Why remote assistance breaches the EU Directive on the right of access to a lawyer
Since 2016, the European Union Directive 2013/48/EU on the right of access to a lawyer (the Directive) requires EU Member States to guarantee that suspected persons have access to a lawyer before their first interview by law enforcement authorities and without undue delay after arrest.
Strong and effective procedural rights are key safeguards against police abuse, malpractice and the human errors that can lead to devastating miscarriages of justice and fundamental rights violations. Lawyers are the predominant counterpower to the State in the criminal justice process. They provide important oversight over agents of state force. Rebalancing the power dynamic during the investigation phase, and in particular when persons are detained, is one of the primary objectives of the right of access to a lawyer as defined under the Directive.
The Directive requires Member States to guarantee that suspected persons have access to a lawyer before their first interview by law enforcement authorities and without undue delay after arrest. Since it entered into force in 2016, most States appear to have adequately transposed the Directive in their legislation. In practice, however, the right of access to a lawyer remains to date widely unimplemented throughout the EU, leaving the majority of people suspected of a crime, in particular those deprived of liberty, to face police questioning alone.
Member States’ reactions to the pandemic have further limited effective access to a lawyer in police stations throughout Europe.7 During lockdowns, lawyers’ access to police stations was severely restricted to reduce the risks of Covid -19 transmission and protect people’s health and safety. When it was available, legal assistance in police custody was primarily provided remotely, either via telephone or video-link. It was often limited to pre-interview consultation and strictly limited in time, meaning people were not assisted during the questioning itself. It also became clear that some Member States were using remote technology to implement the right to a lawyer in police stations prior to the Covid -19 crisis.
As the European Union (EU) and Member States are looking into the digitalisation of justice, Fair Trials is concerned that States may normalise the current practice of providing remote legal assistance in police stations. Our analysis and research show that remote assistance is not a substitute for in-person assistance. Member States cannot choose between in person or remote assistance, whether before or during questioning, as alternative ways of implementing their obligations under the Directive.