MEMO/11/387
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.