Most countries have legislation stating that all people arrested by the police have the right to see a lawyer before they are interrogated. But law and practice are often very different things. A common complaint from criminal defense lawyers across Europe is that—despite the law providing formal protection—they are prevented by the police from seeing their clients through underhanded or devious techniques designed to deprive the suspect of his or her rights.
Recently, the Hungarian Constitutional Court examined what is really happening in police stations across Hungary. Despite Article 48(1) of the Hungarian Code of Criminal Procedure, which secures the right to a lawyer, many suspects do not get one in practice. The court found that Hungarian police often notify suspects’ lawyers in ways that guarantee that they will not be able to respond in time. The classic scenario is that the police will send a fax to the lawyer’s office late at night or on the weekends when the office is closed. Then, when the lawyer fails to respond, the police will begin to interrogate the suspect alone.
In its Decision no 8/2013 (III.1.) the Hungarian Constitutional Court established a new constitutional requirement that the appointed defense lawyer must in criminal procedures be notified about the date and place of the interrogation of the suspect in a verifiable manner. Furthermore, the notification must be provided in a timely manner so that the defense lawyer will have a real opportunity to meet the suspect, provide advice, and attend the suspect’s interrogation.
In coming to this decision, the court referred to Article 6 of the European Convention on Human Rights, and the standard-setting case of Salduz v Turkey. The court highlighted the fundamental importance of the right to a defense lawyer, and emphasized that the mere appointment of a defense lawyer does not amount to fulfilment of state obligations prescribed by the ECHR.
This case puts Hungary on the ever-growing list of countries across Europe who are reforming their criminal justice systems to ensure that they uphold minimum standards of fair trial. The Justice Initiative is monitoring and supporting these reforms through their Global Campaign for Pretrial Justice. For more information specifically on the right to early access to a lawyer for people accused of crimes, please see the Template Brief on the Right to Early Access to Legal Assistance.