Juveniles’ Right to Counsel during Police Interrogations: An Interdisciplinary Analysis of a Youth-Specific Approach, with a Particular Focus on the Netherlands

Abstract

The right to counsel of juveniles at the stage of police interrogations has gained significant attention since the Salduz ruling of the European Court on Human Rights in 2008. The legislative and policy developments that have taken place since then and that are still ongoing -both on a regional (European) and domestic (Dutch) level -reveal a shared belief that juvenile suspects must be awarded special protection in this phase of the criminal justice proceedings. This calls for a youth-specific approach as fundamentally different from the common approach for adults. At the same time, there seems to be ambivalence concerning the justification and concrete implications of such a youth-specific approach. This article aims to clarify the underlying rationale and significance of a youth specific approach to the right to counsel at the stage of police interrogations on the basis of an interdisciplinary analysis of European Court on Human Rights case law, international children's rights standards and relevant developmental psychological insights. In addition, this article aims to position this right of juveniles in conflict with the law in the particular context of the Dutch juvenile justice system and provide concrete recommendations to the Dutch legislator.

Equality in the Youth Court: Meaning, Perceptions and Implications of the Principle of Equality in Youth Justice

“…capacity to understand) and maturity of judgement (i.e. capacity to make grown-up decisions) impact their capacity to effectively participate in a criminal procedure (Feld, 2012; Grisso, 2000; Grisso et al, 2003; Liefaard and Van den Brink, 2014; Rap, 2013, 2016). Both developmental insights and children’s rights standards dictate that an equal enjoyment of due process rights for children in criminal proceedings requires, among others, the use of child-friendly language, assistance by a specialized lawyer, involvement of parents and more informal court hearings behind closed doors (cf.…”

What is Left in the “Too Hard Basket”? Developments and Challenges for the Rights of Children in Conflict with the Law

“…The Inter-American Court of Human Rights, for example, has delivered ground-breaking jurisprudence in relation to street children and police violence, and the protection of children under arrest and in detention (Feria Tinta, 2015 with reference to the Villangrán Morales v. Guatemala case, among others). The Council of Europe, particularly through its European Court of Human Rights and its case law on children's right to effective participation (Kilkelly, 2001;Rap, 2013; T & V v.UK cases), the right to legal assistance (Liefaard and Van den Brink, 2014; Salduz case and Panovits case) and the use of detention as a last resort and for the shortest period of time (Van den Brink, 2018), and the Committee of Ministers, have developed specific instruments around child-friendly justice (Liefaard and Kilkelly, 2018;cf. Sloth-Nielsen, 2015), the rights of children subjected to detention and community sentences and 'new ways of dealing with juvenile delinquency'; the latter reflecting scientific insights regarding development of adolescents, including brain development (see below).…”

Importance of the Protection of Privacy of Juvenile Suspects or Accused Persons in Criminal Proceedings in the Context of the Eu Law

“…12 The provisions regulating the child's right during criminal proceeding state that the child's right to privacy should be respected during all stages of the proceedings. 13 According to the General Comment No. 10 on CRC, 14 the aim of the right to the protection of privacy of children is to avoid the harm caused by undue publicity or by the labelling process.…”