Explanatory Memorandum to COM(2011)326 - Right of access to a lawyer in criminal proceedings and right to communicate upon arrest - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)326 - Right of access to a lawyer in criminal proceedings and right to communicate upon arrest. |
|---|---|
| source | COM(2011)326  |
| date | 08-06-2011 |
1. This proposal for a Directive of the European Parliament and the Council aims to set common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the European Union to have access to a lawyer and to communicate upon arrest with a third person, such as a relative, employer or consular authority. The proposal is the next step in the series of measures laid down in the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings, appended to the Stockholm Programme approved by the European Council of 10-11 December 2010. The Roadmap invites the Commission to put forward proposals on a ‘step-by-step’ basis. This proposal should therefore be considered as part of a comprehensive package of legislation to be presented over the next few years, which will provide a minimum set of procedural rights in criminal proceedings in the European Union. The issue of legal aid, which was conflated with that of access to a lawyer in the Roadmap, warrants a separate proposal owing to the specificity and complexity of the subject.
2. The first step is Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation i.
3. The second step will be a Directive, currently under negotiation on the basis of a Commission proposal i, on the right to information, which will set out minimum rules on the right to receive information on one’s rights, and on the charges, as well as on the right of access to the case file.
4. 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.
5. The proposal is based on Article 82 i of the Treaty on the Functioning of the European Union (TFEU). That Article provides that, ‘[t]o the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d)[…]. ’
6. Article 47 of the Charter of Fundamental Rights of the European Union (the Charter) 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 i of the European Convention of Human Rights and Fundamental Freedoms (ECHR) i. Article 6(3)(b) ECHR stipulates that everyone charged with a criminal offence has the right ‘to have adequate time and facilities for the preparation of his defence’ while Article 6(3)(c) enshrines the right ‘to defend [one]self in person or through legal assistance of [one’s] own choosing’. Article 14 i of the International Covenant on Civil and Political Rights (ICCPR) i contains very similar provisions. Both the right of access to a lawyer and the right to communicate upon arrest provide formal safeguards against ill treatment and thus protect against a potential breach of Article 3 ECHR (prohibition of ill treatment). The right to communicate upon arrest promotes the right to respect for private and family life in Article 8 ECHR. The 1963 Vienna Convention on Consular Relations (VCCR) i provides that, on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.
7. The Commission carried out an impact assessment to underpin the proposal. The report on the impact assessment is available at ec.europa.eu/governance....
Contents
8. Article 6 i of the Treaty on European Union (TEU) provides that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, constitute general principles of EU law. Article 6 i TEU provides that the European Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007 i, which has the same legal value as the TFEU and TEU. The Charter is addressed to EU institutions and Member States when they implement EU law, such as in the field of judicial cooperation in criminal matters in the European Union.
9. In 2004, the Commission put forward a comprehensive proposal i for legislation covering the most important rights of defendants in criminal proceedings. This proposal was not adopted by Council.
10. On 30 November 2009, the Justice Council adopted a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings i calling for the adoption of measures covering the most basic procedural rights, based on a ‘step-by-step’ approach and inviting the Commission to present proposals to this end. The Council recognised that to date, not enough had been done at European level to safeguard the fundamental rights of individuals in criminal proceedings. The full benefit of EU legislation will only be felt once all measures are transposed into legislation. The third and fourth measures in the Roadmap concern the right of access to a lawyer and the right to communicate with a third person, such as a relative, employer or consular authority.
11. The Stockholm Programme, adopted by the European Council of 10-11 December 2009,[9] reaffirmed the importance of the rights of the individual in criminal proceedings as a fundamental value of the European Union and an essential component of mutual trust between Member States and of public confidence in the EU. Protecting individuals’ fundamental rights will also remove obstacles to free movement. The Stockholm Programme cites the Roadmap as an integral part of the multiannual programme and calls on the Commission to present proposals to implement it swiftly.
12. Article 6 of the Charter — Right to liberty and security — stipulates that:
‘Everyone has the right to liberty and security of person.’
Article 47 of the Charter — Right to an effective remedy and to a fair trial — provides that:
‘(…) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented (…).’
Article 48 of the Charter — Presumption of innocence and right of defence — stipulates that:
‘2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’
Within its scope of application, the Charter guarantees and reflects the corresponding rights enshrined in the ECHR.
Article 6 — Right to a fair trial — stipulates that:
‘(3) Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence
(c) to defend himself in person or through legal assistance of his own choosing[…] ’
13. A number of recent rulings of the European Court of Human Rights (ECtHR) have clarified the scope of these provisions. The Court has repeatedly held that Article 6 applies to the pre-trial stage of criminal proceedings i and that a suspect must be offered the assistance of a lawyer at the initial stages of police questioning i and as soon as he is deprived of his liberty, irrespective of any questioning i. The Court also ruled that these guarantees must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial i. In the case of Panovits,[14] the ECtHR found a breach of Article 6 where statements made by the suspect in the absence of his lawyer were used to secure a conviction, even though they were not the sole evidence available. The court found that the lack of legal assistance during an applicant’s questioning constitutes a restriction of his defence rights, in the absence of compelling reasons that do not prejudice the overall fairness of the proceedings i. The number of complaints about the right of access to a lawyer has been growing steadily over the last few years. Without proper implementation of the ECtHR's case-law, Member States are likely to incur substantial costs stemming from liquidated damages awarded by the Court to successful applicants i.
14. In line with the mandate set out in the Procedural Rights Roadmap, this Directive lays down minimum requirements at EU level governing the right of suspected and accused persons to have access to a lawyer. It thus promotes the application of the Charter of Fundamental Rights, and in particular Articles 6, 47 and 48 therein, by building upon Article 6 ECHR as interpreted by the ECtHR.
15. A SUSPECTED OR ACCUSED PERSON DEPRIVED OF HIS LIBERTY SHOULD BE ENTITLED TO communicate upon arrest with at least one person named by him, such as a family member or employer. Member States should also make sure that the legal representatives of a child suspected or accused of crime are informed as soon as possible that the child has been taken into custody and the reasons why the child has been taken into custody, unless it is contrary to the best interests of the child. This right should only be subject to derogation in very limited circumstances.
16. Where the detained person is a non-national, it is appropriate for the consular authorities of the person’s home state to be informed. Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the 1963 Vienna Convention on Consular Relations (VCCR), which provides that on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.
Article 1 — Objective
17. The objective of the Directive is to lay down rules governing the rights of suspected and accused persons and persons subject to an European Arrest Warrant to have access to a lawyer in criminal proceedings against them, and rules governing the right of suspects and accused persons who are deprived of their liberty to communicate upon arrest with a third party.
Article 2 — Scope
18. The Directive applies from the time that a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings (including any appeal).
19. European Arrest Warrant (EAW) i proceedings are explicitly covered. The Directive states that the procedural guarantees contained in Articles 47 and 48 of the Charter and Articles 5 and 6 ECHR apply to surrender proceedings based on a European Arrest Warrant.
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 t he 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 i 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 i, 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 i.
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 i.
Article 8 — Derogations
25. The paramount importance of the rights enshrined in this Directive suggests that derogations for Member States should not be possible, in principle. Limited scope for derogations to Article 3, Article 4 paragraphs 1 to 3, Article 5 and Article 6, however, is admitted by the ECtHR jurisprudence as concerns the initial stages of criminal proceedings. The ECtHR has established that, while the right of a person charged with a criminal offence to be effectively defended by a lawyer is not absolute, any exception to the exercise of this right should be clearly circumscribed and strictly limited in time i and it must not, in the light of the entirety of the proceedings, deprive the accused of a fair hearing i. This provision draws on this jurisprudence by allowing Member States to derogate from the right of access to a lawyer only in exceptional circumstances, subject to necessity and to procedural safeguards. Any derogation must be justified by compelling reasons pertaining to the urgent need to avert danger for the life or physical integrity of one or more people. In addition, any derogation must comply with the principle of proportionality, which implies that the competent authority must always choose the alternative that least restricts the right of access to a lawyer and must limit the duration of the restriction as much as possible. In accordance with ECtHR case law, no derogation may be based exclusively on the type or seriousness of the offence and any decision to derogate requires a case-by-case assessment by the competent authority. In any event, no derogation may have the effect of compromising the fairness of the proceedings and statements made by the person in the absence of a lawyer may never be used as evidence against him. Finally, this provision requires that derogations may only be authorised by a reasoned decision of a judicial authority, which means that the decision cannot be taken by the police or other law enforcement authorities which are not regarded as judicial authorities under national law and the ECHR. The same principle and limitations apply to derogations from the entitlement to communicate upon arrest with a third person.
Article 9 — Waiver
26. The ECtHR has held that if a waiver is to be effective for ECHR purposes, it must be voluntary, established unequivocally and underpinned by minimum safeguards commensurate to its importance i. This jurisprudence is reflected in Article 9, which provides that a waiver (the fact and circumstances of which must be recorded) must be voluntary and unequivocal and be made in full knowledge of its consequences, via legal advice on such consequences or otherwise. The person must also be able to understand the consequences.
Article 10 — Persons other than suspects and accused persons
27. This Article provides protection and remedies for people such as witnesses who, during questioning or a hearing, become suspects or accused persons. This builds on ECtHR jurisprudence that the guarantee of a fair trial, including access to a lawyer, must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial[25].
Article 11 — The right to a lawyer in European Arrest Warrant proceedings
28. This Article reflects the mandate in Article 82 i of the Treaty to adopt directives on minimum rules taking into account ‘the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension.’ Improving the EAW system is a central tenet of the Commission’s third report on implementation of the Council Framework Decision on the EAW i. This Article builds on Article 11 of Framework Decision 2002/584/JHA i on the European arrest warrant, which states that a person who is arrested for the purpose of execution of a EAW has the right to be assisted by a legal counsel in accordance with the national law of the executing Member State. This provision will not have the effect of compromising mutual recognition; the merit of the case will not be addressed by the lawyer in the issuing Member State at this stage since his role will be limited to enabling the requested person to exercise his rights under the Framework Decision. To this end, the lawyer's function in the issuing Member State will be to provide assistance and information to the lawyer in the executing Member State.
The promotion of mutual trust essential to mutual recognition are achieved by providing that a person arrested pursuant to a EAW must have the fact of his arrest communicated to the issuing Member State and can have his interests furthered by a lawyer in the issuing Member State assisting the lawyer in the executing Member State in order to exercise his rights most effectively in the executing Member State, in line with Council Framework Decision 2002/584/JHA. Such assistance can facilitate effective exercise of the rights of the persons under the Framework Decision in the executing Member State notably the possibility to invoke a ground for non execution of the EAW under Articles 3 and 4, for instance: the assistance of a lawyer in the issuing Member State may be important in order to adduce evidence of a previous judgment which would entail the application of the 'ne bis in idem'-principle under Article 3 i. Proceedings for the execution of the EAW will not be delayed since this article is without prejudice to the deadlines set out in the Framework decision. On the contrary, the involvement of a lawyer in the issuing Member State will result in speedier consent since the requested person will receive fuller information on the procedure in the issuing Member State and on the consequences of his consent.
Article 12 — Legal aid
29. Article 47 i of the Charter provides that:
‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’.
Article 6 i of the ECHR stipulates that everyone charged with a criminal offence is entitled to free legal assistance ‘ if he has not sufficient means to pay for [it], […] when the interest of justice so requires’ .
Although this Directive does not seek to regulate the issue of legal aid, it lays down a provision requiring Member States to continue to apply their domestic legal aid regimes. These domestic legal aid regimes must be in line with the Charter and the ECHR. In addition, Member States may not apply less favourable conditions to legal aid covering instances where access to a lawyer is granted under this Directive, compared to instances where access to a lawyer was already available under national law.
Article 13 — Remedies in the event of breaches of the right of access to a lawyer
30. This Article reflects ECtHR jurisprudence that the most appropriate form of redress for breaching the ECHR right to a fair trial is to ensure that a suspect or accused person is put, as far as possible, in the position in which he would have been had his rights not been so breached i. The ECtHR has ruled that even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction — whatever its justification — must not unduly prejudice the rights of the accused under Article 6 of the ECHR and such rights will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction i. Therefore, this Article bans, in principle, the use of evidence obtained where access to a lawyer was denied save in those exceptional cases where the use of such evidence will not prejudice the rights of the defence.
Article 14 — Non-regression clause
31. The purpose of this Article is to ensure that setting common minimum standards in accordance with this Directive does not have the effect of lowering standards in certain Member States and that the standards set in the Charter and in the ECHR are maintained. Since this Directive provides for minimum rules, in line with Article 82 TFEU, Member States remain free to set standards higher than those agreed in this Directive.
Article 15 — Transposition
32. This Article requires that Member States must implement the Directive by xx/xx/ 20xx and, by the same date, transmit the text of the provisions transposing it into national law to the Commission.
Article 16 — Entry into force
33. This Article provides that the Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union .
34. The objective of the proposal cannot be sufficiently achieved by Member States alone, since there is still significant variation in the precise method and timing of the right of access to a lawyer in criminal proceedings across the European Union. As the aim of the proposal is to promote mutual trust, only action taken by the European Union will establish consistent common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States’ procedural rules regarding the time and manner of access to a lawyer for suspects and accused persons and for persons subject to an EAW, the aim being to enhance mutual trust. The proposal therefore complies with the subsidiarity principle.
35. The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose.