Question 5.
What changes need to be made in your Member State – covering both national law and national practice - with respect to the waiver of the right of access to a lawyer regarding:
(a) the provision of information regarding the right and its waiver?
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Austria
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None
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Belgium
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No changes, since the information about the possibility to waive the right to access to a lawyer is duly given and the waiver, if any given by the suspect, must be recorded in writing in the statement of interrogation (“procès-verbal de l’audition”).
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Bulgaria
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There is only one simple rule in Bulgarian law concerning the waiver of the right to a lawyer. This is Article 96(1) of CPC, which states: “The accused person may refuse to have a counsel for the defence at any time of proceedings”. This is obviously insufficient form the viewpoint of the standards of the Directive, which means that practically all the requirements of Article 9 of the Directive are to be transposed into Bulgarian criminal procedural law.
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Croatia
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There are no changes needed, as it is prescribed under Articles 239. and 273. of the Croatian CPA. It is important to note that Croatian CPA prescribes when suspects and accused persons must have the defence lawyer, and in that case cannot waive its right to a defence lawyer.
If suspect or accused person waives its right to a defence lawyer it needs to be explicit.
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Cyprus
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Currently there is no provision that requires from the Police to inform the accused of the implications of waiving his rights. Nevertheless Article 11 of the Rights of Persons Arrested and Detained into Custody Law of 2005 provides that if the accused decides to waive his rights this must be done in writing and the accused has to co-sign the waiver of rights along with the investigating officer. If the accused refuses to co-sign the waiver the investigating officer must report the refusal of the accused in the investigation file. Also the reasons of the waiver must be also reported in the investigation file.
The current legislation must be amended so that to include a provision that the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the possible consequences of waiving the said right.
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Czech Republic
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The current domestic legislation in principle complies with the Directive´s conditions, the wording could only be made more precise.
The waiver is regulated in Section 36b CCP and applies only in specified cases of mandatory defence (generally when the term of imprisonment at stake is higher than 5 years and during the simplified proceedings), when at the same time the exceptional sentence cannot be imposed.
The waiver can be made only through an explicit written declaration or orally into the record at the law enforcement authority which carries out the proceedings. Such declaration must be made during the presence of the defence lawyer after prior consultation with him.
The waiver may be taken back any time but the accused cannot then waive the defence lawyer again.
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Estonia
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Currently, there is no provision in our Code of Criminal Procedure (CCP) on providing information to the suspect/accused on the right concerned and the consequences of waiving it. In practice, waivers are common during pre-trial investigation proceedings, and in majority of cases, no proper information is given to suspects about their need for a lawyer nor the consequences of waiving this right. It is not uncommon to hear cases were suspects have been effectively induced by the police to waive, hinting delays in proceedings, costs, ineffectiveness of lawyers, etc.
Both law and practice must change. Ideally, waivers should be acceptable only when given after consultation with the lawyer. It is unlikely, however, that our government would be ready to adopt such measure.
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Finland
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In accordance with the letter of rights (or the more narrow announcement when not deprived of liberty), the suspects are given the information about their right to a lawyer. However, especially vulnerable persons but also others, may not fully understand the meaning of being assisted by a lawyer. A interrogation statement nowadays after Supreme Court Precedent KKO 2012:45 in practice always begins with a long section, of which one part states that “having a counsel present may help my defence etc., I fully understand that I’m waiving this right voluntarily and unequivocally…”. We are concerned that people in general, especially if not having been interrogated by the police previously, do not understand what they’re waving. It has also been reported that in a recent case, even when an application for a public defender already was pending, the suspect had “waived” his right to a lawyer – and thereafter confessed without the lawyer being present. But technically speaking such information is given to suspects, there’s just no way of controlling under which circumstances etc., since only a fraction of the interrogations are (video)taped.
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France
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As long as the assistance of a lawyer is a right that has to be claimed to be provided, unless before the Cour d’assises where its presence is mandatory, no specific provisions are made to prevent from a “guided” waiving of the right to a lawyer especially during the police interrogation.
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Germany
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Greece
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A waiver is granted solely in misdemeanors. The defendant has to be informed in writing in the language he understands about the right, the waiver, and the revocation of the waiver.
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Hungary
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No.
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Ireland
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See the guidance issued by the Garda authorities to their own members.
While this advocates best practice there is a concern among defence practitioners at the extent of the instances of police advising suspects you are entitled to have a solicitor present during questioning but it will take several hours to put that in place and by implication the person's detention will be extended solely on that account. It would be preferable if there was a strict rule requiring the importance to the person of having a solicitor present being outlined to them, and audio-visually recorded so that any waiver was clearly recorded.
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Italy
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There is no provision about waiver of the rights.
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Latvia
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No changes needed, person is informed about the right to a lawyer and also about the right to waiver it.
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Lithuania
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According to the Lithuanian law the notification about the suspect’s rights, including the right to the lawyer, is being handed to the suspect in written form. However, the suspect is not provided in written form with the information about the waiver of this right and the possibilities to revoke the waiver. In practise, no suspect is being informed about the consequences related to the waiver of the right of access to a lawyer.
To my opinion, the requirement to inform the suspect in written form about the waiver of the right of access a lawyer and the right to revoke a waiver should be envisioned in national law.
According to Lithuanian law the suspect can ask for the lawyer or can call the lawyer himself/herself at any stage of the proceedings regardless of the waiver of the right of access to a lawyer. To my opinion, such notification should be handed to the suspect as well and an obligation to do this should be envisioned in national law.
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Luxembourg
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Article 39 of criminal procedure code stipulates that
« (7) Avant de procéder à l'interrogation, les officiers de police judiciaire et les agents de police judiciaire désignés à l'article 13 donnent avis à la personne interrogée, par écrit et contre récépissé dans une langue qu'elle comprend, sauf les cas d'impossibilité matérielle dûment constatés, de son droit de se faire assister par un conseil parmi les avocats et avocats à la cour du tableau des avocats.
(8) Les procès-verbaux d'audition de la personne retenue indiquent le jour et l'heure à laquelle la personne retenue a été informée des droits lui conférés par les paragraphes (3), (6) et (7) du présent article, ainsi que, le cas échéant, les raisons qui ont motivé un refus ou un retard dans l'application du droit conféré au paragraphe (3); la durée des interrogatoires auxquels elle a été soumise et des repos qui ont séparé ces interrogatoires; le jour et l'heure à partir desquels elle a été retenue, ainsi que le jour et l'heure à partir desquels elle a été, soit libérée, »
Practise to be improved
First of all this “bill of rights” should be given in presence of a lawyer which would offer a supplementary guarantee for both parties, pursuant authorities and pursued person, even though the person later on will waive his right to legal assistance.
Secondly this written bill of rights is not given really and affectively in due time to the person put in procedure, only in the PV of first audition by the police or in the transcription of the first interrogation by the instruction judge references concerning the information of rights are made in writing.
This means that the person is not really in possession of a bill of rights, that he could consult at his good will and at any time, he wants during the pre-trial procedure.
In addition, there is no guarantee that the person understood the rights he was only orally notified at the time and in the conditions these right were notified to him.
In the eyes of the undersigned, this practise is absolutely contrary to the requirements of the directive, and to the requirements of the actual national law as stipulated in article 39 requesting a notification by writing.
The practise has so to be changed very rapidly whereas the national legal dispositions are in harmony with the requirements of the directive concerning the assistance of a legal counsel.
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Malta
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Provided by the judiciary, deemed adequate
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Poland
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In Polish proceedings in criminal cases and in petty offences cases there are provisions containing the information regarding the right of access to a lawyer. However, these provisions don’t include any information regarding the possibility to waive the mentioned right. It must be noted that neither the Code of Criminal Proceedings nor the Code of Proceedings on Petty Offences provide for the requirement to declare expressively by a party that he or she wants to waive his or her rights. In fact the waiver of a certain right is simply unequivocal with non-performing of such right. It’s a signal that the right and its scope haven’t been interested the party. But the necessary condition of such passive behavior of the party (i.e. his or her non-performance of the right) is that the party shall have the knowledge about the set of his or her rights. This means that the party ought to be informed (instructed) about his or her rights. Appropriate interpretation of passive behavior of a party as well as the fact that such party really doesn’t want to perform the right of access to a lawyer is dependent upon the effectiveness of instructing (informing) a party about his or her rights in proceedings. If a party is aware of his or her rights (in consequence of a proper instruction) and the authority is sure that the instruction is well understood by a party, it will be able to be accepted that non-performance of the right by a party is his or her conscious decision. It seems that the procedure of effective and repeatable informing about rights of a detainee/a potentially suspected person/a suspect/an accused person (also about the right of access to a lawyer) during the whole proceedings (at its various stages) would be sufficient to reach the required EU standard. Information on rights shall be delivered in simple, clear, communicative language (and they are, if we take into consideration model letters of rights existing in the Polish law). Of course, introduction of the regulation containing clearly expressed possibility to waive the right of access to a lawyer to the Polish law is also probable but such regulation wouldn’t be fitting well to the traditional manner of creating provisions concerning rights in Polish law on proceedings in criminal cases and in petty offences cases. By the way it even seems that if the prospective regulation or regulations will be referring to a certain declaration of a detainee/a potentially suspected person/a suspect/an accused person on non-performing the right of access to a lawyer, it shall be the declaration on non-performance of the right in reference to selected, particular proceedings activities.
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Portugal
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There is information about the right of access to a lawyer. But there is no information about the possible consequences to the waiver.
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Romania
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Slovakia
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Slovak legislation does not explicitly regulate general waiver of the right of access to a lawyer. Access to a lawyer/counsel is a right, not an obligation (except for the mandatory defence examples). The suspect or accused is provided with the possibility to choose a lawyer or to have a lawyer assigned or decide for self-defence. No information is given on the possible consequences of the absence of a lawyer. On the other hand, the law enforcement bodies are obligated to explain in more detail the instructions on the rights of the accused should he so required, including the right of access to a lawyer.
As regards mandatory counsel, according to Sec 37 para 4 CCP, if it is the case of proceeding on particularly serious felony, the accused may by explicit declaration waive his right to a lawyer after the first consultation with the lawyer. He may revoke the waiver.
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Slovenia
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No changes are needed. The waiver should be given voluntarily and unequivocally and is subject to challange.
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Spain
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The suspect or accused only can waive his/her right in offences related to vehicle traffic, after he/she received clear information about it, but the law does not provide that this information has to be given by a lawyer, which is a default in the system, because, instead of a lawyer, the one who give that information is the police officer or the clerk of the Court. It is possible to revoke the waiver at any time.
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Sweden
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There is no express provision, covering the requirements referred to in Article 9. Yet, as the Article corresponds to the case-law of ECtHR, the requirements shall already be taken into consideration in Swedish practice.
In order to ensure a coherent practice, amendments in correspondence with Article 9 would be preferred. Regardless way of implementation, it is important that proper training continuously is provided, ensuring that the handling of a waiver is carried out in compliance with the requirements of the Directive.
Regarding juvenile suspects, new guidelines to be issued by the Prosecutor General states that a waiver from a minor may never be decisive. The prosecutor shall in principle always submit an application for a public defender for the minor.
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The Netherlands
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Currently, there is no provision in the Dutch Criminal Proceedings Act on providing information to the suspect/accused on the right concerned and the consequences of waiving it. In practice, waivers are common during pre-trial investigation proceedings, and in majority of cases, no proper information is given to suspects about their need for a lawyer nor the consequences of waiving this right. For that matter our national law does not meet the requirements of article 9. 1 sub a of the Directive.
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