This joint statement makes comprehensive recommendations for amendments to the European Union Council’s revised text of the Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest (Measure C1) to ensure that the Directive upholds the minimum human rights standards for fair trials.
This joint statement was prepared by the following nine civil society organizations:
- Open Society Justice Initiative
- European Criminal Bar Association
- Fair Trials International
- Irish Council for Civil Liberties
- Hungarian Helsinki Committee
- Helsinki Foundation for Human Rights in Poland
- Greek Helsinki Monitor
- Human Rights Monitoring Institute, Lithuania
Our organisations consider that the enactment of a Directive of the European Parliament and of the Council on the rights of access to a lawyer and of notification of custody to a third person in criminal proceedings represents an important step towards full mutual recognition within the common European justice space. The case law of the ECtHR and other relevant regional and global instruments provide a starting point from which the co-legislators can develop the highest possible standards in this area; they should be seen as a floor on which to build, not a ceiling beyond which we cannot pass.
In order to be fully protected the right of access to a lawyer protected in the Directive must be built upon, at a minimum, the following principles:
- Except in wholly exceptional, clearly-circumscribed and fully-documented circumstances, access must be provided to all persons suspected or accused of a crime, whether ‘formally’ designated as suspects or not and regardless of a crime’s apparent minor nature.
- Access to a lawyer must be full, meaningful, and provided as a pre-requisite to any questioning by police authorities.
- Lawyers should be in a position to provide the necessary legal advice unencumbered, confidentially, and subject to the codes of their profession.
- If the right of access to a lawyer is not respected, the suspected or accused person should be put in the same position in which he or she would have been had the right of access to a lawyer not been disregarded.
- To ensure efficient and effective operational policing, derogations to the right of access to a lawyer may be necessary in exceptional circumstances. However, in the absence of any guidance from the ECtHR, the Directive should not attempt to provide examples of what may meet the threshold of exceptional circumstances for derogations.
- No statement made or evidence obtained in the absence of a lawyer – even in exceptional circumstances leading to an authorized derogation – can be used at any stage of the proceedings against the accused or suspected person.
Please find the full text of the Statement in the attached document below.