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Violations of access to a lawyer: no common remedies among EU member states

editor - November 29, 2017 - access to a lawyer

The right to access a lawyer in criminal proceedings is fundamental for people to defend themselves in court. In the EU, the Access to Lawyer Directive sets common minimum standards for the EU member states to guarantee this right to all suspected and accused people. Anneli Soo, researcher at the University of Maastricht and a LEAP member for Estonia, has been studying for the last two years how violations of the right to counsel in criminal proceedings are remedied in the EU Member States. As her research is coming to an end, we have discussed with her the main findings and a possible framework for common standards on remedies across the EU.

(Fair Trials) What does access to a lawyer mean in Europe? (Anneli Soo) The right to a lawyer is one of the fundamental features of a fair trial, and therefore of the rule of law. The European Court of Human Rights (ECtHR) has repeatedly stressed not only that the lawyer be present, but also that they must both fulfil and be allowed to fulfil their duties (ECtHR 10 October 2002, Czekalla v. Portugal, No. 38830/97; ECtHR 12 May 2005, Öcalan v. Turkey, No. 46221/99; ECtHR 2 November 2010, Sakhnovskiy v. Russia, No. 21272/03). The right to a lawyer has to be effective and practical, not theoretical and illusory (ECtHR 13 May 1980, Artico v. Italy, No. 6694/74.). In the EU, Directive 2013/48/EU on the right of access to a lawyer not only guarantees the right to counsel, but requires that in cases of a breach of the right, Member States have to ‘…ensure that suspects or accused persons in criminal proceedings […] have an effective remedy under national law in the event of a breach of the rights under this Directive.’ [Article 12 (1)]. In the context of open borders within the EU and an increasing number of cross-border criminal cases, EU Member States need to guarantee the right of counsel also in cases concerning a European Arrest Warrant.

What does "effective remedy" mean in practice? This is unfortunately left to the Member States to decide. According to the initial proposal of the Directive, remedies were intended to place the suspect or accused person in the same position as they would have found themselves had the breach not occurred. Under the new Directive, however, this provision no longer exists and as a result the right to remedy has been weakened. In fact, Member States can provide remedies of non-stringent nature.

What would make for an effective remedy? In my research, I argue that we should revert back to the original wording of the Directive on Access to a Lawyer, which required that a person’s pre-violation situation should be reinstated. To this end, three types of remedies are possible: the exclusionary rule, the doctrine of the “fruit of the poisonous tree”, and re-trial. The first provides that no evidence obtained in the absence of a lawyer would be considered in court. The second extends this prohibition to all evidence deriving from the original tainted evidence. The third, finally, allows the defendant to be tried again.

Has the EU Directive brought about any changes in the remedies provided domestically? My research shows that the majority of Member States decided not to amend their remedies’ system during the transposition of the Directive. Precisely because the wording of Article 12 is so general, most Member States deemed that no amendments were necessary to comply with it. As a result, domestic remedies continue to vary significantly, from the absolute exclusionary rule, to the court’s broad discretion to choose the appropriate remedy, to the prohibition of the exclusionary rule. In 5 out of 28 Member States, the violation of the right to have a lawyer present during the interrogation would not result in the exclusion of statements given by the suspect. In only 4 Member States, statements would be excluded not only if the lawyer did not participate, but also if they participated but failed to perform effectively (e.g. was not prepared).

Earlier this year, in case Ibrahim and others v. United Kingdom, the Strasbourg court ruled that evidence obtained in the absence of a lawyer could be accepted in court, in case of exceptional circumstances. What does that mean for the right to access a lawyer in the EU? Through this decision, the Court has significantly lowered the scope for remedies, in contrast with previous jurisprudence in Salduz v. Turkey (27 November 2008, No. 36391/02). In my study, I argue that the Strasbourg standards form just a part of the EU rules on access to a lawyer, which allows the EU to refrain from following this regression and to actually achieve higher protection.

Further reading:

  • A. Soo, ‘Article 12 of the Directive 2013/48/EU: A Starting Point for Discussion on a Common Understanding of the Criteria for Effective Remedies of Violation of the Right to Counsel’, 25 European Journal of Crime, Criminal Law and Criminal Justice, 1 2017, p. 31–51;
  • A. Soo, ‘Potential Remedies for Violation of the Right to Counsel in Criminal Proceedings: Article 12 of the Directive 2013/48/EU (22 October 2013) and its Output in National Legislation’, 6 European Criminal Law Review, 3 2016, p. 284–307;
  • A. Soo, ‘How Are the Member States Progressing on Transposition of Directive 2013/48/EU on the Right of Access to a Lawyer? An Inquiry Conducted among the Member States with the Special Focus on How Article 12 is Transposed’, 8 New Journal of European Criminal Law, 1 2017, p. 64–76;
  • A. Soo, ‘Divergence of European Union and Strasbourg Standards on Defence Rights in Criminal Proceedings? Ibrahim and the others v. the UK (13th of September 2016, 25 European Journal of Crime, Criminal Law and Criminal Justice, 4 2017, p. 327–346;
  • A. Soo, ‘‘(Effective) Remedies for Violation of the Right to Counsel during Criminal Proceedings in the EU’, to be published in 2018 at the Utrecht Law Review.

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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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