Inside Police Custody 2
4. The right of access to a lawyer
4.1 Transposition of the Directive
Member states were required by the terms of the Directive to bring into force the laws, regulations and
administrative provisions necessary to comply with the Directive by 27 November 2016, and to transmit
the text of those measures to the Commission (Art. 15(1) and (3)). The governments of all of the countries
in the study did introduce some such measures, and reported having done so to the Commission.
However, as with the other two Directives which are the subject of this study, the pre-existing law
regarding access to a lawyer at the investigative stage, and the extent and level of detail of the measures
adopted to transpose the Directive into domestic law, varies considerably.
As with the other Directives with which this research is concerned, the Directive on the right of access
to a lawyer applies to suspects or accused persons in criminal proceedings from the time when they are
made aware by the competent authorities, by official notification or otherwise, that they are suspected or
accused of having committed an offence (Art. 2(1)). The Directive applies to suspects or accused persons
irrespective of whether they have been deprived of their liberty, although the research focuses on those
who have been arrested or otherwise detained. The Directive is expressly applied to persons who, in
the course of questioning by the police or other law enforcement authority, become suspects or accused
persons (Art. 2(3)). Where the law of a member state provides for the imposition of a sanction (other
than the deprivation of liberty) by an authority other than a criminal court, and the imposition of such a
sanction can be appealed or referred to such a court, the Directive only applies to the proceedings before
the court. However, the Directive does apply if the person is deprived of their liberty (Art. 2(4)). Member
states must ensure that suspects and accused persons have the right of access to a lawyer in such time
and in such manner so as to allow them to exercise their rights of defence practically and effectively (Art.
3(1)). The Directive expressly provides that suspects and accused persons must have access to a lawyer
without delay before being questioned by the police or other law enforcement or judicial authority, upon the
carrying out of an investigative or other evidence-gathering act (in accordance with Art. 3(3)(c)), or after
deprivation of liberty, whichever is the earliest (Art 3(2)). Temporary derogation from the right of access to
a lawyer at the pre-trial stage is permitted, but only in strictly defined circumstances (Art. 3(5) and (6),
and Art. 8).
In the majority of countries in the study, the law provides for a right of access to a lawyer on or following
arrest or detention. In some countries, such as Spain, Italy and Slovenia, this is a long-standing right,
although in some of these countries the right was expanded and/or regulated in greater detail for the
purpose of transposition of the Directive. For example, in Spain, the regulation of what the right of
access to a lawyer means was extended, so that it now specifically includes advice to a person about
the consequences of giving or refusing consent to investigative procedures, and a right to a private
consultation with a lawyer before and after interrogation. The major exceptions to this general approach
are Romania and Bulgaria. In Romania, the right of access to a lawyer does not apply in the case of
administrative leading to a police station, which normally precedes formal arrest. In Bulgaria, as with
the other Directives, the official view taken was that the Directive does not apply during the initial police
detention (see section 1.2.4 above). The law does provide for a right of access to a lawyer from the
moment of detention but, in many respects, it does not comply with the Directive. In particular, it does
not provide for a right to a private consultation with the lawyer prior to police questioning, nor for a right
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