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“ Indeed, the European Court of Human Rights views access to a lawyer in criminal proceedings as the gateway to all other fair trial rights. ”

The Gateway Right: Strengthening the right to legal assistance in the EU

March 22 2016

As anyone who has been arrested and faced a police interrogation will confirm, the early stages of criminal proceedings are an intimidating and disorientating experience. These first few hours and days are characterised by an imbalance of power between the police and prosecutors who have information and resources on their side, and the defendant, too often left without adequate information, with limited resources particularly if detained and frequently without sufficient knowledge and understanding of her rights and how to access them.

Against this backdrop, it is not difficult to see why the ability of a defendant to meet with and be represented by a lawyer who can redress that imbalance is so crucial. Indeed, the European Court of Human Rights (the ECtHR) views access to a lawyer in criminal proceedings as the gateway to all other fair trial rights. In Pischalnikov v Russia, the ECtHR explained that “the right to counsel is a fundamental right among those which constitute the notion of a fair trial and ensure the effectiveness of the rest of the foreseen guarantees of Article 6 of the Convention”.

Despite recognition at the regional level of the essential nature of the right to access a lawyer, this right is far from a reality across the EU. Fair Trials has worked with its EU-wide network of over 150 criminal justice experts (the Legal Experts Advisory Panel) to highlight widespread concerns, including:

- The extensive use in practice of waivers of the right to a lawyer;
- Police proceeding with interviews in the absence of the lawyer;
- Lawyers choosing not to attend interviews as the fees for so doing are inadequate and/or it interferes with court work on other cases;
- Restrictions on the length of the pre-questioning consultation and poor facilities which undermine the confidentiality of lawyer-client communication;
- Limitations on the ability of lawyers to participate effectively during questioning;
- The availability and expertise of police station representation and the continuity of legal representation thereafter; and
- The inadequacy of remedies available where the right to a lawyer is infringed, particularly during the early stages of criminal proceedings.

In 2009, the judgment of the ECtHR in Salduz v Turkey marked the beginning of a journey towards improved protection of the right to access a lawyer in the EU, establishing the principle that the Convention requires access to a lawyer “as from the first interrogation by police”. The judgment emphasised that evidence obtained during the investigation determines the framework in which the offence charged will be considered and that a restriction on the right to a lawyer at that stage which leads to an incriminating statement cannot be remedied through the course of the proceedings.

The Salduz judgment has had significant impact, with the historic resistance to granting a right to legal assistance in Scotland, France and Belgium brought to an end relatively quickly after its publication. In 2010, the UK Supreme Court concluded in Cadder that a detained suspect must have access to legal advice before questioning and this was soon confirmed in emergency legislation. Around the same time, a decision of the Constitutional Council in France relying upon Salduz led to the adoption of new legislation in April 2011 which recognised the right of suspects to be assisted by a lawyer during questioning. And in August 2011, Belgium introduced the ‘loi Salduz’, which provides the right to consult confidentially with a lawyer from the beginning of the interrogation, prior to and during police questioning.

But the wand of Salduz did not instantly magic away all restrictions on the right to access a lawyer across the EU. It took almost six years for the Irish Supreme Court to recognise in DPP v Gormley ‘a right to early access to a lawyer after arrest’ and a ‘right not to be interrogated without having had an opportunity to obtain legal advice’. And Ireland was not alone in this delay, with the Netherlands, where there is still no right of access to a lawyer during questioning, lagging even further behind.

The incentives have now increased, however, with the deadline for EU Member States to transpose Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings (the Directive) only nine months away. The Directive places an emphasis on the pre-trial phase, confirming the temporal scope of the right, the obligation of Member States to respect the confidentiality of communication between suspects and lawyers, and rules governing the validity of waivers. But the Directive goes beyond the ECtHR’s jurisprudence in four main respects: (i) establishing the right to consult with a lawyer before questioning begins; (ii) setting out a remedial principle in Article 12 which goes beyond Salduz to the extent that it refers to all statements made in the absence of a lawyer and not just those which are incriminating; (iii) defining the limited circumstances in which derogation from the right to a lawyer will be permitted, moving beyond the broad and undefined reference to ‘compelling reasons’ in Salduz; and (iv) requiring that requested persons in EAW proceedings have access to a legal assistance in both the executing and issuing state – something which can be key to the development of a defence in such cases.

The impact of the Directive can already be seen, with the Dutch Supreme Court confirming in December 2015 that it will, from March 2016, assume the existence of a right of access to a lawyer during questioning irrespective of legislative developments which it assumes will be forthcoming before the Directive’s transposition deadline. We have also seen the Directive’s impact on the ECtHR with its April 2015 judgment in AT v Luxembourg drawing for the first time on the Directive to find that the right to access a lawyer includes a right to prior consultation before questioning and if access to a lawyer is denied, a remedy may be needed even in the absence of a confession or incriminating statement.

The onus will now be on policy-makers and civil society alike to identify aspects of both law and practice in EU Member States which do not comply with the minimum standards established in the Directives and to take action to ensure that changes necessary to ensure compliance are made and that the ‘gateway right’ to access a lawyer is enjoyed by defendants across the EU.

Author: Libby McVeigh is Legal and Policy Director of Fair Trials. She is a UK-qualified solicitor, with a wide range of human rights law experience, and manages all of Fair Trials’ legal and policy activities, including research, training, litigation, advocacy, network coordination and casework.


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