Accord on Access to a Lawyer will Strengthen European Arrest Rights

The Open Society Justice Initiative has welcomed an agreement between the European Parliament and European Council on a new EU directive on the right of access to a lawyer in criminal proceedings.

The agreed text, confirmed on June 19 by the European Parliament’s Civil Liberties Committee, ensures minimum standards on the right to access to a lawyer across all EU member states, and clearly determines that this access should be granted prior to any questioning by the police.

After over two years of intense negotiations the agreement marks a significant step that will improve the rights of suspects and accused persons.

Some of the key provisions in the final text, which will be approved by the full European Parliament in September, include:

  • Early access to a lawyer: Member States must ensure access to a lawyer without undue delay and in particular: when deprived of liberty; before and during questioning; upon evidence-gathering; and prior to appearing in court.
  • Confidentiality: Member States must respect the confidentiality of communication between a suspect and lawyer, including in meetings, correspondence and telephone conversations.
  • Communication:  Suspects have the right to have someone, of their choosing, informed of their arrest and to communicate personally with at least one person of their choice, such as a relative or employer.
  • Dual Representation: Suspects arrested under a European Arrest Warrant have the right to a lawyer in both the country of the arrest and the country that issued the warrant.

Zaza Namoradze, who heads the Justice Initiative’s work on the issue, welcomed what he called “these all important provisions, in particular the recognition that early access to a lawyer is crucial to ensuring the right to a fair trial.”

He added: “Attention should now focus on ensuring full and effective realization of this right through effective implementation, and for a subsequent strong directive setting an EU wide standard on the provision of legal aid.”

The proposed new directive is part of a drive to standardize arrest rights launched by the European Union member governments in 2009, under a “roadmap” that also included the question of the provision of legal aid. The Justice Initiative expects the European Commission to publish the draft text of a directive on legal aid in the autumn of this year.

The Open Society Justice Initiative has been an active supporter of efforts to raise European arrest rights standards, including those related to access to a lawyer. This included participating in a three-year study of existing standards in nine European countries published in 2010 that highlighted the varying and inconsistent prevailing practices in different jurisdictions. In April this year, the Justice Initiative published an “Arrest Rights Toolkit”—a package of resources to assist lawyers, police, and judges to advocate for reform of arrest rights in countries across Europe.