Where’s my lawyer? Making legal assistance in pre-trial detention effective Since our research on pre-trial detention decision-making in Europe was published in 2016, little has changed. The findings and recommendations of that report, A Measure of Last Resort?, still hold true today. This is the case, despite the fact that since 2016, all of the Directives protecting key procedural safeguards for suspects should have been transposed into national law. EU law can and does make a difference The Directives provide many safeguards which should allow the defence to participate effectively in pre-trial detention proceedings: timely access to the case file; attending police questioning and pre-trial detention hearings; consulting with their clients in police custody; and the assistance of an interpreter when needed. The Directives have brought welcome changes into Member States’ laws, and to a certain extent practices, that can contribute towards enhancing the fairness of pre-trial detention proceedings. We’ve seen important and promising reforms in Hungary for instance, where the appointment system for lawyers has been changed to end the practice of law enforcement choosing suspects’ lawyers (repeatedly the same ones). The principle of full access to the case file is now also enshrined in law. In February 2019, we’ve also seen an increase in the level of fees for legal aid lawyers in Romania to pay for the work involved in actively engaging in the early stages of criminal cases. But the discussions we’ve held with stakeholders from five different EU countries over the past two years show that more action is needed, at both domestic and regional levels, to ensure that the Directives reach their full potential. Recommendations to support the effective implementation of procedural safeguards Conformity and compliance studies assessing the transposition of the Directives in national legislation are ongoing. Member States continue to need to focus on effective implementation of the Directives, and the European Commission has without doubt a key role to play to ensure that Member States’ laws and practices meet EU standards. We continue to see legal impediments to the implementation of the Directives. In Bulgaria, despite legislative reforms to criminal procedure earlier this year, police custody continues to be excluded from the scope of the Directives altogether. In Greece, confidentiality of communications with lawyers is not enshrined in law. In Romania, the law continues to prevent defence lawyers from adducing evidence at pre-trial hearings. These are issues of grave and urgent concern. Even where Member States appear to have transposed all the provisions of the Directives into law, practical barriers persist and prevent the effective implementation of these safeguards. Member States need to put more resources into the implementation of EU standards in order to realise their full potential to enhance the fairness of pre-trial detention proceedings. Our report highlights five key areas of concern: 1. Knowledge of defence rights: 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. Therefore, without effective communication to suspects about their rights, detained persons may not have the chance to consult a lawyer before the first judicial hearing at which decisions on pre-trial detention may be made, and by which time, they will likely have already been interviewed by the police. Thanks to EU law, all suspects must now promptly be given a written Letter of Rights (in accessible language). However, further action is required. Letters of Rights need to be reviewed to ensure that they are drafted in plain language that suspects can understand. A rigorous process is needed to ensure Letters of Rights are promptly provided upon arrest. Further, Letters of Rights should be available in a broader range of language. Effective judicial remedies must also be available where the right to information has been violated. 2. Right to access to a lawyer and legal aid: When you are detained prior to trial, your ability to participate in the preparation of your defence is dramatically impaired. In this respect, the right to access to a lawyer and legal aid serves is a ‘gateway’ for other procedural safeguards. EU law recognises this and requires Member States to give suspects access to a lawyer in police custody, including to provide confidential legal advice prior to questioning, and to assist suspects during questioning. In reality, there are significant obstacles to this crucial right. Not all countries properly protect this right in their domestic laws; 29