•
Lawyers’ competence: Even where lawyers are present,
their assistance is not always enough to protect the
defendant’s rights. A passive attitude and insufficient
engagement in the individual case was highlighted
where lawyers are not sufficiently trained in pre-trial
detention issues or where legal aid lawyers are not
specialised in criminal law, particularly in Romania.
Another barrier to adequate and effective legal
representation was the involvement of various lawyers at
different stages of the proceedings, which increases the
likelihood that they have not established a relationship
with the defendant and are not sufficiently acquainted
with the circumstances of the case to provide effective
legal assistance.
• A remedy should be available in cases where a lawyer
(including a legal aid lawyer) encounters obstacles to
be present and/or effectively participate in the
hearings.
•
• In general, the same lawyer should represent the client
through the entire criminal proceedings to ensure
sufficient knowledge of the case file and build trust
with the client.
• The legal obligation to explain the consequences of a
waiver to consulting a lawyer must be explicitly
implemented, as well as the obligation to record the
grounds for the waiver.
• Training opportunities must be provided on the legal
framework and judicial practice on pre-trial detention
and a competence test should be undertaken for
lawyers before they are placed on the list of legal aid
lawyers (through, for instance, an accreditation
mechanism).
• Bar associations should set out clearly and in sufficient
detail the role of the lawyer during pre-trial detention
hearings.
•
Defendants are not universally represented in
hearings. Defendants should not appear unrepresented
at pre-trial detention hearings unless they have
specifically, knowingly and intelligently waived the right
to a lawyer. However, the presence of a lawyer at pretrial detention hearings is not compulsory in all Member
States, such as in Hungary.
• Where the lawyer cannot attend the questioning in person,
domestic law should expressly provide for the right of
suspects and accused persons in detention to consult with
a lawyer via telephone prior to any interrogation.
• A mandatory minimum time should be prescribed
between notification of a hearing and the date of the
hearing to enable defence lawyers to attend and to
prepare for hearings.
Information about consequences of exercising the
waiver to the right to a lawyer: The Access to a
Lawyer Directive requires that suspects/defendants be
fully informed of the possible consequences of waiver.68
This implies a positive obligation on the criminal
investigation authorities to explain the consequences of
a waiver. However, Member States, including Romania
have not implemented such an obligation. In a number
of countries, including Bulgaria, partners reported active
practices by police officers to discourage the exercise of
the right of access to a lawyer, through manipulation and
threats of ill-treatment.69
• Police officers must be trained not to discourage the
exercise of rights; and their interactions with people in
detention must be actively supervised and tactics to
discourage the exercise of rights should be sanctioned
through disciplinary measures.
•
Restrictions on role of lawyers. Further obstacles to
effective legal assistance exist, for example where the
law does not permit defence lawyers to adduce evidence
in pre-trial detention hearings (as in Romania); or where
lawyers are not permitted to intervene during
questioning by the police and/or judges (as reported in
Greece), or even to be present during questioning (as in
Bulgaria).
• Laws restricting the role of lawyers in a way that is
contrary to the Directives require urgent reform.
• The proper implementation of the Directives in law
and practice must be monitored to ensure that lawyers
are not confronted with restrictions to effectively assist
their clients.
• Audio-visual recordings of interrogations should be
envisaged as a way of monitoring the ability of lawyers
to participate effectively during questioning.
• If there has been some practical challenge to
appointing a lawyer, or if a lawyer has elected not to
appear at a pre-trial detention hearing without the
consent of the defendant, pre-trial detention should be
strictly limited to a time period in which a lawyer can
be appointed or be present, with a de novo hearing
held as soon as possible following that appointment.
68
69
20
Article 9, Access to a Lawyer Directive.
This was also a finding in Ed Lloyd-Cape’s Inside Police Custody 2 report of December 2018 in other Member States, such as Lithuania (p. 47). Available at:
https://www.iccl.ie/wp-content/uploads/2018/12/Inside-Police-Custody.pdf.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents