Salduz vs. miranda - Juvenile Justice Initiative

Is the European Court of Human Rights
Carving out a Stronger Legal Protection for
Persons at Interrogation? An absolute right
to counsel at interrogation for Minors?
Can we use Salduz et al to expand right to
counsel at interrogation in U.S.?
Juvenile Justice Initiative
Nuts and Bolts of Juvenile Justice
CLE Webinar Presentation
Counsel at the Station House
• January 16, 2014
• Elizabeth Clarke
Salduz v Turkey
• 2008 decision arising out of 17 year old arrested during a
political demonstration. Questioned by police – no
lawyer. Case went up to European Court of Human
Rights, which overturned the conviction based on the
failure to provide a lawyer at interrogation as required, the
court reasoned, under Article 6 of the European
Convention on Human Rights.
• Salduz Court also cited articles 37 and 40 of Convention
on Rights of the Child.
• Subsequent rush across Europe to comply with Salduz.
• In general, Salduz interpreted to require immediate
access to a lawyer if detained….especially in case of
Salduz facts
• 17 year old taken into custody at 10:15 night for participating in
illegal demonstration by illegal organization that day and a
month earlier hanging illegal banner from bridge.
• Examined by doctor in hospital at 12:30 am and no sign of ill
• Interrogation began about 1:00 am – no lawyer – Salduz was
reminded of charge against him and of his right to remain
silent. Salduz admitted involvement in organization, admitted
involvement in demonstrations and hanging banner, and
named other persons involved in organization.
• Handwriting sample taken and could not establish writing on
banner was that of Salduz.
Salduz facts continued
• On same day Salduz brought before prosecutor and
judge. Salduz then retracted his statement to the police
and claimed it was made under duress – that he had
been beaten and insulted. He denied engaging in any
illegal behavior….said just in neighborhood to visit a
• Finally, Salduz given a lawyer.
• Salduz found guilty and appealed.
Salduz court noted:
• The recommendation of the Committee of Ministers to Member
States of the Council of Europe concerning new ways of
dealing with juvenile delinquency and the role of juvenile justice
• (Rec (2003)20), adopted on 24 September 2003 at the 853rd
meeting of the Ministers' Deputies, in so far as relevant, reads
as follows:
• “15. Where juveniles are detained in police custody,
account should be taken of their status as a minor, their
age and their vulnerability and level of maturity. They
should be promptly informed of their rights and
safeguards in a manner that ensures their full
understanding. While being questioned by the police they
should, in principle, be accompanied by their parent/legal
guardian or other appropriate adult. They should also have
the right of access to a lawyer and a doctor...”
And Salduz court noted CRC:
• (i) Convention on the Rights of the Child
• 34. Article 37 of the Convention on the Rights of the Child
(CRC), in so far as relevant, reads as follows:
• “States Parties shall ensure that: ...
• (d) Every child deprived of his or her liberty shall have
the right to prompt access to legal and other
appropriate assistance, as well as the right to challenge
the legality of the deprivation of his or her liberty before a
court or other competent, independent and impartial
authority, and to a prompt decision on any such action.”
And Article 6 • Article 6 § 3 (c) of the European Convention on Human
Rights , which provides:
• “3. Everyone charged with a criminal offence has the
following minimum rights:
• ...
• (c) to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the
interests of justice so require.”
Salduz finds:
• …the Court finds that in order for the right to a fair trial to
remain sufficiently “practical and effective” (see paragraph
51 above) Article 6 § 1 requires that, as a rule, access to
a lawyer should be provided as from the first
interrogation of a suspect by the police, unless it is
demonstrated in the light of the particular
circumstances of each case that there are compelling
reasons to restrict this right.
And last but not least:
• Finally, the Court notes that one of the specific elements
of the instant case was the applicant's age. Having regard
to a significant number of relevant international law
materials concerning legal assistance to minors in police
custody (see paragraphs 32 36 above), the Court
stresses the fundamental importance of providing
access to a lawyer where the person in custody is a
In order to understand Salduz…..
• Must understand the growth of international human rights,
• The complex interaction between U.S. rights and the
expansion of similar rights under international law.
Rapid growth of international HR following
• Two world wars left Europe beyond devastated – many
nations lost two generations of young men and thereby
lost their future as nations. Families torn apart, family
members killed, many refugees.
• Children across Europe homeless, and many orphans.
• These devastating challenges forced governments to
rethink laws and policies.
• Example – France drafted a new Juvenile Code following
WWII, beginning with a preamble that roughly translates
that France has too few children to not do everything
possible for every child.
Rapid development of international
• Around a clear set of human rights for all persons.
• Around the development of an international organizations
and bodies to oversee the implementation of human
• The United Nations
• The International Criminal Court at the Hague
• Etc.
End of WW II end of
colonialism…beginning of nation-building
• With nation building came the drafting of constitutions and
bodies of laws for new nations.
• From Eastern Europe, across Africa, and across South
America ….. New nations with new constitutions
• Nations reviewed the U.S. constitution and Bill of Rights,
• Many nations pulled instead from the more robust and
widely adopted body of international human rights.
So, the irony ….
• Of the U.S. beginning the international march toward
human rights, but
• Lagging behind on the international interpretation and
• This is what happened with Salduz.
• The USSC decision in Miranda clearly the catalyst for
Salduz, but
• The subsequent erosion of the Miranda rights to
counsel/against self-incrimination through caselaw
allowing waiver is the warning – serving as the model for
development of a stronger, more impregnable right(s) in
Salduz et al.
In order to understand strength of Salduz,
• Look to European adoption and implementation of
Convention on the Rights of the Child.
• If you leave familiar with only one international document,
leave familiar with the CRC.
CRC - precedent setting global support
• More nations participated in signing ceremony than any
previous UN human rights treaty.
Went into force more quickly and received more ratifying
votes than any other treaty.
More nearly replicates the wide range of human rights
envisioned in the 1948 Universal Declaration of Human
Rights than any other treaty.
Ratified today by all but 3 nations (U.S., Somalia and
South Sudan).
U.S. signed under Clinton – needs Senate to ratify.
CRC developed during Cold War
• Began at initiation of Poland – Polish proposal to create a
treaty protecting children’s human rights in celebration of
the 1979 International Year of the Child.
• In US – Reagan was President. Cold War still ongoing
with German still separated into East and West.
• Effort set Poland apart as the only Eastern Bloc country to
undertake the drafting of a human rights instrument – so
critical to its independence.
• U.S. participated in drafting – but U.S. delegate (under
Reagan) stated in 1983 that the U.S. would never ratify
but was participating in the drafting process only to
ensure the other countries had a better treaty.
The U.S. was active in drafting
• Initiated Seven articles including:
• Article 10 – Family reunification
• Article 19 – Protection from Abuse
• Article 25 – Review of Placement
And proposed:
• Article 13 – Freedom of expression
• Article 14 – Freedom of religion
• Article 15 – Freedom of association and assembly
• Article 16 – Right to privacy.
Irony –
• CRC drafted on consensus – altho U.S. the only nation to
object to raising the minimum age for children in armed
combat to 18, the U.S. effectively blocked this provision –
leading to a compromise to set the age at 15 for armed
• Yet Today – US has ratified the Conventions two optional
protocols, one on sale of children and the other on
children in armed conflict – which raises the age to 18 as
minimum age for children in armed combat.
• And today, because the U.S. has not ratified the CRC it
cannot be a member of the Committee on the Rights of
the Child that reviews nations’ reports on compliance.
US failure to ratify the CRC
• Places it outside the world community on issues of
children’s rights
• Among other international ramifications, U.S. ability to
argue that another country has not lived up to its
obligations under the CRC is seriously compromised.
This is a concrete problem in light of the US. Inclusion of
the shortcomings of States Parties to the Convention with
regard to children’s rights in its annual survey of human
rights abuses. (Cynthia Price Cohen)
Courts implementing Salduz
• European courts implementing Salduz vigorously with
strong emphasis on waiver only if “knowing & intelligent”
• In one court decision Pishchalnikov v Russia (2009) the
court took note of the lack of self confidence as a factor -that the suspect possibly did not know how to end the
interrogation…..according to the European Court of
Human Rights, it is not only a suspect’s lack of knowledge
and experience that can require a lawyer to assist him,
but also a suspect’s lack of self-confidence.
Salduz interpreted in Scotland
• Cadder v. HMA (2010) – went all the way up to UK
Supreme Court – 20 year old from Glasgow convicted of
assault & breach of peace – conviction relied in part on
confession given without a lawyer. Appeal relied on
Salduz, and court agreed that conviction had to be
• Since Cadder, new legislation in Scotland:
• Gives suspects in detention the right to legal advice before and
during questioning – allows for counsel over phone but primarily for
initial counsel to make sure don’t waive right to counsel
• Length of time suspect can be held doubled from 6 hours to 12
(with possibility of extending to 24).
• Not retroactive
• Within a year, nearly 900 suspects walked free – charges dropped
because of Cadder ruling
Across Europe
• Majority of states allow for access to lawyer during police
• Those that did not at time of Salduz:
• Belgium
• France
• Ireland
• Netherlands
• Implementation efforts in France and in Netherlands
Salduz in Netherlands
• Series of false confessions, but
• Push back to apply Salduz as minimally as possible.
• Push back w. cost of lawyers – reduced legal fee in order
to have budget cover more lawyers, but…..
• First test case involved a minor,and court noted that
Minors form an exception: they do have the right to have
a lawyer or other "person of trust" with them in the room.
But Netherlands moving toward compliance….
• In the light of these findings, and as one decision has followed the
other in Strasburg, bit by bit the Dutch strategy of damage control has
been eroded until, in his comments on Brusco, even the minister of
justice and security himself reluctantly concedes that it can by no
means be ruled out that "in future" the rights embodied in article 6 will
include the right to not only consult a lawyer prior to and during police
interrogations but also to have one present in the interrogation room."
Indeed, during a recent symposium on the research, where
representatives from the police and several academics spoke out
vehemently against the idea, the head of the prosecution service
gave a remarkable speech. He called on the government and the
courts to give up what he termed a last ditch stand and to accept "the
inevitable". Even if the European Court never utters the words "right
to the physical presence of a lawyer", he declared, it is only a matter
of time before the category of vulnerable suspects to whom it already
affords that right has become so large, that in practice Article 6 can be
said to embody the general principle that the right to have a lawyer
attend the police interrogation is fundamental to a fair trial. "Whether
we like it or not, the sooner we are prepared for it, the better".:
• Chrise Brants Utrecht University
• Europe looked to U.S. for Miranda…..
• Now our turn to look to Europe for vigorous interpretation
of right to counsel …..especially in case of minor.
• Per se rule for children?
• Illinois – implementation has included advocacy over
several years to pass legislation precluding the use of a
statement by a child made without a lawyer in a trial in
adult court, but allowing the use in juvenile court. NJDC
has supported this legislative effort.
The Children’s Statement
• We are the children of the world, and despite our
different backgrounds, we share a common reality. We
are united by our struggle to make the world a better
place for all. You call us the future, but we are also the
present. The Children’s Statement, 2002.

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