Critical advice of the ACS re exceptions to new Salduz law

The permanent advice committee (ACS) of the Dutch Bar Association (NOvA) on 5 December last issued an advice on a draft regulation proposed by the Ministry of Justice & Security. The goal of the draft regulation is – stated succinctly – to implement art. 28ab of the Dutch Code of Criminal Procedure, which, after entry into force of the new Dutch Salduz law (Stb. 2016/475), allows for the possibility to exclude by regulation the right of access to a lawyer for certain misdemeanors. The General Council of the NOvA agreed with the advice of the ACS and forwarded it to the Ministry of Security & Justice.

The ACS has assessed the draft-regulation and is of the view that it is defective on several points.

Firstly, the ACS has two principal remarks / observations .

  1. The Minister assumes that application of the coercive measure of staandehouding (art .52 DCCP) does not constitute deprivation of liberty as referred to in EU Directive 2013/48/EU on the right of access to a lawyer. This is incorrect. Furthermore, the ACS is of the view that this coercive measure is not intended to facilitate an interview of the suspect whereas this is the whole reason that the Minister wants to exclude certain misdemeanors from the right of access to a lawyer.
  2. The Minister wants to exclude certain misdemeanors for which, apart from a fine, deprivation of liberty (hechtenis) can also be imposed. This is not in accordance with the aforementioned EU Directive.

Apart from these two principal remarks / observations, the ACS has also drawn the Minster’s attention to certain parts of the draft regulation that are not entirely clear.

The ACS is tasked with providing the General Council of the NOvA with advice in the field of criminal (procedural) law. Han Jahae and Thom Dieben, both lawyers at JahaeRaymakers, are a member of the ACS.

The full text of the advice (in Dutch) can be downloaded here.