Europe of Human Rights

In many EU states the prosecution questions the suspect as if he or she was a witness. This tactic is used in order to avoid the need to guarantee the access to a lawyer. On 10 July 2012 the LIBE Committee voiced its concerns regarding the amendments introduced to the draft of a Directive on the access to a lawyer in criminal proceedings and on the right to communicate upon request. The Committee appointed a negotiator who before the September plenary session should prepare a common position of the Parliament and the Council on the final wording of the directive.

The work on the directive, undertaken in the scope of the Stockholm Program, is aimed at strengthening the procedural rights in criminal proceedings. Two directives regarding these issues have already been adopted: on the right to interpretation and translation, and on the right to information in criminal proceedings. A real institutional battle may take place regarding the third directive concerning the access to a lawyer.

The directive was proposed in order to expand the access to a lawyer in the pre-trial phase of the proceedings and, in its first shape, was in line with the well-established case law of the European Court of Human Rights (“ECtHR”). However, the Council of the EU, under the Danish Presidency, amended significantly the draft. The current wording is no longer in accordance with fair trial guarantees. This draft is of crucial importance, as it potentially concerns millions of EU citizens.

As pointed out above, prosecutors in some member states question the suspect as a witness. They do this in order to avoid the need to guarantee the access to a lawyer. The draft project of the Commission regulated this situation, guaranteeing the person being a de facto suspect or accused person their procedural rights. This was in line with the ECtHR judgment in the case Brusco v. France (application no. 1466/07), in which the Court found that the situation when a person who was questioned as a witness but was in fact a suspect and confessed to a crime without the presence of a lawyer, violated the fair trial standards. As a result of the Council’s intervention in the text of the directive, the procedural guarantees of the de facto suspects or accused persons disappeared.

Council amendments also give Member States the right to determine what value should be ascribed to statements obtained in the absence of the lawyer. This violates principles set by the ECtHR in the case of Salduz v Turkey (application no. 36391/02), where the Court stated that incriminating statements made during police interrogation without a lawyer being present cannot be used in trial.

Moreover, the Council introduced in the text of the draft a new phrase – the “official interviews”, creating a situation in which a person only qualifies for the right to a lawyer after being officially interviewed by the competent authorities. This is especially alarming from the human rights perspective, and in breach of the minimum standards of the ECtHR, as it leads to situations where it may be acceptable to conduct unofficial interviews, during which the suspect does not have his or her rights guaranteed.

The draft in the shape given to it by the Council restricts the activities a lawyer can undertake, and allows Member States to regulate how a lawyer can or cannot participate in the interview. But the mere presence of a lawyer during an interrogation is of limited value to a suspect or accused person and may actually disadvantage them. The lawyer must be present and participate fully in order to protect the rights of the accused person, e.g. by asking questions, requesting clarification, providing advice and making statements during the interview (case of Dayanan v. Turkey, application no. 7377/03).

The Council amendments also hinder the principle of confidentiality, by creating situations in which the communications between a lawyer and their client should not be confidential. Again, it is important to point out that in the case of Brennan v. UK (application no. 39846/98), the ECtHR held that the presence of a police officer during the applicant’s first consultation with the solicitor violated the right to the effective exercise of the defense rights.

The directive also allows Member States to determine whether, and if so, for how long the authorities should wait for a lawyer to arrive before starting an interview or an investigative or other evidence-gathering act. This article creates a legal loophole – it allows the police to inform a person of their rights but proceed with questioning without a lawyer actually being present. The ECtHR in the case Pishchalnikov v. Russia (application no. 7025/04) set a standard that the accused person who requested legal assistance should not be subject to any further interrogation by the authorities until he or she receives legal assistance, unless it is the accused person who initiates further communication or conversations with the police or prosecution.

Another alarming amendment is limiting the right of the access to a lawyer in situations when a European Arrest Warrant (“EAW”) is issued. Dual representation of the accused, both in the state issuing the warrant as well as in the state receiving it, seems crucial for the proper functioning of the institution. Nowadays the defense of the person sought with the warrant often depends on whether the lawyer in the receiving state knows a lawyer willing to provide assistance in the issuing state.

The Council allowed States to derogate from the directive in a very large number of cases and refuse a person their right to a lawyer and/or to have a third person informed of their deprivation of liberty. This violates the standards set by the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment, according to which all possibilities the authorities have to delay the exercise of the right to a lawyer and/or to delay the notification of detention to a third party should be clearly defined and their application strictly limited in time.

These are only the most striking examples of the lack of conformity of the draft with the guarantees set by the ECtHR. Elaborated concerns as to the amendments of the Council were presented in a common statement of NGOs led by the Open Society Justice Initiative. The future of the directive is now in the hands of the European Parliament, which will work on the draft in September. Already now we know that the UK, Ireland and Denmark will opt out of this directive.

Dominika Bychawska-Siniarska, Zuzanna Warso “Europe of Human Rights”



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