As a result of the COVID-19 pandemic, physical access to police stations, courts and prisons has been severely restricted, non-urgent court hearings have been postponed and States have been increasing the use of video-link and telephone hearings.
In practice, these measures can have serious implications for arrested or detained persons’ ability to exercise their right to access a lawyer. There are reports of:
- restrictions on lawyers’ physical presence at police stations;
- lack of available or properly functioning remote access technology;
- suspects and lawyers not being able to exchange confidentially before or during a remote hearing;
- participants in proceedings facing difficulties following remote interpretation; and
- limitations and delays in accessing case files.
Official questioning by police or another investigating authority is a critical step in many criminal procedures, and statements obtained during questioning are often later used in court. Effective legal consultation prior to and during police questioning is, therefore, a key component of the rights of the defence and, more broadly, of the right to a fair trial.
EU law establishes the right of suspects and accused persons to effective legal representation, even during such challenging times. This right includes the ability for suspects and accused persons to meet and have effective communication with their lawyer in private before and during questioning by the police.
Fair Trials has produced a toolkit of templates providing legal arguments based on relevant EU standards to support lawyers in addressing threats to the right to access a lawyer in the context of the COVID-19 pandemic. The toolkit includes:
- Templates to request effective (remote) lawyer-client communication before and during police questioning.
- Template to request facilities to ensure confidential lawyer-client communication.
- Templates to request access to the case file.
- Template to request access to interpretation services.
- Template to request remedies for evidence obtained in violation of defence rights.
