Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 provides suspects and accused persons with a number of rights, including the right of access to an attorney. This access entails the presence of the attorney during the interrogation and is applicable irrespective of whether one is deprived of liberty. Furthermore, the attorney is given an active role during the interrogation. The present procedural safeguards thus have to be broadened to the advantage of the defence.
The genesis
As a result of the "Salduz" case law developed over the past years by the European Court of Human Rights, a number of important modifications have already been made to the Belgian legislation with regard to the role of the attorney during the interrogation of certain suspects. For instance, since 1 January 2012 a person who is deprived of his liberty has the right to the assistance of an attorney during the interrogations that take place within the first 24 hours of his deprivation of liberty. During this assistance, the attorney only has a supervisory role (supervision of the way in which the interrogated person is treated during the interrogation, supervision of the respecting of the right not to incriminate oneself, etc.).
Now, modifications to this "Salduz" regulation are essential in the context of the European Union. On 30 November 2009, the Council of the European Union adopted a resolution on a "roadmap" for strengthening the procedural rights of suspects and accused persons in criminal proceedings, in which it opted for a step-by-step approach. As a result of that roadmap, Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU on the right to information in criminal proceedings have already been created. Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, is the third and most recent result of the roadmap.
Scope and rights conferred
Directive 2013/48/EU applies to suspects and accused persons in criminal proceedings from the time when they are made aware that they are suspected or accused of having committed a criminal offence, irrespective of whether they are deprived of liberty, and until the conclusion of the criminal proceedings. Persons subject to European arrest warrant proceedings also fall, from the time of their arrest onwards, within the scope of the Directive.
The Directive confers the right of access to an attorney, the right to have a third party informed of the deprivation of liberty, and the right to communicate, while deprived of liberty, with third persons and consular authorities.
With regard to the right of access to an attorney, the Directives states that suspects and accused persons shall have access to an attorney without undue delay before they are questioned. The right of access to an attorney entails that the suspects or accused persons have the right to meet in private and communicate with the attorney, including prior to questioning. Furthermore, the attorney can be present during the interrogation itself, and can participate effectively. The latter entails that the attorney may ask questions, request clarification and even make statements. It is also provided that the attorney may attend confrontations, identity parades and reconstructions, if the attendance of the suspect or accused person is required or permitted under national law. As already stated, the access to an attorney is applicable to suspects and accused persons irrespective of whether they are deprived of liberty. With regard specifically to suspects or accused persons who are deprived of liberty, the Directive additionally specifies that they must have access to an attorney without undue delay after deprivation of liberty. If suspects or accused persons are summoned to appear before a criminal court, they must have access to an attorney in due time before they appear before the court.
There are only a few exceptions and derogations from the above-mentioned rights, e.g. with regard to prosecution for minor offences where deprivation of liberty cannot be imposed, or for minor offences where a sanction can be imposed by an authority other than the criminal court and which may be appealed to a criminal court. Further, the Directive states that, in exceptional circumstances and only at the pre-trial stage, one may temporarily derogate from the right of access to an attorney if compelling reasons justify this. The derogations are however subject to strict rules (they must be proportionate, strictly limited in time, etc.).
Conclusion: Belgian legislation has to be modified in-depth
The present Belgian regulation states that only a person who is deprived of liberty has the right to the assistance of an attorney during the interrogations which take place within the first 24 hours of his deprivation of liberty, and during that assistance the attorney only has a supervisory role.
Directive 2013/48/EU forces the Belgian legislator to modify this regulation before 27 November 2016. As a result of this Directive, the procedural safeguards for suspects and accused persons will have to be heavily strengthened. For instance, by 27 November 2016 at the latest, every suspect or accused person has, among other things, the right to the assistance of an attorney during his interrogation, irrespective of whether he is deprived of liberty, and the attorney may actively intervene during the interrogations. There is nothing to oppose a broader interpretation by the Belgian legislator, since the Directive's requirements constitute the minimum rules.