By: Donald Shaver, Judge, Superior Court of California (ret.); Candidate for Master of Laws (LL.M) degree, Utrecht University, The Netherlands

Both the Charter of Fundamental Rights of the European Union and the European Convention of Human Rights have been interpreted to provide for various fundamental rights on arrest similar to those under U.S. law, e.g. a right to remain silent, not to incriminate ones self, and to the assistance of an attorney.  However, the European Court of Human Rights has traditionally shown a great deal of deference to the states in the application of these rights. As a consequence, Europe has long been plagued with inconsistent and erratic application of these basic rights.

A Patchwork Quilt of Practices

A research study funded by the European Commission carried out in 2005 at Maastricht University found that certain fundamental rights were not specifically provided for in the legislation of all EU countries. For instance, France and Luxembourg had no law providing for a right to remain silent, and in two countries which had such a right (Belgium and Finland), there was no legal obligation to inform the suspect of this right.  A majority of the EU states did allow an attorney to be present during questioning. However, in Greece and Latvia, while the attorney could be present during questioning, he could not consult with his client beforehand In France, Ireland, and Scotland, the opposite was the rule: the attorney could consult with his client prior to questioning, but could not be present at the interrogation. Under the French garde á vue, an accused could be held for up to two days without being afforded basic rights such as access to a lawyer or a right to remain silent. Belgium and The Netherlands were the harshest: the attorney had neither a right to consult with his client prior to questioning nor to be present during the questioning.

In response to this patchwork quilt of practices, the European Commission proposed a “Framework Decision” in 2004, to provide minimum standards for basic legal rights.  However, the proposal failed in the European Parliament due to the opposition by certain EU countries. The Commission tried again in 2006 and 2007, but without success.

The Salduz Decision Creates a New Paradigm

Then, in 2008, the ECtHR changed the political landscape, first with Salduz v. Turkey, and then a year later in 2009 with Pishchalnikov v. Russia. Both cases found a violation of the Article 6 “Right to a Fair Trial” because the accused had not been given an opportunity to consult with an attorney prior questioning. The Court issued a broad ruling that the “Right to Fair Trial” included the opportunity to consult an attorney, appointed if need be, before questioning, and that any statement taken in violation of the right would necessarily result in a fair trial violation, rather than being evaluated “in light of the entirety of the proceedings,” the customary (and more permissive) standard. The Court further held that a waiver would only be found if the accused had been fully advised and the waiver was “unequivocal” and “of his own free will,” and not a product of police coercion. Salduz dealt only with the right to consult with an attorney, but Pishchalnikov dealt with all three U.S. Miranda rights, including the right to be silent and not to incriminate one’s self.

The reaction to Salduz and its progeny was dramatic. The French garde á vue was declared unconstitutional by the Conseil Constitutionnel (Constitutional Council).  In Scotland, the UK Supreme Court condemned the practice whereby suspects were routinely held in communicado (and usually interrogated) for up to six hours before they were allowed access to an attorney, the Law Lords commenting that “[I]t is remarkable that, until quite recently, nobody thought that there was anything wrong with this procedure.”

The European Commission Steps In Again: the “Reding Rights”

Against this backdrop, the European Commission in 2009 issued a new proposal for directives of the European Parliament and Council to set common minimum legal standards applicable throughout the European Union. The proposal identified five separate areas where reforms were needed: the right to translation and interpretation (“Measure A”); information on rights and information about the charges (“Measure B”); legal advice and legal aid (“Measure C”); communication with relatives, employers and consular authorities (Measure D”); and special safeguards for suspected or accused persons who are vulnerable (“Measure E”). Measure B established a Miranda style standard advisement of rights, referred to as “Reding Rights” after EU Justice Commissioner Viviane Reding. Measures C and D deal directly with the attorney access issues raised by Salduz and its progeny. Measure B was adopted by the European Parliament December 13, 2011. Measures C and D were jointly proposed and are still under discussion.

The combined effect of the “Roadmap” and the Salduz line of cases will be to bring European practice much more closely in line with American Miranda procedures. However some significant differences remain.  The four basic “Reding Rights” are: the right to an attorney, appointed if need be; the right to be informed of the charges and to examine the case file; the right to interpretation and translation; and the right to be brought promptly to court if in custody. Most conspicuously absent from both Measures B and C is the right to remain silent and not incriminate one’s self.  Thus, it will apparently be left up to the vagaries of individual state practice or the jurisprudence of the ECtHR to require such an admonition.  The Court has previously held that the right to remain silent and the right not to incriminate one’s self are “generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6,” but the Court has never specifically held that an advisement of this right is a necessary prerequisite for a valid waiver. However, the “Reding Rights” do make it clear that once an accused requests an attorney, all questioning must stop, a concept which was previously foreign to the police practice in most EU countries.

The “Reding Rights” do, however, provide a broader scope of protection than Miranda.  Whereas Miranda requires that the accused must be both in-custody and interrogated before its protections apply, “Reding Rights” apply to anyone “suspected or accused,” regardless of custody or arrest. Further, whereas Miranda may be given orally only, “Reding Rights” may only be given orally in da pre-arrest situation.  Once the suspect is arrested he must be given a written statement of rights. Finally, the “Roadmap” provides for a right to the presence of an attorney at certain pre-arrest or investigative evidence gathering procedures not necessarily included under Miranda.

Once approved in its entirety and in operation, the “Roadmap” has the potential to significantly improve the protection of fundamental rights afforded persons arrested.  The once divergent attorney access practices between the US and the EU are rapidly converging under the combined influence of the “Roadmap” and the Salduz cases.