Guidebook EU, indicating in what aspects and why the existing Letter of Rights is not compatible with the Directive also providing recommendations on how a Letter of Rights would be best drafted.300 Since the official Letter of Rights appears to be overly formal and difficult to understand, the Polish NHRI together with Helsinki Foundation prepared his version, drafted in plain language and with visual aids, which was made available on the websites of the Commissioner and the Helsinki Foundation.301 Some other motions concerned specifically the shortages in the transposition of the EU Directive 2013/48/EU, such as an overly narrow personal scope of the transposition (possibly excluding a suspected person, who formally is not a suspect, but e.g. becomes a suspect during a questioning), lack of clear guarantees of access to a lawyer before a suspect is questioned (connected to the obligation to hear the suspect immediately after he or she is notified about the charges), or lack of judicial review in certain cases of derogation of a right to communicate with his or her lawyer.302 Others focused on the problems arising from the existing law or the practical application of the law – for instance providing a real access to a lawyer for persons inside police custody – and used the Directive 2013/48/EU as one of the arguments for a change.303 In addition to the mandate to submit opinions and recommendations on laws and practices, some NHRIs, especially Ombudsinstitutions, have the power to engage with the Constitutional Court; that is to start proceedings before the Constitutional Court for an abstract constitutional review of the laws and other acts (e.g. Croatia, Poland, Spain, Slovenia, Lithuania, Portugal and Hungary).304 Other NHRIs can challenge only regulations and international treaties but not laws before the constitutional court (e.g. Austria).305 Challenging the constitutionality of laws is often described as one of the most powerful and efficient instrument to achieve a change in the law. Nevertheless, this is often a resource intense activity requiring careful consideration of national and international standards on the protection of human rights, and it often comes with high expectations towards the NHRI to start a constitutionality review whenever seems relevant. 72 WAYS TO PROMOTE CHANGE The power to engage with the Constitutional Court was rarely used in the context of criminal matters, but additional examples could be found in other human rights related contexts.306 One positive example specifically concerning criminal matters comes from Poland. Poland In 2014 the Commissioner – acting as the NPM – filed a motion to the Constitutional Tribunal for the review of some aspects of right to communicate with a lawyer of a temporary detained person, contesting the constitutionality of a provision imposing an absolute ban on the use of phones to contact lawyers by temporary detainees. The Constitutional Tribunal agreed with the Commissioner and held that the said provision was violating the constitutional right to defence.307 As a result, the Executive Penal Code was amended in 2015, and now persons in temporary custody are allowed to use a phone (upon consent of the law enforcement authority).308 However, in the years 2015-2016 the Polish Parliament adopted several legal acts relating to the work of the Constitutional Tribunal, severely undermining its position and independence.309 Moreover, since the end of 2016 a number of judges, appointed without a valid legal basis, took up their functions in the Constitutional Tribunal. In the aftermath of these legislative changes, the Commissioner acknowledged that “when legislation of highly political nature is adopted, citizens cannot count on independent judicial review” by the Constitutional Tribunal,310 and, as a result, withdrew several motions for constitutional review.311 As the Polish example shows, the effectiveness of a constitutionality review is highly dependent on the independence of the judiciary (i.e. Constitutional courts or tribunals). When there are these concerns, NHRIs should consider resorting to all existing international, regional and EU procedures as an additional pathway to strengthen human rights in the national context. This was for example done by the Polish NHRI, which used his power to join the proceeding at the domestic level as third party intervener to join several preliminary rulings before the CJEU concerning the question of the independence of the judiciary (see below, Chapter 5.2.3). 73