Access to a Lawyer : a new EU-wide procedural right in criminal proceedings

by Gabriella Arcifa

With the publication (OJ L 294 on 6 November 8, 2013) of Directive 2013/48/EU of 22 October 2013another important achievement has been recently reached – not without controversy -along the road towards the implementation in the European Union of the principle of mutual recognition, in the field of procedural rights in criminal proceedings.

According to the European Commission there are over 8 million criminal proceedings in the European Union every year and even if the right of defense for anyone suspected of a crime is widely recognised as a basic element of a fair trial conditions under which suspects can consult a lawyer differ between Member States1.

The new Directive will guarantee these rights in practice, by:

· providing access to a lawyer from the first stage of police questioning and throughout criminal proceedings;

· allowing adequate, confidential meetings with the lawyer for the suspect to effectively exercise their defence rights;

· allowing the lawyer to play an active role during questioning;

· making sure that, where a suspect is arrested, somebody such as a family member is made aware of that arrest and that there is an opportunity for the suspect to communicate with their family;

· allowing suspects abroad to be in contact with their country’s consulate and receive visits;

· offering people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.

The general context of the new Directive

It is worth recalling that the right to a fair trial and defense are now set out in Articles 47 and 48 of the EU Charter of Fundamental Rights as well as in Article 6 of the European Convention on Human Rights (ECHR). The right to communicate with a third party is one of the important safeguards against ill treatment prohibited by Article 3 of the ECHR. However these principles are too generals to overcome the differences between the national legal systems notably when implementing an European Arrest Warrant.

The “Access to lawyer” Directive is the third step of a Roadmap2adopted by the Council of the European Union on 30th of November 2009 and mirrored in the Stockholm Programme3, by which the European Council immediately after the entry into force of the Lisbon Treaty and of the European Charter of Fundamental rights has defined the strategic legislative e operational objectives for the EU in the period 2010-2014.  Development of fundamental rights, as they are guaranteed by the Charter (articles 47-50) and by the European Convention on Human Rights (and the related case law), and – more in general – by the article 6 of the TEU is the keystone of the EU program.

Mutual recognition and harmonization of procedural rights

Indeed, the path towards harmonization of fundamental procedural rights has begun over 10 years ago, when in its Tampere Conclusions4, for the first time, the European Council endorsed the principle of mutual recognition, mentioned as “the cornerstone” of judicial co-operation2. Aware that mutual recognition could cause a lowering of the procedural safeguards of the individual the Heads of State and Government asked Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition, taking in account those aspects of procedural law on which common minimum standards are considered necessary.

The crux of the problem was how to accept that a decision taken by an authority in one state could be adopted as such in another state, “even though a comparable authority may not even exist in that state, or could not take such decisions, or would have taken an entirely different decision in a comparable case”5.

Aware of the differences among the national laws , a primary attention was paid to the protection of procedural rights that have to be granted to the suspects or accused persons in criminal proceedings.

Under the Amsterdam Treaty, the legal base for the mutual recognition was the article 31 TUE, that foresaw to ensure compatibility in rules applicable in the Member States, in a restrictive sense, only as may be necessary to improve such cooperation (lett. c).

The Framework Decision on the European Arrest Warrant n. 2002/584 has been the first case of implementation of this principle and one of the most controversial measures for its insufficient consideration for fundamental rights, (although just in the preamble the MS declare that the decision respects them). In fact, the EAW doesn’t mentioned among the grounds for mandatory or optional non-execution of the European arrest warrant the risk of fundamental rights violation, even if some MS have inserted this ground in their EAW implementing legislation.

However, in the absence of uniformity in the protection of procedural rights it was not surprising that mutual trust between MS could be lacking. To counter this trend, the European Commission after a few acts of address6, in 2004, the Commission draw up a proposal about “certain procedural rights”(COM(2004)328)7.

The proposal was ambitious, due to the fact that it included – at the same time – several procedural rights such as: a) access to legal advice, both before the trial and at trial, b) access to free interpretation and translation, c) ensuring that persons who are not capable of understanding or following the proceedings to receive appropriate attention, d) the right to communicate with family or persons assimilated, with consular authorities in the case of foreign suspects, and e) the obligation to notify persons suspected of their rights, by giving them a written “Letter of Rights “.

Regrettably, after three years of debates, the Council Presidency had to acknowledge that it was impossible to reach the unanimity required at that time by the EU Treaty. It was notably debated whether the Union was competent to legislate also for domestic proceedings (at least 21 Member States shared this view) or whether the legislation should be only devoted to cross-border cases. The Member States opposing the Commission proposal considered that the legal base (art 31 of the TEU before Lisbon) could not cover domestic situations without breaching the principle of attribution and of subsidiarity.

However this has been only a temporary stop.  As it often happens when a legislative objective is too ambitious the EU institutions pass to the piece-meal approach . The works on the procedural rights have been resumed in 2009, when the Council took the decision of starting a “step-by-step approach”, to be implemented by taking advantage of the new legal context for the European Union.

Thanks to the new Lisbon Treaty, the judicial cooperation and the consequent harmonization of the MS’ law can be better implemented thanks to the new ordinary legislative procedure: the previous system, based on the need of unanimity of the Council was abandoned in favor of qualified majority and the association of the European Parliament with the same weight of the Council (Codecision procedure).

Moreover the principle of mutual recognition of judgments and judicial decisions as well as the power to approximate national laws is now explicitly grounded at Treaty level also for the Area of freedom, security and justice (article 82 TFEU) by so strengthening the judicial cooperation in criminal matters. The power to harmonize national laws is now clearly defined and the legislative instrument of the directive will be useful to improve the mutual trust8 allowing to judicial acts to move “as such in a unique space, without borders between the national state”9.

After the first Directive on the right of interpretation and translation10 and the second one on the right of information11, that has to be granted to a suspected or accused person, involved in a criminal proceedings, the Council and the Parliament have recently found a compromise on the Proposal of the Commission on the access to lawyer and to communicate upon arrest COM2011(326)

The “access to lawyer” directive

The final text of the Directive is broader and more detailed than the initial Commission proposal : in fact, the directive points “on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty”.

The text adopted by the European Parliament plenary with an overwhelming majority (with 661 votes in favor, 29 against and 8 abstentions) as a “first reading agreement” with the Council amends in several points the original proposal of the Commission.

It is worth noting that the original intent of the Directive was to go beyond the standards of guarantees as they are stated in the European Convention on Human Rights (ECHR) and interpreted in the case-law of the European Court on Human Rights (EctHR). This was however too ambitious for the Council (and some Member States behind him) so that the Commission and the European Parliament had to fight to grant an added-value by setting higher and more detailed standards.

Having regard to the legislative preparatory works this objective has been only partially achieved. In fact, the Council aimed to restrict the scope of the Commission proposal, as we’ll see in the analysis of the main points of the Directive.

Among the point most debated we can mention :

1.      the subject matter and the scope;

2.      the content of the right o access; the minor offences;

3.      Confidentiality;

4.      Derogations and general condition to derogations;

5.      Waiver;

6.      Remedies.

1a. On the subject matter (art.1)

In the original proposal the right to inform third parties was not included in the text, even if it was included in its meaning. So, to the expression “to communicate”, considered too broad, was replaced by “to have a third party informed of the deprivation of liberty”, noting the difference of common sense with the first one. It also has been added the right to communicate, while deprived of liberty, with a third person. Instead, in the body of the original text (but not in the title of the directive) was just present the right to communicate with consular authorities.

1.b On the scope (art. 2):

The directive applies:

·         to persons from the time when they are made aware, by official notification, that they are suspected or accused of having committed a criminal offence, irrespective of whether they are detained and until the conclusion of proceeding;

·         to persons upon to European arrest warrant proceedings, from the time of their arrest in the executing State;

·         to persons who in the course of questioning by the police or by another law enforcement authority, become suspects or accused.

The rights of “suspects”…

Alongside the issue about a precise definition of “suspects” (due to the fact that its meaning was considered too vague and could be applied to an extensive list of circumstances, so the term has to be linked to an official notification), the most heated debate has been focused on the possibility of allowing the protection of rights, even when the individual is still free (or , technically speaking “ a state of liberty”).  Since the beginning of the legislative procedure it has  been objected by the Member States that, admitting a protection “ irrespective of the state of deprivation of liberty” could provoke a serious risk of extending too much the protection, damaging the effectiveness of the proceedings.  On the contrary, the Parliament has hardly lobbied to insert this clause,  on the assumption that any questioning by law enforcement authorities may lead to self-incriminating statements and abuses and ill-treatment are possible even in state of liberty.

To substantiate its thesis the EP invited also the Council of Europe Secretariat to comment the proposal by making reference to the standards of protection  stated by the Court of European Human Rights. In the  Nechipourok and Yonkalo v. Ukraine12 case dealing with the time from which the rights concerned have to be guaranteed, the Court held that the right to a lawyer should be granted from the moment when a person has been made aware by authorities that he is suspected or accused of having committed a criminal offence. Thus, the deprivation of liberty is not an essential condition and the protection of the right of defense has to be assured anyhow.

…not for “the minimis” …

The second issue submitted to the COE concerned the type of crime covered by the Directive. Indeed, COE underlined that all the cases dealt with by the Court were cases of arrest, although in Zaichenko case13, the applicant, Mr. Zaichenko, was not formally arrested or interrogated in police custody, but he was stopped for a road check. In this case, the EctHR, stated that there was not a violation of the right to legal assistance under Article 6 § 3 (c) of the Convention and that “les modalités de l’application des garanties consacrées par l’article 6 §§ 1 et 3 c) durant l’instruction dépendent des particularités de la procédure ainsi que des circonstances de la cause appréciées à la lumière de l’ensemble de la procédure interne”.

Indeed, the original proposal did not clarify this point and only during the preparatory works a compromise was reached, thanks to the addition of a general exception regarding offences of minor nature. The Directive shall then only apply in the proceedings pending in front of a criminal jurisdiction. In practice, it was decided that in case of the minor offences, like the traffic ones, it would be unreasonable to require the competent authorities to apply directive (this conclusion has been confirmed by the referral n. 16 of the final text of the Directive), unless the imposition of sanction may be appealed o referred to a criminal jurisdiction.

2. On the content.

The right of access to a lawyer (following “right of access”) has to be granted without undue delay, as it has to be prompt and effective. It applies:

a) before suspects or accused persons are questioned by the police or by a law
enforcement or judicial authority. This is to avoid the risk of self-incriminating declarations .(see above)

b) upon carrying out of an investigative or evidence-gathering act.

The applicant’s lawyer should at least attend the activities such as: 1)identity parades; 2)
confrontations; 3) reconstructions of the scene of a crime.

Several MS delegations requested evidence-gathering not to be dealt by the directive, but thanks to the pressure of the other MS and of the Commission it was possible for the Council Presidency to propose a compromise which introduces minimum common standards and leaves a large “discretion” to Member States. Regrettably some doubts have been raised about the vagueness of this expression. In the COE’s opinion, “what comes after interrogation is a matter to be considered in light of the general rights to effective legal assistance”. Thus, by referring to the case Salduz v. Turkey14, COE has remained rather vague by stating that there’s no general rule and every situation has to be solve case-by-case. So, as far as evidence-gathering is concerned, the Directive go further the standards of EcthR, including expressly the acts mentioned above (letter b, 1-2-3) after the deprivation of liberty before they have summoned to appear before a criminal court. In this latter cases the was no debate.

…the European Arrest Warrant….

As far as, EAW is concerned (art. 10), the right of access to a lawyer as well as the other rights covered by the Directive apply, at first, to the subject under European arrest warrant in the executing State. The lawyer will have the right to participate during a hearing of a requested person by executing judicial authorities.

The issue has been raised if the same right of access had to be granted to a lawyer in the issuing State. The Directive states that the competent authority have to inform requested persons of the right to appoint a lawyer in the issuing Member State.

But what should be the content of this right? The Council of Europe, requested on this point has been vague, due to the lack of pertinent case-law15.  The COE suggested only to rethink the wording “limited to what is needed” which has appeared to the EP unduly restrictive to the rights both in the executing and in the issuing State. At the end of the legislative procedure, “the trilogue” between the EP, the Council and the Commission has found a compromise about the inclusion of a clause on the right to a lawyer even in the issuing Member State, in which the role of the lawyer would be to assist that one in the executing Member State, by providing to him “information and advice with a view to the effective exercise of the rights of requested persons under Framework Decision 2002/584/JHA16

Truly, the lawyer in the issuing Member State may be important. e.g. in order to obtain the evidence of a previous judgment, which lead to the application of the principle “ne bis in idem”, contained among the grounds for mandatory non-execution of the EAW (Article 3.2 FD aforementioned).

….Legal aid….

Let us note right now that the directive doesn’t cover the matters of legal aid, even if there has been several discussions on this point: due to the financial costs for the MS, the question has been postponed to a future proposal to be submitted by the Commission

3. On Confidentiality (art. 4).

The Parliament was very keen on this point proposing an amendment in which was stressed that confidentiality could not absolutely to be subject at any exceptions. Although this clarification has not been inserted, analyzing the directive, it seems that there are no derogations to this rule.

However, during the legislative negotiations procedure, some Member States had requested to add a list of exceptional derogations to this principle.

This circumstances were:

·         a compelling need to prevent a serious crime (such in the case of terrorism);

·         a serious threat to prison safety or security;

·         a sufficient reason to believe that the lawyer is accomplice of the suspect or accused person .

To counter these arguments17, the Commission has in opposition referred to Sakhnovskiy caseaccording to which the ECtHR has stated that “ If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (…)”18.

Thus, confidentiality could be considered a basic requirement of the right to a fair trial. Furthermore, the in the COE, opinion to the EP reference has been made to Lanz v. Austria case19, according to which it’s possible to derogate only giving “very weighty reasons” – as in the case of Kempers v. Austria where the applicant was suspected of being the member of a gang and utmost confidentiality was necessary in order to catch the other members20 .In fact, the Court stated that “If, based on specific circumstances, the danger exists that the contact with the defence counsel may interfere with the investigating, judge may order that the surveillance of the contact with the defence counsel be extended until the bill of indictment is served. Surveillance of the contact with the defence counsel may only be exercised as long as the detention on remand is based on the danger of collusion” .

Although to this opening of the Court and the serious controversy occurred between the Parliament and the Council, the final text of the Directive stated not to list any exceptions to this clause.

4.1 On derogations (art 3 par. 5-6, art. 5 par. 3, art. 6 par.2)

The most debated issue between the Council and the Parliament has been the balance to be struck between the effectiveness of justice system in the MS and the individual’ s right of defense. Apart the first general derogation to the right of access to a lawyer for minor offences (see point n. 1b) other specific derogations – in the article 3 paragraph 5 and 6 – have been foreseen in the pre-trial stage and on a temporary bases.

According to these additional rules, MS may derogate:

a) from the application of right to access after the deprivation of liberty in case of the
geographical remoteness of a suspect or accused persons;

b) from the content of right of access (art. 3 par. 3) that includes the right to meet in private and communicate with the lawyer, even prior to questioning and the right of the lawyer to be present during at the same questioning and at the investigative evidence-gathering. But when?

Only in case of serious possible adverse consequences for the life, liberty or physical integrity of a person or to prevent substantial jeopardy to criminal proceedings.

The same conditions are needed to derogate to the right to have a third person informed of the deprivation of liberty, even in case that the suspect or accused person is a minor (art. 5.3). In this latter case, although the derogation is based on the best interest of the child and anyhow MS shall ensure that an authority for the protection or welfare of children will be informed without undue delay of the state of deprivation of liberty of the child.

In this regard, it has to be noted that the European Parliament advocated a new article dealing with child and concerning a preliminary definition useful in case of lack of knowledge of the real age of the child. Regrettably the Council didn’t agree.

No exceptions has been made to the right to communicate with consular authorities.

All these derogations applies in case of EAW, but only in the executing State. Nothing has been stated about the derogations in the issuing State.

Moreover, the clause which limits the right to communicate with third persons (article 6), shall be decided only in view of imperative requirements or proportionate operational requirements: indeed this statement seems really too generic and could potentially include a large range of situations left to the discretion of MS.

It has to be noted that the original Commission proposal didn’t mention any derogations to the rights concerned: all of them have been introduced due to the pressure of MS (versus the opposition of the Parliament) raising the issue of the length and the effectiveness of the proceedings. On the contrary, it is clear that, the exceptions foreseen could provoke some abuses and undermine the same ratio of the Directive.

4.2 General conditions for derogations (art. 8).

The principle of proportionality must be respected in any case where derogations are invoked: they shall be proportionate and not go beyond what is necessary, be strictly limited in time and not based only on the type or the gravity of the offence.The derogations shall be decided by a judicial authority or by another kind of authority, but only if the can be subjected to a judicial review.

The temporary derogations foreseen by the article 3 par. 5-6 (the article referring to the right of access) may be authorised only by a duly reasoned decision, taken on a case by case basis.  The same clarification has not been made for the right to have third informed of the deprivation of liberty (art. 5.3). However, even in this case, derogations shall be taken in account the peculiarities of the single case (“on case by case basis”).

Each derogation shall be based only on compelling reasons (see above the point 4.1): the text of the Directive seems suitable to the EctHR case law: in fact, the COE, referring to the case Salduz v. Turkey21, pointed out that a derogation should not be provided, “unless it is demonstrated in the light of particular circumstances of each case that there are compelling reasons to restrict this right”19.

5. Waiver (Art. 9).

The rights contained in the Directive can be subject to a waiver.

The waiver has to be given by the person concerned voluntary and unequivocally. The Parliament has obtained the modification of the text of the article only in the first part referred to the right of the waiver to receive clear and sufficient information about the content of the right concerned and the consequences of waiving it. Indeed, the expectation of an official legal advice – as it was written in the original proposal – could cause a delay of the procedure. The Parliament have not obtained the same success about the request to exclude the right of waiving when the suspect or accused person is a child.

6. Remedies (art. 12).

In order not to interfere with judicial systems of MS, the assessment of evidence obtained and the declarations made by suspects or accused persons, in breach of Directive, shall be made in accordance to the right of defense and to a fair trial.

Indeed, the article seems to be too broad: in fact it doesn’t provide a specific sanction, leaving to the Member States an excessive discretion, not indicating a minimum standard, as, e.g. limiting the use of the statements and the evidence obtained in breach of the right in question. In this sense, the original proposal foresaw – first of all – as general statement that the remedy should have had the effect “of placing the suspect or accused person in the same position in which he would have found himself had the breach not occurred”.

Moreover, it was expressly provided that the evidence obtained in breach of his right to a lawyer or in the cases of an authorized derogation might not be used at any stage of the procedure as evidence against him, unless the use would not prejudice the rights of the defence. On the contrary, the current text refers only to a generic protection of the right of the defence and the fairness of the proceedings. It’s clear that in this way, the effectiveness of the remedies it could be affected by the discretion of MS.


1 For a summary, see EC MEMO, Brussels, 10 September 2013. The Commission underlined that for example, the person accused of a crime may not be able to see a lawyer during police questioning. Moreover, the confidentiality of their contacts with their lawyer might not be respected. And people sought under a European Arrest Warrant may not currently have the benefit of a lawyer in the country where the warrant has been issued until they are surrendered to that country. There are similar divergences in terms of the right of suspects to let a relative, employer and their consulate know when they have been arrested. Individuals may not systematically be offered this right, may only receive it at a late stage in the process, or may not be informed once their family has been contacted.

2 EU Council, Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, 30 November 2009, in GU C 295 -4.12.2009 .

3 European Council, The Stockholm programme – An open and secure Europe serving and protecting citizens. document 17024/09, adopted on 10/11 december 2009.

4 Point 33 – Presidency Conclusions – Tampere European Council 15/16 October 1999

5 European Commission, Communication to the Council and the European Parliament, “Mutual Recognition of Final Decisions in Criminal Matters”, COM(2000)495, 27 july 2000. The Commission provided a non-exhaustive list to which applicate a minimum standard of the right of defence such as: access to legal advice and representation, interpretation and translation in cases where the accused does not know the language of the procedure well enough, access to court (in case of administrative procedures at the level of appeal).

6 European Commission, Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings, COM(2003) 75 , 19 february 2003.

7 European Commission, Proposal for a Council Framework Decision COM(2004)328, 28 april 2004 “on certain procedural rights in criminal proceedings throughout the European Union.

8 About the necessity of approximation of MS legislation see more, Parisi N., “Tecniche di costruizione di uno spazio penale europeo. In tema di riconoscimento reciproco delle decisioni giudiziare e di armonizzazione delle garanzie procedurali”, in “Studi sull’integrazione europea”, VII 2012, pp. 33-57; she states – referring an excursus about the substantial changes in the area of cooperation in criminal matters, from the Tampere Conclusions until the Directive 2010/64, about the right of interpretation – that cooperation in criminal matters is founded on two pillars: “approximation” strenghthens mutual trust of each MS and “mutual trust” improving the recognition.

9 N. Parisi, I diritti fondamentali nell’Unione europea fra mutuo riconoscimento in materia penale e principio di legalità, p. 117.

10 Directive n. 2010/64 EU of 20 October 2010 trasponses “the measure A” of the Roadmap traced by the European Council. The Directive concerns the right of nterpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearing. The same right has to be assured during the communication beetwen the suspected and their legal counsel and as far as essential documents of the proceedings is concerned.

11 Directive n. 2012/13 EU of 22 May 2012 transponses “the measure B” of the Roadmap. The Directive foresees that suspects or accused persons (in criminal proceedings and under EAW) are provided promptly with information concerning at least the following procedural rights: (a) the right of access to a lawyer; (b) any entitlement to free legal advice and the conditions for obtaining such advice; (c) the right to be informed of the accusation, in accordance with Article 6; (d) the right to interpretation and translation; (e) the right to remain silent. Moreover the Directive stated the right of access to the materials of the case.

12 EctHR, Section V, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, Judgement of 21 april 2011.

13 EctHR, Section I, Aleksandre Zaichenko v. Russia, case 39660/02, Judgement 18.2.2010, see more § 47-48.

14 EctCHR, Salduz v. Turkey, case no. 36391/02, Judgement of 27 november 2008.

15 A case regarding both the issuing and the executive State is still pending: EctHR Pianese v. Italy and the Netherland, no. 14929/08.

16 EU Council, Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).

17 EctHR, Campbell v. United Kingdom, case n. 13590/88, Judgement 25 of february 1992, § 46, in which the Court stated that confidentiality is a rule “in principle”. The MS interpreted this last expression to support the request o introducing derogations.

18 EctHR, Sakhnovsky v. Russia, case no. 21272/03, Judgemnt of 2 november 2010, § 97.

19 EctHR, Lanz v. Austria no. 24430/94, Judgement of 31 january 2002.

20 EctHR, Kempers v. Austria, no. 21842/93 Judgement of 27 february 1997 .

21 See above note n. 14.

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