On 27 November, a new act came into force which significantly broadens the right to assistance by an attorney during an interrogation. This means that persons who are not arrested can now also be accompanied by an attorney during their interrogation.
By passing this act, Belgium has fulfilled, just in time, its European obligations to transpose the EU Directive provisions on the right of access to an attorney.
Below, we briefly explain what this new act means for you.
When can your attorney be present?
In a situation where there was no risk of being arrested, you previously only had the right to consult an attorney prior to the interrogation. This has been changed. Since 27 November, you now also have the right to be assisted by an attorney during the interrogation in cases where you are not likely to be arrested, provided that you are suspected of having committed an offence punishable by imprisonment.
In practice, this also means that you now have the right to be assisted by an attorney if you are interviewed by authorities other than the police. As long as the interrogation relates to an offence punishable by imprisonment, you are allowed to be accompanied by an attorney during interrogations carried out, for example, by the customs services, the special tax inspectorate or the federal public services for Economy or Public Health. There is, however, still no right to such assistance for acts that are punishable only by fines.
In addition, the attorney can also be present during a site visit or a confrontation between suspects.
I have been invited for questioning: what should I do?
The invitation to an interrogation should mention that you have the right to consult an attorney prior to an interview and should state whether you have the right to be assisted by an attorney during the interrogation. If you have received an invitation dated prior to 27 November for an interrogation after that date and the invitation does not state whether or not you can be assisted by an attorney, you would be well advised to check with your attorney.
If you require such assistance, you will have to contact an attorney prior to the interrogation. Of course, you can also waive this right. The authorities must provide sufficient time between the invitation and the interrogation in order for the suspect or accused person to contact an attorney.
Our experience shows that, in general, the authorities will grant a brief postponement of the interrogation in order to allow an attorney to be found and consulted.
What is the role of the attorney?
The intervention of an attorney serves a double function: on the one hand, the attorney is there to give you advice before the interrogation (consultation), and on the other, he/she has to ensure that your rights are respected during the interrogation (assistance).
The new act defines, for the first time, the role of the attorney during the interrogation. Your counsel should ensure that your rights are respected during the interrogation. To this end, he/she will make sure that you are not forced to incriminate yourself and that the interrogators do not exert unlawful pressure. An attorney may also ask for clarification of the questions asked or make comments about the investigation and the interrogation. Of course, your attorney cannot answer for you.
After the interrogation, your attorney may ask for a note to be made that the rules have not been properly complied with and may request that additional investigative acts be carried out.
Authors:
Catherine Van de Heyning
Tom Bauwens
