Where’s my lawyer? Making legal assistance in pre-trial detention effective 1. Access to information on rights Advocacy initiative: Bulgaria At present, police detention is non-compliant with EU law and requires urgent reform, including recognising the applicability of the Directives to people detained in police custody. In so far as they are detained on suspicion of having committed an offence, they must be recognised as ‘suspects’ for the purposes of the Directives. This fundamental problem has not been 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, where you can’t afford to pay for legal advice. Therefore, without effective communication to suspects about their rights, they may not have the chance to consult a lawyer before their first judicial hearing at which decisions on pretrial detention may be made, and by which time they will likely have already been interviewed by the police. Thanks to EU law,49 all suspects must promptly be given a written Letter of Rights (in accessible language) and be allowed to keep it for as long as they are detained. The letter must contain crucial information on, for example, the right to challenge detention, the right to silence and the right to a lawyer (including free legal advice). addressed by the legislative amendments adopted in January 2019 to the Criminal Procedure Code. In a letter to the European Commission, the Bulgarian Helsinki Committee laid out in detail the current gaps in national legislation and practice regarding defence rights, and detailed recommendations based on four years of research devoted to the transposition and implementation of the Directives in criminal proceedings in Bulgaria. On paper, Member States had to amend their laws to require that suspects be given a written Letter of Rights when they are taken into custody by the police.50 The reality, however, does not always live up to this. There are both legal and practical challenges which pose major obstacles to obtaining information about rights at a time when suspects have just been arrested and are in the most vulnerable position. In Greece, for instance, stakeholders noted that the limited information provided to people in police custody is highly problematic and a major bottleneck as regards the exercise of the right to legal aid at the outset of proceedings. • Good practice: Croatia Just as in Bulgaria, the Croatian criminal justice system did not recognise the stage of police investigations as part of the criminal proceedings (treating it, instead, as administrative). It was considered necessary for the police to be free to act in order to resolve crimes and courts did not have any supervision over what happened at the police station. A detainee did not have a right of access to a lawyer until officially treated as a ‘suspect.’53 The requirement to transpose and implement the Roadmap Directives led to changes in law and practice which made police detention part of the criminal proceedings with appropriate procedural rights. Timing: In some cases, due to vague legal provisions regarding when information about rights must be provided to detainees, letters are not provided immediately upon arrest.51 • The Letter of Rights should be provided immediately after suspects are detained. Internal instructions should be developed for police officers regarding the timing of the provision of this information to detainees. • A more active role is required by national human rights institutions and national preventive mechanisms to monitor the transposition of EU law in this area in police stations (both in law and practice). • Police stations should be required to implement a thorough ‘custody record’ in which the timing of the provision of the Letter of Rights is specified. • Specifically, it is crucial to address the situation in Bulgaria where the rights protected by EU law do not effectively extend to police custody because it is considered to be an administrative measure rather than part of a ‘criminal investigation.’52 49 50 51 52 53 • An effective remedy should be provided in case of refusal or omission to provide a Letter of Rights to detainees. • Accessibility: A key challenge, as highlighted by partners in Romania, Bulgaria and Italy, is the drafting of Letters of Rights. They are not easy to understand, are drafted in legal terms (effectively, a copy of the relevant legislative provisions) and are too long and formalistic. Arrest and detention put the suspect in an exceptionally stressful situation and the implications of the decisions made at these preliminary stages may have far-reaching consequences, in particular on pre-trial detention. Even if a suspect is given a letter, it may be necessary to follow up with an oral explanation, which some lawyers tend to do. Article 4, Right to Information Directive. See status of notification of transposing measures for the implementation of the Right to Information Directive: https://eur-lex.europa.eu/legalcontent/EN/NIM/?uri=celex:32012L0013. As is the case, for example, in Bulgaria. Pursuant to the Ministry of Interior Act (the MoIA), Article 72(1)(1) (available in Bulgarian at: http://www.lex.bg/laws/ldoc/2136243824). Police detainees are, in principle, formally informed of their defence rights, including on their rights of access to a lawyer and legal aid, both orally and in writing (Article 30(2) of the MoIA). But BHC research reveals that persons who are de facto detained by the police – without an official order, but who are summoned to appear at the police and are obliged to remain for a ‘conversation’ with the officers – are not informed of their rights, neither orally, nor in writing. See European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), 18 March 2014, Report to the Croatian Government on the visit to Croatia from 19 to 27 September 2012, CPT/Inf (2014) 9. 15