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Access to a Lawyer and Procedural Rights in Criminal Proceedings And JUSTICE Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings warrant arrest in criminal and European rights and procedural a lawyer to access in practice: Rights Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings Photos (cover & inside, from left to right): ©AdobeStock: theaphotography, WavebreakmediaMicro, peterschreiber.media. More information on the European Union is available on the internet (http://europa.eu). Luxembourg: Publications Office of the European Union, 2019 Print: ISBN 978-92-9474-642-9 doi:10.2811/825632 TK-02-19-332-EN-C Web: ISBN 978-92-9474-643-6 doi:10.2811/291539 TK-02-19-332-EN-N © European Union Agency for Fundamental Rights, 2019 For any use or reproduction of photos or other material that is not under FRA’s copyright, permission must be sought directly from the copyright holders. Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings Foreword Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used. Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation. EU Member States are bound to protect these rights, but do not necessarily define or apply them in the same way. This, too, can weaken trust – including between Member States, interfering with effective cooperation in matters relating to the EU’s area of freedom, security and justice. Based on interviews with over 250 respondents in eight Member States, this report looks at how certain key criminal procedural rights are applied in practice. FRA reached out to judges, prosecutors, police officers, lawyers and staff of bodies that monitor prisons; as well as defendants who were either arrested in the country in which they were charged or in another EU country based on a European arrest warrant. The research shows that procedural rights can be undermined in different ways. Some police officers treat suspects like witnesses to avoid triggering their rights. Others use such legalistic language when informing people of their rights, or of the charges against them, that the information is of little help. Even individuals who do manage to secure a lawyer often get to speak to them only briefly or in busy corridors, hampering proper representation. Language issues can bring additional hurdles. Finally, cases involving European arrest warrants require navigating two different legal systems, leaving even more room for error. We hope that highlighting these challenges encourages Member States to step up their efforts to ensure that criminal procedural rights are applied both effectively and consistently throughout the EU. Michael O’Flaherty Director 3 Country codes Code EU Member State AT Austria BE Belgium BG Bulgaria CY Cyprus CZ Czechia DE Germany DK Denmark EE Estonia EL Greece ES Spain FI Finland FR France HR Croatia HU Hungary IE Ireland IT Italy LT Lithuania LU Luxembourg LV Latvia MT Malta NL Netherlands PL Poland PT Portugal RO Romania SE Sweden SI Slovenia SK Slovakia UK United Kingdom 4 Contents FOREWORD ............................................................................................................................................................... 3 GLOSSARY ................................................................................................................................................................ 8 ACRONYMS ............................................................................................................................................................... 9 KEY FINDINGS AND FRA OPINIONS ....................................................................................................................... 11 INTRODUCTION .......................................................................................................................................................15 1 KEY INTERNATIONAL AND EU LAW STANDARDS – OVERVIEW OF PROCEDURAL RIGHTS IN CRIMINAL PROCEEDINGS ..................................................................................................................................19 1.1 International standards ...............................................................................................................................19 1.2 European and EU law standards ................................................................................................................19 2 SELECTED DEFENCE RIGHTS: INFORMATION ABOUT RIGHTS AND THEIR EXERCISE IN PRACTICE ......................... 23 2.1 Legal overview .............................................................................................................................................23 2.2 Findings: how is the right to information implemented in practice? .................................................. 26 3 RIGHT TO BE ADVISED AND REPRESENTED BY A LAWYER ............................................................................ 37 3.1 Legal overview ............................................................................................................................................ 38 3.2 Providing information about the right to access a lawyer ................................................................... 40 3.3 Exercising the right to a lawyer .................................................................................................................43 4 DEFENCE RIGHTS OF PERSONS ARRESTED ON AN EAW ................................................................................. 59 4.1 Right to information about procedural rights and the content of the EAW ....................................... 60 4.2 Right to be advised and represented by a lawyer ..................................................................................62 4.3 Right to legal aid ......................................................................................................................................... 66 4.4 Right to interpretation .................................................................................................................................67 ANNEX .................................................................................................................................................................... 69 5 Figures and tables Table 1: Number of interviewees per Member State and target group ...............................................................17 Table 2: Member States where interviews were held and countries of arrest .................................................. 60 Figure 1: Roadmap on the procedural rights of suspects and accused persons in criminal proceedings .................................................................................................................................. 20 Figure 2 Are persons arrested on an EAW informed about their procedural rights? Replies from all interviewees from all eight Member States ...............................................................61 Figure 3: Are persons arrested informed of the contents of the EAW against them? Replies from all interviewees from all eight Member States ...............................................................62 Figure 4: Are persons informed of their right to access a lawyer? Replies from all interviewees from all eight Member States ...............................................................63 6 Glossary Accused person Any person who has been formally charged with an offence before a court. Arrest An action of apprehending persons by police and taking them into police custody. Charge An official notification given to an individual by the competent authority of an allegation that he/she has committed a crime, also referred to as ‘accusation’. Child Any person below the age of 18 years. Defendant Any person subject to criminal proceedings initiated by relevant authorities due to suspicion of he or she having committed a crime. The person remains a defendant until the conclusion of the proceedings, which is understood to mean the final determination of the question as to whether or not the person has committed the criminal offence. This conclusion of proceedings includes, where applicable, sentencing and the resolution of any appeal. It includes the following: person of interest; suspect or accused person (see further separate definitions of these three categories in this glossary). Deprivation of liberty Arrest or detention, including when police apprehends a person and questions him/her without a judicial decision or any warrant. That person may be set free after questioning; however, deprivation of liberty applies if during some period of time, he/she was not allowed to leave police custody. European arrest warrant An arrest warrant based on the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the
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