Access to a lawyer
People suspected or accused of having committed a criminal offence need the advice of a lawyer when facing criminal proceedings. If they are deprived of their liberty they need to name at least one person, such as a family member or their employer, to inform of their detention. If they are arrested abroad, contact must be possible with their country’s consulate.
Common principles but different rules
While procedural rights are set out in the European Convention of Human Rights (ECHR) or implied in the case-law of the European Court of Human Rights (ECtHR), rules on exactly when a person has the right of access to a lawyer, for example, and on the role this lawyer plays in the proceedings, differ from one EU country to another.
The lack of minimum harmonisation of standards within the EU can lead to situations where suspects and accused persons do not benefit from the possibility of being assisted by a lawyer. This may jeopardise the fairness of criminal proceedings and can lead to miscarriages of justice.
This risk has a negative effect on mutual trust between EU countries and hampers judicial cooperation. Trust can only be ensured if there are common minimum standards of basic procedural rights applied throughout all EU countries.
Right of access to a lawyer
The right of access to a lawyer is essential for building confidence in the EU’s single area of justice, especially when suspects are arrested as a result of a European Arrest Warrant (IP/11/454 ). The right of defence for anyone suspected of a crime is widely recognised as a basic component of a fair trial, but the conditions under which suspects can consult a lawyer differ between Member States. For example, persons suspected of a crime may not be able to see a lawyer during police questioning, or the confidentiality of their contacts with their lawyer might not be respected. People sought under a European Arrest Warrant may not currently have the benefit of a lawyer in the country where the warrant has been issued until they are surrendered to that country.
Right to inform and communicate with third persons and consular authorities upon arrest and during detention
There are similar divergences in terms of the right of suspects to let a relative, their employer and their consulate know when they have been arrested. Individuals may not systematically be offered this right, may only receive it at a late stage in the process, or may not be informed once their family has been contacted.
Guaranteeing the rights of all EU citizens
In October 2013, a new Directive, which aims to ensure that minimum standards are applied throughout the EU, was adopted. The Directive will guarantee that all suspects – no matter where they are in the European Union – will have the right to be advised by a lawyer in criminal proceedings and in European arrest warrant proceedings, and, on arrest and during detention, may communicate with their family and with consular authorities, if they are outside their home country.
The Directive will guarantee citizens' rights in practice, by:
- providing a right of access to a lawyer from the first stage of police questioning and throughout criminal proceedings;
- allowing a right to adequate, confidential meetings with the lawyer for the suspect to effectively exercise their defence rights;
- allowing the lawyer to play an active role during questioning;
- offering people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued;
- making sure that, when a suspect is arrested, somebody such as a family member can be made aware of that arrest and that there is an opportunity for the suspect to communicate with their family;
- allowing suspects abroad to be in contact with their country’s consulate and receive visits;
The right to a fair trial and defence are set out in Articles 47 and 48 of the EU Charter of Fundamental Rights and in Article 6 of the European Convention on Human Rights (ECHR). The right to communicate with a third party is one of the important safeguards against ill treatment prohibited by Article 3 of the ECHR and Article 4 of the EU Charter of Fundamental Rights.
EU countries have until 27 November 2016 to implement the Directive.