Responses to Salduz: procedural tradition, change and the need for effective defence

Jackson, John D.

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.

Citation

Jackson, J. D. (2016). Responses to Salduz: procedural tradition, change and the need for effective defence. Modern Law Review, 79(6), 987-1018. https://doi.org/10.1111/1468-2230.12227

• Journal Article Type: Article
• Acceptance Date: Jul 22, 2016
• Publication Date: Nov 21, 2016
• Deposit Date: Dec 6, 2016
• Publicly Available Date: Dec 6, 2016
• Journal: Modern Law Review
• Print ISSN: 0026-7961
• Electronic ISSN: 0026-7961
• Publisher: Wiley
• Peer Reviewed: Peer Reviewed
• Volume: 79
• Issue: 6
• Pages: 987-1018
• DOI: https://doi.org/10.1111/1468-2230.12227
• Keywords: Access to a lawyer; police interrogation; procedural tradition; privilege against self-incrimination; effective defence
• Public URL: https://nottingham-repository.worktribe.com/output/827582
• Publisher URL: http://onlinelibrary.wiley.com/doi/10.1111/1468-2230.12227/full
• Additional Information: This is the peer reviewed version of the following article: Jackson, J. D. (2016), Responses to Salduz: Procedural Tradition, Change and the Need for Effective Defence. The Modern Law Review, 79: 987–1018, which has been published in final form at http://dx.doi.org/10.1111/1468-2230.12227. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving.