Τhe right of access to a lawyer since the beginning of the criminal proceedings as an aspect of the right to a fair trial

Article by Giorgos Kazoleas, Lawyer LL.M.

The right to communicate with a lawyer since the very beginning of the criminal proceedings is an important aspect of the right of access to a lawyer. Article 6 (3) (c) of the ECHR and Article 48 (2) of the EU Charter of Fundamental Rights expressly guarantees the right to legal aid in criminal matters. The right to legal aid applies throughout the criminal proceedings, i.e. from the police interrogation -and more precisely, before the commencement of the interrogation - to the termination of the second instance appeal. Suspects or defendants must have access to a lawyer without undue delay.

The term "lawyer" refers to any person who, in accordance with national law, is qualified and entitled, inter alia, through accreditation to an authorized body, to provide legal advice and legal assistance to suspects or accused persons.

The relevant Directive 2013/48 / EU [1], delimits the time frames during which the arrested suspect or accused may get in touch with a lawyer. In particular,  the arrested suspects or accused have access to a lawyer from whichever of the following points in time is the earliest:

(a) before being questioned by the police or other law enforcement or judicial authority;

(b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) below

(c) without undue delay after deprivation of freedom;

(d) when they have been summoned before a court with jurisdiction in criminal matters, in due time before appearing before that court.

The right of a lawyer to provide legal advice to a suspect or accused person in criminal proceedings at a relatively early stage of that proceedings,  is fundamental to ensure the fairness of the proceedings. [2]

In particular, the suspect or accused person in a criminal proceeding have the right of access to a lawyer as soon as they become aware, through official notification or otherwise, by the competent authorities, that they are considered as suspects or accused of a criminal act, regardless of whether they are deprived of their freedom.[3]

In essence,since the initiation by any act whatsoever of the criminal proceedings by the state officials, the suspects or accused have the right to contact their lawyers.

Upon informing the suspects or accused, the competent authorities should pay attention to cases in which they are unable to understand the content or meaning of the information, e.g. due to young age and/or their mental or physical condition

It is important that the suspects or accused can understand what is happening and further, that they can be understood. A suspect or accused who does not speak or understand the language used in the proceedings will need an interpreter and a translation of the key documents.

For example, it is not sufficient to inform in the Greek language a foreign detainee who does not understand Greek regarding his/her right to contact a lawyer.

The police must provide the suspect / accused person with the means to contact with their lawyer, so that the communication is effective. Communication must also be confidential. The right to confidentiality may be restricted, but it has been deemed that is necessary to provide a substantive justification for these restrictions.[4]

 In the Lanz v. Austria case before the ECtHR, the applicant was arrested on suspicion of fraud and was kept in custody. The communication with his lawyer during the temporary detention was monitored by the investigator. The ECtHR found a violation of Article 6 (3) (b) and (c) of the ECHR. [5]

The immediate communication of the suspect or accused with their lawyer is usually decisive for the entire course of the criminal proceedings. Ignorance of procedural rights, the suddenness of the arrest and the vulnerable position of the detainee in the early stages of the proceedings make access to legal aid necessary.

In Salduz v. Turkey , the applicant was convicted of participating  to an illegal demonstration in support of the PKK (Kurdistan Workers' Party). He did not have access to a lawyer and pleaded guilty during interrogation while in police custody, and later withdrew his statements. The Turkish court relied on initial statements of his conviction. The ECtHR confirmed that, in order for the right to a fair trial to remain "practical and effective", access to a lawyer must be granted since the first police interrogation.[6]

Of particular importance here is the Court's assertion that the suspects are particularly vulnerable at the stage of the investigation and that the evidence gathered may determine the outcome of their case. Early access to a lawyer protects the right against self-incrimination and is a fundamental safeguard against ill-treatment. As the ECtHR has noted, any exception to this right must be clearly defined  and limited in time. Even when there are compelling reasons, any restrictions must not unjustifiably infringe on the rights of the accused. In the above applicant 's case, the absence of a lawyer while he was under  police custody irreparably affected his rights to defense, in breach of Article 6 (3) (c) in conjunction with Article 6 (1) of the ECHR.

Read other articles by Giorgos Kazoleas here

[1] Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty

[2] Resolution of the Council of Europe of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings

[3] European Commission Recommendation of 27 November 2013 on the right to legal aid for suspects or accused persons in criminal proceedings

[4] ECtHR Sakhnovskiy v. Russia - 21272/03 Judgment 2.11.2010 

[5] ECtHR Lanz v. Austria - 24430/94, Judgment 30.1.2001

[6] Salduz v. Turkey - 36391/02 Judgment 27.11.2008

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