Access to a lawyer

Common principles but different rules

The existence of these principles has not been sufficient to achieve the necessary level of mutual trust between EU countries, required for the smooth functioning of the authentic European area of Justice.

Despite these common principles, there still exist divergent rules and practices. This leads to shortcomings with regard to the way in which these rights are applied by EU countries.

Provisions governing access to a lawyer vary significantly from one EU country to another.

A lack of adequate standards

This lack of adequate standards affects the overall quality of justice within the EU and undermines judicial cooperation between EU countries.

Judicial authorities may have doubts about compliance with:

• rights to a fair trial (and in particular with the pivotal right of access to a lawyer); and
• protection against ill-treatment in custody in another jurisdiction.

This way, they may be unwilling to execute requests for judicial cooperation from that jurisdiction.

Insufficient standards across EU countries are also detrimental to the protection of accused persons' and suspects' fundamental rights.
Proper access to a lawyer and notification of custody is essential in order to:

• secure all other rights to a fair trial ; and
• prevent intimidation, including threats and abuse, notably by police in the crucial period immediately following arrest.

Improving the rules

The European Court of Human Rights (ECtHR) has clarified the scope of these provisions by setting up new rules:

• 'Article 6 of the ECHR' (which protects the right to a fair trial) applies to the pre-trial stage of criminal proceedings:
  • A suspect must be able to benefit from the assistance of a lawyer already at the initial stages of police interrogation and as soon as he is deprived of his liberty, irrespective of any interrogation.
    
    
• These guarantees must apply to witnesses, whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial:
  • Regarding the case law 'Panovits vs. Cyprus', the ECtHR found a breach of 'Article 3' (which prohibits inhuman or degrading treatment or punishment) where statements made by the suspect in the absence of his lawyer were used to secure a conviction, even if they were not the sole evidence available.
    
    
• The lack of legal assistance during an applicant's interrogation would constitute a restriction of his defence rights. Especially in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings.

Clear rights for the suspected or accused persons

A suspected or accused person who is deprived of his liberty should be entitled:

• to have at least one person named by him, such as family members and employers, informed of the detention; and
• to receive feedback on the communication with the person he has nominated.

EU countries should also make sure that the legal representatives of a child suspected or accused of a crime are:

• informed as soon as possible that the child has been taken into custody; and
• the reasons as to why the child has been taken into custody must be explained.

Unless, it would be contrary to the best interests of the child, this right should only be subject to derogation in very limited circumstances.

Where the detained person is a non-national, it is appropriate for the consular authorities of the person's home state to be informed.

Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the Vienna Convention on Consular Relations (VCCR). It provides that on arrest or on detention a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.

Building a new Directive

During 2011, the Commission will be presenting draft legislation covering these rights.

The draft Directive proposes that a suspect can see a lawyer before the first police interview.

It covers:

• what activities a lawyer can carry out on behalf of his client;
• confidentiality;
• waiver/mandatory defence;
• notification of the custody to the detainees relatives and consular authorities; and
• legal representation in European Arrest Warrant (EAW) cases.