The right to legal assistance from the first formal interrogation

Contrary to what takes place in other countries (for example in France), in Belgium, a person interrogated in the framework of a criminal investigation does not have the right to be assisted by a lawyer [1]. A recent judgement passed by the Grand Chamber of the European Court of Human Rights (ECHR) concerning a Turkish national might cause considerable changes to this matter [2].
A person having made self-incriminating statements during police questioning without a lawyer being present was found guilty on the basis of these statements. The ECHR ruled that this constituted an irremediable violation of a person’s right to legal assistance [3] and subsequently of the right to a fair trial [4]. In fact, according to the ECHR, unless compelling reasons may justify restrictions to the right to a fair trial, legal representation must be made available from the first instance of questioning.

Even if in principal the Belgian courts do not have to follow the ECHR rulings, these decisions still carry great authority. It is possible that the ECHR ruling will bring about legal initiatives or a ruling from the Court of cassation that could influence a considerable change in the current Belgian situation [5]. As a result Belgium could avoid being convicted by the ECHR.

Supporters of such modifications believe that having a lawyer present will guarantee that certain fundamental rights that are essential to the criminal justice system are upheld, for example presuming a person’s innocence [6], the right to remain silent [7] and, subsequently, the prohibition of self-incrimination.

Others consider that legal assistance from the start of questioning could impede the action of the law in seeking the truth and lead towards justice based on class where less fortunate individuals (that do not receive adequate assistance) could be more easily led to confess.

In any case, following the ECHR judgement [8] and awaiting further legal developments in Belgium, it is advised that a person who is questioned with regard to a criminal investigation demands that a lawyer be present from the start of questioning. If this request is denied, the person facing interrogation should request that this refusal be noted in his / her statement [9]. If the criminal investigators do not comply with this second request, then the person should refuse to sign the statement. These are additional facts which might be used at a later stage of the procedure .