Brussels, terror and legal rights

There may be no better time to consider the rights of suspects and the accused in criminal proceedings than in these few days just after Brussels has been under such brutal attack. All the usual things have happened.

For instance, I was a potential victim. I passed through both bombed venues a few days before. When I am under attack myself, I feel a violent hate towards the assailants, and the last thing I feel like giving them is their due rights, when they so obviously discount those of everyone else. (But of course it is precisely at that time that it is important that the law, neutral and dispassionate, grants alleged wrongdoers their rights.)

Then, to choose a representative from the other side, I note that the master of nuance, Donald Trump, said in a recent interview in the New York Times: ‘When you see a thing like an attack in Brussels, when you see as an example they have somebody that they’ve wanted very much, and they got him three, four days before Brussels, right? Before the bombing. Had they immediately subjected him to very serious interrogation - very, very serious - you might have stopped the bombing. He knew about the bombing.’

I don’t think we need to speculate about what he meant by ‘very, very serious interrogation’, since he declared last year: ‘Would I approve waterboarding? You bet your ass I would. In a heartbeat. I would approve more than that. It works … and if it doesn’t work, they deserve it anyway for what they do to us.’ I quote this at length because many people will agree with him, although, I hope, no lawyers.

Finally, we come to the lawyer, Sven Mary, who acts for the suspect jailed before the Brussels bombings. This lawyer has - as is traditional in these cases - a reputation for acting for people the rest of society consider highly undesirable. He is called ‘the scumbag’s lawyer’ (‘avocat des crapules’). He says he has received hate mail since his most recent assignment, been attacked physically, and is worried for his wife and children.

It is at just this time that a report is being finalised on how to improve the rights of suspects and accused in criminal proceedings EU-wide. The timing could not be better, since it is now that we should reflect deeply on how important these rights are – they must be granted no matter how heinous the crimes concerned.

As a reminder of the EU’s role in this field, which our government does not fully support, it has been making efforts to balance the rights of the defence against the rights of the prosecution (since the European arrest warrant is a powerful tool in the prosecutor’s arsenal). As a result, there are now three directives guaranteeing suspects and accused minimum procedural rights EU-wide: the right to interpretation and translation (2010/64), the right to information (2012/13), and the right of access to a lawyer (2013/48).

The UK has opted into the first two, but not the third. An EU-funded project, called TRAINAC, has just finished a study into the implementation of the three, and is calling for improvements across the range of them.

I am sure that all of the suspects arrested over the last few days have lawyers. Belgium, like most member states, allows temporary derogations from the right to a lawyer (directive 2013/48 permits such derogations under strict conditions, such as ‘where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person’). Belgium also permits a waiver by the suspect of his or her right to a lawyer.

It is in this latter area that the TRAINAC report recommends - among many other things - that the waiver of the right to a lawyer should take place only after the suspect or accused has been in contact with a lawyer, and that the complete interview, including the waiver, should be taped (video and/or audio), and consideration given to a rule whereby any unrecorded interview should not be able to be used as evidence.

There are many more detailed recommendations, the implementation of which would improve justice around the EU.

But I shall end on a personal note. Around the corner from where I live is a Muslim school. I was passing it in the days after the bombing and saw a man putting up two notices on its door. I feared they might be abusive, but they turned out to be notices from the school itself. The first expressed the school’s outrage at the killings, which I suppose such institutions feel necessary to prevent themselves being attacked in turn.

The second recorded that its physical instruction teacher, a Muslim woman with three young children, had herself been killed in the metro explosion.

The law must retain our support.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs