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    “ Salduz” assistance by Lawyer
    • The Honorary Consulate General of the Republic of India in Antwerp releases the following information in relation to recent development of criminal procedure law regarding procedural investigations by Police authorities and by examining magistrates

      A decision by the European Court on Human Rights, known as the “SALDUZ” decision has resulted in a substantial development of Belgian Law on Criminal Procedure.

      Indeed, henceforth, every person who is being interrogated by the Police authorities and /or by the Investigating Magistrate can have a prior private consultation with a lawyer of his own choice, if the crime of which he is accused can lead to custody.

      The European Court on Human Rights (abbreviated as ECtHR) decided in the Salduz case and in the Panovits case that Turkey and Cyprus violated article 6 of the European Convention on Human rights (ECHR) regarding the right to have a fair trial. The violation was established, according to the ECtHR, because the accused had no prior access to a lawyer during his first police interrogation concerning the crimes of which he was charged.

      Court decisions of the European Court of Justice on Human Rights have a binding influence on all the member states, including Belgium.

      Belgium could not ignore the impact of these decisions and had to change its law accordingly.

      As a consequence the Belgian code on criminal procedure had to be changed in order to comply with the interpretation given by the European Court of Justice, particularly in relation to article 6 of the European Convention on Human Rights.

      This was done by a vote in Federal Parliament on the 16th of June 2011, on a Reform Bill. The new rules became effective on January 1, 2012.

      Prior to the interrogation by the police or the examining magistrate (Juge d’Instruction / Onderzoeksrechter) the accused can ask for the assistance of a lawyer.

      Furthermore the Police are obliged to ask whether the accused “wants” indeed this assistance of a lawyer.

      The accused can than either refer to a lawyer selected by him (name, address and telephone number) or he can rely on a lawyer from a team of available “volunteer” lawyers.

      The availability and the composition of this team is taken care of by the Antwerp Bar Association and the team lawyers are supposed to be available 24 hours a day, 7 days a week.

      If the accused would select such a volunteer lawyer, the clerk / registrar of the examining magistrate will contact and inform the lawyer of choice or the “volunteer” lawyer on that list.

      After this first private and confidential meeting with the lawyer, the magistrate will proceed with the interrogation and the accused could be arrested if the worst comes to the worst.

      If the accused is an indigent person, he or she can rely on legal aid or “pro bono” assistance.

      If the accused is not an indigent, the lawyer will charge regular fees according to the rules and practices of the Antwerp Bar organization.

      It has to be clear that also the volunteer lawyer will charge fees if the accused does not qualify for legal aid or “pro bono” assistance.

      As not all local lawyers are fluent in English, it might be wise to have name, address and telephone number of an English speaking lawyer of your choice, available at all times.

      We would advise any accused person, who is about to be interrogated by the Police or the investigating magistrate to do the following :

      - Ask for the assistance of a lawyer !
      - Supply the interrogator with the name and the telephone number of a lawyer of your choice;
      - If the police officers refuse to give access to a lawyer, the accused should ask to put his/her request for such an assistance on record (the transcript of the police interrogation), so that there is evidence that there was an initial request for such an assistance.

      The refusal to grant such an assistance may result in the nullity of the criminal proceedings thereafter and for that reason it is of the utmost importance to see to it that your( or the accused) request be properly recorded.

      If the accused is not fluent in the Dutch language he is entitled to- and should be assisted by- an interpreter to be provided by the Police.

      We would advise an accused not to sign a statement when it is written in a language he does not understand.

      Final note :

      If members of the Indian Community in Antwerp experience difficulties by the Police authorities or examining magistrates with reference to the implementation of this fundamental right of assistance, the Consulate General of Antwerp will be happy to be informed and take possible complaints to the Belgian Judicial Authorities.

      Telephone number of the Honorary Consulate General in Antwerp :
      03-244 15 60 or e-mail address: [email protected]

    - Written by Krrishan Singhania & Srajita Mathur
    • As the new Prime Minister (elect) is all set to take charge on 26th May 2014, the expectations are running high. Looking at the overwhelming mandate and a historic win, the people of India have all the right reasons to believe that "achhe din" (good days) are to follow as Mr. Modi swears in as the 14th Prime Minister with a backing of such an astonishing and strongest electoral mandate since 1984. The business confidence has run up as a stable government would surely improve the business environment in this country. The man who introduced Gujarat to the world through his biennial investors' summit 'Vibrant Gujarat' now has the big responsibility to live upto the expectations of the citizens of this country who have shown faith in his potential to turn this nation to a "Vibrant India". Investors are convinced Modi can move things.

      With an election manifesto which included Nation Building, checking price rise, fighting corruption, employment and entrepreneurship, meeting aspirations of the middle class, simplified tax regime, industry specific inclusions and rural development as the key economic points, the electoral mandate has clearly given a strong approval to the new government led by Mr. Narendra Modi a go ahead from their side.

      Policy initiatives likely from the NDA government include Goods and Services Tax (GST) which is one of the most critical legislations pending for more than 10 years. Industry estimates that legislation of GST will drive a big productivity improvement and a near 1% point sustainable rise in annual GDP growth. Also simplification of Direct taxes Code and thereby reducing many distorting and unnecessary exemptions will simplify tax administration and compliance which can improve tax buoyancy in India. The Land Acquisition Bill is likely to become more industry friendly and also the Bankruptcy laws to become more dynamic under the new government. The Government expenditure and public sector reforms are likely to be revamped and will be targeted better.

      The Bhartiya Janata Party (BJP) believes in the decentralization and empowerment of states. The Cumbersome labour laws and the inability to retrench labour, make big businesses extra cautious in hiring. India needs to create 10 million jobs per year; faster growth and a re-oriented labour policy to create these jobs. Reforms in Defense, Agriculture, Railways and Highway sectors are likely to take place under the new Modi led government. A sound, consistent and transparent policy on auctioning of India's vast natural resources is one of the most important areas of concern before the new government. The above reforms will bring great opportunity not only for domestic investors but also foreign investors who are looking at India as the next best destination for investment.

      India is much hopeful that the new government would deliver what is promised to them, "Minimum government, maximum governance". It is expected that the role of government will be rationalized in the lives of citizen as well as business and also he may decentralize power to the states in hope that they use the space to compete for investment. People of India have shown their complete faith in the new PM of India. It is now for Mr. Modi to meet the expectations and maintain focus on the long term vision.

      To conclude, the new Modi led government will positively be a stable government and the economy of India in its five year regime ahead will develop to an extent which no one ever imagined in the past. In the light of the opportunities available to India and the factors conducive to the development such as its youngest population in the entire globe, good governance and roaring market, easily makes it the most sought after destination for investment. The new Narendra Modi led government is all set to bring in the positive change and open its doors to the world of opportunities globally.

      We hope that the news above is useful to you. Should you need any further information or clarification then please feel free to contact us.

      Singhania & Co.
      Solicitors & Advocates
      Suite # 102 - 103, 10th Floor,
      Jolly Maker Chambers - ||,
      Nariman Point, Mumbai - 400 021
      Tel: +91 22 22020320 - 21 - 22
      Mobile: +91 98676 20320
      email: [email protected]
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