A new European directive on the rights of suspects to have access to a lawyer from the very early stages of being taken into custody is expected to be formally adopted by the end of the year. But it has not been an easy document to achieve, coming after years of legal wrangling and tough negotiations between EU member states.
The right for every suspect in the European Union to have a lawyer present before the start of any questioning by the police, and to be able to communicate with their family or consulate after an arrest, is a key part of a Roadmap on Procedural Rights adopted at a European level in 2009. A breakthrough on the issue came under the Irish EU presidency last year, in talks between the European Parliament and the Council of Ministers. The text, described as a compromise between the various countries, is due to be voted on in a plenary session of the European Parliament and then formally adopted by the Council soon after. Member states would then have three years to implement the reform, but at the moment the UK, Ireland and Denmark have opted out of the measure.
The right to have access to a lawyer is the third directive so far in a series of proposals aimed at guaranteeing minimum rights for a fair trial anywhere in the European Union. The goal is to harmonize procedures that up until now have been widely different from country to country. (Similarly, directives are also now in place when it comes to protecting the rights of victims of crime, to ensure that their needs are taken care of immediately after crimes are committed and throughout and after any legal process).
A directive giving suspects the right to have key rights and information translated and interpreted was approved in 2010 and a directive giving people the right to information in criminal proceedings was formally adopted in 2012. There are still other issues still to be resolved, which are likely to be the subject of initiatives under the roadmap: legal aid, in which lawyers are appointed for suspects who cannot afford one; the presumption of innocence; and special safeguards regarding the detention of vulnerable suspects.
It has not been easy, however, to convince EU member states of the need for legal reform. Back in 2004 the European Commission originally proposed a series of measures to address five basic procedural rights, but half a dozen EU states did not agree with them. That was when the idea of a step-by-step approach under a roadmap was formulated, to ensure that fundamental rights were being respected, as laid out in three important documents: the European Union Treaty; the European Convention for the Protection of Human Rights and Fundamental Freedoms ; and the Charter of Fundamental Rights of the European Union.
Pre-trial detention is also a subject that has been under examination at a European level. As part of the initiatives to address procedural rights issues, the Council of Ministers asked the European Commission to present a green paper on detention. The Council stated: “The time that a person can spend in detention before being tried in court and during the court proceedings varies a lot between the Member States. Excessively long periods of pre-trial detention are detrimental for the individual, can prejudice the judicial cooperation between the Member States and do not represent the values for which the European Union stands”.
Human rights organisations have welcomed the progress towards a new directive on the rights of suspects to have access to a lawyer. An open letter signed by groups including Fair Trials International, Amnesty International and the Open Society Justice Initiative says the text is a ‘hard-won compromise that has the potential to improve substantially the rights of suspects and accused persons within the EU.’
However, the organisations say that effective implementation is now crucial: ‘We call upon the Commission to ensure that all three procedural rights directives so far agreed under the Roadmap are implemented effectively by working with Member States as they transpose them into domestic law and providing training programmes for government officials, judges, police, prosecutors and lawyers.’
The letter goes on: ‘Given the interdependent nature of the rights set out in the Roadmap, the full extent of the protections provided for by this Directive cannot be fully realised without the adoption and implementation of the other envisaged measures on procedural rights. In particular the Council recognised in the Resolution on the Roadmap that the promised measure on legal aid is necessary to ensure that the right to access a lawyer is effective. We call upon the Commission, Council and Parliament to press forward, as a matter of urgency, with the unfinished agenda of the Roadmap.
‘Whilst we recognise that, in order to facilitate the passage of the Directive, the question of legal aid was removed from consideration and postponed to a later date, progress on legal aid cannot be delayed indefinitely. Without legal aid, the enjoyment of other protected rights may remain elusive in practice. The UN Guidelines on Access to Legal Aid in Criminal Justice Systems were adopted by the UN General Assembly in December 2012, placing legal aid high on the global agenda. We therefore urge the Commission to issue a robust proposal for a directive on the right to legal aid, for those who need it, in all circumstances in which the need for access to a lawyer has been recognised and guaranteed under the Directive. We hope that the forthcoming measure will include, as a minimum, standards relating to eligibility for legal aid, timely decisions, scope of legal aid, choice of lawyer and independence and quality of the lawyers providing legal aid.
‘We also call upon the Commission to publish a directive on vulnerable suspects. This proposal must be designed to ensure that all accused persons are able to understand and follow the content of any criminal proceedings in which they are involved. This includes, but is not limited to, children, non-nationals, and people who have physical, mental, intellectual or sensory impairments. Without such additional legislative protection, large numbers of suspects caught up in the criminal justice systems of Member States may not be able to adequately exercise their rights provided by the Roadmap Directives.
‘Little progress has been made on the important issue of minimum standards for pre-trial detention in the two years since the Commission’s Green Paper on Detention was published for consultation. The existence and application of appropriate safeguards relating to the use of pre-trial detention are key factors in the fair operation of, and public trust in, existing mutual recognition measures. We therefore urge the Commission to continue its work on pre-trial detention in the EU by committing to revisit the case for legislative action which we believe is necessary.’