What changes need to be made in your Member State – covering both national law and national practice - with respect to the right of access to a lawyer regarding:
(a) the time of provision (e.g. without undue delay, before questioning etc)?
Austria
None
Belgium
The Directive 2013/48/EU on the right of access to a lawyer has not yet been implemented in Belgian internal law so far (latest delay is 27/11/2016).
However the Belgian law already covers many requirements of the said Directive as stated hereunder (see article 47bis of the Belgian criminal procedure Code, and article 2bis and 16, § 2 of the Belgian law of 20 July 1990 relating to temporarily detention).
Time: No specific change needed. The requested and pertinent information is indeed given in due time as soon as – and before - a person has to be interrogated as suspect or accused and to any person who, in the course of the questioning by the police or by another law enforcement authority, becomes suspects or accused (see article 47bis, § 5, of the Belgian criminal procedure Code, and article 2bis of the law of 20 July 1990 relating to temporarily detention).
Bulgaria
The right to access to a lawyer is proclaimed as a basic principle by the Bulgarian Constitution and by the Criminal Procedure Code (CPC). It is subject to a detailed regulation by many rules of the Code covering the entire course of criminal proceedings both at their pre-trial and trial stage. In general, academicians, judges and other practitioners share the view that at present all these rules can be construed as practically expressing the idea that the exercise of the right to access to a lawyer is secured without undue delay and in full compliance with the special requirements of Article 3.2 (a), (b), (c) and (d) of the Directive.
Yet CPC does not explicitly proclaim that accused persons shall have access to a lawyer without undue delay. Thus, the importance of this requirement of the Directive is somewhat underestimated at the normative level. In my view, in order to reinforce the significance of the “without undue delay” requirement, it is necessary to amend Article 15 (3) of CPC. At present the rule stipulates that the court, the prosecutor and the investigating organs “shall secure to all participants in the trial the opportunity to exercise their procedural rights”, the defendant’s right to access to a lawyer being one of these rights. The amendment to Article 15 (3) of CPC could be that the said institutions shall secure this opportunity “without undue delay”.
As to national practice, practical measures are to be taken as far as the police authorities are concerned, in order to prevent failures to secure the access to a lawyer without undue delay, which exist now in some cases of arrests by the police.
Croatia
No changes need to be made. Both suspects and accused persons have a right to have a defence lawyer at any stage of the criminal proceedings without undue delay, which is a basic principle of the Croatian Criminal Procedure Act (furthermore: the CPA). The right of access to a lawyer is prescribed in Articles 5, 7, 64 and 65 of the CPA.
Cyprus
As a general comment it must be stated that the current legislation contains several of the provisions included in the Directive. These laws are the Constitution of the Republic of Cyprus (Articles 11(4) and 12(5) (c)), the Criminal Procedure Law (Article 13, 64 and 85, the Rights of Persons Arrested and Detained into Custody Law of 2005 (Articles 3(2)(a), 7-14, 17 and 29) and the European Arrest Warrant and the surrender procedures between Member States of the European Union Law of 2004. I communicated with the Ministry of Justice and Public Order and they believe that instead of enacting a new law based solely on the Directive they are considering the amendment of the three aforementioned laws. When the three amending bills will be prepared by the Ministry of Justice and Public Order (by the end of the year) then they will be sent to the Legal Service of the Republic for their legal vetting and immediately after that will be forwarded (by the Ministry of Justice and Public Order) to the Council of Ministers for their approval and to the House of Representatives for their enactment into law. It is expected that by June 2016, the process will be completed.
However there is no obligation on the part of the police to warn the suspect before arrest and before the taking of a statement and/or questioning about his/her right to legal advice. This in my opinion is an omission of Cyprus Law which should be remedied. The scope of the said Cypriot legislation should be extended to include the right to information of criminal proceedings to the suspect before he/she is arrested.
My opinion is that 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 of access to a lawyer to the suspect before he/she is arrested.
When a person is arrested then the Rights of Persons Arrested and Detained into Custody Law of 2005 applies which provides that the arrested person must be informed immediately after arrest about his/her right of access to a lawyer.
Czech Republic
No changes need to be made. Both suspects and accused persons have a right to have a defence lawyer at any stage of the criminal proceedings (see Sections 2(13), 33(1), 76(5)(6), 158(4), 179b(2) of the Code of Criminal Procedure (furthermore only “CCP”)).
Estonia
No changes need to be made -- access to lawyer is already guaranteed immediately from the moment the person becomes a suspect, and before any questioning
Finland
For the time being, the system generally works quite well. On issue that has arisen, is access to a lawyer during weekends, holidays, etc. There is no on call duty system and the Members of the Bar have been a bit reluctant to implement such on a voluntary basis, since no separate compensation for such a system exists.
In the bigger city regions there is usually a lawyer available quite rapidly. However, when going to more remote locations, especially in the north, a lawyer can be expected to drive a couple of hundreds of kilometres to be at a police station to assist in an interrogation. Even though videoconferences are not the optimal solution, it could be – in certain situations – a reasonable solution, if the other choice would be to wait for hours before being able to obtain access to a lawyer after being arrested, for example. In order to do this, more video conferencing devices would be needed.
France
The Directive 2013/48/EU on the right of access to a lawyer has not yet been implemented in French internal law so far (latest date is 26/11/2016).
However, French law already answers to certain requirements of the directive.
Information on access to a lawyer is then not performed as soon as the accused is deprived of liberty (as in Miranda Case in the US), but at the beginning of the custody, information concerning access to a lawyer is provided with the first interview by the police.
When the person as mentioned that he or she wants to have access to a lawyer, a starting delay of 2 hours is granted to the lawyer to assist his/her client.
During this delay, no interview can be performed (article 63-4-2 du CPP).
When the lawyer arrives, whatever the importance of the file may be, he or she has 30 minutes to discuss with the client in a confidential room (art.63-4).
This delay is usually insufficient to listen to the client and perform a decent legal analysis of the case.
The presence of the lawyer is then required to all interviews by the police and cross-interrogations unless the questioning is only related to identity matters (which can be difficult in case of proceedings regarding false identity).
Germany
Greece
Under Article 99A of the Greek Code of Criminal Procedures, there is immediate information about the right of access to a lawyer and the other rights of the defence.
The suspect or accused needs to be informed from the beginning about this right and preferably in writing in the language he/she understands. This does not occur in all cases, especially in police questioning. In case of summons for apology, such right should be announced together with the summons.
Hungary
It would be essential that the lawyer shall be informed in such time/manner that enables him/her to be present at the hearing. During the investigation stage, it is very common that the lawyer is informed about the hearing in such a manner/time (e.g. fax sent to the law office during the night about the hearing on the next early morning) that he/she is not able to attend. This problem is not present in the judicial stage. In its decision Nr. 8/2013. the Hungarian Constitutional Court declared that in case the time between the notification of the public defender and the questioning is not sufficient, and therefore the defender can not be present, any confession on the questioning by the suspect can not be used in the procedure.
Ireland
The replies in relation to Ireland are especially qualified. While Ireland is not automatically bound by measures in relation to justice and home affairs it had voluntarily opted into the earlier measures A and B. It is believed that the intention was to voluntarily opted to measure C also and a committee had been established under the chairmanship of Moling Ryan, Chair of the Civil Legal Aid Board to examine the cost implications of full compliance. A copy of that report is attached to these replies. Separately a committee under the chairmanship of Judge Esmond Smith examined the whole question of interviewing in Garda Stations (police custody) and prepared a number of reports (not yet public).
Despite this preparatory work Ireland has not in fact opted into measure C and will therefore only be entitled to opt in if it will comply with a full audit of the infrastructure insofar as the protections are concerned. That is clearly a long way off
Separately there was a significant case decided by the Irish Supreme Court in March 2014. The twin cases of White & Gormley, decided together, indicated by obiter dictum that in a future case the Court might very well declared inadmissible evidence obtained in police custody if there was not an lawyer present during questioning. The response was a guidance issued by the Director of Public Prosecutions to An Garda Siochana, the national police force, to the effect that in future persons detained in custody should be advised of their right to have a solicitor present with them and be accorded that right. The guidance notes issued by An Garda Siochana to its own members in that regard are also attached to these replies.
There is some evidence, although it is too early to speculate that this has led to an increase in the number of persons being asked to attend voluntarily at police stations for interviews albeit under caution. In the view of some this obviates the requirement for a police man to advise a suspect of the right to have a solicitor present during questioning. This mirrors the controversial US decision where Miranda rights, similar rights applying to persons in custody, do not apply to persons being interviewed at their own homes for instance. The relevant decision in X is attached.
Subject to the foregoing the following are the replies to the question.
a. Where the guidance issued by the Director of Public Prosecutions is followed there would be no further change required to national law practice to adapt to the requirements of measure C.
Italy
In coincidence with time limit for the letter of rights
Latvia
No changes needed, access to a lawyer is provided without undue delay.
Lithuania
According to Lithuanian law, the suspect has a right to a lawyer from the moment of his arrest or from the moment of his first interrogation. The pre-trial investigation officer, the prosecutor and the court have an obligation to ensure the opportunity for the suspect or accused to grab this right.
Luxembourg
First before the implementation of concerned directive into national law, persons put under criminal procedure and auditioned by the police or interrogated by a magistrate may effectively rely on the rights offered throughout this legislation.
On the other hand ones has to say that persons under police custody as well as accused person have in practise the right to be assisted by a lawyer. Articles 39 and 81 (2) Code instruction criminelle
The recent jurisdiction of CEDH in the AT vs Luxembourg case of 9 of April 2015 underlines the minimum guidelines to be applied, even if aces to the case file is still not regarded by the afore mentioned court as a real and effective defence right.
The strict observations of the requirements listed up by the court should be sufficient to improve the situation of persons confronted with the authorities in charge of the proceedings.
Firstly, it ‘s necessary to note that the implementation of the EU directive 2013/48 into Polish legal system shall have an impact on the provisions concerning the right to a lawyer included in two codes: The Code of Criminal Proceedings of the 6th of June, 1997 (Journal of Laws of the 4th of August, 1997 No. 89, item 555 with subsequent amendments) as well as the Code on Proceedings on Petty Offences of the 24th of August, 2001 (consolidated text – Journal of Laws of the 26th of March 2013, item 395 with subsequent amendments). The latest amendments of these two codes also have brought modifications in the field of regulations regarding the right of access to a lawyer.
The right to a lawyer (to a defence lawyer) in the light of the Polish Constitution of the 2nd of April, 1997 (the Article 42 section 2) and the judgments either of the Constitutional Tribunal or the Supreme Court shall be even vested in persons who are not formally suspects (i.e. ‘persons with formal criminal charges’) or accused, but also in persons who are potentially suspected and the probability that they become formally suspected is very high. On the grounds of regulations of the Code of Criminal Proceedings (see the Article 6 CCP in relation with the Article 71 CCP), the right to a lawyer (defence lawyer) is vested in persons who are suspects (i.e. formally suspects) and accused persons. A detainee (a person potentially suspected) – on the grounds of the Article 244 § 2 CCP – has the right to assistance of a lawyer (he or she is promptly informed about such right). In turn, the Article 245 § 1 CCP states that a detainee, on his or her demand, shall have a possibility of prompt contact – in an available form – with a lawyer (an advocate or a legal advisor) as well as a possibility of a prompt and direct communication (conversation) with a lawyer. In the light of the Article 4 of the Code on Proceedings on Petty Offences, the right of access to a lawyer (defence lawyer) is vested not only in an accused person for the petty offence before the court but also in a person who is a subject to explanatory proceedings and shall be immediately questioned. In turn, in the light of the Article 46 § 1 and § 4 CPPO – a detainee in the context of the proceedings on petty offences has the right to contact and direct communication with a lawyer (an advocate or a legal advisor). It’s worthy to remark that a suspect has the right to a defence lawyer in the preparatory proceedings and according to the Article 300 § 1 CCP he or she shall be informed about this right before the first questioning. (A person becomes formally suspected after presentation of charges - see the Article 71 § 1 CCP). Due to the Article 301 CCP, on the requirement of a suspect, he or she shall be questioned in presence of the established defence lawyer. (However, the default of appearance of a defence lawyer doesn’t stanch the activity of examination of a suspect). In practice, the authority conducting the examination shall make possible that a defence lawyer might take part in the examination only in a situation when a suspect has established (chosen) a defence lawyer (or he or she has a defence lawyer appointed by the court). The authority conducting the examination isn’t obliged to adjourn this activity if a suspect didn’t established a defence lawyer. If a suspect is examined without the participation of a defence lawyer during this activity, he or she – after establishing of a defence lawyer - is entitled to require the examination once again and this time with the participation of a defence lawyer. The right of a suspect to require the examination with the participation of a defence lawyer is realized when the examination with such participation has been ended up.
A person has the right to defence lawyer as an accused in the proceedings before the court. In some situations (precised by the criminal proceedings regulations) the assistance of a defence lawyer is mandatory (see the Articles 79 § 1 and 80 CCP). If a suspect or an accused doesn’t have a defence lawyer chosen by him or her, he or she is entitled to have a defence lawyer appointed by the court not only in a situation when the lack of a chosen defence lawyer is the result of his or her adverse material situation – see the Article 78 § 1 CCP as well as the Article 80a § 1 and § 2 CCP. None of provisions of Code of Criminal Proceedings (concerning a suspect’s or an accused person’s right of access to a lawyer) includes an evident and explicit demand that such access (or a possibility of such access) shall be ensured promptly or without undue delay. According to the Article 244 § 2 CCP, a detainee (a person potentially suspected and detained) shall be informed promptly after detention among others about his or her right to assistance of a lawyer. In the Code on Proceedings on Petty Offences (the Article 46 § 1 and § 4) a detainee shall be promptly informed (after his or her detention) about his or her rights, including the right to the contact and direct communication with a lawyer (an advocate or a legal advisor). A person who is a subject to the explanatory proceedings (in case of a petty offence) is entitled to the assistance of a lawyer (a defence lawyer) starting from the moment of questioning of such person after notification to him or her about the charges or after calling his or her on the submission of explanations in writing (the Article 4 § 2 CPPO). The person shall be informed about the right to assistance of a defence lawyer. Such information is given before the questioning or together with the calling on the submission of explanations (making statement) in writing (the Article 4 § 2 an § 3 CPPO). The Article 46 § 4 CPPO states that a detainee shall have, on his or her demand, a possibility of contact (in an available form) with a lawyer (an advocate or a legal advisor) and a possibility of direct communication (conversation) directly with such a lawyer. This provision should be completed by the word ‘prompt’ concerning the contact and direct communication (conversation) with a lawyer (i.e. possibility of prompt contact – in an available form – with a lawyer and a possibility of prompt, direct communication/conversation with a lawyer). Unfortunately, the proper regulation of CPPO concerning the questioning of a person during conducting of explanation acts in case of a petty offence (Article 54 § 6), doesn’t provide for the participation of a lawyer in questioning. According to the standard of the EU directive 2013/48 – the right to a lawyer shall be guaranteed also on the stage of explanation proceedings.
According to the Article 84 § 1 CCP the establishment of a defence lawyer by a suspect or an accused person or the appointment of a defence lawyer by the court are the source of the defence lawyer’s entitlement to undertake the activity in the whole criminal proceedings, not excluding activities undertaken after that the court’s judgment has become final. It means that a defence lawyer is entitled to assist a suspect or an accused person in each evidence activity, like, for instance, identity parades, confrontations or reconstructions of the scene of a crime. The Article 316 § 1 of the Polish Code of Criminal Proceedings of 1997 states that if the activity of an inquiry couldn’t be repeated during the proceedings before the court (during the trial) a suspect and his or her defence lawyer (if such a lawyer has been established in the criminal case) shall be allowed to participate in the activity (however, excluding the situation of a danger of losing or deformation of the evidence in case of a delay). In turn the Article 317 § 1 CCP states that a suspect and his or her defence lawyer (if such a lawyer has been established in the criminal case) shall be allowed, on their demand, to participate in other activities of an inquiry. However, such participation might be exceptionally limited – by the decision of a public prosecutor - on the grounds of the important interest of the inquiry (see the Article 317 § 2 CCP).
The activity of identification of a suspect or an alleged offender - a person potentially suspected in criminal proceedings (the Article 74 § 3 CCP) and an alleged offender of a petty offence in proceedings concerning petty offences (the Article 20 § 3 CPPO) is regarded as unrepeatable one. However, the above mentioned Article 316 CCP doesn’t provide for the participation of lawyer of a person potentially suspected in the activity of identification. There is also a lack of regulation like the regulation of the Article 316 CCP on the grounds of the Code of Proceedings on Petty Offences. In Polish doctrine of criminal proceedings law there is an opinion that the Article 316 CCP shall be amended. New content of this regulation shall include the following aspects: 1) a suspect shall have a possibility to establish a defence lawyer before the activity of identification; 2) there should be guaranteed a possibility of participation of a lawyer in the identification of a person potentially suspected. Similar amendments – regarding alleged offender of a petty offence - shall be also introduced to the CPPO. Also, when we take into account the Article 317 CCP and criminal proceedings acts like reconstruction of the scene of a crime with the participation of a suspect or a person potentially suspected as well as the act of confrontation with the participation of a person potentially suspected we can see the need of amending the current contents of the Article 317 CCP in the same direction as it is postulated in the context of the Article 316 CCP (see: 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. 157 - 158).
The above mentioned remarks show that the current regulations of the Polish law concerning the issue of the right of access to a lawyer don’t overlap themselves in a full scope with the legal standard proposed by the directive 2013/48/EU.
Portugal
In Portugal, in the pre-trial stage, a lawyer is provided to the accused and the lawyer can speak with the accused in privacy. However, the nomination should be faster.
Romania
Slovakia
Relevant legislation:
Criminal Code of Procedure No. 301/2005
The Slovak Criminal Procedure Code does not formally recognize distinction between a suspect and an accused and stipulates that any person reasonably suspected of having committed a crime shall be formally accused by authorities (police investigator or prosecutor). But in fact the Slovak Criminal Procedure Code regulates rights of person who is suspect and still not accused.
The accused, from the commencement of the proceedings held against him (meaning from the moment the suspect is notified of the resolution to file charges against him) shall have the right to elect and consult a counsel also in the course of procedures carried out by the bodies involved in criminal proceedings or by the court (sec. 34). Along with the notification of charges, the suspect is being informed of the right of access to a lawyer (either by choice or having a lawyer assigned by court), of the right to have the lawyer present during questioning and on the right to remain silent.
Rights of suspects:
In the course of procedures preceding the commencement of the criminal procedure (pre-trial stage, sec 196 CCP) when the prosecutor or police officer hear the person on the basis of a criminal report or other report about the circumstances suggesting that he committed an offense, questioned person is entitled to legal aid of a lawyer.
Sec 85 CCP: In case of detention of a person, who was caught committing a crime or immediately after the crime, the detained person shall have the right to choose a defence counsel and to consult him already at the moment of detention, and to request the presence of the defence counsel at the interrogation.
According to Sec 37 para 1 CCP (mandatory defence) the accused shall have a defence counsel already during pre-trial proceedings if he is remanded in custody, serves an imprisonment sentence or is held for observation at a medical institution; is deprived of legal capacity or his legal capacity is restricted; is a juvenile or is an escaped. A counsel shall be mandatory also if the court or a prosecutor in pre-trial proceedings deems it necessary because they are in doubt whether, in view of his physical or mental handicap, the accused is capable of proper defence or if proceeding is held in respect of an offence punishable by the sentence of a minimum 10 years of imprisonment.
If the accused has no counsel in a case where the counsel is mandatory, he shall be given a time limit to elect one. If he fails to elect a counsel within this time limit, he shall be promptly assigned a counsel by the judge, during the period in which the grounds for mandatory defence apply.
No changes necessary in this respect, access to a lawyer is secured without undue delay.
Slovenia
The right of access to a lawyer applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty.
Spain
None.
Sweden
Proposal on the implementation on the directive has been presented in the Governmental legislative memorandum on the right to defence counsel (Ds 2015:7)
According to Swedish law, a lawyer can either be appointed by the suspect, private defence counsel, or by the court, public defence counsel. Partly different provisions currently apply for these two categories of counsels.
Following a request from the the Bar Association that the same standard of rights to a lawyer shall apply regardless whether the lawyer is a private defence counsel or a public defence counsel, at least when the private defender is an advocate, additional legislative amendments have recently been proposed on this matter.
The suspect has a right of access to a lawyer from the point in time when there is a reasonable suspicion that the person has committed an offence. The right entails a right to be assisted by the lawyer in preparing and conducting his or her defence at every stage of the judicial proceedings.
In principle, the Swedish legislation complies with the requirement of prompt access to a lawyer. However, a point can be raised in regard to the first interrogation during the investigation, especially when the suspect is apprehended.
When a suspected person is apprehended, an interrogation shall be held as soon as possible. At this stage the suspect rarely, if ever, has access to a lawyer before or during the interrogation. It can be argued whether the existing legislation/practice corresponds with the rights provided for under Article 3.2 (a) and 3.3 (a)-(b). In this regard it shall be noted that the Prosecutor General and the Swedish Bar Association have requested a legal amendment in order to ascertain the right of access to a public defence counsel during non-office hours.
There have also been recurring occasions when arrested juvenile suspects have not been assisted by a lawyer during the first interrogation. The Prosecutor General is currently in the process of issuing new guidelines in order to improve and ascertain juvenile suspects´ right to a defence counsel at every stage of the proceedings.
The Netherlands
No changes need to be made - access to lawyer is already guaranteed immediately from the moment the person becomes a suspect, and before any questioning (article 27c NCCP).
UK
England and Wales
The United Kingdom has chosen to opt out of the adoption of the Directive [preambular paragraph 58]. The current position as regards access to a lawyer will therefore be set out in a general manner in response to Question 10 of this questionnaire.
