Comparative Criminal Procedure
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Comparative Criminal Procedure

Edited by Jacqueline E. Ross and Stephen C. Thaman

This Handbook presents innovative research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan and Japan, among others.
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Chapter 7: From the domestic to the European: an empirical approach to comparative custodial legal advice

Jacqueline S. Hodgson


Comparative criminal justice has much to teach us, not only in our relative understanding of the criminal procedures of national jurisdictions, but also in the critical analysis of wider European norms of the European Convention on Human Rights (ECHR) and most recently, the European Union (EU). Drawing on the findings of an empirical and comparative study of the suspect’s right to legal counsel, together with earlier empirical research, this chapter analyses the scope and effectiveness of the standards set by the European Court of Human Rights (ECtHR) in its interpretation of the ECHR and the recent EU provisions setting out procedural safeguards for suspects detained and interrogated in EU countries.The chapter begins by setting out the recent changes in the European legal landscape relating to suspects’ access to legal counsel whilst detained for questioning in police custody. Starting with the landmark ECtHR case Salduz v Turkey (36391/02 [2008] ECHR 1542), it identifies the more robust protection provided to suspects through Article 6 of the ECHR in relation to the right to legal counsel, but also the limitations of the Convention approach in terms of practical application and enforcement. It then examines recent EU legislative measures for the procedural protection of suspects. In contrast to the more serendipitous case-by-case nature of the ECtHR jurisprudence, the EU provisions have been produced after several years of discussion and negotiation, including detailed studies on the likely impact of the new measures in Member States.

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