Where’s my lawyer? Making legal assistance in pre-trial detention effective Good practice: Belgium A good example comes from Belgium and the “Salduz”64 appointment process created in recent years. Prior to the Salduz judgment, legislation provided for legal assistance only after interrogation by the investigating judge. The Law of 13 August 2011 (known as the “loi Salduz”) recognised the right of a suspect held in custody to consult confidentially with a lawyer from the beginning of the interrogation and before the first questioning by the police, as well as the right to be assisted by a lawyer during questioning. In November 2016, a second law known as “Salduz bis” came into force extending the right to a lawyer to all suspects. Alongside this law, a new online database of the names and contact details of lawyers available oncall to assist suspects in police custody (“Salduzweb”) was created to enable suspects to identify and connect as quickly as possible with an available legal counsel from the earliest moment after arrest.65 • A remedy must be adopted for cases where the presence and effective participation of a lawyer (including of a legal aid lawyer) during police detention is not allowed. • Legal aid services should be in place to ensure that lawyers are available to assist detainees during nonworking hours, and in remote areas. c. Confidential consultation The right setting, a sufficient amount of time and a confidential space to talk to the client are crucial for a lawyer to be able to provide effective legal assistance. The obligation to respect confidentiality between a lawyer and their client is recognised in the Access to a Lawyer Directive.66 In practice, however, this right is frequently not respected and confidential communication is often ad hoc and takes place in unsatisfactory facilities. But even in countries where the law guarantees confidentiality, such as in Bulgaria,67 there are significant practical barriers. • Absence of legal protection of confidentiality: In Greece the requirement for confidential communication with a lawyer has not been transposed into national law and lawyers report having to “plead” with police to obtain a suitable space for consultation with clients. • The European Commission should review the extent to which this aspect of the Access to a Lawyer Directive is being transposed into national law. 64 65 66 67 • Inadequate facilities: the first meeting between between a lawyer and a client typically takes place in police corridors, empty offices or cells, often in the presence of other people (including the police) or in the corridors outside or even inside the courtroom. This lack of privacy makes a confidential consultation impossible. • States must provide adequate facilities in police stations and in courtrooms where pre-trial detention hearings take place, dedicated to consultations with a lawyer that effectively ensure confidentiality. • Bar associations should be involved in the transposition and monitoring of the practical implementation of EU norms. • Time pressure: Where suspects are able to consult with their lawyer (either before the interview or pre-trial detention hearing), the meetings tend to be short and to take place just before the interview or hearing. This is mostly due to the lack of adequate facilities, the late notification of the arrest to the lawyer or delayed finalisation of the case file by the prosecutor, resulting in late access to the case file for the defence (sometimes right before the hearing, as in Italy). In these circumstances, it is impossible for a lawyer to prepare adequately and, in particular, to obtain all the information from the client that is necessary to challenge a request for pre-trial detention. In Romania, the law does not prescribe a time limit within which the suspect or accused person has to be provided with access to a lawyer once they have been deprived of their liberty. • A minimum mandatory amount of time for consultation with the lawyer prior to the suspect’s interview by the police should be established. • A minimum mandatory amount of time for consultation with the lawyer well ahead of the pre-trial detention hearing should be established. d. Presence and participation of a lawyer The presence and participation of a lawyer during questioning is a key procedural safeguard. The lawyer can ensure that his or her client exercises their procedural rights, understands the questions asked and ask for clarifications. However, in some Member States, such as Greece, the law does not define how a lawyer may participate during questioning. In practice, the lack of regulation leaves discretion to the official in charge of the questioning to determine the extent of the participation of the lawyer. Limitations or obstacles to a lawyer’s active participation during questioning were identified in most project partner countries. European Court of Human Rights, Salduz v. Turkey [GC], Judgment of 27 November 2008, App. no. 36391/02. See: https://www.salduzweb.be/ . Article 4, Access to Lawyer Directive. By virtue of Article 30(5) of the Bulgarian Constitution and the Ministry of Interior Act, which stipulates the right of detainees to consult with lawyers in ‘specially designated soundproofed premises’; but such premises are not available. 19