© Springer International Publishing Switzerland 2015Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_7
The EU Directive on the Right to Access to a Lawyer: A Critical Assessment
Faculty of Law, University Complutense Madrid, Avda Complutense s/n, 28040 Madrid, Spain
Lorena Bachmaier Winter
After lengthy discussions, several drafts and numerous amendments, on 22 October 2013 the final text of the Directive on access to lawyer, right to have a person informed and right to communicate with a third person while deprived of liberty was adopted. This study analyses in detail the provisions of the European Directive of Access to Lawyer of 22 October 2013 from a critical perspective. Apart from analysing this legal instrument, it aims to assess how far this new Directive serves to harmonise the defence rights in a European single space of justice and to guarantee adequately the rights of the defendants in transnational criminal proceedings.
KeywordsEuropean Arrest WarrantEuropean criminal procedureEuropean Public ProsecutorHuman rights right of access to lawyerProcedural safeguardsProtection of suspectsRight to communicateRights of defenceTransnational criminal proceedings
After the failure in moving forward and approving the Proposal for a Framework Decision on certain procedural rights of suspects,1 the EU Commission opted for a piecemeal approach, dealing with each of the procedural rights separately, as a way to overcome the stalemate situation on the negotiations. The Roadmap on Procedural Rights, adopted by the Council of the European Union on November 2009, sets out the guidelines to be followed in strengthening the rights of suspects and accused persons and enhances mutual trust necessary for the implementation of the principle of mutual recognition.2 Executing this Roadmap has not been easy, and the EU began presenting and passing those Directives regarding the guarantees of defendants in criminal proceedings where the agreement could be achieved easier, as, for example, the Directive on the right to interpretation and translation in criminal proceedings3 or the Directive on the right to information in criminal proceedings.4 The negotiations on the right to access to lawyer and legal aid should follow.
On 8 June 2011, the EU Commission presented a proposal for a directive on access to lawyer. Shortly after the presentation of this text, a group of Member States expressed their opposition to the Commission’s approach, stating that the proposal would “present substantial difficulties for the effective conduct of criminal proceedings” by their investigating, prosecuting and judicial authorities,5 because the rights enshrined in the proposal were not adequately balanced with the needs of the criminal prosecution. The initial text was subject subsequently to several amendments, and different texts were elaborated during the negotiations until the final text of the Directive on access to lawyer, right to have a person informed and right to communicate with a third person while deprived of liberty (hereinafter DAL) was adopted on 22 October 2013.6
The objective of this study is not only to analyse in detail the provisions of this Directive from a critical perspective but also to assess in how far the Directive serves to harmonise the defence rights in a European single area of Freedom, Security and Justice (AFSJ) and to guarantee adequately the rights of the defendants in transnational criminal proceedings. It can already be advanced that, even if this legal instrument represents a significant step forward in the protection of fundamental rights in criminal proceedings, to my mind it does not meet the expectations of providing an adequate framework to enhance the protection of the procedural safeguards in criminal proceedings, specifically with regard to transnational proceedings, execution of European Arrest Warrants, or the proceedings that will lie within the competence of the future European Public Prosecutor.7
2 The Scope of Application of the Directive on the Right of Access to Lawyer
The scope of application of this Directive is defined in Article 2 DAL. This provision defines to which persons, to which proceedings and from which moment shall the rights to access a lawyer and to communicate with a third person envisaged in the Directive apply.
2.1 Personal Scope of Application
The Directive on Access to Lawyer is intended to ensure the access to lawyer and the communication of the suspect or defendant in criminal proceedings and persons subject to a surrender procedure pursuant to the EAW (Articles 1 and 2 DAL). Expressly, Article 2(3) DAL clarifies that it shall apply also to “persons other than suspects or accused persons who in the questioning by the police or by another law enforcement authority become suspects or accused persons” [Article 2(3) DAL]. It does not apply generally to witnesses, as this provision guarantees that from the moment a witness is considered a suspect, the right to access a lawyer shall be granted.
While no objection can be made to this provision, its practical implementation can be problematic, as there is no precise moment where it can be undoubtedly stated that a witness becomes a suspect. It will depend largely on the authorities interrogating the person summoned as witness to stop the questioning until this person who has become a suspect during the questioning appoints a lawyer. The practice of the different MS may vary greatly regarding the moment when they consider that a person is not anymore a witness and should be treated as a suspect granting him all the defence rights accordingly. In this context, not being possible to define what the elements are to be taken into account to transform the position of the interrogated person from witness to suspect, the Directive could probably have expressed that in case of any doubts as to the need to grant the person interrogated the right to appoint a lawyer, the questioning should be suspended in order to allow the person to be assisted by lawyer.
Furthermore, even if the authorities do not consider the witness as a possible suspect, if the witness expresses his wish to be assisted by lawyer, such possibility should be facilitated promptly. In sum, the moment from which a witness is to be granted the right to access to lawyer should not depend exclusively on the assessment the interrogating officers make, and when they consider that such witness might have participated in the commission of the offense.
To that end, the importance of respecting the exclusionary rule of evidence is essential: no incriminatory statement of the defendant made without respecting the right to legal assistance shall be admitted as evidence. The case law of the ECtHR is very clear on this point8; however, if the EU Directive seeks to reinforce the right to access to lawyer and prevent that law enforcement agents keep on interviewing a person as a witness, when they already consider him as a suspect, the exclusionary rule should have been added into the Directive.
2.2 Objective Scope of Application
As to the material scope of application, proceedings for imposing sanctions for minor offences by other authorities different from judges of the criminal jurisdiction do not fall within the scope of the Directive on Access to Lawyer [Article 2(4) DAL]. The initial draft of the Directive did not mention these proceedings when defining the material scope of the Directive and simply stated that the Directive should be applicable to criminal proceedings and EAW procedures.9 In the text of 25 May 2012, the proceedings for minor offences were excluded from the application of the Directive. This exclusion posed several criticisms: first, because there is no uniform concept of minor offence at the European level, and thus it would be uncertain to which proceedings finally would the Directive be applicable, and, second, because criminal proceedings for minor offences can entail severe economic consequences and therefore excluding the right to legal assistance in such proceedings. Taking into account these considerations, it could be argued if the aim of ensuring minimum standards of the right of defence in criminal proceedings was adequately guaranteed.
These arguments definitely speak in favour of granting the right to legal assistance in all criminal proceedings. The draft of 31 May 2013 amended again the text of the previous Article 2, and the Directive now states that the right to access a lawyer and to communication with a third person is granted in all criminal proceedings and EAW proceedings. The only exception is set out in Article 2(4) DAL: the Directive does not apply to extrajudicial sanctioning procedures for minor offences if deprivation of liberty cannot be imposed as a sanction. Once the sanction is appealed or referred to a court having jurisdiction in criminal matters, the right of access to lawyer would be granted according to the Directive.
The text of the Directive—following the text proposed on 31 May 2013—definitely represents an improvement of the right to defence at this point, clarifying that in all criminal cases before a court with criminal jurisdiction, regardless of the seriousness of the offence or the possibility to deprive the liberty of the suspect or defendant, the Directive shall apply. Furthermore, it also clarifies that, even in administrative proceedings, if a person can be deprived of liberty, the right to legal assistance shall be granted under this Directive [Article 2(4) DAL, last paragraph].
On the other hand, the Directive does not apply to proceedings regarding minor offences that are sanctioned by an authority different from a court with criminal jurisdiction and cannot lead to a deprivation of liberty. The Explanatory Memorandum [point (17) EM] explains this exclusion by stating that it would be disproportionate to require that the competent authority should ensure for minor offences, such as minor traffic offences, all the rights granted under the Directive.10
This would be the scheme followed in the Directive with regard to minor offences’ proceedings:
Criminal offence + court criminal jurisdiction = Directive applies always.
Criminal offence + administrative authority + court criminal jurisdiction = Directive applies only to last stage.
Administrative offence + possible deprivation of liberty = Directive applies always.
Administrative offence + not possible deprivation liberty = Directive does not apply.
At first sight, when reading Article 2(4) DAL, the provision appears to be too complex and lengthy. Article 2(4) DAL states:
4. Without prejudice to the right to a fair trial, in respect of minor offences:
where the law of a Member State provides for the imposition of a sanction by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed or referred to such a court; or
where deprivation of liberty cannot be imposed as a sanction;
this Directive shall only apply to the proceedings before a court having jurisdiction in criminal matters.
In any event, this Directive shall fully apply where the suspect or accused person is deprived of liberty, irrespective of the stage of the criminal proceedings.
Was it necessary to draft this article in such a way as to make clear that the right to access to lawyer only applies to proceedings before a criminal court and to any kind of proceedings where a liberty deprivation sanction can be imposed? Probably yes, although this might be the text that better responds to the special features of sanctioning minor criminal offences in certain MS. It has to be borne in mind that the approach of the MS to minor offences is quite different: the same behaviour being treated in one state as administrative offence and sanctioned by administrative authorities, in another state as criminal offence and sanctioned by criminal courts and in others as criminal offence but sanctioned first at the administrative or police level and only upon initiative of the sanctioned person will it be reviewed by a criminal court.
In my opinion, it is positive that Article 2(4)(a) DAL explicitly clarifies that non-judicial sanctioning proceedings for minor offences fall out of the scope of the Directive and only once they are handled before a court with criminal jurisdiction will the right to access to lawyer arise: those cases where minor offences are considered criminal offences but are dealt with by non-judicial authorities will not be considered as “criminal proceedings” for the purpose of granting the right to access to lawyer. This avoids entering into lengthy discussions and divergent interpretations on the question of what is the element that defines the criminal nature of a procedure if it is the type of behaviour, the sanction or the authority that imposes the sanction.
In sum, when an offence is contemplated as criminal in a national system but due to its consideration as a minor offence the sanctioning is left at first place to a non-judicial authority (as, for example, the German Strafbefehl), the defendant’s right to legal assistance will apply only if such proceedings come to the criminal court: the Directive does not apply to minor criminal offences sanctioned by administrative authorities.
And what happens the other way round if a certain behaviour is sanctioned by administrative authorities as an administrative offence in a relevant national legal system, although according to the level of the sanction it could amount to a criminal offence?
The ECtHR has repeatedly stated that the procedural safeguards of defendants in criminal proceedings shall also be applicable to the administrative offence procedures, regardless of the fact that the jurisdiction is within an administrative authority or an administrative court.11 The Strasbourg Court has tried to avoid that a change of jurisdiction and/or of the denomination of the conduct and the sanction might be used for circumventing the requirements and guarantees set out for criminal proceedings with the aim of lowering those procedural safeguards. There have been some countries, mainly out of EU countries, where detentions have been routinely practised under the administrative offence procedure, and this explains the position of the ECtHR and its case law.
However, in my opinion, the right to have access to a lawyer may be excluded in administrative sanctioning procedures as long as these cannot entail a deprivation of liberty and as long as the right to a fair trial is respected.
Finally, with regard to minor offences against the financial interests of the EU that would fall within the competence of the EPPO, this provision does not pose any problems. The Proposal for a Regulation for an EPPO includes the minor offences within the competence of the EPPO, and thus any kind of criminal offence detrimental to the financial interests of the EU would, according to the Proposal for a Regulation for an EPPO of 17 July 2013, be investigated and prosecuted by the EPPO, although it states that the EPPO can dismiss discretionally such cases [Article 28(2) Proposal Regulation EPPO]. In any event, the Directive on the right to access a lawyer and communicate with a third person would apply to these EPPO criminal procedures in the same way as to all other criminal procedures, as they fall under the jurisdiction of a criminal court.
2.3 Territorial Scope of Application
With regard to the territorial scope of application of the Directive, it has to be pointed out that the UK, Ireland and Denmark will not be bound by this Directive, following the Protocols in respect to the Area of Freedom, Security and Justice annexed to the TFEU. These countries shall ensure the right to access to lawyer according to their own national rules, in conformity with the EU Charter and the ECHR and the case law of the ECtHR. The position of opting out of some countries may lead to some extent to a certain asymmetrical application of the procedural guarantees of suspects in criminal proceedings at the EU level, which is not desirable, leads to fragmentation of the AFSJ, and does not contribute to enhancing mutual trust. However, this opting out applies also with regard to the establishment of the EPPO, and therefore the issue of the protection of the defence rights in the proceedings led by the EPPO does not have any direct consequence in those countries. From a general point of view and in particular with regard to transnational criminal proceedings and those related to the EAW, it would be highly desirable that all EU countries would adapt their laws to the Directive—regardless of the opting-out position— in order to secure a certain minimum standard, even if they refuse to be subject to the control mechanisms of the ECJ.
2.4 The Moment from Which the Right of Access to Lawyer Is Granted
Granting the right of access to a lawyer is a prerequisite to ensure that the person concerned can exercise his right of defence “practically and effectively” [Article 3(1) DAL]. To this end, the Directive states that the right to access to lawyer and to communicate with a third person shall be granted when the suspects or accused persons “are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, irrespective of whether they are deprived of liberty or not” [Article 2(1) DAL]. Apparently, this provision should be enough to ensure that a person is granted the right to legal assistance from the moment he is a suspect. However, pursuant to the wording of this article, the right only applies from the moment the person is informed, either officially or otherwise, of his condition of suspect. Thus, there could be the risk that the authorities could delay the moment from which the fundamental right applies, by simply deferring the moment of notification.
In order to avoid this possible risk, the general provision included in Article 2(1) DAL is complemented with Article 3 DAL, which defines the moments in time since the suspect or accused person shall be granted the right to access a lawyer in any event: before being questioned [Article 3(1)(a) DAL], upon carrying investigative or evidence gathering acts [Article 3(1)(b) DAL], from the moment of deprivation of liberty [Article 3(1)(c) DAL] and for any court appearance [Article 3(1)(d) DAL].
In sum, the Directive sets out that the right to access a lawyer shall be granted since the authorities carry out any investigative act against a person because he is being suspected of committing a crime, and this right shall be granted without undue delay if deprived of liberty. Despite the correctness of this rule, controlling the practical implementation of this rule is what may be more difficult, particularly, as mentioned earlier, because during the questioning of a witness it is unclear when the person will start to be considered a suspect and not a witness anymore.12
Furthermore, Article 2(1) DAL states that the right to access a lawyer and communicate a third person arises since the “suspect is informed by the competent authorities of the Member State”. With regard to proceedings carried out by the EPPO, who shall be that competent authority? Pursuant the Proposal for a Regulation for an EPPO, the investigation of offences against the financial interests of the EU shall be conducted either by the European Delegated Prosecutor or by the European Public Prosecutor himself/herself [Article 16(2) Regulation Proposal EPPO]. In my opinion, the notification shall be made either by the European Delegated Prosecutor or by the EPPO directly, even if the EPPO is not an authority of the Member State as required by Article 2(1) DAL. But the notification can also be made by any national law enforcement agency that is carrying out investigative acts under the instructions of the EPPO.
In cases of detention in execution of an EAW, the authority executing the EAW shall inform without undue delay about the right to access to lawyer. The execution of a European Arrest Warrant issued within a procedure of the EPPO does not present any differences within the one ordered in another criminal investigation.