What changes need to be made in your Member State – covering both national law and national practice - with respect to derogations from the right to a lawyer regarding:
(a) the circumstances in which temporary derogations are granted (i.e. only exceptional circumstances)?
Austria
In case of deprivation of liberty and until brought to prison, the access to a lawyer may be limited to mandating a lawyer and a general legal information, if this seems necessary to prevent impairment to the investigation or to means of evidence (§ 59 (1) Austrian Code of Criminal Procedure, StPO). There is no effective judicial review of such a decision, which may be taken by the police, but only an ex-post control.
Belgium
The Belgian Law organizes a possible derogation to the right to have a previous and private meeting with a lawyer before the very first questioning of a suspect deprived of his liberty, but only in case of “exceptional circumstances” and “for imperative reasons”.
The Belgian lawmaker has however not expressively defined these possible “exceptional circumstances” nor “imperative reasons”.
Nevertheless, the Belgian lawmaker requires in that respect a duly reasoned decision taken on a case-by-case basis, by the Prosecutor or by the investigating Judge (this decision will be in the latter stage of the proceeding subject to a judicial control by a court) (see article 2bis, § 5 of the law of 20 July 1990 relating to temporarily detention).
The Belgian lawmaker stipulates besides that none may be sentenced on the basis of a questioning made without to have had the possibility of a previous and confidential meeting with a lawyer (see art. 47bis, § 6 of the Belgian criminal procedure Code).
Bulgaria
Bulgarian procedural law does not provide for temporary derogations from the right to access to a lawyer in the sense of Article 3.5 and Article 3.6 of the Directive. Therefore, in my view, the “temporary derogation” clauses of the Directive do not need to be transposed into Bulgarian national law and in this respect Bulgarian authorities could rely on the “non-regression clause” of Article 14 of the Directive.
Croatia
There are no provisions in Croatian CPA regarding temporary derogations of the right to a lawyer as prescribed in Article 3.5. of the Directive. Therefore, no changes are needed in that regard.
Croatian CPA has a provision as one proscribed in Article 3.6.of the Directive, so therefore no changes are needed.
Cyprus
There are no provisions in our current legislation for temporary derogations.
Czech Republic
I consider the wording of the existing exceptions in the domestic legislation as too vague and broad, in comparison to the rather strict wording of the Directive.
Following exceptions are regulated in the domestic legislation.
The defence lawyer is from the commencement of the criminal prosecution entitled to be present during the investigative acts, whose result may be used as evidence in the proceedings before the court, unless “execution of such act cannot be postponed and the informing of the defence lawyer cannot be secured” (Section 165(2) CCP).
When the suspect is detained, he may request his defence lawyer to participate during his questioning. The CCP in 76(6) CCP stipulates that this right will not apply if the defence lawyer is unreachable within the time-limit of 48 hours when the police authority has to question the detained person and submit the case to the prosecutor to propose the court taking of this person into custody.
During the trial stage, exceptionally, due to important grounds, the court may question a person or carry out another evidence outside of the hearing. The defence lawyer is entitled to participate in it, unless “the execution of such act cannot be postponed and the informing of the defence lawyer cannot be secured” (Section 183a(1) CCP).
Application of the above-mentioned exceptions is rather rare in practice, however, sometimes they become part of the Police´s tactics.
What also happens, though again only rarely, is that the Police inform the attorney that e. g. a questioning will take place in two hours; if the attorney has other obligations and cannot send a properly prepared substitute either, he is formally informed about the date and place of the investigative act, but in fact cannot participate in it and the Police proceed without him being present.
Estonia
No changes need to be made -- our law does not provide for any derogations.
Finland
We are not aware of derogations to the right of access to a lawyer. However, as mentioned in the answer above, some times it is in practice very difficult to accommodate this.
One more of an issue of principal is that there exists a provision in the Criminal Investigation Act that the head of investigation may, “due to weighty investigative reasons”, forbid the counsel from being present when his client is being interrogated. We have no knowledge of this happening, but on a general level, the issue is of importance.
France
Please note that during custody an exclusion is allowed by article 63-4-2 of French Criminal Procedure Code (in French, CPP) when the necessity of the investigations commands an immediate interview of the suspect, the presence of the lawyer can be postponed.
It is a little bit difficult to understand how and when the necessity of the investigation does not command an immediate interview especially when the person is deprived of liberty.
The scope of exclusion is therefore different compared to the directive aims.
Article 706-88 allows also a temporary derogation for major offenses in case of imperious reasons to allow the collect or the conservation of evidence or to prevent an attempt to persons.
Germany
Greece
Derogations from the right to a lawyer are not provided at any stage. On the contrary the court is obliged to appoint a lawyer, upon request, and the appointment for felonies is mandatory for all stages.
Hungary
No derogations.
Ireland
Existing Irish law provides for a questioning of a suspect to proceed in the absence of a lawyer in 4 instances. A copy of the provisions is annexed to this reply.
As can be seen these exceptions go beyond what is permitted by the directive in so far as threats to property rather than to human life to justify a derogation. It is probable therefore that the Irish measure will be modified and if not will be challenged in the Courts.
Italy
When a person is deprived of liberty, the judge issuing the warrant can, on request of the Prosecutor, and with a written motivation, postpone the right of the arrested person, to meet his lawyer for a period not longer than five days, (Art. 104, ss.3 Criminal Procedural Code)
This provision isn’t consistent with recitals of the Directive on the specific cases of admissible derogations- In practise, the jurisprudence, has always stated that a derogation is legitimate to avoid that co-defendants agree on a common position, especially in cases of organizes crime.
Latvia
No changes needed, there are no circumstances in which temporary derogations are granted.
Lithuania
The Lithuanian Law does not foresee the possibility to derogate from the right to a lawyer. The suspect or the accused can make a decision to refuse the lawyer but in some cases the refusal from the lawyer is not an obligatory to the pre-trial investigation judge, the prosecutor and the court (e.g. the refusal from the teenager, from a person who doesn’t speak Lithuanian language, etc.)
Luxembourg
Indeed the assistance of a lawyer is guaranteed in practise and this right is not waived neither at the police hearing nor at the hearing done by the instructing judge but may be temporary limited or suspended for special needs in relation with the investigations, but special written motivation is required in such cases.
Malta
Only exceptional circumstances
Poland
The Polish Code of Criminal Proceedings of 1997 – looking at its current regulations referring to the access to a lawyer – doesn’t correspond with the standard of the directive 2013/48/EU in the scope of derogations from the right to a lawyer. It seems that on the grounds of the criminal proceedings in Poland the issue of the access of a suspect to a lawyer shall regard the following principles: a suspect has the right to be examined in the presence of his or her defence lawyer, such right isn’t the right of a one-time character and it concerns each questioning of a suspect during the criminal proceedings independently from the reason of the subsequent questioning, a suspect has the right to communicate with his or her defence lawyer before the questioning; if a suspect hasn’t established a defence lawyer yet, it is necessary to enable him or her the establishment of a defence lawyer or it’s necessary to appoint such a defence lawyer by the court (regarding this issue - where the questioning will be following directly after the presentation of charges - the competent authority shall defer temporarily – for a due time – the questioning of a suspect; if a suspect is deprived of his or her liberty, he or she and his or her lawyer should have ensured the possibility of their reciprocal communication before the questioning), justified non-appearance of a defence lawyer defers the questioning.
In Polish criminal proceedings there is pointed out a lack of precise and exhaustive regulation concerning the issue of admissibility of questioning of a suspect without ensuring him or her the full access to a lawyer. Such regulation – as exceptional one – seems to be needed. Also, in this context, in the system of Polish law concerning the right of access to a lawyer, precise provisions on the issue of temporary derogations need to be prepared (to fulfill the European Union standard in this field).
The Article 245 § 1 CCP states that a detainee – on his or her demand – shall have a possibility to have – in an accessible form – a contact with a lawyer and a direct conversation (communication) with such a lawyer. In exceptional cases, motivated by specific circumstances, the proper authority may reserve its presence during the mentioned conversation (communication). The time limit of such reservation isn’t determined.
In the light of the Article 301 CCP a suspect – on his or her demand – shall be examined in presence of the established defence lawyer. Non-appearance of a defence lawyer doesn’t stanch the activity of examination of a suspect. In practice this regulation isn’t applied uniformly. On the basis of this regulation, the following rules could be identified: the obligation of making possible the participation of a defence lawyer in a questioning concerns only a defence lawyer who has been established; there is a lack of the obligation to defer a questioning in order to create for a suspect a possibility of establishing by him or her a defence lawyer; if a suspect has been examined without the participation of a defence lawyer, such suspect can demand to be examined again, in presence of established defence lawyer; non-appearance of a defence lawyer doesn’t stanch the activity of questioning. It shall be stressed, that the proper amendment of this regulation needs the creation of the possibility to defer a questioning in the situation when a suspect hasn’t got the established defence lawyer or in the situation when a suspect has got a defence lawyer but such lawyer didn’t appear to take part in the mentioned proceedings activity and informed about the questioning – he or she has lodged forward a motion to defer the questioning (Cf. A. Klamczyńska, T. Ostropolski, Prawo do adwokata w dyrektywie 2013/48/UE – tło europejskie i implikacje dla polskiego ustawodawcy, ‘Białostockie Studia Prawnicze’ 2014, vol. 15, pp. 156 – 157).
In turn, according to the Article 73 § 1 CCP, an accused person who is temporarily arrested can communicate with his or her defence lawyer in absence of other persons and also by correspondence. In Polish doctrine there is an opinion that such communication may be realized by personal meetings or by phone calls. By the way, communication between a suspect temporarily arrested and his or her lawyer by phone calls is confirmed by the content of the Article 217c of the Polish Criminal Executive Code of the 6th of June 1997 (Journal of Laws of the 5th of August, 1997 No. 90, item 557 with subsequent amendments). Due to the Article 73 § 2 CCP, a public prosecutor permitting for communication in the preparatory proceedings may reserve - in exceptional cases, if it’s demanded by the interest of the preparatory proceedings – that he or she or another entitled person will be present during the mentioned communication. In turn, due to the Article 73 § 3 CCP, if the interest of the preparatory proceedings needs it, a public prosecutor may reserve – under particular circumstances – the supervision of correspondence between a suspect and his or her defence lawyer (in this context see also the Article 8a § 2 of the Polish Executive Criminal Code). According to the Article 73 § 4 CCP the mentioned reservations cannot be held and made after 14 days starting from the day of the application of the temporary arrest of a suspect. It seems that the reasons of temporary derogations – regarding their normative contents - shall be defined in a way which is better corresponding with the pattern provisions of EU directive 2013/48/EU.
Taking into account the circumstances in which temporary derogations are granted it needs to be stressed that they shall be exceptional and dictated by the interest of the preparatory proceedings. ‘Particularly motivated situation’ is especially a situation generating a suspicion that contacts between a suspect and his or her lawyer (or their correspondence) might be used for illegal purposes (to obstruct the justice). ‘The interest of the preparatory proceedings’ means that the reservations are only available if they’re necessary to ensure the realization of aims of preparatory proceedings (like detection and apprehension of other offenders or getting and securing the evidence in criminal case). In the light of opinions of representatives of Polish doctrine of criminal proceedings law, here, the principle of proportionality shall be fully respected. As a rule, practice in Poland keeps this standard of comprehension of the exceptional circumstances as well as the interest of the preparatory proceedings.
According to the Article 46 § 4 of the Code on Proceedings on Petty Offences of 2001, a detainee shall have, on his or her demand, a possibility to contact - in an accessible form – with a lawyer (an advocate or a legal advisor) as well as to communicate (to talk) with such a lawyer directly. The authority which executes the detention can make a reservation that its official will be present during such communication. Unfortunately, neither the mentioned regulation of the Code of Proceedings on Petty Offences (nor other one in this code) introduces any reasons of such reservation. In the mentioned code, Polish law-maker hasn’t indicated the time limits for such reservation. It means that in practice, the presence of a representative of the authority during the communication between a detainee and his or her defence lawyer is possible not only exceptionally and such reservation is not limited in time.
Portugal
There are no derogations from the right to a lawyer in Portuguese law or practice.
Romania
Slovakia
The detained person shall have the right to choose a counsel and to consult him already at the moment of detention, and to request the presence of the counsel at the interrogation, unless the counsel cannot be reached within the time limit specified therein. "Unreachability" of the lawyer is the only ground for derogation from the right.
A person can be detained only for the period up to 48 hours. The policeman and prosecutor shall proceed so as to enable handing over the detainee to the court within 48 hours from his detention or arrest (otherwise the person shall be released by the written duly justified order of prosecutor) and the court would assign a lawyer at the beginning of the trial period.
Slovenia
No derogation of the right to a lawyer exists in the Slovene law.
Spain
No changes need to be made.
Sweden
Derogation of the right of access to a lawyer concern situations when the suspected person is assisted by a private defence counsel.
Police interrogation – During an interrogation of the suspect, a private defence counsel may assist only if the presence of the lawyer would not be of detriment to the investigation.
Other derogations when assisted by a private defence counsel concern situations when the suspected person is deprived of liberty. The limitations may be applied in the following situations.
Meetings in private - A private defence counsel is allowed to speak in private with the arrested or detained person only when it is approved by the leader of the investigation or when the court considers it would neither impede the investigation nor threaten order and security at the place of detention. Legislitive amendments have been proposed stipulating an unrestricted right to meet in private when the private defence counsel is an advocate. This right shall then also apply when the suspect is apprehended.
Communication – The suspect may be denied the right to communicate with private defence counsel. The limitation can be applied in regard to correspondence and electronic communication (e.g. telephone calls, e-mail), and may be imposed if the communication would threaten order and security if communication or if it would impede the investigation. Legislative amendments have been proposed stipulating an unrestricted right to communicate when the private defence counsel is an advocate.
The way of limiting the right of access to a lawyer based on how he or she has been appointed does not appear to be consistent with the Directive. At all events, limitations in a suspected person´s right to contact or communicate with a private defence counsel can hardly be motivated when the counsel is an advocate and a member of the Swedish bar.
The Netherlands
In case of deprivation of liberty and until the criminal case is presented in court by the prosecutor the access to a lawyer may be denied, if this seems necessary to prevent impairment to the investigation or to means of evidence (article 50.2 NCCP). The Dutch lawmaker has however not expressively mentioned that access to a lawyer only can be denied where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person or where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings. I consider the wording of the existing exceptions in the domestic legislation as too vague and broad, in comparison to the rather strict wording of the Directive.
