Brussels, 8 June 2011

Right of access to a lawyer and communication with a family member: Frequently asked questions

How will suspects’ rights be guaranteed by the European Commission’s proposal?

The Commission’s proposal sets out European Union-wide minimum standards on the right of access to a lawyer for suspects and accused persons and on the right of people in detention to communicate with a person of their choice, such as a relative, employer or consular authority. Every defendant in criminal proceedings should be able to rely on the same basic level of rights – whatever their nationality and in whichever of the 27 EU countries the proceedings take place.

The Directive will ensure that:

-     the suspect or accused person is given access to a lawyer as early as possible in the proceedings, and in any event before the start of any questioning or interrogation and from the beginning of the deprivation of liberty;

-     the lawyer can carry out a wide range of activities designed to make the right of defence effective, such as ask questions and make statements during interrogations and hearings, participate in the acquisition of evidence, check detention conditions;

-     the suspect or accused person can meet and communicate with his lawyer in a manner that guarantees the confidentiality of communication;

-     the person will be able to waive his right to a lawyer subject to stringent requirements, notably only after he has received prior legal advice, is fully aware of the consequences of this waiver and is able to revoke the waiver afterwards at any stage of the proceedings;

-     other people involved in criminal proceedings, such as witnesses, receive adequate protection in case they become a suspect or accused person at a later stage;

-     individuals subject to a European Arrest Warrant have the right of access to a lawyer both in the executing and in the issuing Member State, so as to improve the functioning of the European Arrest Warrant procedure. The lawyers in the two countries will provide assistance and information to each other, strengthening the rights of the defence;

-     the evidence obtained in breach of the right of access to a lawyer will not – as a rule – be used as evidence against the person whose right has been violated;

-     suspects who are deprived of liberty, as well as people arrested on the basis of a European Arrest Warrant, have the right to communicate with a person of their choice and, if they are not nationals of the country where they have been deprived of liberty, with their consular authorities.

What can go wrong without proper access to a lawyer?

Example 1:

Andreas Panovits, a 17-year-old Cypriot, was invited with his father to visit the police station in connection with a murder and robbery. Panovits confessed his guilt after being subjected to police questioning for about 30-40 minutes. He was not provided with access to legal advice either immediately after his arrest or during questioning. The police had only suggested to the father that Panovits can find a lawyer during the interrogation.

Panovits’ confession was decisive for the prospects of his defence and constituted a significant element on which his conviction was based. During the interrogation, a police officer put his gun on the desk and told Panovits he should hurry up as the police had other things to do. The police officers also told him that if he wanted to go he should confess.

Panovits was sentenced in May 2001 to 14 years’ imprisonment for manslaughter and robbery. In March 2008 the European Court of Human Rights found that the lack of assistance during the interrogation had breached Panovits' right to a fair trial.

Example 2:

Edmond Arapi was tried and convicted in abstention for the killing Marcello Miguel Espana Castillo in Genoa, Italy in October 2004. He was sentenced to 19 years, later reduced to 16 years on appeal. Arapi had no idea that he was wanted for a crime or that the trial even took place. In fact, he hadn’t left the UK at all between 2000 and 2006. On 26 October 2004, the day that the murder took place in Genoa, Arapi was working at Café Davide in Trentham and attending a class to become a chef.

UK authorities arrested Arapi at Gatwick Airport in June 2009 on a European Arrest Warrant from Italy, while he was on his way back from a family holiday in Albania. It was the first time he found out about the charges against him in Italy, which does not automatically guarantee a re-trial for defendants tried in abstention. A British court ordered his extradition on 9 April 2010.

On 15 June 2010, the day the High Court was to hear his appeal of his extradition order, Italian authorities decided to withdraw the European Arrest Warrant, admitting that they had sought Arapi in error. They provided information indicating that his fingerprints did not match those at the crime scene.

If Arapi had access to a lawyer in both the issuing and executing countries of the European Arrest Warrant, delays and misuse of the system would have been avoided.

Does this proposal build upon existing rights?

Yes. Article 47 of the Charter of Fundamental Rights of the European Union stipulates the right to a fair trial. Article 48 guarantees the rights of the defence and has the same meaning and scope as the rights guaranteed by Article 6(3) of the European Convention of Human Rights and Fundamental Freedoms (ECHR).

The proposal also builds on the case law of the European Court of Human Rights. In particular, the 2008 Salduz ruling recognises the right of suspects and accused persons to have access to a lawyer. According to the case law, suspects must be offered the assistance of a lawyer from the early stages of criminal proceedings, particularly during the initial stages of police questioning, and as soon as they are deprived of liberty.

This early access to a lawyer is key to safeguarding many other fundamental fair trial rights, such as the right not to incriminate oneself and the protection against ill treatment of people in detention.

Building on the principle of protecting people in custody against ill treatment, the Directive would also provide for the right of a detainee to communicate with a relative, employer or consular authority. The proposal builds upon the Vienna Convention on Consular Relations of 1968, which already enshrines the right to communicate with consular authorities. However, the Convention grants this right to states rather than to individuals.

What are the expected benefits of the proposal?

The proposed Directive will help all European Union citizens and third-country nationals, irrespective of their legal status and residence, who are subject to a criminal procedure in any Member State.

It will also lead to a better quality of justice across the European Union, because clearer rules on access to a lawyer will result in fewer appeals against convictions and fewer applications to the European Court of Human Rights against final convictions handed down in Member States – the number of which has been steadily growing in recent years. Consequently, costs for Member States stemming from damages awarded by the Court to successful applicants will also be reduced, as will "reputational costs" resulting from rulings of the Court which condemn a State for a breach of fair trial rights. Without any reform, this cost for the next 10 years has been estimated at between €3.73 million and €11.19 million.

In addition, the strengthening of the right of access to a lawyer and to communicate with a third party (as with all other procedural rights) will reinforce the mutual trust between judicial authorities of different Member States, which is an essential ingredient of mutual recognition. Legal instruments such as the European Arrest Warrant require a high level of trust between the judicial authorities of different European Union jurisdictions.

What is the added value of action at European Union level?

The risk of becoming involved in a criminal procedure is just as great when travelling abroad as it is at home. With Europeans taking around 1.25 billion trips for business or leisure within the European Union every year, there is a higher likelihood of someone being arrested in another country.

Minimum procedural rules for suspects are part of the European Union’s broader objective of building a European area of justice, so that people can rely on a similar level of basic rights and have confidence in the justice system wherever they are in the European Union.

Other fundamental rights, such as the respect for private and family life, are also improved by this proposal. People arrested or detained will be able to communicate with a person of their choice (who could be a family member, partner or employer).

The proposal also tackles the specific needs of people who are involved in criminal proceedings outside their home country. Following a request by a foreign suspect, Member States must inform the person’s consular authorities about his detention and allow him to communicate with these authorities.