Strasbourg Jurisprudence, Law Reform and Comparative Law: A Tale of the Right to Custodial Legal Assistance in Five Countries

Abstract

This article traces the path from the decision of the European Court of Human Rights (ECtHR) in Salduz v Turkey to custodial legal assistance reforms in France, Scotland, Belgium and the Netherlands, and to the recent decision of the Irish Supreme Court in DPP v Gormley. The article attempts to flush out the central role of the ECtHR in effecting national criminal justice reform, while paying attention to considerable variations in national responses. It discusses the thesis that when the ECtHR articulates its rules clearly, as it has arguably done in the Salduz line of cases, it can lead contracting parties to accept its position, even where this might require a significant readjustment of national law and practice. The article also brings into focus the Irish Supreme Court's strong demonstration of common law comparativism, which influenced the outcome in Gormley at least as significantly as Strasbourg jurisprudence itself. This remarkable cosmopolitan vision is contrasted with the Supreme Court's simultaneous unawareness of other Salduz-generated reforms in Europe. The article concludes that comparative law should have an important role to play in shaping national responses to Strasbourg jurisprudence and facilitating its acceptance by contracting parties.

HYA and Others: Reshaping participation at criminal trials in Europe

“…59 Among other areas, this approach has been widely followed in cases concerning the right to legal assistance, 60 starting with the 'dramatic shift' 61 inaugurated with the landmark Ibrahim and Others judgment, 62 which marked a notable departure from the settled jurisprudence. 63 Hence, the line of reasoning developed in Al-Khawaja ought not to be interpreted as an unforeseen overruling of prior case law; instead, it should be construed as a manifestation of the ECtHR's deferential stance towards national judiciaries and domestic legal traditions. 64 Arguably, this underscores the rationale behind the increasing application of the overall examination criterion, a practice that nevertheless raises apprehensions concerning its potential adverse repercussions.…”

Protecting vulnerable suspects in police investigations in Europe: Lessons learned from England and Wales and Belgium

“…However, continental countries in particularsuch as Belgiuminitially appeared to be very cautious about the evolution of the ECtHR's case law as a result of the Salduz judgment. 60 The lawyer was somewhat considered to be an "adversarial outsider" 61 who would disrupt the course of the interview, and it was also feared that the interview would lead to an early plea and/or to a debate between the lawyer and the police. 62 This resistance was also motivated by a certain fear that the effectiveness of the criminal investigation and the truth finding process would be hampered.…”

Overruling ‘the Salduz Doctrine’ in Beuze v Belgium: The ECtHR’s further retreat from the Salduz principles on the right to access to lawyer

“…For example, Giannoulopoulos has noted the judicial and legislative responses to the Salduz jurisprudence of the ECtHR given by France, Scotland, Belgium, the Netherlands and Ireland, which tend to recognise the right to access to a lawyer as a rule. 113 In addition, in its third-party intervention in Beuze, the Fair Trial pointed out the similar trend in the member States. 114 It provided that there have been significant judicial and legislative developments in the member States' domestic law following the Salduz judgment and the creation of the Directive 2013/48/EU.…”