You would imagine that if you are arrested somewhere in the European Union that you have the right to speak to a lawyer before you are interrogated by the police—and that your lawyer will be able to accompany you and ask questions during the police interview.
However these exact points have been the subject of intense wrangling over the past months amongst members of the European Parliament and government representatives from the 27 EU member states.
In a major breakthrough this week, the European Parliament’s civil liberties committee agreed on a strong proposal for a directive that will guarantee the right to lawyer for all people accused or suspected of crimes. Importantly the draft stresses that anyone suspected or accused of a criminal offence in the EU should have the right to talk to a lawyer as soon as possible, and at least before police questioning starts.
The clear articulation of these rights builds on the groundbreaking 2008 European Court of Human Rights (ECtHR) decision of Salduz v. Turkey where the court held that people detained by the police have the right to access a lawyer. That case prompted a series of reforms across Europe, which will be concretized through the adoption of this directive.
The new draft builds on the strong proposal made by the European Commission and incorporates important safeguards that make up the right to access a lawyer. These include:
The right to communicate upon arrest. A suspect or accused person is entitled to promptly have one person informed of his arrest and to communicate and meet privately with that person.
Prompt access to a lawyer, at least before the start of any questioning. A suspect or accused person has the right to meet privately with his lawyer at any stage in the proceedings and the lawyer is entitled to be present, ask questions, and seek clarifications during any questioning by the police.
A guarantee of confidentiality. All communication with a lawyer is confidential with a clear stipulation that there are no exceptions.
Measures to ensure effectiveness. Member states must take measures to facilitate access to a lawyer through practical measures such as providing telephone numbers and a register of qualified lawyers.
The right to a remedy. If the right to access a lawyer is breached then the member states have a duty to ensure that the person has access to an effective remedy.
The vote this week paves the way for negotiations with the European Council, which should start in September 2012. However, as outlined in a joint briefing by the Open Society Justice Initiative and nine other civil society organizations, the position agreed by the member states on June 8, 2012, falls below the standards set out in recent cases of the European Court of Human Rights and thus fails to guarantee all of the components necessary to ensure the right to a lawyer.
Thus the negotiations begin with significant differences between the Parliament and the Council. The Open Society Justice Initiative is advocating that the negotiations take into consideration this strong proposal from the European Parliament and the recent ECtHR case law to agree on a directive that protects the rights of all suspects and accused persons particularly at the crucial stage immediately after arrest.