Abstract
After lengthy discussions, several drafts and numerous amendments, on 22 October 2013 the final text of the Directive on access to lawyer, right to have a person informed and right to communicate with a third person while deprived of liberty was adopted. This study analyses in detail the provisions of the European Directive of Access to Lawyer of 22 October 2013 from a critical perspective. Apart from analysing this legal instrument, it aims to assess how far this new Directive serves to harmonise the defence rights in a European single space of justice and to guarantee adequately the rights of the defendants in transnational criminal proceedings.
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Notes
- 1.
Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the EU, COM (2004) 328 of 28 April 2004. Prior to this Proposal of FD, the Commission presented the Green Paper on Procedural safeguards [COM (2003) 75 final, of 19.2.2003].
- 2.
- 3.
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.
- 4.
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.
- 5.
Note presented by Belgium, France, Ireland, The Netherlands and the United Kingdom, made in Brussels 22.9.2011, DROIPEN 99, COPEN 232. Furthermore, these MS consider that the text of 8.6.2011 does not take into account the existing differences between the national criminal justice systems in establishing minimum standards.
- 6.
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 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.
- 7.
See Bachmaier (2014), pp 505 ff.
- 8.
The ECtHR has elaborated the so-called Salduz doctrine, following the case of Salduz v Turkey of 27 November 2009, Appl. No. 36391/02. The Strasbourg Court has repeatedly underlined that the rights of defence are irretrievably prejudiced when incriminating statements made by the accused during police interrogation without access to lawyer are used for conviction (paragraphs 54 and 55). Among many others, see, for example, Panovits v Cyprus of 11 December 2008, Appl. No. 4268/04; Dayanan v Turkey of 13.1.2010 Appl. No. 7377/03, Sebalj v Croatia of 28 June 2011, Appl. No. 4429/09, Trymbach v Ukraine of 12 January 2012, Appl. No. 44385.
- 9.
See Article 1 PD of 8.6.2011, COM(2011) final.
- 10.
EM point 17: “In some Member States certain minor offences, in particular minor traffic offences, minor offences in relation to general municipal regulations and minor public order offences, are considered to be criminal offences. In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member State provides in respect of minor offences that deprivation of liberty cannot be imposed as a sanction, this Directive should apply only to the proceedings before a court having jurisdiction in criminal matters.”
- 11.
See, for example, Galstyan v Armenia of 15 November 2007 (Appl. No. 26986/03) and Palaoro v Austria of 28 June 1994 (Appl. No. 16718/90).
- 12.
The Model Rules or Draft EU Model Rules of Criminal Procedure do not mention any precise moment but include a definition of “suspect” in Rule 11, and it should be understood that the person is to be notified from the moment he/she is being investigated in relation to a criminal offence. These Model Rules were drafted within the project “European model rules for the procedure of the future EPPO” financed by the EU and headed by Prof. K. Ligeti and was conducted at the University of Luxembourg. For further information, see www.eppo-project.eu and the final report, published in Ligeti (2013, 2014).
- 13.
The Commission presented on 27.11.2013 the Proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, COM(2013)824 final. At the moment of writing this study such Directive has not been adopted yet.
- 14.
See the empirical data collected in Pre-trial Emergency Defence, Schumann et al. (2012), pp. 358–359: 58 % of the officers participating in the research admitted that the supervision or restriction of the pre-trial interview between suspect or defendant and lawyer takes place in Austria. This shows that the mechanisms of the ECHR are not enough to implement this right, which is well established in the case law of the ECtHR. Already in Brennan v United Kingdom of 16 October 2001, Appl. No. 39846, the Court recognised that the presence of the police officer within hearing during the applicant’s first consultation with his lawyer infringed the right to an effective exercise of his defence rights in violation of the Convention. See also Öcalan v Turkey of 12 May 2005, Appl. 46221/99 and Rybacki v Poland of 13 January 2009, Appl. No. 52479, this last case dealing with the presence of the prosecutor when the defence counsel met the defendant.
- 15.
The first draft of the PD of 8 June 2011 recognised the right of the suspect or accused to meet his lawyer. This regulation was criticised, as it did not recognise the right to communicate privately with the lawyer before the questioning. The text presented on 25 May 2012 already improved this provision, laying down the right to communicate “prior to an official interview”. Finally, the draft of 31 May 2013 introduces the text that has been finally approved in the Directive.
- 16.
The first draft of 6 June 2011 was more precise in this regard, as it required that the duration and frequency of the communication with the lawyer should not be subject to any limitations that could impair the exercise of the right of defence of the suspect or accused. The content of the right to access to lawyer is, however, assessed positively by Arangüena Fanego (2012), p. 1199.
- 17.
In this sense, the first draft of the Proposal for a Directive on Access to Lawyer of 8 June 2011 was more complete when stating that the lawyer should be allowed, not only to be present but also to put questions, require clarifications and make statements. These acts should be recorded according to the national law. This provision was amended in the process of drafting the PD, and the text as of 25 May 2012 already stated that the MS should ensure the presence of the lawyer and his/her participation during questioning “according to national law”. Critical to this change also Blackstock (2012), p. 31.
- 18.
Note presented by Belgium, France, Ireland, the Netherlands and the United Kingdom, made in Brussels 22 September 2011, DROIPEN 99, COPEN 232, p. 3. To grant access to lawyer to all acts where the suspect’s presence is required, for example for taking fingerprints, in their view did not address correctly the balance between the need to protect individual rights and the efficiency of the prosecution and could be against the right to undue delays, apart from increasing the costs. See Bachmaier (2014), pp. 521–526.
- 19.
See also the Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Framework Decision on the European Arrest Warrant and the surrender proceedings between the Member States, of 11 April 2011, COM(2011) 175 final. For some very illustrating examples on violations of defence rights in EAW proceedings, see Mansell (2012), pp. 36 ff.
- 20.
The first draft of PD of 8 June 2011, the MS should ensure the access to a lawyer in the executing state as well as in the issuing state, but the draft of 25.5.2012 deleted the provision requiring the authorities to facilitate the access to lawyer in both the executing and the issuing state (Article 10 PD of 25 May 2012). The last draft PD of 31 May 2013, which is the text that was finally adopted in the Directive, turns back to the initial text of 2011 and corrects the main drawbacks found in the text of May 2012. On the legal assistance of the person detained under a EAW and its development in the PDAL, see González Cano (2012), p. 1291; Blackstock (2012), p. 33; Mansell (2012), p. 45.
- 21.
How will the information provided by the issuing authority help him in appointing a lawyer? Shall the issuing authority explain to the detained person and/or his lawyer how to apply for legal aid in the issuing country and what are the requirements? In what language shall this information be transmitted? These might be very practical issues that might not be apt to be dealt with in an EU Directive.
- 22.
The content is almost the same, but under Article 10(2)(b) only the presence and participation of the lawyer is granted, while under Article 3(3)(b) PD the lawyer shall have the right to participate “effectively” and the national laws shall not “prejudice the effective exercise of the right concerned”.
- 23.
See the text of the draft of the working session of 21 November 2005, DROIPEN 54, 21 November 2005.
- 24.
Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies.
- 25.
Communication from the Commmission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “An EU Agenda for the Rights of the Child”, COM(2011) 0060, of 15 February 2011.
- 26.
In fact, Article 12 of the PFD of 2004 did not mention the possibility of derogating the right to have the detention communicated to a relative or the employer. However, according to the explanation contained in point 15 of the Framework Decision, this suspension was admitted when it could be foreseen that the communication would jeopardise the criminal investigation or affect the security of a particular person. Such approach was definitely not correct, because if derogations are admitted they have to be clearly stated in the text of the legal instrument and not in the Explanatory Memorandum.
- 27.
See Article 36(1) of the Vienna Convention 24 April 1963.
- 28.
- 29.
The risk of a possible imbalance between the powers and resources of the defendant and the EPPO in transnational criminal proceedings is clear: while the prosecution will count with a specialised network of prosecutors in all EU MS, the defendant facing a procedure with a transnational dimension will not have any parallel assistance and not even the possibility that the authorities of the foreign country grant him the appointment of a defence lawyer there. See Bachmaier Winter (2014), p.530.
- 30.
- 31.
The converging of rules of different legal systems in one single proceeding should not result in a lowering of the procedural rights of the parties, and especially the right of defence of the accused. See Krüssmann (2009), p. 134.
- 32.
References
Arangüena Fanego C (2012) El derecho a la asistencia letrada y nuevos pasos para su garantía en la Unión Europea. In: Gómez Colomer JL, Barona Vilar S, Calderón Cuadrado P (eds) El derecho procesal español del siglo XX a golpe de tango. Libro homenaje a Juan Montero Aroca. Tirant lo blanch, Valencia, pp 1187–1202
Bachmaier Winter L (2007) Proceso Penal y protección de los derechos fundamentales del imputado en Europa. La Propuesta de Decisión Marco sobre determinados derechos procesales en los procesos penales celebrados en la Unión Europea. In: Garantías fundamentales del proceso penal en el espacio judicial europeo. Colex, Madrid, pp 41–69
Bachmaier Winter L (2013) Transnational criminal proceedings, witness evidence and confrontation: lessons from the ECtHR’s case law. Utrecht Law Rev 9:126–148
Bachmaier Winter L (2014) The establishment of a European Public Prosecution’s Office and the right to defence: critical approach to the EU proposal for a Directive of access to a lawyer. In: Grasso G, Illuminati G, Sicurella R, Alegrezza S (eds) Le sfide dell’attuazione di una procura europea: definizione di regole comuni e loro impatto sugli ordinamenti interni. Giuffrè Editore, Milano, pp 505–531
Blackstock J (2012) Procedural safeguards in the European Union: a road well travelled? Eur Crim Law Rev 2(1):20–35
Gless S (2013) Transnational cooperation in criminal matters and the guarantee of a fair trial: approaches to a general principle, in the same volume, the problem of safeguarding the rights of defendant in transnational proceedings is not adequately addressed by the ECtHR. Utrecht Law Rev 9(4):90–108
Gless S, Vervaele JAE (2013) Law should govern: aspiring general principles for transnational criminal justice. Utrecht Law Rev 9:1–10
González Cano MI (2012) La armonización de las garantías procesales penales en la Unión Europea. In: Gómez Colomer JL, Barona Vilar S, Calderón Cuadrado P (eds) El derecho procesal español a golpe de tango. Libro homenaje a Juan Montero Aroca. Tirant lo blanch, Valencia, pp 1273–1296
Jimeno-Bulnes M (2009) The EU roadmap for strengthening procedural rights of suspected or accused persons. In: Criminal proceedings, Eucrim, pp 157–161
Krüssmann MT (ed) (2009) Transnationales Strafprozessrecht. Nomos, Baden-Baden
Mansell D (2012) The European arrest warrant and defence rights. Eur Crim Law Rev 1:36–46
Ligeti K (ed) (2013) Toward a prosecutor for the European Union, vol 1. A comparative analysis. Hart Publishing, Oxford
Ligeti K (ed) (2014) Toward a prosecutor for the European Union, vol 2. Draft rules of procedure. Hart Publishing, Oxford
Mitsilegas V (2008) Legitimacy, accountability and fundamental rights in the area of freedom, security and justice. In: Martin M (ed) Crime, rights and the EU justice, pp 34–44
Morgan C (2012) The EU procedural rights roadmap. Background, importance, overview and state of affairs. In: Vermeulen G (ed) Defence rights. International and European Developments, Antwerpen, pp 73–80
Ruggeri S (2013) Transnational inquiries and the protection of fundamental rights in comparative law. Models of gathering overseas evidence in criminal matters. In: Ruggeri S (ed) Transnational inquiries and the protection of fundamental rights in criminal proceedings. Springer, Heidelberg, pp 533–573
Schumann S, Bruckmüller K, Soyer R (eds) (2012) Pre-trial emergency defence. Intersentia, Anwerp
Spronken T (2011) EU policy to guarantee procedural rights in criminal proceedings: an analysis of the first steps and a plea for a holistic approach. Eur Crim Law Rev 1(3):213–233
Vogler R (2005) A world view of criminal justice. Ashgate, London
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Winter, L.B. (2015). The EU Directive on the Right to Access to a Lawyer: A Critical Assessment. In: Ruggeri, S. (eds) Human Rights in European Criminal Law. Springer, Cham. https://doi.org/10.1007/978-3-319-12042-3_7
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