INTRODUCTION A. INTRODUCTION 1. Background In the last decade, the EU Member States have been cooperating closely on cross-border issues, principally through the European Arrest Warrant (‘EAW’). Such systems rely on mutual confidence between judicial authorities that each will respect the rights of those concerned, in particular as guaranteed by the European Convention on Human Rights (‘ECHR’). However, cooperation has been undermined by the fact that judicial authorities called upon to cooperate with one another do not, in reality, have full confidence in each other’s compliance with these standards. In order to strengthen the system, the EU has begun imposing minimum standards to regulate certain aspects of criminal procedure through a programme called the ‘Roadmap’.1 Whilst these measures have their origin in ensuring mutual trust, the result is a set of directives binding national authorities in all cases, including those which have no cross-border element. These cover the right to interpretation and translation,2 the right to information,3 and the right of access to a lawyer4 (collectively, the ‘Roadmap Directives’). This Toolkit discusses Directive 2013/48/EU on the Right of access to a lawyer in criminal proceedings5 (the/this ‘Directive’), which must be transposed into national law by 27 November 2016. It includes a general approach to using the Directive and covers some specific issues of particular interest to LEAP: the participation of lawyers in police questioning; waiver of the right of access to a lawyer; and the scope for authorities to derogate from that right. It builds upon the comments on this Directive in the ‘Using EU law in criminal practice’ Toolkit6 of 2015. The Directive is an important piece of legislation. It follows the ECtHR case of Salduz v. Turkey (2008),7 which established the right of access to a lawyer in police questioning and led to significant reform across the region. The Directive has already had an impact on the development of that line of case-law at the ECtHR (see A.T. v. Luxembourg8) and on the way it is applied nationally (see the references in Part I below). You may feel that it is your duty as a lawyer to see what the Directive means for your own cases in this evolving legal context. 1 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C 295, p.1). 2 Directive 2010/64/EU of the European parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, (OJ 2010 L 280, p. 1). 3 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1). 4 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L 290, p. 1). 5 Note 4 above. Available at http://www.fairtrials.org/fair-trials-defenders/legal-training/. 7 Salduz v. Turkey App. No 36391/02 (Judgment of 27 November 2008). 8 A.T. v. Luxembourg App. No 30460/13 (Judgment of 9 April 2015). 6 4