(b) the stages of the proceedings at which temporary derogations are granted (i.e. only at the pre-trial stage)?
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Austria
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None
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Belgium
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Yes, only at the pre-trial stage.
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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 temporary derogations are granted only in pre-trial stage.
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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 the previous answer.
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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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See previous answer. Also it is worth mentioning that there exists no general rule at other stages but the pre-trial investigation stage, in which derogation could be granted.
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France
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Only during custody.
Before the Investigation Judge, he or she can only refuse to the lawyer the right to provide to his client the file (article 114).
Otherwise, no derogations are possible.
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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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No derogations.
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Ireland
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The denial of access to a lawyer is only possible in these limited circumstances during detention and prior to the trial stage.
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Italy
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Only for 5 days subsequent the execution of the warrant.
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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, even temporary, cannot be granted under Lithuanian law.
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Luxembourg
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During the Pre-trial stage
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Malta
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Not regulated at law, desirable
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Poland
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In Poland – on the grounds of the Code on Criminal Proceedings - temporary derogations (if they were provided by specific regulations) are granted in preparatory proceedings (so, at the pre-trial stage). On the grounds of the Code of Proceedings on Petty Offences possible derogations from the full right to a lawyer are granted in the explanation proceedings (during conducting of explanation acts).
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Portugal
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No information.
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Romania
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Slovakia
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"Unreachability" of the lawyer as a ground for temporary derogation applies only at the pre-trial stage. In the light of the contradictory character of the criminal proceeding, all the procedures undertaken in the pre-trial stage must be repeated in the trial stage.
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Slovenia
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n/a
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Spain
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None.
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Sweden
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Derogations mentioned under Question 2(a) may be granted at all stages of the criminal proceedings, also after an indictment has been submitted to court.
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The Netherlands
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No changes have to be made, derogation can only be made at the pre-trial stage by the prosecutor.
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(c) the compliance of derogations with the four conditions in the third paragraph above?
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Austria
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None
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Belgium
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The authorized derogation complies nearly – but not totally - with the four conditions in the third paragraph above, since :
i. “exceptional circumstances” and “imperative reasons” are required, which implicates thus that the said derogation will need to be proportionate and not go beyond what is necessary, taking indeed into account these “exceptional” circumstances and “imperative” reasons.
ii. the derogation concerns only the first private and confidential meeting with a lawyer before the first questioning(s) of a person as suspected during the first 24 hours or 48 hours after his deprivation of liberty. The derogation is thus necessarily limited in time because it may legally not last longer than the first 24 hours or 48 hours after deprivation of liberty.
iii. “not be based exclusively on the type or the seriousness of the alleged offence”. This condition is not expressively required in the Belgian internal law. The requirement of exceptional circumstances and imperative reasons does not seem enough to avoid possible assimilation of the seriousness of the alleged offence with an exceptional circumstances.
iv. “not prejudice the overall fairness of the proceedings”. This condition appears to be met since, as already mentioned, the Belgian lawmaker stipulates that none may be sentenced on the basis of a questioning made without to have had the possibility of a previous and confidential meeting with a lawyer (see art. 47bis, § 6 of the Belgian criminal procedure Code).
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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 temporary derogations are in compliance with the four conditions, although these four conditions are not strictly proscribed as in Article 8 of the Directive.
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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 answer to the question 2(a). Wording of the Directive´s conditions seems narrower than of the domestic provisions.
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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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See previous answers.
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France
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The permitted derogations do not comply with the conditions of the directive for the reason that the “necessity of the investigations” does not cover a specific case but involves every criminal proceedings.
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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 permitted Irish derogations do not comply with the conditions in the third paragraph.
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Italy
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See answer to question 2 (a) above
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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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National law and practise concerning the eventual derogation of legal assistance comply with the four conditions contained in the above paragraph.
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Malta
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More rigorous adherence is desirable
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Poland
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Taking into account the four EU directive’s conditions concerning temporary derogation: its proportionality and not going beyond what is necessary, strict limitation in time, not basing exclusively on the type or the seriousness of the alleged offence as well as not prejudicing the overall fairness of the proceedings it should be said that – even if there is no direct recall to them in proper proceedings law provisions and they are replaced by general normative wordings – they could be overall interpreted. However not each of them. Derogations in the Article 245 § 1 CCP, in the Article 73 § 2 and § 3 CCP as well as in the Article 317 § 2 CCP should be proportionate and they shouldn’t go beyond what is necessary. Also, they shouldn’t prejudice the overall fairness of the proceedings and they should not be basing exclusively on the type of the seriousness of the alleged offence. These conclusions are derived from results of the interpretation of the mentioned regulations (especially of the demand on ‘particular situations’) and a general rule of the fairness of criminal proceedings. The condition that derogations shall be strictly limited in time is fulfilled only for the derogations placed in the Article 73 § 2 and § 3 CCP. The conditions of derogations created by the EU standard in the directive 2013/48 aren’t fulfilled by the Article 46 § 4 CPPO. This regulation doesn’t indicate the limitation of derogation in time and even it doesn’t require ‘particular motivation’ of the derogation. This could contravene especially the condition of proportionality and necessity and in consequence – the principle of the fairness of proceedings. Required amendments of the Polish law shall respond to the European Union standard which is indicated by provisions of EU directive 2013/48.
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Portugal
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No.
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Romania
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Slovakia
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There is no special provision to this respect but it may all be subsumed under obligation to respect the fairness of the proceeding.
Case law - Constitutional Court 85/2011 Pl. ÚS 112/2011
"...Derogation from the right to choose a lawyer, in other words right to counsel, may be allowed only if measures preventing the violation of the right of the accused to a fair trial are taken. European Court of Human Rights stated in its case law that right to legal assistance is not absolute and examples of acceptable derogation could be found in the ECtHR case law (...)"
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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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The circumstances under which the derogations may be granted cannot be in full compliance with the requirements set out in Article 3.6 and 8.
Although decisions on limiting the right to meet and communicate with a private defence counsel are made on a case to case basis, such limitations cannot be considered proportionate nor necessary when the defence counsel is an advocate. When limitations are imposed they may also prejudice the right to an effective defence and a fair trial.
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The Netherlands
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See answer to the question 2(a). Wording of the Directive´s conditions seems narrower than of the domestic provisions.
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