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EU law in action: access to a lawyer in Germany

editor - September 27, 2017 - access to a lawyer

In 2013, the European Union passed a Directive guaranteeing all suspects and defendants effective and confidential access to a lawyer throughout criminal proceedings. The transposition deadline having expired in November 2016, Fair Trials is currently investigating what has happened in several EU countries. Here, we take a look at the German context with the help of our LEAP member Anna Oehmichen and Björn Weißenberger, law student at the Johannes Gutenberg University of Mainz. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.

The EU Directive on the right of access to a lawyer also covers the right to notify a third person about the arrest and the right to communicate with a third party. All these three aspects were already guaranteed under German law before the entry into force of the Directive. The EU law did however introduce a number of additional safeguards, which are listed below:

Presence of a lawyer during police questioning

Under German law, the presence of a lawyer was only expressly guaranteed when the suspect is questioned by a prosecutor or a judge. When questioned by the police, the presence of a lawyer was not required by the law; the suspect still had a right to remain silent, as well as the right to consult a lawyer, but only prior to the questioning. Thanks to the EU Directive, questionings by the police have now been equated with those by prosecutors and judges, so that the lawyer can always be present and participate in the questioning.

Presence of a lawyer during investigative and evidence-gathering acts

The EU Directive also allowed for a lawyer to be present at identity parades and confrontations, although according to the German transposition these acts will not be delayed if the lawyer cannot be present on time.

Reconstructions of the crime scene are not explicitly regulated under the transposing law, but they are in fact assimilated to other kinds of questioning, therefore the presence of a lawyer can be guaranteed also during these acts.

General information on the access to a lawyer

Under the new German law, the authorities are now obliged to inform the suspect about so-called "emergency services", which can provide legal advice in urgent cases or if the suspect doesn't  know or cannot find a lawyer on his own.

Derogation from certain rights

German law allows the interruption of the communication of a detained suspect with their lawyer under strict requirements during detention in remand (“Kontaktsperre”). This provision was introduced in 1977 specifically in reaction to major crimes committed by the Rote Armee Fraktion (RAF, a far-left militant group), whose detained members were allegedly able to communicate with other external supporters through their lawyers. Born out of very specific circumstances in the '70s, its abolition was discussed due to the grave limitations on such a fundamental procedural safeguard.

However, the German parliament did not make use of the transposition process to amend this specific piece of legislation. Instead, in line with the requirements of the EU Directive, which allows for the derogation to the general rule of free contact with the lawyer at the pre-trial phase under exceptional circumstances, the German legislator established that contact with a lawyer can no longer be restricted during the trial phase, but only before the formal indictment or after the final conviction.

Holder of parental responsibility

In case of minors, the holder of parental responsibility has to be informed of the arrest, unless the investigation would be severely endangered. This provision, included in the EU Directive, was almost literally transposed into German law.

European Arrest Warrant proceedings

In the framework of European Arrest Warrant proceedings, the EU Directive requires the law enforcement authorities to notify the suspect or arrested person that they have a right to inform a lawyer in the issuing state, which is being implemented in German law. In addition, the authorities executing an EAW have to inform the authorities of the issuing state that the defendant intends to appoint a lawyer there. The issuing state will then have to provide information on how to find a lawyer. Unfortunately, this provision will not be implemented into law but only into non-binding internal guidelines.

Conclusions

In general, the implementation of Directive 2013/48/EU does not lead to major changes or amendments of German law. Nevertheless, – with respect to legal certainty – it should be welcomed that previous case law now becomes written law and it cannot be denied that the new rules in fact strengthen the rights of accused persons. In practice, the most important change will be the right of presence of a lawyer during a questioning by the police, which is nearly overdue, and during identity parades and confrontations. Criticism seems appropriate as far as the “Kontaktsperre” is concerned. This measure is outdated as it is (fortunately!) never used in practice and could have been abolished even though the Directive 2013/48/EU does not require to do so. In addition, the provision of information about appointment of a lawyer in European Arrest Warrant proceedings should have been implemented into law, not within non-binding internal regulations.

You can read a more detailed legal analysis about the implementation of the EU Directive into German law here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71. For regular updates follow Fair Trials on Twitter and Facebook or sign up to our newsletter at the bottom of the page. Click to share this story on FaFB iconcebook

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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