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Right of access to a lawyer (Proposal)

This Proposal for a Directive is aimed at guaranteeing throughout the European Union (EU) the right of suspects and accused persons in criminal cases to be assisted by a lawyer and to inform their relatives (and consular authorities if they are abroad) of their arrest.

PROPOSAL

Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [COM(2011) 326 final - Not published in the Official Journal].

SUMMARY

The rights of the defence and the right to a fair trial, which include the right of access to a lawyer, are enshrined in the Charter of Fundamental Rights of the European Union (EU) and the European Convention on Human Rights.

With a view to safeguarding this right for all suspected or accused persons in criminal cases within the territory of the EU, the Commission presents a Proposal providing for minimum standards common to all Member States.

Principle

In criminal proceedings, the right of access to a lawyer should be guaranteed to the following persons:

If they are arrested during the proceedings, these persons should also have the right to communicate with at least one person of their choice, such as a relative or an employer. Foreign nationals should be able to contact their embassy or consulate.

The rights shall apply as soon as a person is made aware that he is suspected or accused of having committed a criminal offence, until the end of the proceedings. Persons subject to a European Arrest Warrant should be granted these rights from the moment of their arrest.

Implementation

All suspected and accused persons in criminal proceedings should have access to a lawyer as soon as possible and in any event in the following situations:

  • upon questioning;
  • when there is a procedural or evidence-gathering act requiring or permitting the presence of the person;
  • upon arrest.

A person subject to a European Arrest Warrant should be assisted by a lawyer in the Member State in which he was arrested but also in the Member State issuing the warrant. The lawyer in the issuing Member State will not address the merit of the case but will work with the other lawyer to enable the requested person to exercise his rights.

A suspected or accused person shall have the right to meet with his lawyer. The duration and frequency of these meetings should be sufficient to allow the effective exercise of the rights of the defence.

The lawyer should be entitled to attend any questioning or hearing, and any investigative or evidence-gathering act for which the national law requires or permits the presence of a suspect or accused person. He should also have access to the place of detention to check the conditions of imprisonment.

All communications, in whatever form they take, between a lawyer and his client shall be confidential.

In the event of breaches of the right of access to a lawyer, the suspected or accused person should have a remedy with the effect of placing him in the same position in which he would have found himself had the breach not occurred. Statements or evidence obtained in breach of the right of access to a lawyer may not be used against him.

Exceptions

In exceptional circumstances, and by authorisation of a judicial authority, the right of access to a lawyer and to communicate with a third person or with the embassy or consulate may be suspended. The derogation should be justified by the need to avert serious adverse consequences for the life or physical integrity of a person. In any event, the derogation should not be based exclusively on the type or seriousness of the offence of which the person is accused. It should be proportional to the situation, limited in time as much as possible and not prejudice the fairness of the proceedings.

A suspected or accused person may also waive the assistance of a lawyer. This waiver should be voluntary and unequivocal. The person should have been made aware of the consequences of this decision and be able to understand them.

Context

Strengthening the procedural rights of suspected or accused persons in criminal proceedings is an objective of the Stockholm Programme. This Proposal is part of a set of measures comprising a Directive on the right to interpretation and translation and another, currently under negotiation, on the right to information.

The Proposal will enter into force only after review and adoption by the European Parliament and the Council. Consequently, the final text of the Directive might differ from that of the Commission Proposal.

REFERENCES

ProposalOfficial JournalProcedure

COM(2011) 326

-

2011/154/COD

RELATED ACTS

Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings [OJ C 295 of 4.12.2009].

Last updated: 13.10.2011
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