Does your Member State have
overseas territories or a need
for geographical derogations,
(eg. EU anti-piracy / smuggling
operations?)
Are delays in access to a lawyer
permitted? Are any other
restrictions permitted?
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Your answers here
The Directive permits derogation from the substantive aspect of Article 3 (access to a private meeting before
questioning, presence of the lawyer in questioning etc.) in urgent cases where (a) there is an urgent need to
avert serious adverse consequences for other persons and (b) immediate action is needed to prevent
substantial jeopardy to criminal proceedings.
In accordance with Article 8, these derogations should be strictly limited in time, should not go beyond what is
necessary, and should not unduly prejudice the rights of the defence.
The issue is currently under consideration in the case of Ibrahim and Others v. United Kingdom, which is before
the Grand Chamber of the ECtHR. See Fair Trials’ intervention in that case, referred to in Part III of this Toolkit.
The Recitals state that questioning during the derogation may be carried out for the sole purpose and to the
extent necessary to obtain information that is essential to one of the two above justifications.
In Fair Trials’ opinion, any information obtained should not be used in the substantive criminal proceedings (see
further on remedies below).
Your answers here
Please identify the relevant national legal provisions
Article 3(6)
Article 8
31, 32
Are derogations available from
the rights specified in Article 3
of the Directive? On what
grounds?
What questioning is permissible
during the absence of the
lawyer?
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