Right of access to a lawyer : Bulgaria and Poland targeted by European Commission for failure to transpose the Directive 2013/48/EU
The European Commission decided to refer Bulgaria to the Court of Justice of the European Union for incorrectly transposing rules on the right to a lawyer, while it called on Poland to correctly transpose EU rules on the right of access to a lawyer.
This case
concerned the notification of transposing measures and the completeness of the
transposition that has to be addressed at a first stage of the monitoring by
the Commission. Further issues were identified regarding the correctness
of the transposition.
In this
respect, the Commission concluded that Bulgaria has incorrectly transposed the
scope of the rights under the Directive. In addition, Bulgaria has
incorrectly transposed measures on the effective participation of a lawyer
during an interrogation.
Moreover,
Bulgaria failed to correctly transpose the rules concerning derogations from
the right to a lawyer for the interest of an investigation. The
Commission has therefore sent a letter of formal notice to Bulgaria in March
2024 and a reasoned opinion in October 2024 calling on Bulgaria to address the
remaining grievances. After
analysing the replies, the Commission considers that Bulgaria continues to fall
short of the requirements of the Directive.
The
Commission has therefore decided to refer Bulgaria to the Court of Justice
of the European Union. More information is available in the press release.
Furthermore,
the European Commission decided to send a reasoned opinion to Poland (INFR(2024)2073)
for failing to correctly transpose into its national legislation the Directive
on the right of access to a lawyer and to communicate upon arrest (Directive 2013/48/EU).
The Directive is one of the six Directives
that make up the EU's legal framework on common minimum standards for fair
trials, ensuring that the rights of suspects and accused persons are
sufficiently protected. It strengthens Member States' trust in each
other's criminal justice systems and thus facilitates mutual recognition of
decisions in criminal matters.
The
Commission sent a letter of formal notice on 23 May 2024. After having
analysed Poland's reply to the letter, the Commission considers that its
concerns were not addressed. The Polish law falls short of the requirements of
the Directive, as it only covers accused or suspected persons once they are
informed by formal act, whereas the Directive covers such persons once they
become aware of such accusations or suspicions by any means.
Furthermore,
Polish law allows for the presence of law enforcement in private meetings
between the suspect and their lawyer, and for exceptions to lawyer-client
privilege, which is against the provisions of the Directive.
The
Commission also considers that the scope of derogation to the right of access
to a lawyer under Polish law is too wide and that Poland did not correctly
transpose the requirement to inform the responsible adults when a child is
taken into custody.
Finally,
Poland did not transpose the provisions for the right to a lawyer and the
related information exchange in cross-border cases when Poland requests the
surrender of persons.
Therefore, the Commission has decided to issue a reasoned opinion to Poland, which now has two months to respond and take the necessary measures. Otherwise, the Commission may decide to refer the case to the Court of Justice of the European Union. (source: europa.eu/photo freepik.com)
Read as well: The Lawyer's right to refuse the defense of an accused person for ethical reasons / article by George Kazoleas, Lawyer
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