Regional challenges Although states appear to have transposed the Directive in their national legislation,21 the right of access to a lawyer remains to date widely under-implemented throughout the EU in practice, leaving the majority of suspect or accused persons, in particular those deprived of liberty, to face police questioning alone.22 In practice, a relatively small proportion of arrested and/or detained suspect or accused persons actually have a lawyer during their initial detention.23 The European Commission has also identified gaps regarding children’s rights, and in particular the requirement to notify an appropriate adult where it would be contrary to the best interest of the child to inform the person who holds parental responsibility.32 It also identified failures regarding the possible derogations from the right of access to a lawyer33 and shortcomings with regard to the conditions under which the right of access to a lawyer can be waived.34 Few EU Member States have mandatory legal representation systems in place. Among those, most states apply mandatory representation only in specific cases, whereas only two states-Italy and Spainapply mandatory representation for all suspects and accused persons. Significant other implementation challenges when it comes to the right to access to a lawyer remain: The effectiveness of the right to access a lawyer for people in police custody almost entirely relies on the police. However, it may be a false assumption that the police in all cases will effectively inform suspects or accused persons of their rights and will take adequate measures to enforce them. Bringing lawyers to the room may be perceived, consciously or not, as conflicting with their primary objective which is to resolve cases as swiftly as possible. Enforcing the right to a lawyer can also cause extra hurdles and delays for the police which have to look for a lawyer, wait for them to arrive, wait for them to consult with their clients before starting the questioning. Consequently, the following systematic practices still lead suspects or accused persons to waive their right of access to lawyer: • • • • • The police fail to inform or inadequately inform suspects or accused persons of their rights.24 The police discourage suspects or accused persons from exercising their right to a lawyer, for example, by telling them “that the case is simple and that there is no need for the presence of a lawyer; or that proceedings are just beginning, and lawyers are not needed at the initial stage”25 or that asking for a lawyer will be costly26 or will prolong their detention.27 Lack of clarity about entitlement to legal aid, coupled with concern about cost, is clearly an instrumental factor.28 The police “informally” question suspects or accused persons without/before informing them of their rights.29 The police fail to call lawyers even when suspects or accused persons asked to be assisted.30 The police do not provide access to phones where suspects or accused persons are required to initiate contact with lawyers.31 21. European Commission, Report from the Commission to the European Parliament and the Council on the implementation of Directive 2013/48/ EU, COM(2019) 560 final, p.3, available at: https://ec.europa.eu/info/sites/default/ files/implementation_report_on_the_eu_directive_on_access_to_a_lawyer.pdf. 22. FRA, Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings, 2019, p.12-13, https://fra.europa.eu/en/publication/2019/rights-practice-access-lawyer-and-procedural-rights-criminal-and-european-arrest. 23. Ed Lloyd Cape, Inside Police Custody 2, Comparative Report 2018, p.47, available at https://www.fairtrials.org/ articles/publications/inside-police-custody-2/. 24. FRA, Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings, 2019, p. 27-28, 42. 25. ibid, p.37. 26. ibid, p.47. 27. ibid, p.53. 28. Ed Lloyd Cape, Inside Police Custody 2, Comparative Report 2018, p.47. 29. FRA, Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings, 2019, p. 12,23,29,31. 30. Ibid, p.46. 31. Fair Trials, Where’s my lawyer - making legal assistance in pre-trial detention effective, 2019, p.18, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/Wheres-my-lawyer-making-legal-assistance-in-pre-trial-detention-effective.pdf. 12 Challenges in finding a lawyer and inefficient appointment procedures: the Directive places responsibility on states to ensure that suspects and accused persons deprived of their liberty are in a position to effectively exercise the right of access to a lawyer.35 It does not impose the manner in which it should be done and does not explicitly require the competent authorities to make contact with lawyers for the suspect or accused person. In many countries, suspects or accused persons are provided with a list of lawyers. Such lists provide no guarantee that an appropriately qualified and experienced lawyer will be available at the time and in the location that they are required. In certain countries, it was reported that it is extremely challenging to find a lawyer willing to act outside of office hours.36 The use of such system can also result in abuses, when lawyers are in practice chosen by the investigating authorities based on their willingness to cooperate with the prosecution.37 Some countries have addressed this issue by developing duty lawyer schemes, with a single point of contact and conditions for inclusion and staying in the scheme. Lack of data. Another issue is the lack of data collected on the state of implementation of the rights guaranteed by the Directive. In some states, the relevant authorities do not allow researchers to be based in police stations or to observe questionings. As a result, data must be collected by alternative means, such as interviews with police officers, lawyers, and former suspects or accused persons.38 While technological tools can be used to ensure suspects or accused persons to find a competent lawyer, it can also serve as a tool to obtain clear statistics on the exercise of the right of access to a lawyer in Member States, and to keep track of all the steps taken by the authorities from moment of arrest to allow suspects or accused persons to effectively use their rights. In reality, only some countries have mandatory legal representation and effective duty lawyer schemes. Finding a lawyer often represents a challenge and the extent to which lawyers can participate in police interviews varies from state to state. Privacy of the lawyer-client consultation is also not ensured.39 32. European Commission, July infringements package: key decisions, 15 July 2021, available at: https://ec.europa.eu/ commission/presscorner/detail/en/inf_21_3440. 33. European Commission, September infringements package: key decisions, 24 September 2021, available at: https:// ec.europa.eu/commission/presscorner/detail/en/inf_21_4681. 34. European Commission, October infringements package: key decisions, 24 September 2021, available at: https:// ec.europa.eu/commission/presscorner/detail/en/inf_21_5342. 35. Directive on access to a lawyer, Art 4(4). 36. ibid. 37. Fair Trials, Where’s my lawyer - making legal assistance in pre-trial detention effective, 2019, p.18, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/Wheres-my-lawyer-making-legal-assistance-in-pre-trial-detention-effective.pdf 38. Ed Lloyd Cape, Inside Police Custody 2, Comparative Report 2018, p.50. 39. ibid. 13