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Where's my lawyer?
Making legal assistance in pre-trial detention effective
The EU is facing a long-standing crisis in prison overcrowding. The excessive use of pre-trial detention (which is supposed to be a measure of last resort) is fuelling this. The decision to order pre-trial detention carries grave and wide-ranging consequences for people who have not been convicted of any offence. The European Commission and Parliament have, over many years, repeatedly recognised the need to act to address the overuse of pre-trial detention. Recent decisions from the Court of Justice of the European Union have pushed this to the fore: inhumane prison conditions are threatening mutual trust and judicial cooperation in Europe. But, to date, there is still no proposal for EU legislation on pre-trial detention.
Although the EU has so far failed to create robust standards on pre-trial detention, it has created other legislation protecting procedural rights for suspects, which have the potential to improve the fairness of decision-making on pre-trial detention. These rights, including access to a lawyer at the initial stages of the criminal process, can prevent unfairness and increase the chance that a person will be released (perhaps with alternative measures like electronic monitoring), contributing to lower rates of pre-trial detention.
Over the past two years, Fair Trials and its partners in Bulgaria, Greece, Hungary, Italy and Romania have engaged criminal justice stakeholders (civil society, lawyers, prosecutors, judges, and ministry of justice officials) to assess what impact these procedural rights protections are having on the fairness of pre-trial detention decision-making; in particular, whether suspects are receiving effective legal assistance. Our aim has been to empower local practitioners to improve practice and to advocate for ways to address persistent failures to implement EU law effectively.
EU standards on the procedural rights of suspects have the potential to make a positive impact on pre-trial detention decision-making. In practice, however, persistent legal and practical obstacles remain. Our research highlights five key areas of concern:
- Knowledge of defence rights: You can’t exercise your rights if you don’t know what they are, including crucially your right to a lawyer and to legal aid. Therefore, without effective communication to suspects about their rights, detained persons may not have the chance to consult a lawyer before the first judicial hearing at which decisions on pre-trial detention may be made, and by which time, they will likely have already been interviewed by the police. Thanks to EU law, all suspects must now promptly be given a written Letter of Rights (in accessible language). However, further action is required. Letters of Rights need to be reviewed to ensure that they are drafted in plain language that suspects can understand. A rigorous process is needed to ensure Letters of Rights are promptly provided upon arrest. Further, Letters of Rights should be available in a broader range of language. Effective judicial remedies must also be available where the right to information has been violated.
- Right to access to a lawyer and legal aid: When you are detained prior to trial, your ability to participate in the preparation of your defence is dramatically impaired. In this respect, the right to access to a lawyer and legal aid serves as a ‘gateway’ for other procedural safeguards. EU law recognises this and requires Member States to give suspects access to a lawyer in police custody, including to provide confidential legal advice prior to questioning, and to assist suspects during questioning. In reality, there are significant obstacles to this crucial right. Not all countries properly protect this right in their domestic laws; this requires urgent reform. Even where the law on paper is good, practical implementation remains a challenge. For example, mechanisms for the early appointment of lawyers make it very hard for some suspects to exercise their right to a lawyer. Despite the right for suspects to consult their lawyer confidentially, in many places facilities for this are not available.
- Access to the case file: In order to develop a defence strategy (including to argue for their clients to be released pre-trial) lawyers need to be granted access to information in the case file. EU law now recognises this, but the law in many Member States fails to protect this right, for example by giving prosecutors overly broad discretion to restrict access to the case file. Moreover, in practice, lawyers can face administrative burdens to obtaining access, or copies of materials. The procedure to obtain access to the case file, in particular the question of timing, requires further clarity.
- Right to interpretation services: With prison statistics showing the extent to which non-nationals are over-represented among detainees across the EU, effective legal representation requires access to interpretation services, not only during police questioning, but also during the initial consultation with the suspect’s lawyer. Thanks to EU law, we’ve seen changes in Member States to protect this right. However, there are still persistent problems in this area, in particular the poor quality of the interpretation offered to suspects, coupled with the lack of training and evaluation of interpreters. Generally, poor working conditions undermine the ability of interpreters to perform their important role in pre-trial proceedings.
- Ineffectiveness of requests for alternative measures to pre-trial detention: Most legal systems recognise that pre-trial detention is a measure of last resort and have adopted a range of alternative measures. Despite this, in practice, judges tend to rule in favour of prosecutors’ requests for detention, rather than applying alternatives or simply ordering suspects’ unconditional release. Lawyers should advocate for their clients to be released or for alternative measures, but this is hard without time to prepare for the hearing, consult their client and consider the case file. If lawyers were better equipped, effective advocacy could gradually change the attitudes of judges and help reduce prison overcrowding.
The need for further action (at domestic and regional levels)
Existing EU standards on procedural rights have a huge potential to improve the fairness of pre-trial detention proceedings. But even where the law in Member States appears to respect those rights on paper (which is not universally the case), practical barriers get in the way. These cannot be removed through the action of local practitioners in individual cases. We need Member States to fully engage in making these human rights a reality, and where Member States fail to do so or need support, we need the European Commission to take action.
Since our research on pre-trial detention decision-making in Europe was published in 2016, little has changed. The findings and recommendations of that report, A Measure of Last Resort?, still hold true today. This is the case, despite the fact that since 2016, all of the Directives protecting key procedural safeguards for suspects should have been transposed into national law.
EU law can and does make a difference
The Directives provide many safeguards which should allow the defence to participate effectively in pre-trial detention proceedings: timely access to the case file; attending police questioning and pre-trial detention hearings; consulting with their clients in police custody; and the assistance of an interpreter when needed.
The Directives have brought welcome changes into Member States’ laws, and to a certain extent practices, that can contribute towards enhancing the fairness of pre-trial detention proceedings. We’ve seen important and promising reforms in Hungary for instance, where the appointment system for lawyers has been changed to end the practice of law enforcement choosing suspects’ lawyers (repeatedly the same ones). The principle of full access to the case file is now also enshrined in law. In February 2019, we’ve also seen an increase in the level of fees for legal aid lawyers in Romania to pay for the work involved in actively engaging in the early stages of criminal cases.
But the discussions we’ve held with stakeholders from five different EU countries over the past two years show that more action is needed, at both domestic and regional levels, to ensure that the Directives reach their full potential.
Recommendations to support the effective implementation of procedural safeguards
Conformity and compliance studies assessing the transposition of the Directives in national legislation are ongoing. Member States continue to need to focus on effective implementation of the Directives, and the European Commission has without doubt a key role to play to ensure that Member States’ laws and practices meet EU standards.
We continue to see legal impediments to the implementation of the Directives. In Bulgaria, despite legislative reforms to criminal procedure earlier this year, police custody continues to be excluded from the scope of the Directives altogether. In Greece, confidentiality of communications with lawyers is not enshrined in law. In Romania, the law continues to prevent defence lawyers from adducing evidence at pre-trial hearings. These are issues of grave and urgent concern.
Even where Member States appear to have transposed all the provisions of the Directives into law, practical barriers persist and prevent the effective implementation of these safeguards. Member States need to put more resources into the implementation of EU standards in order to realise their full potential to enhance the fairness of pre-trial detention proceedings.
In parallel, the European Commission needs to closely monitor the transposition of the Directives in practice, not just in law, and tackle Member States that fail to implement the Directives adequately. Further, our research suggests that Member States would benefit from further guidance on implementation. In this respect, the European Commission, but also the Court of Justice of the EU, can play an important role. There is a clear need for training on EU law, both for lawyers and judicial authorities; as well as for the provision of technical support (for instance, to enable Member States to set up a ‘duty scheme’ for lawyers attending police custody). In the long-term, it is also key that the European Commission seeks to collect reliable data showing the impact of the Directives (e.g. How many people now have access to a lawyer in police custody and in pre-trial detention hearings?).
The continued need for regional action on pre-trial detention
Even if existing procedural safeguards were fully implemented, they would not provide a complete answer to the overuse of pre-trial detention across the EU and would not tackle the overcrowding in Europe’s detention facilities that this creates. The excessive use of pre-trial detention is an EU-wide problem, with EU-wide impacts. It requires an EU-wide solution. Regional action should take the form of EU legislation that is binding on Member States. This should build on existing ECtHR standards, making them clearer, more practical and more accessible to Member States (we refer to the recommendations in our 2016 report). Legislation is within the EU’s competency and would help tackle a grave threat to human rights in Europe.
The report was produced as part of the project “Effective Legal Assistance in Pre-Trial Detention Decision-Making”, coordinated by Fair Trials with partners the Bulgarian Helsinki Committee (Bulgaria), Centre for European Constitutional Law (Greece), the Hungarian Helsinki Committee (Hungary), Antigone (Italy), and APADOR-CH (Romania).
The project was funded by the European Union’s Justice Programme (2014–2020). The content of this publication represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.