S. for Miranda…..
• Now our turn to look to Europe for vigorous interpretation of right to counsel …..especially in case of minor.
• Per se rule for children?
• Illinois – implementation has included advocacy over several years to pass legislation precluding the use of a statement by a child made without a lawyer in a trial in adult court, but allowing the use in juvenile court. NJDC has supported this legislative effort.

• We are the children of the world, and despite our different backgrounds, we share a common reality. We are united by our struggle to make the world a better place for all. You call us the future, but we are also the present. The Children’s Statement, 2002.