A European Commission proposal guaranteeing the right of all citizens in the EU to be advised by a lawyer when facing criminal proceedings was formally adopted on 7 October, after approval was given by the Council of Ministers.
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This followed a vote by the European Parliament to endorse the Directive on 10 September.
In practice, this means that all suspects – no matter where they are in the European Union – in future will be guaranteed the right to be advised by a lawyer from the earliest stages of proceedings until their conclusion. Where a suspect is arrested, the new rules would ensure that the person has the opportunity to communicate with their family. If they are outside of their home country, citizens would have the right to be in contact with their country’s consulate.
Following adoption, the law will be published in the EU’s Official Journal within weeks, after which Member States will have three years to implement it in national law. Once in force, the new law will apply to an estimated 8 million criminal proceedings every year across the 28 EU Member States.
Background
The right of access to a lawyer is the third Directive in a series of proposals all of which have now been adopted to guarantee minimum rights to a fair trial anywhere in the European Union. The others are the right to translation and interpretation, adopted in 2010 and the right to information in criminal proceedings, adopted in 2012. The Commission is set to continue on this roadmap with another set of fair trial rights for citizens expected this autumn.
Access to a lawyer rights are essential for building confidence in the European Union’s single area of justice, especially when suspects are arrested as a result of a European Arrest Warrant. The Commission is working towards achieving common minimum standards for procedural rights in criminal proceedings, to ensure that the basic rights of suspects and accused persons are sufficiently protected across the EU.
There are over 8 million criminal proceedings in the European Union every year. The right of defence for anyone suspected of a crime is widely recognised as a basic element of a fair trial. But the conditions under which suspects can consult a lawyer differ between Member States. For example, the person suspected of a crime may not be able to see a lawyer during police questioning. The confidentiality of their contacts with their lawyer might not be respected. And people sought under a European Arrest Warrant may not currently have the benefit of a lawyer in the country where the warrant has been issued until they are surrendered to that country.
There are similar divergences in terms of the right of suspects to let a relative, employer and their consulate know when they have been arrested. Individuals may not systematically be offered this right, may only receive it at a late stage in the process, or may not be informed once their family has been contacted.
The Directive will guarantee these rights in practice, by:
- providing a right of access to a lawyer from the first stage of police questioning and throughout criminal proceedings;
- allowing a right to adequate, confidential meetings with the lawyer for the suspect to effectively exercise their defence rights;
- allowing the lawyer to play an active role during questioning;
- making sure that, where a suspect is arrested, somebody such as a family member can be made aware of that arrest and that there is an opportunity for the suspect to communicate with their family;
- allowing suspects abroad to be in contact with their country’s consulate and receive visits;
- offering people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.
The right to a fair trial and defence are set out in Articles 47 and 48 of the EU Charter of Fundamental Rights; as well as in Article 6 of the European Convention on Human Rights (ECHR). The right to communicate with a third party is one of the important safeguards against ill treatment prohibited by Article 3 of the ECHR.
