International standards At the international level, the importance of the right to defence is enshrined in Art 14 of the International Covenant on Civil and Political Rights as well as Art 13 of the United Nations Convention on the Rights of People with Disabilities (UNCRPD). The importance of the right to access a lawyer has been also recognized by the UN when it adopted the Basic Principles on the Role of Lawyers.9 In its General Comment No. 24 on child justice, the UN Committee on the Rights of the Child (CRC) recommends that states provide legal representation for all children who are facing charges in juvenile courts.10 At the regional level, the European Court of Human Rights (ECtHR) jurisprudence emphasizes that for the right to a fair trial to remain “practical and effective”, access to a lawyer has to be provided from the first police questioning. The ECtHR noted that suspects and accused persons are in a situation of vulnerability during the initial investigative stage and the presence of a lawyer protects against selfincrimination and is a fundamental safeguard against ill-treatment. What someone says or does not say during their first interaction with law enforcement authorities may determine the direction of an investigation and the likelihood of pre-trial detention.11 The right to legal assistance in criminal proceedings is also embedded in EU law. Since its entry into force in 2016, the European Union Directive 2013/48/EU on the right of access to a lawyer (“the Directive”) requires EU Member States to guarantee that suspects and accused persons have access to a lawyer before their first interview by law enforcement authorities or without undue delay after arrest.12 The EU Directive on the right to access to a lawyer sets minimum standards mandatory for all EU member states and the EU Commission is set to assess periodically the practical implementation of this right at the national level. Unlike other international standards, the Directive also regulates in greater detail and expands upon the right to access a lawyer. The right to legal assistance applies to the entire proceedings, from the police investigation to the conclusion of the appeal. Access to a lawyer in the early stages of the proceedings is particularly important.13 The Directive explicitly states that suspects and accused persons must have the right to: meet their lawyer in private prior to any questioning, have a lawyer present when questioned and for the lawyer to be able to participate effectively.14 In addition, the lawyer has to at least be present during the investigative or evidence-gathering acts (identity parades, confrontations, reconstructions). 9. UN Basic Principles on the Role of Lawyers, September 1990. 10. UN CRC General Comment No. 24 (2019) on children’s rights in the child justice system, §62. 11. Fair Trials, Why remote assistance breaches the EU Directive on the right of access to a lawyer Briefing paper – European Union (2021), p.5, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/Briefing_remote_assistance_FORWEB.pdf. 12. 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 L 294, 6.11.2013 (Directive on access to a lawyer), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0048&from=FR. 13. ibid, Art 2 (1). 14. ibid, Art 3 (3). 10 EU Member States are obliged to ensure the assistance of a child by a lawyer. The lawyer should be trained in representing children. Children cannot waive being assisted by a lawyer. This conclusion appears also from Directive (EU) 2016/1919 on legal aid. Unfortunately, in some States, the possibility to waive assistance by a lawyer still exists.15 According to the Directive, the right to a lawyer may be waived. However, for a waiver to be valid the suspect or accused person must have been provided, orally or in writing, with clear and sufficient information in simple and understandable language about what the right to a lawyer entails and the possible consequences of waiving it. Any waiver must be given voluntarily and unequivocally.16 Both under EU legislation and the Council of Europe normative framework, the right on access a lawyer has been particularly important in relation to vulnerable suspects and accused persons such as persons with disabilities, migrants, and children.17 Pursuant to Directive 2016/800 on procedural safeguards for children in conflict with the law in criminal proceedings, children have the right to meet in private and communicate with a lawyer including prior to questioning by the police, and the right to be assisted by a lawyer during police questioning.18 It is important to note that regarding children the European Directives make a slight difference between access and assistance to a lawyer. The full set of Directives on fair trial rights needs to be read together. According to the frame introduced by Directive (EU) 2016/800, it is now an obligation of EU Member States to provide children with the assistance of a lawyer and, therefore, this obligation must be introduced in the Member States’ domestic laws. This means, that in any event, the child should always be assisted by a lawyer and this assistance should not be limited to guarantees of access to a lawyer or the mere presence of the lawyer during the juvenile justice proceedings. The lawyer should be allowed to have an active role and to participate during all steps of the proceedings.19 The European Commission has also issued a “Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings” which recommends that a suspect or accused person who cannot understand proceedings should not be able to waive their right to a lawyer.20 15. DCI-Belgium, Manual for EU Member States “How to ensure the rights of children in conflict with the law?”, 2018, p. 60-61; DCI-Belgium, Practical Guide for lawyers, How to defend a child in conflict with the law, 2018. 16. Directive on access to a lawyer, Art 9. 17. FRA, Child friendly justice – Perspectives and experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10 EU Member States https://fra.europa.eu/sites/default/files/fra-2015-child-friendly-justice-professionals_en.pdf, 2015; FRA, Handbook on European law relating to the rights of the child, pp. 195-218, 2022, https://fra.europa.eu/sites/default/files/fra_uploads/fra-coe-2022-handbook-child-rights_en.pdf. 18. Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects and accused persons in criminal proceedings, OJ L 132, 21.5.2016 (Directive on the procedural safeguards for children), Art 6, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0800&from=EN. 19. DCI-Belgium, Manual for EU Member States “How to ensure the rights of children in conflict with the law?”, 2018, p. 60. 20. European Commission, Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings, https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:378:0008:0010:EN:PDF. 11