European Commission Proposes Directive on Right to Counsel in Criminal Proceedings

The European Commission has issued the third in a series of proposals for European Parliament and Council directives to set “common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the European Union”, pursuant to a European Council resolution adopted in November 2009, and part of the Stockholm Programme.  Council Resolution 15434/09, Roadmap for Strengthening Procedural Rights of Suspects and Accused Persons in Criminal Proceedings.

The Commission’s first two proposals addressed the right to interpretation and translation, and the right to be informed of one’s rights and the charges and to access the case file. See European Commission Proposal COM(2010) 82 final for a Directive of the European Parliament and of the Council on the Right to Interpretation and Translation in Criminal Proceedings (now Directive 2010/64/EU, adopted in October 2010); European Commission Proposal COM(2010) 392 for a Directive of the European Parliament and of the Council on the Right to Information in Criminal Proceedings (under negotiation).

This third proposal addresses access to a lawyer and the right to communicate with a third person upon arrest. Proposal COM(2011) 326/3 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.   As explained by the Commission,

This proposal, similarly to the two previous measures, seeks to improve the rights of suspects and accused persons. Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. A certain degree of compatibility between the legislation of Member States is pivotal to improve judicial cooperation
in the EU.

The proposal is based on article 82(2) the Treaty on the Functioning of the European Union; articles 47 and 48 of the Charter of Fundamental Rights of the European Union; articles 3, 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 14 of the International Covenant on Civil and Political Rights; as well as the 1963 Vienna Convention on Consular Relations.

Specifically, the proposal provides:

Article 3 — The right of access to a lawyer in criminal proceedings
20. This Article lays down the general principle that all suspected and accused persons in criminal proceedings should have access to a lawyer as soon as possible, in time and in a manner that allows them to exercise their defence rights. Access to a lawyer must be granted at the latest upon deprivation of liberty, as soon as possible in the light of the circumstances of each case. Irrespective of any deprivation of liberty, access to a lawyer must be granted upon questioning. It must also be granted when there is a procedural or evidence-gathering act requiring or permitting the presence of a suspect or accused person, except where the evidence to be gathered could be altered, removed or destroyed as a result of the passage of time needed for the lawyer to arrive. This reflects ECtHR jurisprudence, which has established that a suspect must be offered the assistance of a lawyer ‘already at the initial stages of police interrogation’ and as soon as he is deprived of his liberty, irrespective of any
questioning.

Article 4 — Content of the right of access to a lawyer
21. This Article sets out the activities that a lawyer representing an accused or suspected person must be entitled to carry out to ensure effective exercise of defence rights, including meeting with the suspect or accused person for an adequate duration and frequency to ensure the effective exercise of the rights of defence; attending any questioning or hearing; subject to the exception set out above where a delay may affect the availability of evidence, attending any investigative or evidence-gathering act for which the applicable national law requires or expressly permits the presence of a suspect or accused person; and accessing the place of detention to check the conditions of detention. The provisions of this Article reflect repeated ECtHR judgments that emphasise that the exercise of defence rights must be effective and identify the activities that a lawyer representing a suspected or accused person must be permitted to carry out.

Article 5 — The right to communicate upon arrest
22. This Article provides for the right of persons deprived of their liberty in criminal
proceedings to communicate as soon as possible upon arrest with one person
nominated by them, which is most likely to be a relative or employer, so as to inform him of the detention. Legal representatives of children deprived of their liberty should be notified as soon as possible of the child’s custody and the reasons pertaining thereto, unless it is against the best interests of the child. Where it is not possible to communicate with or notify the person designated by the detained person despite best endeavours to do so (for example if the designated person does not answer the telephone), the detained person is to be informed of the fact that the notification did not occur. Any consequences are left to national law. Derogation from this right is only possible in the limited circumstances set out in Article 8. The provisions of this Article reflect the call by the European Commission to make the justice system more child-friendly in Europe, the repeated identification by the Committee for the Prevention of Torture of the right to notification of custody as an important safeguard against ill treatment and the provisions of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice

Article 6 — The right to communicate with consular or diplomatic authorities
23. This Article confirms the right to communicate with consular authorities. It places a duty on Member States to ensure that all foreign detainees are able to have the consular authorities of their State of nationality informed of the detention if they so wish. Derogation from this right is only possible in the limited circumstances set out in Article 8.

Article 7 — Confidentiality
24. Defence rights are protected by the obligation to ensure that all communications, in whatever form they take, between a suspected and accused person and his lawyer are entirely confidential, with no scope for derogations. The ECtHR identified one of the key factors to a lawyer’s effective representation of a client’s interests as the principle of protecting the confidentiality of information exchanged between them. It held that confidential communication with one’s lawyer is protected by the ECHR as an important safeguard of one’s right to defence.

COM(2011) 326/3. Additionally, Article 8 of the proposed directive calls for limited derogation to articles 3, 4, 5, and 6, where justified by compelling reasons pertaining to the urgent need to avert danger for the life or physical integrity of one or more people, in compliance with the principle of proportionality and without depriving the accused of a fair hearing.

Further, Article 9 establishes that a suspect’s waiver of the rights outlined must be “voluntary established unequivocally and underpinned by minimum safeguards commensurate to its importance”.

The International Commission of Jurists has published a briefing paper recommending ways in which to strengthen the proposed directive, which it views “as an important support for effective implementation in EU Member states of the right of access to a lawyer as recognised in international human rights law and standards”. ICJ, Proposal for a Directive on the Right of Access to a Lawyer in Criminal Proceedings and on the Right to Communicate Upon Arrest: Briefing Paper (October 2011).