Question 8.
What changes need to be made in your Member State – covering both national law and national practice - with respect to remedies regarding:
(a) the availability of a remedy for breach of the right of access to a lawyer or the right to communicate with third persons?
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Austria
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The problem of any remedy is that it is only an ex-post review of any breach of right to contact a lawyer; therefore, such a remedy has only a very limited effectivity. The situation would improve if the breach of right would entail – as a consequence – that the investigative measure may not be used in the trial, i.e that the evidence is inadmissible.
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Belgium
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This specific right – ensuring that notwithstanding a breach of the right to a lawyer the rights of the defence and the fairness of the proceedings are respected – still needs to be introduced in the Belgian law since it does only organize a system of inadmissibility of the declaration of the suspect if the latter has been interrogated without a previous confidential meeting with a lawyer and without the presence of the lawyer during the questioning within the first 24 hours or 48 hours of his deprivation of liberty (see article 47bis, §6, of the Belgian criminal procedure code).
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Bulgaria
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In my view, no changes need to be made in my country with respect to the remedies as required by Article 12 of the Directive. There are adequate procedures of appeal in cases of breaches of the right to access to a lawyer, which are available to the accused persons and are effective in practice. When the court’s judgment is appealed on the grounds of a breach of the right to access to a lawyer, this might result in quashing the judgment.
As regards the right of detainees to communicate with third persons, the situation is somewhat different. Breaches of this right committed by the detention authorities may be appealed before the competent prosecutor. However, Bulgarian law does not provide for judicial control on the prosecutor’s decision. In my view, the law has to be respectively amended and judicial control has to be introduced in the future process of transposing the Directive.
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Croatia
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No changes are needed, as it is prescribed in Article 239.a. of Croatian CPA and in the section 23. Of Croatian CPA that prescribes legal remedies.
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Cyprus
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As mentioned above in Question 1 (c) if the right of access to a lawyer or the right to communicate with third persons is breached the member of the police that breached the said provisions will be disciplinary and criminally liable and furthermore a right is conferred upon the suspect and the accused whose rights are violated to damages against the State and the person or persons responsible for breach or denial of those rights independently of whether he/she has suffered any material damage. Also in 2006 the Independent Authority for the Investigation of Allegations and Complaints Against the Police (IAIACAP) was created by the Police (Independent Authority for the Investigation of Allegations and Complaints) Law of 2006 (N. 9 (I) / 2006). The IAIACAP issues an Annual Report which records its work during the year. In their latest report (Annual Report 2013) they criticize the Police of not complying with the provisions of the Rights of Persons Arrested and Detained into Custody Law of 2005. Their observations are based on the filed complaints by Greek Cypriots, EU nationals and people from third countries. In their recommendations they suggest the amendment of the current law so that the accused has the right to communicate with the IAIACAP. I believe that this is a valid recommendation and it will add an important safeguard of the rights guaranteed by the said legislation
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Czech Republic
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These objections may be at present raised within standard legal remedies.
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Estonia
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Currently, the law does not provide for any effective remedies, and they need to be introduced.
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Finland
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The remedies in these kinds of cases are always reparatory by nature. “On paper” the legislation holds a good standard relating to breaches of the right of access to a lawyer (at least from 1.1.2016 onwards when new changes to legislation concerning evidence comes into force). However, the problem is documentation. For the time being the courts generally accept the signed “form” where the suspect affirms that he voluntarily waives his right to counsel. This is not sufficient.
Regarding communication with third persons see question 6. Restrictions are used far too loosely and legislation may need to be tightened in this regard.
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France
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Regarding the breach of the right of access to a lawyer no changes needed, the person is entitled to challenge the proceedings. Nevertheless, actions that have chances of success are only based on the refusal or the omission to provide a lawyer which are quite rare cases.
Aside these cases, the daily practice of depriving the lawyers to a complete to the file is voluntarily let without any remedies.
The right to communicate with third persons are not provided and accordingly there is no remedy for such breaches.
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Germany
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Greece
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A remedy is provided for the first case.
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Hungary
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Remedies are granted.
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Ireland
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At present there is the opportunity of making an application to the High Court in any case of unlawful detention. Detention will be considered unlawful where it is conducted in circumstances where a person's constitutional rights are denied to them. The relief is claimed under Article 40 (4) of the Constitution.
The difficulty with an Article 40 application is that it can only be made to the High Court. It is obviously made where High Court judges are available typically in the capital city. It is open to make an application to a High Court judge in any other place if one can be located. Because the judges tend to reside in Dublin and the High Court tends to sit in Dublin it is disadvantageous to persons in more remote locations to have to seek a High Court judge.
It would be preferable if there was a designated judge available for each locality to hear urgent applications of this kind. This would involve conferring jurisdiction on a judge of the District Court. District Court judges tend to reside in their localities and are more easily available. That having been said they don't tend to have the experience that would come from High Court judges who routinely exercise Article 40 jurisdiction and a period of training in that regard would be desirable.
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Italy
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It is not admissible to appeal against this kind of decision, the only remedy is to claim that the questioning, without the previous access to a lawyer, is void and that the arrested person is to be released
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Latvia
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Regarding the breach of the right of access to a lawyer no changes needed, the person is entitled to lodge a complaint.
The right to communicate with third persons are not provided in law and accordingly there is no remedy for such breach.
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Lithuania
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To my opinion, remedy for breach of the right of access to a lawyer or the right to communicate with third person should be indicated in the law clearly, herewith indicating officers that are responsible for the breach (e.g. pre-trial investigation officer, prosecutor)
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Luxembourg
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Request, recourse at the chamber of council with possibility to appeal at the chamber of council of the court of appeal
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Malta
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Available – Constitutional Court
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Poland
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Remedies in case of breaching of the right of access to a lawyer or the right to communicate with a third person are available in Polish proceedings regulations. The Article 246 § 1 CCP as well as the Article 47 § 1 CPPO state that a detainee is entitled to challenge the detention to the court. In his or her complaint, a detainee may require the checking of the legitimacy, legality and correctness of the detention. In practice, the correctness of the detention means the correctness of the particular activities required by law and connected with the detention (including, for instance, the proper information and instruction about rights of a detainee). So, the detention can be challenged if a detainee wasn’t aware that he or she had the right of access to a lawyer or even – as it seems to me – he or she wasn’t aware of the right to inform a third person about the detention.
According to the Article 80a § 1 CCP the president of the court or a court referendary appoints – upon the motion of an accused person who didn’t choose a defence lawyer – an ex officio defence lawyer. According to the Article 81 § 1 CPP – the president of the court (or a court referendary) appoints an ex officio defence lawyer for a suspect (an accused) who didn’t choose a defence lawyer (if a suspect or an accused is entitled to have a defence lawyer or the defence is obligatory). In turn, the Article 81 § 1a states that the decision of the president of the court which declines the appointment of an ex officio defence lawyer is challengeable.
In a particularly motivated situation, taking into account the important interest of the inquiry, a public prosecutor may decide to decline of the access of parties, their defence lawyers or proxies to participate in a certain activity of preparatory proceedings (see the Article 317 § 2 CCP). This decision of a public prosecutor, made in the preparatory proceedings, isn’t challengeable. Taking into account the possible limitations of the right of access to a lawyer of a suspect in criminal proceedings (the Article 73 § 2 and § 3 CCP and the Article 317 § 2 CCP), as well as the Article 302 § 2 CCP (which states that parties of the proceedings and other subjects may challenge these acts of proceedings which are not decisions or orders breaching their rights) it could be said that orders of public prosecutors concerning the limitations of the right of access to a lawyer aren’t challengeable. Orders (decisions) of entitled authority (police officials) on possible limitations of the right of access to a lawyer, which are indicated (reserved) in contents of the Article 245 § 1 CCP and in the Article 46 § 4 CPPO also aren’t challengeable (there is no provision which makes available to challenge such orders). It’s worthy to add that sometimes limitations of the right of access to a lawyer (especially if the law doesn’t demand their particular motivation or justification) could be the source of breaching of the rules of a fair proceedings in criminal cases or in cases on petty offences.
Due to the Article 301 CCP, a suspect – on his or her demand – shall be examined with the participation of the established defence lawyer. Non-appearance of such defence lawyer doesn’t stanch the activity of examination of a suspect. It seems to be 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 also seems to be 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). It should be added that - considering general provisions of the procedure of appeal - the absolute infringement of the right of access to a lawyer (when the defence was obligatory) causes the necessity of quashing of a judgment. In other situation (if the infringement is relative) it could cause the quashing or commuting of the judgment. The circumstance that in the concrete criminal proceedings or in the concrete proceedings on a petty offence there was the infringement of the right of access to a lawyer might be brought up in procedure of appeal.
The Article 217 § 1c of the Executive Criminal Code of 1997 provides for a possibility to challenge to the court the decision of the proper authority on denial of the approval for the visit of a temporarily arrested person by a person closest to him or her. The right to challenge such decision is guaranteed for a temporarily arrested person and a person closest to him or her who applies for the visit.
On the grounds of above-presented remarks it can be said that Polish proceedings regulations need some corrections to fulfill the required standard of the EU directive 2013/48.
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Portugal
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No changes needed.
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Romania
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Slovakia
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In case of violation of defence rights, the accused may file an application to have the police actions examined; he/she may file an appeal or an appellate review. Moreover, constitutional complaint could be considered too.
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Slovenia
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No changes are needed.
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Spain
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In the scope of police arrest, the only remedy available is the « habeas corpus » remedy, which is, generally speaking, ineffective, because the Courts normally dismiss the petition « ab limine ». Special provision about it would be necessary, including the option for a lawyer of making use directly of this remedy. In addition, it would be recommendable that the judge admits this petition by electronic means. If the issue arises at Court stage, the suspect or accussed can challenge the situation using the current remedies against judicial decisions (I do not know any cases of this).
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Sweden
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As mentioned under Question 2(d) most decisions on limiting or refusing access to lawyer can be reviewed by court. In exceptional cases, there might be a possibility to receive damages from the state, provided any damages caused by negligence can be proved.
In many situations it can be questioned whether the above mentioned remedies are effective in the meaning of Article 13 ECHR. In case of a breach of access to lawyer, the damage may be irreparable. During recent years a number of judgements from the ECtHR have referred to the issue on how particular evidence have been achieved (see e.g. Case of Salduz v. Turkey 27/11/2008, Panovits v. Cyprus 11/12/2008, Yoldas v. Turkey 23/02/2010)
Two basic principles of Swedish law are the principle of free production of evidence and the principle of free evaluation of evidence. With a few exemptions, there is no practice of examining the admissibility of particular evidence nor rejecting information as inadmissible. However, as the case-law of ECtHR is part of Swedish law and in the light of e.g. the above mentioned judgment, the question of admissibility may indirectly come on Swedish courts more frequently. In practice the requirements set out in Article 12.2 must also be taken into account.
A decision to refuse contact with a third person can be reviewed by the court. As the court at this stage does not generally have the same knowledge about the circumstances of the case as the leader of the investigation, there is doubt that the remedy can be considered effective.
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The Netherlands
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If a non-compliance is established the court is authorized to impose a sanction according to
article 359a NCCP, but whether a sanction should actually be imposed, and if so the nature of such sanction, depends on the merits of each case and especially on whether the suspect's interests are harmed. The Dutch Supreme Court has explicitly judged that in case a suspect did not get the opportunity to consult a lawyer prior to his first interrogation the results of that interrogation (the statement) cannot be used as evidence and should be excluded. In my view, no changes need to be made in my country with respect to the remedies as required by Article 12 of the Directive.
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