(d) the authorisation process used for temporary derogations?
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Austria
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There is a gap in the judicial review until the suspect is brought to prison, because the police may take the decision to prevent full contact with the lawyer and/or to supervise the contact with the lawyer. The decision of the police may be challenged (§ 106 StPO), but this is only an ex-post review.
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Belgium
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As mentioned above, such exceptional derogation may only be taken by the prosecutor or by the investigating judge, but no specific (dedicated) recourse is however organized against such decision. It is only at the occasion of the later stages of the proceeding that the suspect will have the opportunity to claim against such decision, a posteriori thus.
A specific recourse should thus perhaps be necessary, taking precisely into account that such derogation takes place in exceptional circumstances.
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Bulgaria
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Please see the answer to Question 2 (a).
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Croatia
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No changes are needed, as Croatian CPA has the autorisation process for temporary derogations prescribed in Article 239.a. of the CPA.
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Cyprus
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See answer to Question 2(a).
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Czech Republic
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See answers to question 2(a). There is no special authorisation procedure and the application of the exceptions may be challenged only within standard legal remedies (as e. g. appeal), there is no special legal remedy.
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Estonia
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No changes need to be made -- our law does not provide for any derogations.
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Finland
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Head of investigation makes the decision. No possibility to appeal lies. The other possibility – which isn’t really derogation from the general rule – is when the head of investigation deems the counsel incompetent. This decision can be appealed to a district court.
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France
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During the first 24 hours of deprivation of liberty, only the prosecutor has jurisdiction to determine whether or not a derogation should apply. As stated in Moulin case before ECHR (Moulin vs France, 23 novembre 2010, n° 37104/06), Prosecutor as a party can not intervene as an impartial judge concerning the liberty of the prosecuted one.
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Germany
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Greece
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The same applies as above.
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Hungary
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See above.
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Ireland
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The authorisation process is opaque and is entirely a decision made by the police authorities themselves and without outside supervision or judicial review. That being said there is no impediment at any time and for any reason for a person in custody applying to the High Court for protection pursuant to article 40 (4) of the Constitution. A copy the relevant article is annexed. These applications, referred to for convenience reasons as habeas corpus but in fact somewhat different are routinely made in circumstances where the conditions of a person's detention are viewed as being unfair or oppressive.
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Italy
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The authority competent for the derogation is the Judge issuing the warrant and the derogation must be explicit in text
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Latvia
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No changes needed, there are no circumstances in which temporary derogations are granted.
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Lithuania
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The derogation from the lawyer cannot be granted under Lithuanian law.
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Luxembourg
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Temporary derogations may be used only under special indication of reasons and motivation, which have to be given by writing.
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Malta
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Not regulated at law, desirable
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Poland
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On the grounds of provisions of the Articles 73 and 317 CCP the subject of authority entitled to make derogations is a public prosecutor. In turn, on the grounds of the Article 245 CCP and the Article 46 CPPO the subject of authority entitled to make derogations is determined as ‘a detaining authority’. Above all such authority is represented by police officials. Decisions concerning the application of derogations aren’t submitted to judicial review. However, decisions on derogations – according to contents of the Articles 73 § 2 and § 3, 245 § 1 and 317 § 2 CCP - shall be duly reasoned and attached to files of the proceedings. Interpretation process of the Article 46 § 4 CPPO leads us to conviction that in case of the decision on derogation there is not necessary to give duly reasons of such decision. Required amendments of the Polish law shall respond to the European Union standard which is indicated by provisions of the EU directive 2013/48. It’s necessary to determine in the Polish law that the examination without the presence of a lawyer demands the decision of a public prosecutor which could be challenged by a suspect to the court. It seems necessary to regulate what are the consequences of making by the court a decision that the suspect’s right of the access to a lawyer was limited in an unjust way (so it was breached). Especially it’s necessary to regulate the issue of prohibition of using in criminal proceedings – as the evidence – explanations and statements of a suspect in case he or she was examined in absence of his or her lawyer as a result of unjust limitation of the right to a lawyer.
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Portugal
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No.
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Romania
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Slovakia
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Temporary derogation is assessed on a case-by-case basis. However, it is not a matter of decision. According to national practice, "unreachability" of the lawyer is established in the official record of the Proceeding by attaching an extract of telephone communication by the police or a prosecutor showing attempts to reach the lawyer by phone. The accused may file a complaint and thus submit the steps taken by the relevant authorities to the court.
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Slovenia
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n/a
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Spain
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There are no derogations.
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Sweden
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A decision to refuse access to lawyer during interrogation is generally taken by the prosecutor. A decision shall be documented and can be reviewed by a higher prosecutor. There is no provision ensuring reasoning of the decision.
A decision to refuse a meeting in private with the private defence counsel is generally taken by a prosecutor. There are no provisions ensuring reasoning or documentation of the decision. A decision can be reviewed by court.
Decisions on limiting communication or correspondence with reference to a risk of impeding the investigation, are taken by the prosecutor. The decision shall be documented and reasoned. A decision can be reviewed by court.
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The Netherlands
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An exceptional derogation may only be taken by the prosecutor according to article 50 of the NCCP. Temporary derogations may be used only under special indication of reasons and motivation, be limited in time and which have to be given by writing. A decision must immediately be reviewed by the investigating judge. Since there is a provision ensuring reasoning of the decision no changes need to be made in the Netherlands regarding this matter (article 8 sub 2 Directive).
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