lawyer prior to all questioning,
before all relevant authorities?
Is the confidentiality of these
meetings and communications
protected?
Article 3(3)(b)
20
Do suspects have a right for
their lawyer to be present and
participate in questioning?
What limitations are foreseen
on the role of the lawyer?
How do these impact upon the
lawyer’s ability to assist the
suspect in asserting his rights?
-
Article 3(3)(c)
26
Do suspects have a right of
access to a lawyer at each of the
-
The Directive requires that suspects or accused persons have the right for their lawyer to be present during
questioning, as is well-established under ECtHR case-law (eg. Navone and Others v. Monacovi).
Recital 20 indicates that questioning does not include preliminary questioning for the purposes of verifying a
person’s identity etc., mentioning road-side checks as an example.
But see the ECtHR case Zaichenko v. Russia:vii Article 6 ECHR will be breached if such questioning (in that case, at
a road-side check) is carried out when there is already evidence against a person (if their statements are used).
The Directive specifies that there is a right to effective participation of the lawyer in questioning. Though this is
to be in accordance with procedures in national law, these must respect the essence of the right concerned.
Your answers here
Please include references to the relevant national law or policy, identifying any specific issues
The Directive requires that the suspect has a right for the lawyer to be present at investigative acts, specified in
Article 3(3)(c) as including identity parades; confrontations; and reconstructions of the crime scene, if one of
these is the earliest.
The above list is expressed as being a ‘minimum’. Other situations might call for access to a lawyer where they
could substantially impact upon the defence, eg. instruction of experts to analyse large volume of data.
Your answers here
39
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