(b) evidence regarding the voluntary and unequivocal nature of a waiver?
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Austria
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None
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Belgium
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No changes, since any waiver of the right of access to a lawyer requires that the suspect is an adult (above 18) and signs expressively a written waiver (translated to him in case he would not understand the language of the proceeding).
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Bulgaria
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Please see the answer to Question 5 (a).
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Croatia
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No changes are needed, as it is prescribed in Article 273/2 of CPA.
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Cyprus
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This is adequately covered by Article 11 of the Rights of Persons Arrested and Detained into Custody Law of 2005 (see answer to Question 5 (a) above)
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Czech Republic
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See the previous answer.
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Estonia
|
Currently, the only rule is that waiver must be in writing. This is hardly sufficient evidence regarding the voluntary and unequivocal nature of a waiver. Both law and practice need to improve on this matter. One solution could be a requirement to have audio or audiovisual recording of the provision of information about the waiver, and the suspect's statement that he/she wishes to exercise the waiver.
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Finland
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See answer above. There is in 99,9 % of the cases only the interrogation protocol, which the suspect signs, and this in the vast majority of the cases is deemed to be enough. We would absolutely like to see a more transparent and controllable way of checking what has been talked about before the suspect signs that he “voluntarily” waives his right to a lawyer. There are several cases reported in which the suspect claims that if he wants a lawyer, he will be at the police station for a long time, since no lawyer will soon be available etc.
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France
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No specific observations.
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Germany
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Greece
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Solely in misdemeanors. Everything has to be done in the language the defendant understands, who shall then sign below the relevant statement in this language.
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Hungary
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Any waiver is recorded and later the suspect/accused may decide to ask for a lawyer. We do not have statistical information on cases when waiver is made on a hearing where no lawyer is present.
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Ireland
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See reply to (a) above.
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Italy
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Latvia
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No changes needed, the waiver is confirmed with a signature.
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Lithuania
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As the law does not foresee the obligation to make records of questioning, there can’t be any unprejudiced evidence that a waiver has been voluntary and unequivocal. In practise, the suspect has to sign a waiver and this document is being attached to the case file.
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Luxembourg
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Proposition
There should be a written waiver signed by the renouncing person and this in presence of a lawyer, who would just assist during this procedure after once more having explained the procedural rights to the person under procedure.
Such a practice would make sure that there would rise no more litigation concerning this point.
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Malta
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Minuted in court proceedings
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Poland
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The issue of waiver the right of access to a lawyer isn’t regulated in the Polish Code of Criminal Proceedings as well as in the Code of Proceedings on Petty Offences. The evidence regarding the voluntary and unequivocal nature of waiver isn’t indicated in any provision. However, according to current legal solutions a voluntary and unequivocal nature of waiver (which is, in fact, not declared in clear words of a person) could be the result of the interpretation of the intent of a person who is aware of his or her rights. Information on rights (letters of rights) are delivered to persons involved in criminal proceedings or in proceedings on petty offences and they are prepared in communicative language. So, if a person understands his or her right and its scope (its contents), he or she will be treated as conscious one. If such a person doesn’t perform his or her rights, it will be acknowledged that he or she ‘waived’ his or her right. If the feature regulation or regulations will be referring to a certain declaration of a conscious, well informed (instructed) about the rights detainee/potentially suspected person/suspect/accused person, concerning the non-performance of the right of access to a lawyer, such declaration would be a sufficient evidence in the discussed field of the considered issue.
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Portugal
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There must be a written statement from the accused saying that he doesn’t want to be assisted by a lawyer in a language that he can understand.
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Romania
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Slovakia
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No provisions.
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Spain'>Slovenia
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No changes are needed.
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Spain
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See answer below.
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Sweden
|
To my knowledge, there are no specific routines regarding this. It is the official who receives the waiver that has ascertain that it is given voluntarily and unequivocally.
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The Netherlands
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In practice, the fact that a suspect has waived his or her right of access to a lawyer is recorded in the official transcript of the police interview (proces-verbaal van verhoor). Establishing that the suspect has waived this right is therefore in most cases not the problem. What could pose problems in practice is under which circumstances the suspect waived this right and what information has been given to the suspect in this regard (in addition to the information in the letter of rights). This is, in most cases, not recorded in the official transcript of the police interview. In other words: in practice it can be difficult to assess whether the waiver was voluntary, well informed and unequivocal.
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(c) the record keeping of waivers?
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Austria
|
None
|
Belgium
|
No changes, since any waiver of the right of access to a lawyer is indeed registered in writing.
|
Bulgaria
|
Please see the answer to Question 5 (a).
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Croatia
|
No changes are needed, as it is prescribed in Article 275 of CPA.
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Cyprus
|
This is adequately covered by Article 11 of the Rights of Persons Arrested and Detained into Custody Law of 2005 (see answer to Question 5 (a) above)
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Czech Republic
|
See the previous answer.
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Estonia
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See answer to (b) above.
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France'>Finland
|
See answer above.
|
France
|
The waiving must be written and recorded.
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Germany
|
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Greece
|
In misdemeanors, the waiver is currently recorded, but in the Greek language. So, it is not so clear whether the foreign defendant has complete knowledge of the waiver.
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Hungary
|
Waivers are always recorded.
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Ireland
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See reply to (a) above. It would also be helpful if it was an obligation on the member in charge of the prisoner’s custody to record the giving of advice in relation to a solicitor being present as part of the information required to be recorded in writing on the custody record and signed by the prisoner.
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Italy
|
|
Latvia
|
No changes needed, the waiver is confirmed with a signature.
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Lithuania
|
It is being attached to the case file.
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Luxembourg
|
This would be a more modern practise but with the same aim as the proposition made under b by the undersigned.
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Malta_____Portugal'>Malta
|
Minuted in court proceedings
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Poland
|
There are no obstacles to keep a declaration on waiver of the right of access to a lawyer in the records of the concrete proceedings if, of course, such declaration exists. If such declaration wasn’t made orally in clear words (or it wasn’t delivered to the authority in a written form), there are no explicit information in the files of the proceedings about non-performing of the discussed right by a person (in such case there is no proper reference in minutes as well as there is no document including the written declaration which could be attached to the files). Figures of proceedings - a detainee/a suspect/an accused – are informed about their rights and they receive written information on their rights (letters of rights). Such letters of rights don’t inform about the possibility to waive the right but they give the awareness and knowledge about rights in proceedings. The mentioned figures sign a copy of such letters which is, thereafter, kept in files of proceedings in a proper case. In future, if the Polish law-maker decides to regulate the issue of waiver, the next possible change will be concern the contents of letters of rights. Such change could be made by adding to them a precise and explicit information on the possible waiver or non-performance of rights (even in reference to selected, particular activities in proceedings). The new document of the letter of rights, signed by an entitled person, would be attached to files of proceedings.
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Malta
|
|
Portugal
|
No information.
|
Romania
|
|
Slovakia
|
It is officially recorded whether the suspect or accused decided for a counsel or not, waivers are recorded in the Minutes of the proceeding.
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Slovenia
|
No changes are needed. The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure.
|
Spain
|
By writting.
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Sweden
|
A waiver shall be noted in the record of the preliminary investigation. If a waiver has been given during an interrogation it is noted in the transcription of the interrogation. If a waiver is given to court, it shall be noted using the existing record procedure.
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The Netherlands
|
See answer above.
|
(d) the revocation of waivers?
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Austria
|
The suspect is not informed about the right to revoke the waiver to seek assistance of a lawyer, which must be changed.
|
Belgium
|
A change is required since no possibility to revoke the waiver is organised by the Belgian law although an immediate revocation of the waiver in the course of the questioning should be organized.
The possibility of waiver is indeed submit to the suspect before the questioning, although it is precisely during the questioning and according the content of the questions that the suspect could feel the need for the assistance of a lawyer. The suspect would thus be in the position to revoke his/her waiver until he/she signed the final statement of his/her declarations.
|
Bulgaria
|
Please see the answer to Question 5 (a).
|
Croatia
|
No changes are needed, as it is prescribed in Article 274. of Croatian CPA.
|
Cyprus
|
This is adequately covered by Article 11 of the Rights of Persons Arrested and Detained into Custody Law of 2005. The accused can revoke his waiver at any time during his detention by the Police.
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Czech Republic
|
See the previous answer.
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Estonia
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Our laws do not explicitly provide for the right to revoke a waiver, and therefore the suspects are also not informed about this right explicitly. In practice, a suspect is asked at every interview whether he/she wants to have a lawyer present or not, and therefore one can argue that the suspect actually can change his/her mind on the waiver at any time. Nevertheless, I believe that rules on revocation and information about this possibility are necessary to implement the Directive.
|
Finland
|
The revocation can be done at any time. However, statements made without a lawyer present are usually accepted as evidence, since there is a written record in the interrogation report that the suspect has waived his right voluntarily. Again, more transparency and control over the circumstances is needed by legislation.
|
France
|
It is always possible to waive the waiver.
|
Germany
|
|
Greece
|
There is no information about this right, but in practice, if someone asks for a lawyer in a later stage, this possibility is granted.
|
Hungary
|
It is not a revocation of the waiver, but the suspect/accused may decide to ask for a lawyer at any time during the procedure.
|
Ireland
|
It would be desirable if each interview commenced with a reminder to the detained person of their entitlement to have a solicitor present and a requirement that the waiver be repeated if being insisted on.
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Italy
|
|
Latvia
|
No changes needed, the waiver can be revoked at any moment.
|
Lithuania
|
The person can revoke the waiver at any stage of criminal proceedings.
|
Luxembourg
|
Must be possible during all following procedural acts, without having retroactive effects, for the future only and no effect on procedural acts done after a valid waiver.
|
Malta
|
Possible, may produce lawyer at any stage
|
Poland
|
Polish law concerning proceedings in criminal cases or cases on petty offences doesn’t provide for provisions on revocation of waivers (which is, by the way, a consequence of the lack of provisions referring to the waiver of the right of access to a lawyer). In practice a proper person who doesn’t perform the right of access to a lawyer (he or she is not assisted by a lawyer at previous stages of the proceedings) is entitled to perform the mentioned right at next (later) stages of the proceedings. So the revocation of waiver is implied by the decision of informed, conscious person to perform the right of access to a lawyer (by seeking or asking for the assistance of a lawyer).
|
Portugal
|
None.
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Romania
|
|
Slovakia
|
The accused may require assistance of a lawyer at the later stage of the proceeding.
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Slovenia
|
No changes are needed. The revocation is possible at any time and stage of proceedings.
|
Spain
|
It is possible at any time.
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Sweden
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A waiver can be revoked at any point of time during the criminal proceedings.
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The Netherlands
|
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