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Fair Trials Welcomes Directive on Access to a Lawyer


Source: Fair Trials International

The European Commission, Parliament and Council have this month reached agreement on the text of a Directive which will guarantee the right of access to a lawyer in criminal proceedings and to communicate upon arrest. Fair Trials International is pleased that this measure has been agreed as we, along with other international NGOs, have campaigned hard to ensure that basic defence rights are better guaranteed across Europe. If suspects cannot access a lawyer, it is very difficult, if not impossible, for them to prepare a defence and therefore to receive a fair trial.

Libby Clarke, Fair Trials International’s Head of Law Reform, said:

“We are delighted that, after lengthy and complex negotiations, all parties have reached agreement on this important Directive. However, there is still much to be done to improve defence rights in Europe, including the effective implementation of the first three procedural rights directives and the introduction of crucial new measures relating to the provision of legal aid and the guarantee of specific protections for vulnerable suspects.”

The Directive is the latest right agreed from the Procedural Defence Rights Roadmap, which was set out under the Stockholm Programme. Fair Trials International is holding a series of meetings with legal practitioners from across Europe to (i) learn about how the Directives adopted under the Roadmap will help to address fair trial issues in those countries, and (ii) make recommendations for effective implementation, without which the new laws will make little difference in practice. Read a communiqué from our recent meeting of experts from Austria, Bulgaria, Germany, Hungary and Romania.

Notes to editors

1. Key elements of the new proposed right: The text of the new Directive has not yet been made publicly available, so the detail of the safeguards it offers cannot yet be fully analysed. The next step, however, will be to make sure that the Directive is properly implemented so as to provide effective access to a lawyer to those who are arrested or subjected to police questioning. In April 2013, Fair Trials International, along with national and international NGOs working on justice and human rights, together with the European Criminal Bar Association (ECBA), published a joint statement advocating the need for the Directive to uphold and develop existing international human rights standards in this area.

2. Defence rights – why the EU must protect them: The right to a fair trial and defence are set out in Articles 47 and 48 of the EU Charter of Fundamental Rights and in Article 6 of the European Convention on Human Rights. Under Article 82(2) of the Treaty on the Functioning of the European Union, the EU can adopt measures to strengthen the rights of EU citizens, in line with the EU Charter of Fundamental Rights, and to facilitate the mutual recognition of judicial decisions and improve police and judicial cooperation on criminal matters having a cross border nature. European Member States today cooperate more than ever before in justice matters. This means they must be able to trust in the fairness of each other’s justice systems; equally, people facing charges in Europe must be confident they will be treated fairly, wherever they are charged. This is, unfortunately, a long way from reality. For trust to be established, basic defence rights must be guaranteed by the legal systems of every single Member State and be enforceable by nationals and non-nationals alike. Previous attempts to create these safeguards failed in 2007 when 6 countries (including the UK, Ireland and Poland) vetoed a Commission proposal.

3. Other defence rights under the Stockholm Programme: The “Stockholm Programme” is the five year legislative programme for EU Justice and Home Affairs, adopted in December 2009. It provides the basis for EU legislation on justice matters between 2010 and 2014 and sets out the Procedural Rights Roadmap. The first law under the Roadmap, guaranteeing the right to interpretation and translation in criminal proceedings, was passed in 2010 and must be implemented into the law of all Member States by October 2013. The second Directive, which was adopted in May 2012, will ensure that suspects are provided with certain information during criminal proceedings, including a ‘Letter of Rights’ on arrest and granted access to the case file to help them prepare an effective defence. To read our briefings and case studies showing why Europe must act to protect these rights, click here.

4. The Directive on access to a lawyer in criminal proceedings and on the right to communicate upon arrest: This is the third measure under the procedural rights Roadmap which was adopted four years ago to deliver stronger fair trial rights across Europe. The first law guarantees the right to interpretation and translation in criminal proceedings and the second will ensure that suspects are provided with certain information during criminal proceedings, including a ‘Letter of Rights’ on arrest, and granted access to the case file to help them prepare an effective defence.

The next measure under the Roadmap, which is intended to ensure that legal aid is granted to those who cannot afford to pay for their lawyer, will also be a vital counterpart to the new Directive as, without adequate access to legal aid, the right of access to a lawyer is unlikely to make a significant difference in practice for many involved in criminal proceedings. We are expecting the European Commission to publish a proposal in this area later this year. Fair Trials International has highlighted the problems with the practical operation of legal aid in the EU in a report which you can read here.

5. Fair Trials International’s Justice in Europe campaign: We have long campaigned for legislation at EU level on basic defence rights, because it is the only way to require Member States to deliver on their fair trial obligations, both to nationals and non-nationals. We use the real-life experiences of the people we assist to show the need for these measures. For more information on our Justice in Europe campaign, click here.

  • Geographical area: Europe