Ineffective Legal Assistance: Redress for the Accused in Dutch Criminal Procedure and Compliance with ECHR Case Law

Abstract

This research has tackled the two main research themes – ineffective assistance by counsel and its redress for at least its most serious manifestations in Dutch criminal proceedings – from as many relevant angles as possible. For the most part, this study has had to be chiefly exploratory (In Dutch: verkennend). This is despite earlier important work on positive norms that regulate counsel’s conduct in the criminal process in the Netherlands and defence as well as fair trial rights (also under the Convention) in more general terms. Consequently, original research was necessary in order to determine when Dutch criminal courts are confronted with ineffective assistance by counsel.1687 This determination has been made on the basis of Dutch law and case law which will be evaluated in this chapter for its compliance with external benchmarks of directly binding Convention minimum guarantees. Several internal benchmarks, inferred from comparisons to defences lodged by either unassisted or assisted accused persons, will also be taken into consideration, though less prominently. Against this background, this chapter sets out to answer the evaluative central research question, which is: "To what extent does the current approach to ineffective legal assistance and its redress for the accused in Dutch criminal procedure comply with the minimum guarantees regarding the right to an effective defence in a fair trial set by the Court?" Two descriptive sub-questions are integral to this overall question: what are those Convention minimum guarantees and what is the approach to ineffective legal assistance and its redress in Dutch criminal proceedings?