Inside Police Custody 2
provides no guarantee that an appropriately qualified and experienced lawyer will be available at the time,
and in the location that they are required.
Some countries (both in the study, and elsewhere) have sought to deal with such practical issues by
developing duty lawyer schemes, with a single point of contact, and with conditions both for inclusion in
the scheme, and regarding the obligation of scheme members to accept and deal with cases appropriately.
In Spain, if a detainee nominates a private lawyer, the police call that lawyer directly, or try to locate him
or her via the local Bar Association. There is a duty lawyer scheme, and to be included in the scheme a
lawyer must have been a member of the relevant bar association for at least three years, have completed
a specified course, and passed an assessment. In the locations where the research was conducted,
between two and five lawyers were on call at any time. If a detainee exercises their right to a lawyer, but
does not nominate a private lawyer, the police contact a call-messaging centre which, in turn, contacts a
lawyer on duty. The duty lawyer then contacts the police station to obtain details and makes arrangements
to attend. Police regulations require that, where a suspect exercises their right to a lawyer, the police must
seek to contact a lawyer within one hour of that request. Researchers found this approach to be effective
in guaranteeing the right of access to a lawyer. Duty lawyer schemes are also in operation in Lithuania and
in Hungary, although in the latter country, only at weekends and on public holidays. In Austria, an ‘arrest
hotline’ together with a ‘stand-by legal counselling service’ have been established, although it is evident
that there are a number of problems, including the way in which the police explain the schemes
to suspects.
In some of the other countries, the procedure for contacting a lawyer was such that the right of access
to a lawyer was undermined to a greater or lesser extent. In Slovenia, if a suspect nominates a private
lawyer, the police seek to contact them, and then allow the suspect to speak to them on the telephone. If
a suspect does not nominate a lawyer, the police show them a list of lawyers in order for them to choose.
However, the list, which is compiled by the bar association, includes all lawyers in the area, and is not
confined to those who practice criminal law. The problems with such a scheme are illustrated by one
observed case: the police had to call four lawyers before finding one who practised in criminal law and who
was willing to act. Police officers said that this was a general problem, and that it was almost impossible
to find a lawyer willing to act outside of office hours. There is no duty lawyer scheme, although lawyers
interviewed said that they would like one to be established. Similar problems were experienced in Bulgaria
where, police officers told researchers that lawyers do not answer telephone calls out of office hours.
In some countries, there is evidence that the police seek to circumvent established procedures for
appointing lawyers. In Hungary, historically there were concerns about the use of ‘pocket’ lawyers; that is,
lawyers who had an inappropriate relationship with the police and who were less likely to safeguard their
clients’ interests. The revised criminal procedure code places responsibility for choosing and arranging
for a lawyer on the local bar association, but if it fails to do so within one hour, the police may still appoint
a lawyer. Opinions of persons interviewed differed as to whether the police give effect to a decision by
a suspect to exercise their right to a lawyer; some said that the police do contact a nominated lawyer,
whereas others indicated that they rarely, or never, do so. In Romania, the bar associations compile lists
of legal aid lawyers, but some police officers said that they preferred to deal with nominated lawyers, and
lawyers interviewed said that instead of using the bar association lists, some officers would contact their
‘preferred’ lawyer.
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