Question 10.
Has the directive brought important changes on the right to access to a lawyer in criminal proceedings in the legislation and practice of your Member State? what are the main aspects that could be improved, both at EU and national level (apart from your answers already given)?
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Austria
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A major improvement would be the mandatory contact with a lawyer before waiving the right to have a lawyer present at the interrogation of the suspect. In practice, the police often exercise pressure on the suspect to waive the right to a lawyer; in order to prevent such practice, the suspect should have (at least phone) contact with a lawyer (otherwise the interrogation should be illicit) and the complete interrogation should be taped (video and/or audio).
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Belgium
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Since the Directive has not yet been implemented in the Belgian law, and since the Belgian judicial authorities consider that until then (or until the 27 November 2016), the Directive has no power in Belgium, no important changes has been brought by the Directive.
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Bulgaria
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Since the requirements of the Directive are not yet transposed into Bulgarian law, I cannot say that the Directive has brought any changes so far. Respectively I am not capable to add anything more to my answers already given.
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Croatia
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This directive has not been implemented yet in Croatian law.
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Cyprus
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As mentioned above the enactment of the three amending bills will be ratified hopefully by June 2016. The important change that will be eventually brought to Cyprus Law is the provision guaranteeing to all detainees the right to have their lawyer present during police questioning. Currently the legislation does not provide for the presence of a lawyer during police questioning except if the person to be interviewed is under 18 years of age or suffers from mental incapacity. The presence of a lawyer during questioning will safeguard the suspect or accused from undue pressure and/or oppression by the police and will enhance the protection of the right against self-incrimination. Therefore I believe that the transposition of Article 3 section 3 of the Directive in the national law will be a very significant development towards a more just system, guaranteeing that the suspect or the accused is not mistreated in any way by the police.
Secondly the Cyprus Republic should enact a law based solely on the Directive to avoid any conflicting provisions and have a unified legislation which provides clear provisions about the right of access to a lawyer including as mentioned above the right to of access to a lawyer to the suspect before he/she is arrested.
I believe that Article 2 of the Directive (Scope) should apply not only to suspects and accused persons but also apply to every person that is questioned by the Police (or any other competent authority) even though at the time they are not suspect or accused because during police questioning the person that is being questioned may say something that will incriminate himself/herself. Also the Directive should apply when a person is not yet suspect or accused but there is court order for search of his/her premises.
Also I believe that Article 5 (2) of the Directive (Letter of Rights in European Arrest Warrant proceedings) should be modified so that the “Rights for Persons Arrested on the basis of a European Arrest Warrant” document contain the right to remain silent and the right of free legal aid/assistance and the conditions required of such assistance.
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Czech Republic
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The Czech Republic has not yet implemented this Directive.
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Estonia
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The Directive has not brought important changes.
Protecting the right to confidentiality, and ensuring proper use of waivers are the main areas that could be improved
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Finland
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France
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No, since the Directive has not yet been implemented in France.
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Germany
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Greece
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To enable telephone communications with the prisoners, with the initiative of the lawyer. In practice, the lawyer can’t summon the detainee nor notify him of anything, unless he/she goes to prison. Better conditions of communication between lawyers of detainees in detention centres and enlargement of visiting time.
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Hungary
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No, it was already granted.
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Ireland
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For further consideration. The reality is that White & Gormley and the DPP's direction was the main catalyst for change. Residual issues involve training, rota and full compliance with best standards.
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Italy
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With a general obligation to comply with the E.U. Directives on safeguards and, in case, any eith subsequent amendments (i.e. what happened with in absentia proceedings)
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Latvia
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This directive has not been implemented yet.
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Lithuania
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This directive brought no important changes on the right to a lawyer in Lithuanian legislation and practise yet.
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Luxembourg
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No
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Malta
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Directive sparred amendments
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Poland
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In the Polish legal system there have appeared certain regulations inspired by the standard of the EU directive 2013/48. But, unfortunately, there is no the accomplishment of the full legal standard demanded by the EU legal instrument. The matter of the European Union directive standards of the right of access to a lawyer is the subject of ongoing works which concern either regulations of the Code of Criminal Proceedings or the Code of Proceedings on Petty Offences.
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Portugal
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No important changes were brought on the right to access to a lawyer in our Member State, but we think there is no need, for now, of any improvement.
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Romania
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Slovakia
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The directive has not been fully transposed yet.
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Slovenia
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The directive hasn't brought any really important changes.
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Spain
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The main important points in the directives regarding Spanish legislation are: (a) the right to have a private interview with the detainee in police station, and (b) the right to communicate with third person. The first issue was implemented in our law. The second no. In addition, at national level, it would be important to underline: 1- An Organic Law on the right to defense is strongly desired; 2- This Law would help to formulate a Habeas Corpus system more swift and efficient; 3. - Legal profession/National Bar should be present in the states bodies who issue action protocols for State Security Forces and Corps; and 4. - It would be desirable an unified criteria for all Spanish State Security Forces and Corps as regards rights and guarantees of accused and suspects persons. At European level, it would be convenient to have an unified criteria for European policies bodies, concretely, in relation to suspects and accused persons right to meet in private with his lawyer before making statements.
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Sweden
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As there is an ongoing implementation process regarding the Directive, it is too early to point out any specific changes. At EU level, a legislative act on legal aid would be an important measure to ensure the right of access to a lawyer (see Article 11 and recital 48).
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The Netherlands
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Not yet, a bill implementing the Directive is pending.
A major improvement would be the mandatory contact with a lawyer before waiving the right to have a lawyer present at the interrogation of the suspect. In practice, the police often exercise pressure on the suspect to waive the right to a lawyer; in order to prevent such practice, the suspect should have (at least phone) contact with a lawyer (otherwise the interrogation should be illicit) and the complete interrogation should be taped (video and/or audio).
Currently the legislation does not provide for the presence of a lawyer during police questioning except if the person to be interviewed is under 18 years of age or suffers from mental incapacity. The presence of a lawyer during questioning will safeguard the suspect or accused from undue pressure and/or oppression by the police and will enhance the protection of the right against self-incrimination. Therefore I believe that the transposition of Article 3 section 3 of the Directive in the national law will be a very significant development towards a more just system, guaranteeing that the suspect or the accused is not mistreated in any way by the police.
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UK
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England and Wales
As explained above, the United Kingdom has chosen to opt out of adoption of the Directive. The current position on access to a lawyer is set out in the relevant Codes of Practice issued under s.66 of the Police and Criminal Evidence Act 1984. References to provisions with a ‘C’ prefix indicate paragraphs of Code of Practice C (detention, treatment and questioning of persons by police officers).
Any person who is detained at a police station, or who attends voluntarily to assist with an investigation enjoys an absolute right to obtain legal advice or communicate with anyone outside the police station.
Section 5 of Code C governs the right to have a third person informed of the deprivation of liberty; section 6 of the same governs the right of access to a lawyer.
A person brought to a police station under arrest or a person arrested at the station after attending voluntarily must be told orally about his right to consult privately with a lawyer and of the right to obtain free and independent legal advice. He must also be told of his right to have someone informed of his arrest at no cost. [C§3.1] This right must also be set out in a written Notice of Rights and Entitlement to be provided to the detainee. [C§3.2(a)] A poster advertising the right to legal advice must be prominently displayed in the charging area of every police station. [C§6.3]
Right of access to a lawyer
Communication with a lawyer may be in person, in writing or by telephone. [C§6.1] the circumstances in which free legal advice is limited to telephone advice in accordance with the practice of the Defence Solicitor Call Centre is set out in Guidance Note 6B to Code C.
Whenever legal advice is requested, the custody officer must act without delay to secure the provision of such advice. If the detainee waives his right, he must be asked why and any reasons recorded in the custody record or interview record. Reminders of the right to legal advice must be given on various occasions including by the custody officer [C§3.5]; immediately prior to the commencement or re-commencement of any interview [C§11.2; C§16.5]; before reviewing or considering extending the maximum period of detention without charge [C§15.4]; and after charge, if the officer wants to inform the detainee about the written statement or interview of another person relating to the offence [C§16.4]. Once it is clear that the detainee does not wish to speak to a lawyer, they should cease to be asked their reasons. [C§6.5]
Where the detainee is a juvenile or mentally disordered or mentally vulnerable, an appropriate adult should consider on his behalf whether legal advice is required and may ask for a lawyer to attend even where the detainee has indicated that he does not want legal advice if the appropriate adult considers it in the best interests of the detainee. [C§6.5A]
A detainee who has requested legal advice may not be interviewed or may not continue to be interviewed until they have received such advice except in a narrow set of circumstances, namely:
(a) pre-charge, where the detainee is suspected to have committed an indictable offence (that is, an offence that can be tried in either the Magistrates’ Court or the Crown Court) and there are reasonable grounds for believing that the exercise of the right of access to legal advice would lead to the cases set out in (b) below.
(b) there are reasonable grounds for believing that
(i) delay might lead to interference with, or harm to, evidence connected with an offence; interference with, or physical harm to, other people; serious loss of, or damage to, property; alerting other people suspected of having committed an offence but not yet arrested for it; or hinder the recovery of property obtained as a result of commission of an offence;
(ii) awaiting the arrival of the lawyer who has agreed to attend would cause unreasonable delay to the investigation;
(c) the lawyer nominated by the detainee cannot be contacted, has previously indicated they do not wish to be contacted, or has declined to attend;
(d) the detainee has changed his mind and no longer wishes to have legal advice. [C§6.6; Annex B to Code C]
The exercise of the right of access to a lawyer may only be delayed for as long as the grounds exist and in any event for no longer than 36 hours (or 48 hours in cases of suspected terrorism). [Annex B§6 to Code C; Annex B§6 to Code H]
On the request of the detainee, the lawyer shall be permitted to be present at interview subject to the exceptions set out above. [C§6.8] The lawyer has the right to be present at any identification parade and the suspect must be given a reasonable opportunity to have that lawyer present if he wishes. [Annex B§1 to Code D] The lawyer has the right to be present at any confrontation and must be present unless their attendance would cause unreasonable delay. [Annex D§4 to Code D]
All communications between the detainee and his lawyer must be held in private. This includes communications via telephone unless this is impractical because of the design and layout of the custody area or location of the telephones. The normal expectation is that facilities will be available for private communications, whether face to face or via telephone. [Note 6J to Code C]
The right to free and independent legal advice continues after charge and prior to any court hearing. The duty solicitor scheme operates in all Magistrates’ Courts in the country to enable defendants to receive free and independent legal advice prior to their first appearance for a criminal offence. Legal advice and representation at subsequent court hearings is arranged by instruction of a solicitor, which may be free subject to a successful application for legal aid to the Legal Aid Agency. The Legal Aid Agency assesses financial need and the interests of justice in considering any application. Different rules apply to legal aid in Scotland and Northern Ireland.
Right of access to a lawyer in European Arrest Warrant proceedings
The right of access to a lawyer in EAW proceedings is identical to that in non-EAW proceedings set out above. The sole exception is that the person in question is only entitled to legal advice by telephone whilst at the police station the justification for which is that such persons are not interviewed.
There is no provision for legal advice or representation at public expense in the issuing state and there appears to be no plan to introduce it in the near future.
Right to have a third person informed and to communicate with third persons
The right to have a third person informed and to communicate with third persons are manifestations of the right not to be held incommunicado.
Any person arrested and held in custody may, on request, have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If that person cannot be contacted, the detainee may choose two alternatives. If they cannot be contacted, the person in charge of detention or investigation has discretion to allow further attempts to be made. [C§5.1]
The exercise of the right to have a third person informed may only be delayed in accordance with Annex B, which is summarised in (a) of the section above in relation to right of access to a lawyer.
If the detainee agrees, he may receive visits from friends, family, or others likely to take an interest in his welfare or persons in whose welfare the detainee has an interest. This is at the custody officer’s discretion. [C§5.4] Visits should be allowed when possible, subject to the presence of sufficient personnel to supervise a visit and any possible hindrance to the investigation. [Note to Code C §5B]
If a friend, relative or person who has an interest in the detainee’s welfare enquires about his whereabouts, this information is to be given with the agreement of the detainee and cannot be delayed. [C§5.5]
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Scotland
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Northern Ireland
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