Guidebook How is this right of access to a lawyer exercised? »» Although suspects and accused persons have the right of access to a lawyer, they also have the right to waive it. However to do so, it is necessary that the suspect or accused person is informed and aware of the right of access to a lawyer as well as the consequences of waiving this right. Moreover, the specific conditions of the suspect (e.g., age, mental and physical conditions) and the case (e.g. mandatory representation) have to be taken into account.95 Also the ECtHR states in its case law that ‘if an accused has no lawyer, he has less chance of being informed of his rights and, as a consequence, there is less chance that they will be respected.’96 »» The existing ECtHR case-law includes fairly comprehensive standards requiring the waiver to be given unequivocally, knowingly and intelligently before it can be considered effective. The EU Directive sets similar safeguards. The suspect or accused person can waive his/her right if a) the waiver was given voluntarily and without any doubt;97 b) the waiver is recorded, as well as the circumstances under which it was given;98 c) the suspect or accused person is informed about the right to revoke the waiver at any time during the criminal proceedings. Such a revocation should have immediate effect.99 The possibility to waive a right is restricted with respect to persons in vulnerable situations according to the Recommendation the right should not be waived.100 When procedural rights are not effectively conveyed to the suspect, the ECtHR finds that the waiver is not effective, as it considers that the decision to waive the right was not taken on a properly informed basis. Consequently, the reliance on statements obtained in that context means that a prejudice is caused to the fairness of the proceedings as a whole. The ECtHR has pointed to various factors, both objective and subjective, relating to the notification of rights which affect the validity of a waiver of the right of access to lawyer and to counsel: »» The fact that rights were notified in a language other than the suspect’s native language, without the assistance of an interpreter.101 »» The fact of the notification being given only orally in the form of a standard caution (which barely serves the purpose of acquainting the suspect with the content of the rights);102 30 STANDARDS »» »» »» »» The ‘stressful situation’ and ‘quick sequence of the events’ leading to questioning of the suspect;103 A ‘certain confusion’ in the mind of the suspect at the point of questioning;104 The young age of the suspect;105 The suspect’s level of literacy;106 Familiarity with police encounters;107 and Drug dependency of the suspect.108 Also according to the Directive, the failure to provide access to a lawyer prior to and during police questioning will be a violation of Article 3 of the Directive. In that case, Article 12 of the Directive requires Member States to ensure an effective remedy for the violation, including the exclusion of evidence that was obtained in breach of the right to access to a lawyer.109 Is the access to legal aid ensured? According to the Directive on legal aid, EU Member States should ensure that persons who lack sufficient resources to pay a lawyer have the right to legal aid.110 In this regard, the Directive applies to same procedural phases as the Directive on access to a lawyer, thus also to the investigative phase.111 In principle, the Directive leaves a wide discretionary power to the EU Member States on how to organise the legal aid system, that is for example what which tests should be applied (means and merits) but also which authority is responsible to grant legal aid and for the appointment of the legal aid lawyer.112 However, if EU Member States apply the means or merits test they should take into account a number of criteria for the means test, all relevant and objective factors such as the income, capital, family situation as well as the costs of the assistance of a lawyer and the standard of living in the respective Member State; for the merits test, the seriousness of the criminal offence, the complexity of the case and the severity of the sanction at stake should be taken into account.113 31