(c) the manner of provision (e.g. allowing a practical and effective defence, in privacy etc)?
|
Austria
|
When questioning, the participation of the lawyer is limited to be present and to ask questions (after the police have finished their questions). The lawyer may not interfere or interrupt the suspect when he answers questions. This not a practical and effective defence during police interrogations.
|
Belgium
|
No specific change needed. The Belgian law organizes already a practical and effective defence, and private and confidential meeting with a lawyer before any questioning as suspect by the police (see article 47bis, § 2, of the Belgian criminal procedure Code.
|
Bulgaria
|
No changes are needed. Bulgarian procedural law provides for sufficient time limits in which the accused persons could effectively organize their defence, find a lawyer (lawyers) of their choice, meet and authorize their lawyer(s) in private. No practical problems have been met in this respect.
|
Croatia
|
No specific change needed, see the previous answer.
|
Cyprus
|
The Rights of Persons Arrested and Detained into Custody Law of 2005 makes, inter alia, detailed provisions about: (i) information being imparted to the suspect about his/her right of access to a lawyer, (ii) the exercise of the said right, (iii) the record that must be kept by the police on the subject, (iv) unimpeded access of the detainee whether suspect or accused to his/her lawyer and the confidentiality of communication. The said law also makes provision for the presence of the suspect's lawyer during police questioning if he/she is under 18 years or suffers from mental incapacity. The said procedures are guaranteed because if a member of the police force breaches the right of a detainee of access to a lawyer then he/she will be (a) criminally liable punishable with imprisonment up to six months or a fine not exceeding 1700 Euros, (b) disciplinarily liable under the police law. Be it noted that a member of the police force interfering with the unimpeded access of the accused to a lawyer is likewise disciplinarily liable. Furthermore a right is conferred upon the suspect and the accused whose rights are violated to damages against the State and the person or persons responsible for breach or denial of those rights independently of whether he/she has suffered any material damage.
|
Czech Republic
|
Suspects and accused persons have the right to consult their defence lawyer also during acts performed by the law enforcement authority (e. g. questioning). However, they cannot consult their defence lawyer about how to reply to the already posed question. The defence lawyer may pose questions to persons who are questioned, including his client. Suspects and accused persons may speak with the defence lawyer without a third person being present also when they are in a custody or a prison. They may request to be questioned with their defence lawyer being present and so that their defence lawyer participates also in other acts of the pre-trial stage (see Section 33(1), 165(2), 76(5)(6), 179b(2) CCP).
Only when the suspect is giving explanation at the Police according to Section 158(5) CCP, he cannot consult his lawyer during this act, but his lawyer may participate in. What burdens in practice the defence is that the defence lawyer cannot ask any questions when his client is giving explanation at the Police according to Section 158(5) CCP.
|
Estonia
|
No changes need to be made -- lawyers are already allowed to be present, consult in privacy with the client, make statements during questioning, etc.
|
Finland
|
Usually privacy is not an issue anymore. Only some times back when suspects were detained at police stations, the lawyer and client could only communicate through a glass wall via telephone. The Ombudsman had criticized this practice and at least generally speaking there are not problems – at least on a day-by-day basis.
In some courts – for example the largest court in Finland, Helsinki District Court – the facilities for lawyers to meet with their clients are far from par. In Helsinki, there is only one room in which lawyers, one after the other, meet with their respective clients, in many cases for the first time. Given that there may be 20-30 detention hearings (or even more) in a day, this is hardly a practical and effective way of arranging the defence.
Another problem exist during interrogations. There is still a provision in the Criminal Investigation Act that allows for the lawyer being present to only with the permission of the investigator to put questions. The investigator may also order that the questions are put via him. The counsel may even be removed from the interrogation (although very seldom applied in practice; maybe because most of the lawyers sit quiet and listen and only put one or two questions at the end), if he is considered to interfere with the interrogation. Even an advise to the client not to answer a specific question has been interpreted to be interfering with the interrogation. We would need to get a change in law that would allow the counsel to more actively participate during the interrogation, although fully understanding that unnecessary interruptions still wouldn’t be allowed.
|
France
|
As already explained in the questionnaire of measure B, the assistance of a lawyer in custody in France is not effective for the reason that the lawyer does not have an effective access to the criminal file during investigations.
The file is only composed of minor interest documents and doesn’t allow the lawyer to provide the whole range of services specifically associated with legal assistance (see CEDH, 13/10/2009, n° 7377/03, § 30 à 33, DAYANAN vs TURKEY).
Before the Investigating Judge, access to file is provided a few time before the hearing disregarding the importance of the file.
Before the Tribunal correctionnel, only some specific provisions state that the file should be provided to a lawyer, under certain circumstances (article 388-4 & R. 155).
Before the Cour d’assises, article 279 grants a full access to the file.
|
Germany
|
|
Greece
|
The manner of provision is sufficient. The practice particularly in the investigative stage is different.
|
Hungary
|
See above.
|
Ireland
|
c. There is controversy in relation to the manner of provision. This is because there is not a rota system established centrally to ensure that there are always qualified solicitors available to perform the task of advising suspects in custody. The problem is not acute in the main population centres such as Dublin, Cork or Limerick where there is an abundant supply of solicitors and where there is competition for defence work among legal firms. This ensures that it is in the commercial interests of each solicitor’s practice to ensure that there are solicitors available to attend Garda Stations even at unsocial hours.
The situation is quite different in more remote areas especially during unsocial hours. The individual police station has to seek to secure a lawyer if the suspect has not identified a lawyer of their own who will attend. The relative shortage of experienced lawyers means that the police routinely resort to contacting qualified solicitors but who have no real experience in criminal law. This is a differential in terms of quality of representation that is disadvantageous to have suspected person.
The solution would be relatively straightforward in establishing a rota system whereby experienced lawyers were always on call in a given geographical area but naturally this would come at a cost to Government as the solicitor on call would have to be paid for being on call. For this reason the Government have not taken this additional and essential step.
|
Italy
|
Yes
|
Latvia
|
No changes needed, access to a lawyer is provided allowing a practical and effective defence, in privacy etc.
|
Lithuania
|
In practise, the time gap emerge from the moment of the arrest of the suspect to the moment when the lawyer finds a possibility to come to the police station or the prosecutor’s office. Usually the investigators or/and prosecutors are using this gap to make some kind of psychological pressure on the suspect.
|
Luxembourg
|
Concerning the practical and effective defence one has to underline that, the assistance of a lawyer in Luxembourg is not effective, for the simple reason that the lawyer does not have aces to the criminal file before he sees the person put under proceedings.
Therefore, the only effective assistance a lawyer can give in Luxemburgish criminal proceedings at the stage of police hearings and at the time of first interrogation by the investigation judge is to advice his client to keep silent. This point seems to be shared by the CEDH in the afore mentioned decision of AT vs Luxembourg
|
Malta
|
No information
|
Poland
|
The current regulations of the Code of Criminal Proceedings of 1997 and the Code on Proceedings on Petty Offences of 2001 regarding to the right of access to a lawyer also include reservation that during the contact of a proper person (a detainee in proceedings on petty offences or in criminal proceedings, a suspect or an accused person temporarily arrested) with his or her lawyer, the representative of proper authority (i.e. e.g. a police official or a public prosecutor) might be present at it. Unfortunately, one of provisions giving the entitlement for representatives of the authority to be present during the contact of a detained person with his or her defence lawyer doesn’t precise the reasons for such presence (see the Article 46 § 4 CPPO). In turn, provisions of the Code of Criminal Proceedings (the Articles 73 § 2 and § 3 as well as 245 § 1) include demand that the presence of the entitled authority during the contact of a person with his or her defence lawyer (or – if a person is temporarily arrested – also the supervision of his or her correspondence with a defence lawyer) must have its grounds in particular, exceptional situations.
In case of proceedings before the court, current regulations don’t include the possibility to apply the aforementioned reservation in the situation of personal contact between an accused person and his or her defence lawyer (so such contact is possible without the reservation of presence of a proper authority).
It seems that in Poland – on the grounds of criminal proceedings – the practical and effective defence of a detainee, a suspect (an accused person – not only temporarily arrested) is allowed in the light of regulations giving only exceptional possibility of presence of the proper authority during the communication between a person involved in the criminal proceedings and a lawyer. The same remark cannot be repeated without doubts when we consider the situation of the access of a detainee to a lawyer on the grounds of the proceedings concerning petty offences. Too general regulation gives the proper authority (a police official) the opportunity to be present during the contact of a detainee with his or her lawyer without giving any reason of such presence. So, the defence in such situation might be not effective or just constricted.
|
Portugal
|
No information.
|
Romania
|
|
Slovakia
|
Upon request or before commencement of any procedure, the accused may consult a lawyer. The accused, however, shall not have the right to consult his counsel on how to respond to question raised during the interrogation. He may ask to be interrogated in the presence of his counsel and to have the counsel present also when other procedures of pre-trial proceedings are conducted.
If he is apprehended, remanded in custody or serves an imprisonment sentence, he may speak with his counsel in the absence of a third person; this shall not apply to a telephone call of the accused with his counsel during serving custody, the conditions and mode whereof are set forth under a separate regulation.
In the proceedings held before the court, the accused shall have the right to examine witnesses who were moved by him or upon his consent by his counsel, and put questions to the witnesses. The accused may exercise his rights on his own or via his counsel.
Lawyer attends all the investigative or evidence-gathering acts. Acts undertaken during the pre-trial period must be repeated during the trial period. Presence of a lawyer is always noted in writing in the official record of the criminal procedure.
|
Slovenia
|
The manner of provision is such that allows a practical and effective defence; private communication with a suspect, etc.
|
Spain
|
In Court stages, the defense is effective. In police stations it is not, because of the following: (a) the police do not allow access to the documents in their files regarding the case. Only a few documents are shown, but not consistently. The police officer makes his/her own assessment of which documents are going to be shown to the arrest person or his/her lawyer. This assessment is always very restrictive; and (b) the lawyer can interview his/her client prior to the questioning, but for a very little time, and with a very poor privacy (a lot of times, in open room or corridor under the view of the police officer, who could hear the conversation).
|
Sweden
|
Contact and communication - Pursuant to different provisions in Swedish law the suspect has a right to meet and communicate with his or her lawyer. This applies at all stages of the proceedings when the suspect is not deprived of liberty. When the suspect is deprived of liberty the right to have meetings in private with the lawyer is expressly ensured only when the person is arrested or detained. As been highlighted by the Bar Association and also proposed in Ds 2015:7 an amendment is needed, ensuring the right to meet in private also when the suspect is apprehended.
When the defence counsel is appointed public defence counsel, the right to speak and communicate with the lawyer is unrestricted. When the defence counsel is appointed private defence counsel, the right to meet and communicate may be limited when the suspect is deprived of liberty (see Question 2). Legislative amendments have now been proposed in order to ensure that the same standard of rights shall apply regardless of the way the advocate has been appointed.
Questioning – During police interrogation, there is an unrestricted right to be assisted by a lawyer, if appointed public defence counsel. When assisted by a private defence counsel this right may be subject to limitations (see Question 2).
During court proceedings, the suspect or accused person has an unrestricted right to be assisted by a lawyer.
|
The Netherlands
|
When there in fact is access to the questioning, the participation of the lawyer is limited to be present. The lawyer may not interfere or interrupt the suspect when he answers questions. This not a practical and effective defense during police interrogations and not according to the article 3.3 sub b of the Directive.
|
