With a number of draconian measures, the outgoing Minister for the Protection of the Right, Sander Dekker (VVD), wishes to combat the undermining of the rule of law. One of those measures entails that lawyers have to work in pairs for a suspect of serious crime. So, among other things, the two of you can visit such a potentially serious criminal in the highly secured penitentiary in Vught – the EBI. Essentially, this intended measure means that one of those two lawyers has to act as a police officer and a snitch as soon as he notices that his duo-mate/lawyer is crossing the line or threatens to cross the line.
Gerard Sponge is a lawyer.
It is always sobering to see that those who are most concerned about undermining the rule of law are eagerly doing their part, such as Minister Dekker. Because the rule of law belongs to the in Article 6 of the European Convention on Human Rights and the New York Convention on Civil and Political Rights enshrined the right to free choice of attorney. In these human rights treaties, this is stated as follows: everyone who is prosecuted has the right “to defend himself or to have the assistance of legal counsel of his own choice” . Mind you: these are not just scraps of paper, but treaties on human rights about a fair trial. And that is what Mr. Dekker is now trying to kill.
However, according to Strasbourg case law, the right of the accused to choose his own defender is not an absolute right. After all, he is bound by the provisions that apply in the relevant legal system with regard to the question of who may act as a defender in a trial. In our law, these are lawyers registered here in the Netherlands on the register of the Dutch Bar Association. That is why the late Peter R. de Vries could only function as ‘confidential person’ of the key witness in the case against Ridouan Taghi and not formally as his counsel.
From the same Strasbourg jurisprudence, in particular from the judgments of the European Court of Human Rights (ECtHR) in the Ensslin, Baader and Raspe cases against the Federal Republic of Germany, it appears that the system of the so-called Pflichtverteidiger (a lawyer appointed by the court) is in a problematic relationship with the rule of law principle. A suspect is saddled with a lawyer he does not want.
We should certainly not go in that direction, not least because this German system in our country has encountered a lot of resistance and misunderstanding. An adequate defense requires a relationship of trust between the suspect and his counsel. A “snitch-counsel” lacks such a relationship. This relationship of trust entails that there must not only be an unimpeded exchange of ideas about how the defense should look procedurally and which defenses should or should not be presented. It should also be possible to express personal confessions of the suspect freely without fear of repercussions.
In addition to these kinds of fundamental objections to a ‘duo counsellor’, numerous practical objections are also conceivable. Double costs of legal aid, double filing, and double scheduling problems for hearings and witness hearings, just to name a few.
Finally, the fact that informant counsel will encounter objections at the ECtHR follows from the requirement that, according to the case law of the Court of Appeal, in the case of the company Artico against Italy there must be ‘real assistance’ or effective assistance. Purely a snooper and/or extension of the police government is of course not included.
Minister Dekker would therefore do well to drop the idea or the pilot balloon of duo assistance and to spend his valuable time on measures that can withstand the test of the rule of law.
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A version of this article also appeared in NRC Handelsblad on 25 November 2021 A version of this article also appeared in NRC in the morning of 25 November 2021