Inside Police Custody 2 4.6 Police interrogations and the role of the lawyer The Directive specifically provides that suspects and accused persons must have the right to have their lawyer present when questioned by the police or other investigative agency, and that the lawyer must be able to ‘participate effectively’. This is qualified, to a certain extent, by the provision that such participation be in accordance with procedures under national law, but such procedures must not ‘prejudice the effective exercise and essence of the right concerned’ (Art. 3(3)(b)). Recital 25 states that national laws may regulate the participation of a lawyer during questioning, provided that such procedures do not prejudice the effective exercise and essence of the right; and the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law. Clearly, these provisions are carefully worded, giving Member states a (potentially significant) discretion to limit interventions by the lawyer acting for the suspect or accused person. However, the parameters of such discretion are yet to be tested in the CJEU. Beyond that, the role of the lawyer in interrogations is not regulated by the Directive although, in addition to the case-law of the ECtHR (noted in section 4.5 above), the professional rules or codes applicable to lawyers generally provide that they are to act in the best interests of their client. The Directive on the right of access to a lawyer does not contain provisions regarding the right to silence, although the Directive on the right to information, whilst not requiring that Member states legislate for a right to silence, requires that suspects and accused persons be informed of it (to the extent that it is regulated by national laws). The right to silence is not referred to in the ECHR, but the ECtHR has held that the right to silence and the right of a person not to incriminate themselves are ‘generally recognised international standards which lie at the heart of the notion of a fair procedure.17 Furthermore, the ECtHR has linked these standards to the role of the lawyer at the investigative stage, stating that the vulnerabilities that are inherent in the circumstances where a suspect is detained ‘can only be properly compensated for by the assistance of a lawyer whose task it is, amongst other things, to help ensure respect for the right of an accused not to incriminate himself’.18 As noted in section 1.1 above, the research was inhibited in five of the countries in the study by the refusal of the relevant authorities to allow researchers to be based in police stations, or to observe interrogations. As a result, data on police interrogations and the role of the lawyer in those countries had to be obtained by alternative means, such as by interviews with police officers, lawyers, and former suspects. Generally, the laws of the countries in the study provide for a right of a suspect to have a lawyer present during interrogations, although there is no such right during the initial period of police detention in Bulgaria (which clearly amounts to a breach of Article 3(3)(b) of the Directive). In Italy, as noted earlier, the police normally do not conduct interrogations. With regard to the role that can be performed by the lawyer in interrogations, a number of countries regulate this in a way that is broadly in conformity with the Directive. In Slovenia, there are no limitations on what a lawyer can do during interrogations. In Lithuania, the criminal procedure code provides that the lawyer has the right to actively participate in all procedural actions where the suspect is present or which are carried out at the request of the suspect or their lawyer. In Hungary, the revised criminal procedure code provides that the lawyer can consult with their client during the course of procedural acts (including interrogations), and may put questions to the suspect, make comments, and initiate motions. In Austria, a lawyer has the right to ask questions, request clarification and make statements during the interrogation, and may intervene if the suspect is asked leading questions, trick questions or ambiguous questions. However, whilst a lawyer/client consultation is 17 18 See, for example, ECtHR 25 February 1993, Funke v France, No. 10828/84. ECtHR 27 November 2008, Grand Chamber, Salduz v Turkey, No. 36391/02. 50