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 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.
[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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