Question 9.
What changes need to be made in your Member State – covering both national law and national practice - with respect to the European Arrest Warrant regarding:
(a) the right to a lawyer in the executing Member State if your Member State is the executing Member State (e.g. effective exercise of rights, without undue delay, right to meet and communicate, record keeping)?
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Austria
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None
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Belgium
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No changes needed since this right is already duly organized in the Belgian law (see articles 11, § 1er, 3° - 12 – 13 - 16 – 31 of the law of 19 December 2003 relating to the European Arrest Warrant).
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Bulgaria
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The Extradition and European Arrest Warrant Act (EEAWA) regulates the issues relating to the application of the European Arrest Warrant (EAW) in Bulgaria. EEAWA provides for the subsidiary application of CPC where the former act does not contain explicit procedural provisions on extradition and EAW. Both judges and academicians in my country hold that no changes need to be made since the relevant provisions of EEAWA and CPC, construed in combination, as well as the national practice, fully comply with the requirements of the Directive concerning all the aspects of the right to a lawyer in the executing Member State as pointed out in Article 10.2 (a), (b) and (c) of the Directive, if Bulgaria is the executing Member State. I share this view.
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Croatia
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No changes are needed, as it is prescribed in the Article 24. of the Law on Judicial Cooperation in Criminal Matters with EU countries.
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Cyprus
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As regards persons who are arrested on the basis of a European Arrest Warrant (see Article 17 (1A) of the European Arrest Warrant and the surrender procedures between Member States of the European Union Law of 2004 L. 133(I)/2004), they are immediately provided with a document titled “Rights for Persons Arrested on the basis of a European Arrest Warrant”, in a simple and understandable language containing the following rights:
-period of deprivation of liberty,
-information about the content of the European Arrest Warrant on the basis of which he/she has been arrested,
-assistance of a lawyer,
-interpretation and translation,
-possibility to consent for extradition to the issuing Member State,
-the right to be heard.
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Czech Republic
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Carrying out of the proceedings on the execution of the EAW itself is a ground of mandatory defence. It means that the accused has to have a defence lawyer when the Czech Republic is the executing state and also cannot waive of this right (Section 14 of the Act no. 104/2013 Coll., about international judicial cooperation).
The content of this right is the same as in case of the accused, see the previous replies.
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Estonia
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No changes need to be made
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Finland
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We haven’t encountered major problems. The National Bureau of Investigation (or the prosecutor) is usually active in finding a lawyer at an early stage.
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France
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Same observations as those made regarding custody since this right is already incorporated under French law, article 63-1 to 63-7 applicable to custody being applicable by article 695-27.
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Germany
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Greece
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A right to communication under good circumstances is provided. Record keeping.
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Hungary
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In court procedure related to European Arrest Warrant the presence of the defence lawyer is obligatory. The court does not hold the trial without defence lawyer. The public defender is appointed by the investigation authority, because in case of deprivation of liberty the assistance of the defender is obligatory. Of course, it is also possible to appoint a private defender at any time. No suggestion for any change.
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Ireland
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Irish law is in all probability in full compliance with the requirements of the directive insofar the European Arrest Warrants are concerned.
In practice in Ireland the view is taken that once the warrant has executed a person must be brought immediately before the High Court. No interrogation of a suspect in the circumstances is permitted. The High Court are scrupulous in ensuring that the person brought before them is capable of following the proceedings in a language that they understand. Translation and interpretation is routinely provided.
The Court also are anxious to ensure that a person is legally represented from the outset and is prepared to assign lawyers where the suspected person does not have a lawyer of his own choice. While there is no statutory scheme governing this, there are practitioners who are known to the Court to be familiar with these cases and who are readily available to accept an assignment in circumstances that arise.
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Italy
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At the moment, when it is required by another Member State the arrest of a person, there shall applied the same safeguards applicable for a person arrested / Kept in custody in force of a domestic arrest warrant.
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Latvia
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No changes needed, effective exercise of this right is granted.
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Lithuania
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The exercise of the rights is quite effective for the extraditee in the EAW proceedings because he/she enjoys the same rights as the suspect in criminal proceedings.
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Luxembourg
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Listed up in the AT case vs Luxemburg
Proposition
Record keeping and immediate transfers of documents concerning the declarations should be transferred
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Malta
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None – they are already in place
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Poland
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In my opinion, Polish regulations pretty well correspond to the required standard in this matter. According to the Article 607k § 2a CCP, in relation to a person who is detained on the basis of a European Arrest Warrant there are applied regulations of the Articles 244-246 and Article 248 CCP. The right to a lawyer is guaranteed (not only formally but also in practice). However, in Polish law on criminal proceedings there is no provision demanding that the proper Polish authority (if Poland is the executing Member State) is obliged to inform a detainee on the basis of a European Arrest Warrant, immediately after depravation of liberty, about his or her right to establish a lawyer in the issuing Member State. On the grounds of regulations mentioned above, as well as on the grounds of the Article 607l § 4 CCP and in the light of model letter of rights for persons detained on the basis of a European Arrest Warrant (attached to the Ordinance of the Minister of Justice of the 11th of June, 2015 - Journal of Laws of 2015, item 874) a detainee has the right to prompt contact with a lawyer (an advocate or a legal advisor) and to direct communication (conversation) with a lawyer. He or she is also entitled to have the assistance of a defence lawyer, chosen by him or her. If a detainee proved that he or she can’t afford to have a chosen defence lawyer, the court may appoint a defence lawyer (ex officio defence lawyer). Other substantial rights in proceedings are also ensured. Due to the Article 607k § 5 CCP if a issuing Member State asked for the questioning of a pursued person, such person shall be questioned in the presence of a person indicated in the European Arrest Warrant. The Article 607l § 1 CCP states that in the court sitting, where the issue of surrender or the application of temporary arrest is considered, may participate a public prosecutor and a defence lawyer. Participation of a lawyer during the questioning of a detainee on the basis of a European Arrest Warrant is a logical result of the right of having assistance of a defence lawyers which is guaranteed. Activities during the proceedings are recorded. Also a copy of the letter of rights – signed by a detainee – is submitted to files.
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Portugal
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No changes needed. The law gives the right to lawyer in the pre-trial stage.
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Romania
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Slovakia
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Relevant legislation: Act No. 154/2010 on EAW
In this respect the Directive on the EAW was literally transposed to the Slovak legislation and no significant discrepancies thus exist.
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Slovenia
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The right to a lawyer is guaranteed, no changes are needed.
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Spain
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None.
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Sweden
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Taking account of the recommended changes as mentioned under the questions above Swedish law is in general compliance with the requirements set out in the Directive.
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The Netherlands
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The right of access to a lawyer in EAW proceedings currently does not lead to major problems. Although there is not yet an explicit legal basis for this right, in practice the police tend to act in accordance with the provisions of the Directive and call up a duty lawyer whenever a person is arrested on the basis of an EAW. However, this practice needs to be formalized adding an explicit legal basis to the Dutch Surrender Act (Overleveringswet).
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(b) the right to a lawyer in the issuing Member State if your Member State is the issuing Member State (e.g. information without undue delay)?
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Austria
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There is no provision that the suspect must be informed about the right to appoint a lawyer in the issuing member state.
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Belgium
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No changes needed since the general right to a lawyer is already duly recognized and organized in the Belgian law and in the Belgian practice (see article 47bis, § 2, of the Belgian criminal procedure code).
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Bulgaria
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Neither EEAWA, nor CPC contain provisions concerning the right to a lawyer in the issuing Member State, if Bulgaria is the issuing Member State. Therefore, changes have to be made by transposing all the requirements of Article 10.4 of the Directive into Bulgarian law.
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Croatia
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There is no such provision in the Law on Judicial Cooperation in Criminal Matters with EU countries or in Croatian CPA.
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Cyprus
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Currently there is no such provision in our current legislation because the Directive 2012/13/EU is not yet implemented in Cyprus (see answer in Question 1 (a))
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Czech Republic
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Any person against whom the criminal proceedings are carried out may have a defence lawyer (see the previous replies).
However, the domestic legislation does not contain the mechanisms stipulated in the Article 10(4)(5) of the Directive.
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Estonia
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No changes need to be made
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Finland
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This is a whole new area for Finland and new legislation is definitely needed. For the time being usually only in cases where the person sought is aware of the EAW is active himself, a lawyer in the issuing state is sought (on his own expense).
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France
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See above.
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Germany
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Greece
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There is no relevant explicit provision. It should be regulated.
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Hungary
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In any case, the public defender is appointed by the investigation authority, because in case of deprivation of liberty the assistance of the defender is obligatory. No suggestion for any change.
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Ireland
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There is no provision whatsoever for Ireland putting in place a system of access to a lawyer in Ireland in respect of Irish requests for surrender. This is controversial and is considered unacceptable by defence lawyers. Defence lawyers take the view that if Ireland are seeking the return to this jurisdiction of the person for trial that it is inevitable that the person will be accorded legal representation upon their arrival in Ireland and that therefore it is artificial to deny access during the surrender procedure where a person might get the greatest benefit from the legal advice to which they will ultimately be entitled.
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Italy
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As Above ( answer to question 9)
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Latvia
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No changes needed, effective exercise of this right is granted.
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Lithuania
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Such provisions are not incorporated in Lithuanian law yet.
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Luxembourg
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Should be a minimum guarantee foreseen in the legislation of the issuing state
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Malta
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Still has to be introduced in our legislation
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Poland
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There are no specific regulations in the Polish Code of Criminal Proceedings of 1997 concerning the right to a lawyer for a pursued person if Poland is the issuing Member State. Proper regulation fulfilling the required standard of the Article 10(5) is needed.
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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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Relevant legislation: Act No. 154/2010 on EAW
In this respect the Directive on the EAW was literally transposed to the Slovak legislation and no significant discrepancies thus exist.
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Slovenia
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The right to a lawyer is guaranteed, no changes are needed. If the requested person appoints a lawyer, he/she has all the rights that a lawyer would have if Slovenia was the executing Member State.
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Spain
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Legal aid will be granted once the person arrives in Spain. It would be necessary to appoint a public lawyer, unless, once the issuing state had been informed that the person has been caught in the executing State. This appointed allows the public lawyer in executing State to contact a colleague in the issuing State to collaborate in the case.
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Sweden
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In order to comply with the Directive there is a need for amendment to ensure the
right to a lawyer in Sweden.
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The Netherlands
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In this regard a distinction has to be made between a Dutch EAW issued for the purposes of the execution of a final judgement (1) and a Dutch EAW issued for the purposes of a prosecution (2). Ad 1) When a judgement is final, the person in question under Dutch law no longer qualifies as suspect / accused (verdachte) but as a convict (veroordeelde). The legal position of a convict is extremely limited under Dutch law (for example such a person does not have a right of access to the case file per sem no right to a lawyer etc.). However, in practice the Dutch authorities might be willing to provide a Dutch lawyer with information in such a situation. Ad 2) Any person arrested on the basis of such an EAW is automatically considered a suspect/accused under Dutch law. (s)he will therefore also have all the rights of a suspect/accused. However, bar exceptional situations, there is no right to a legal aid lawyer. This right will only arise as soon as the wanted person arrives in the Netherlands.
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