Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence

32 Pages Posted: 22 Nov 2016

See all articles by John D. Jackson

John D. Jackson

University of Nottingham - School of Law

Date Written: November 2016

Abstract

This article examines the responses of national courts to the ECtHR's decision in Salduz v Turkey that suspects be provided with access to a lawyer before they are first interrogated by the police. It argues that harmonious application of human rights standards in criminal proceedings should build upon common values underpinning the procedural traditions of member states. ECtHR success in gaining acceptance for the principle of access to a lawyer during police interrogation, anchoring it in the privilege against incrimination, is contrasted with resistance towards giving the defence any active role during criminal investigations. It is argued that this resistance can be overcome by an appeal to safeguards that have long dominated the trial process. As the investigation phase increasingly determines the outcome of criminal proceedings, standards of fairness traditionally reserved for the trial process should be applied also to this phase in order to provide suspects with an effective defence.

Keywords: Access to a lawyer, police interrogation, procedural tradition, privilege against self‐incrimination, effective defence

Suggested Citation

Jackson, John D., Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence (November 2016). The Modern Law Review, Vol. 79, Issue 6, pp. 987-1018, 2016, Available at SSRN: https://ssrn.com/abstract=2873992 or http://dx.doi.org/10.1111/1468-2230.12227

John D. Jackson (Contact Author)

University of Nottingham - School of Law ( email )

Law and Social Science Building
University Park
Nottingham, NG7 1BB
United Kingdom

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