Guidebook What situations does the right of access to a lawyer cover? The Directive the right to access to a lawyer covers the right to meet in private and communicate with the lawyer, including prior to questioning. Confidentiality should be ensured for all ways of communication, i.e., meetings, correspondence, telephone conversations and other forms of communication.84 Limitations are only justified under exceptional circumstances and if compelling reasons (eg, risk of collusion) exists. Further, the Directive on the access to a lawyer also covers the presence of the lawyer during the questioning. 85 The EU standard reflects the jurisprudence of the ECtHR in the case Salduz v Turkey that ‘Article 6 (1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police (…).The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.’86 This takes into account the role of the presence of a lawyer during police interrogations, namely that the rights of the suspect or accused person are ensured (e.g. protection against self-incrimination) and that no coercion is exercised.87 However, as the jurisprudence of the ECtHR has evolved, the access to a lawyer during police interrogation is not recognised as an independent right but a violation assessed based on the overall fairness of the proceeding. On the contrary, building on the Salduz case, the EU Directive requires the presence of a lawyer during police interrogations irrespectively of the overall fairness of the proceeding – limitations are, however, also in the context of the Directive possible. Finally, the Directive on the right of access to a lawyer comprises also the effective participation during interrogation. During such questioning ‘the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification and make statements, which should be recorded in accordance with national law.’88 This again builds upon the case law of the ECtHR, according to which ‘counsel must be able to provide assistance which is concrete and effective, and not only abstract by virtue of his presence (…).’89 What ‘access to a lawyer’ exactly means, depends largely upon the role of the lawyer. The ECtHR states: 28 STANDARDS 'An accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned. Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. (…) Counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.'90 Unlike the Directives on the right to interpretation and translation as well as on legal aid, the Directive on access to a lawyer does not contain any further details regulating quality assurance. Under which circumstances can this right be derogated from? While the right of access to a lawyer is recognised as being fundamental for ensuring a fair trial, it is not absolute.91 Under the EU Directive the access to a lawyer is subject to temporary derogations at the pre-trial stage on the grounds of geographic remoteness or on the basis of specific compelling reasons (e.g. serious adverse consequences for the life, liberty or physical integrity of a person, prevention of substantial jeopardy to criminal proceedings, prevention of destruction or alteration of essential evidence or interference with witnesses).92 The Directive sets limits to these temporary limitations by stating that they have to be proportionate, necessary and strictly limited in time. The limitations cannot be based exclusively on the type or the seriousness of the alleged offence; and cannot affect the overall fairness of the proceedings. In any case the limitation has to be assessed on a case-by-case basis.93 Also according to the case law of the ECtHR, temporary restriction are allowed only under certain conditions: first, there are compelling reasons that makes a restriction necessary. Such restrictions are only permitted in exceptional circumstances, that have to be limited in time and assessed on a case-by-case basis. Second, restrictions irretrievably prejudiced the overall fairness of the criminal proceeding. This makes it necessary to view the proceedings as whole.94 29