Argue:
The ECtHR has already made clear that the right to counsel is a ‘prime example’ of
a procedural right requiring the protection of the knowing and intelligent waiver
standard, due to its role as a gateway right (see Pishchalnikov v. Russia).
The Right to Information Directive imposed a key safeguard around waiver by
requiring provision of information on rights, in the form of a Letter of Rights if the
person is deprived of liberty. In parallel, Article 9(2) of the Directive establishes
that a waiver of the right to a lawyer cannot be valid unless prior information is
given. It follows logically that the failure to comply with the Right to Information
Directive (in particular the provision of a letter of rights) renders the waiver of the
right of access to a lawyer invalid. The Right to Information Directive itself
confirms that a Letter of Rights should be translated in accordance with
Interpretation & Translation Directive, so provision of information in the suspect’s
language should be seen as a precondition for a valid waiver.
Even if information is given, it must be ‘clear and sufficient’ under Article 9(2) and
it must cover the content of the right and the consequences of waiving it. A mere
notification that a person has a right to a lawyer will not suffice.
Article 9(2), read with recital 39, points towards an individualised recording of the
circumstances of the waiver taking into account the suspect’s personal situation.
The provision appears to aim to place the court in a position to satisfy itself, later
on, that a waiver has been validly given in the specific case. The failure to take
note of specific circumstances in the recording (eg. that the suspect understood
he faced a potentially lengthy sentence) calls into doubt the validity of the waiver.
If the court cannot satisfy itself that the waiver is valid in the specific case, the
absence of a lawyer should be treated as a breach of Article 3 and, accordingly,
remedies applied pursuant to Article 12 of the Directive.
c. The issue of irrebuttable police records
LEAP members and attendees at Fair Trials trainings (particularly from France and Luxembourg) have
often pointed to the issue of police records being treated as conclusive or irrebuttable: if the
minutes say the right was waived, the contrary cannot be proved.
The structure of Article 9 points towards the need for an individualised record of the circumstances
of the waiver, which can only be in order to enable the court to satisfy itself that the waiver is valid.
This recognises that this may be a disputed fact. Procedural rules which prevent the calling of
rebuttal evidence – even if the suspect gives a detailed and credible account – would appear
problematic. We believe that the ‘effectiveness’ case-law of the CJEU may be relevant. An instructive
example is the Opinion of Advocate-General Sharpston in Case C-187/10 Unal:40
Case C-187/10 Unal concerned the exercise by a Turkish national of certain rights
derived from an EU-Turkey agreement which forms part of EU law. His residence
permit had been revoked retroactively on the basis that he was found, on the basis of
local population records, not to have been living with the person mentioned in his
40
Case C-187/10 Unal ECLI:EU:C:2011:623.
27
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