Right to access a lawyer in criminal and European warrant arrest proceedings

KEY POINTS

Right of access to a lawyer

Citizens must have access to a lawyer without undue delay:

• before they are questioned by a law enforcement (e.g. the police) or judicial authority;
• during an investigative or other evidence-gathering act (e.g. confrontation);
• from the moment of deprivation of liberty;
• in due time before they appear before a criminal court.

More specifically, the law covers:

• the right to meet in private and to communicate with a lawyer;
• the right for the lawyer to participate effectively when the person is questioned, and to attend the investigative and evidence-gathering acts;
• the confidentiality of all forms of communication (meetings, correspondence, telephone conversations, etc.).

As regards persons subject to a European arrest warrant, the directive lays down the right of access to a lawyer in the executing EU country and to appoint a lawyer in the issuing country.

Rights in the event of deprivation of liberty

Citizens deprived of liberty have the right, without undue delay:

• to have at least 1 person of their choice informed of their deprivation of liberty. If the arrested person is a child, the holder of parental responsibility should be informed as soon as possible;
• to communicate with at least 1 person of their choice.

If they are deprived of liberty in an EU country other than their own, they have the right to inform their consular authorities, to be visited by them, to communicate with them and to have legal representation arranged for by them.

Exceptions

The directive allows for the possibility to derogate temporarily from certain rights in exceptional circumstances and under strictly defined conditions (for example, where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person).

Legal aid

Directive (EU) 2016/1919 sets out common minimum rules concerning the right to legal aid for suspects, accused persons and requested persons ensuring the effectiveness of Directive (EU) 2013/48. It requires EU countries to ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require. EU countries may apply a means test (to assess if the person lacks sufficient resources to pay for legal assistance), a merits test (to assess whether providing legal aid would be in the interest of justice ), or both to determine whether legal aid is to be granted.

Directive (EU) 2016/1919 is the last legal text planned as part the roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings adopted by the Council in November 2009.

This directive has to become law in the EU countries by 5 May 2019.