(b) the assessment of statements made by suspects or accused persons in breach of the right to a lawyer?
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Austria
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The statements may be used against the suspect even if the right to a lawyer was breached, i.e such evidence is admissible in court. Such evidence must be inadmissible because it is the only effective means to safeguard the right of the suspect to a lawyer.
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Belgium
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See the previous answer.
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Bulgaria
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No changes are needed here too. According to Bulgarian law, statements made by suspects or accused persons in breach of the right to a lawyer are to be excluded form the evidential material that might be used as a basis of the court’s judgment.
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Croatia
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No information, it is not prescribed in Croatian CPA, persons only have the right on legal remedies.
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Cyprus
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A statement obtained by a detainee in breach of his/her right of access to a lawyer might be rendered inadmissible in Court.
As mentioned above there is no obligation on the part of the police to warn the suspect before arrest 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 of access to a lawyer to the suspect before he/she is arrested.
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Czech Republic
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See the previous answer.
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Estonia
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The law does not provide for exclusion of such statements from evidence, but the introduction on the relevant inadmissibility principle should be considered.
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Finland
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See previous answer.
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France
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Should be not taken into account as evidence but there is no control of such hypothesis.
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Germany
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Greece
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Any statement without representation by a counsel, should be considered only under the condition that the accused was informed in writing in a language he/she understands and that he/she signed the waiver from the relevant right. In practice, there is a pre-text noting that he/she was informed, which the accused then signs.
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Hungary
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Remedies are granted.
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Ireland
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The observations of the Supreme Court in the joint cases of White and Gormley are clearly to the effect that the Courts will look with increasing scepticism on supposed voluntary statements made in the absence of legal advice. The Gardai are themselves aware of this development and hence they have issued guidance to their members to accommodate this request.
There will be a period of time during which old habits will die hard and a denial of access to lawyers by rouse or otherwise will continue to arise and there will be a greater incidence of challenge to such statements.
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Italy
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Latvia
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Evidence gathered in breach of the right to a lawyer may be only partially used or excluded entirety out of evidence.
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Lithuania
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To my opinion, the inadmissibility of such evidence should be indicated in the law.
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Luxembourg
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Depend of the individual case
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Malta
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Possible – removed from Court acts
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Poland
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The Polish Code of Criminal Proceedings of 1997 doesn’t provide for a specific prohibition of evidence concerning the issue of excluding form evidence either the statements made by suspects or accused persons in breach of the right to a lawyer or other evidence gathered in breach of the right to a lawyer. In terms of the European Union minimal standard, the needed amendment of the Polish Code of Criminal Proceedings is at least the creation of a guarantee regulation prohibiting the possibility of using as the evidence the explanations or statements of suspects or accused which were made in breach of the right of access to a lawyer. The remarks above regard also, adequately, the provisions of the Polish Code of Proceedings on Petty Offences of 2001.
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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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Statements acquired in breach of right to a lawyer in case of mandatory counsel are unusable/inadmissible evidence. In cases other than mandatory counsel, breach of the right to a lawyer is sometimes difficult to prove.
In general tapping of telephone calls or seizure of correspondence between the accused and, the counsel or between the different people of the defence counsel is not admitted. Information gained from the tapping of telephone calls or seizure of correspondence between the accused and the counsel cannot be used for the purpose of criminal process and must be destructed. This does not refer to information regarding issues when the defence counsel is not in a position of the counsel of the suspect. The evidence gained from inspections, searches, seizures or wiretapping carried out with the use of coercion or threat of coercion can be used only against the person who has used/carried out such coercion or threat of coercion.
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Slovenia
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No changes are needed.
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Spain
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This statement will be inadmissible as evidence.
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Sweden
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No information
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The Netherlands
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See answer above.
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(c) the assessment of statements made by suspects or accused persons where a derogation of the right to a lawyer was authorised?
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Austria
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None
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Belgium
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See the previous answer.
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Bulgaria
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I am not capable to answer this question, since Bulgarian procedural law does not provide for temporary derogations from the right to access to a lawyer in the sense of Article 3.5 and Article 3.6 of the Directive. In respect of this issue, please see the answer to Question 2 (a).
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Croatia
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No information, it is not prescribed in Croatian CPA, persons only have the right on legal remedies.
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Cyprus
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As mentioned above currently there is no derogation of the right to a lawyer.
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Czech Republic
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See answer to the question 8(a).
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Estonia
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Not applicable -- our law does not provide for any derogations.
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Finland
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See previous answer.
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France
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It depends on each cases if the derogation was according to the criteria of necessity of the investigations justified or not.
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Germany
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Greece
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There are no derogations regarding the right to a lawyer.
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Hungary
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No derogation, see above.
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Ireland
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Where a lawyer has been requested and this request has been denied it is likely that the Courts will be especially anxious to ensure that any resultant statement is genuinely voluntary. The Courts would be keenly aware of the public policy importance of not creating a temptation for police to improperly grant themselves derogations with the object of securing statements that otherwise would not become available to them.
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Italy
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Latvia
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Authorised derogation of the right to a lawyer is not provided in law.
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Lithuania
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As it was indicated above, the derogation of right to lawyer is impossible in Lithuania.
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Luxembourg
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Depend of the individual case
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Malta
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No information
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Poland
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Statements made by suspects or accused persons where a derogation of the right to a lawyer was authorized aren’t excluded from evidence (there is no prohibition of evidence to use such statements in criminal proceedings and assess them from the point of view of free appraisal of evidence). No particular provisions of the Code of Criminal Proceedings of 1997 concern exactly such statements. The same regards also, adequately, the matter of the Polish Code of Proceedings on Petty Offences of 2001. Changes in the Polish law (either CCP or CPPO) - in the context of the European Union standard – will be welcomed.
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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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If the questioning in pre-trial period was performed in the absence of the lawyer who was unreachable, it is a legal interrogation.
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Slovenia
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No changes are needed.
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Spain
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No information
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Sweden
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No information
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The Netherlands
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Currently there is no derogation of the right to a lawyer, no changes need to be made.
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