Promising practices on the right of access to a lawyer Promising practice from Romania The mandatory legal representation system Romania is one of the European countries in which legal representation is mandatory for some categories of suspect and accused persons. Mandatory legal assistance was first mentioned in the 1936 Criminal Procedure Code (CPC) which granted the right to all children in conflict with the law. With the adoption of the 1969 CPC, this right was extended to other categories of suspects or accused persons. According to the CPC, legal representation of suspects or accused persons is mandatory in four specific situations: a) when a suspect or accused person is a child b) whenever the suspect or accused person is deprived of liberty c) when a judicial body believes that a suspect or accused person cannot prepare their defence on their own d) during the course of the trial, in cases where the law mandates detention for life or imprisonment exceeding 5 years for the committed offence.40 The right to legal assistance is also provided in the laws regulating the lawyer’s profession and the Statute of lawyers.41 The Statute stipulates that national bars are responsible for organizing legal assistance in all criminal cases detailed in the Criminal Procedure Code.42 The legal assistance can be provided in all phases of criminal trial proceedings, from the beginning of the criminal investigation until the end of the trial. The importance of mandatory legal assistance is underlined by the sanction for the violation of this right: any evidence obtained is rendered invalid and is automatically excluded. It also constitutes a reason for appeal or for annulment of any measure taken in absence of this procedural safeguard. Children represent a particularly vulnerable category of suspects and accused persons. Due to their age, there is a higher risk of undue influence by police during the criminal proceedings. Minors also tend to be more prone to compliance and suggestibility. In addition, children experience difficulties in correctly assessing the implications of their statements and the complex dynamics of proceedings. The Romanian legislator presumes that persons under the age of 18 do not have full cognitive and emotional development capacity to defend themselves. Therefore, legal assistance should be mandatory in cases when they are deprived of liberty. The information on rights and all communication with children must be communicated in an accessible 40. CPC, Art 90. 41. Law no. 51/1995 on the lawyers’ profession, Statute of Lawyers https://www.unbr.ro/statutul-profesiei-de-avocat/. 42. Statute of Lawyers, Art 150. 14 language. Even though this is an obligation, police officers do not seem willing to, or knowledgeable on how to properly notify them of their rights.43 In this context, the presence of a lawyer guarantees not only that their special rights are respected, but also that the information on rights and procedure is carried out in simplified language, adapted to the child’s mental and psychological development as well as taking into consideration other potential vulnerabilities. A child has the right to an individual assessment in the form of an evaluation report and the court cannot proceed to rule in its absence.44 At the trial phase, an evaluation report of the child is mandatory (not before). The evaluation report´s aim is to offer information about the child’s behaviour, special needs and psychosocial development in order for the judicial bodies to adapt the conditions of the criminal proceedings and detention accordingly. It is the role of the lawyer to request such an evaluation as early as possible, in order that potential vulnerabilities be detected and the criminal proceedings adapted accordingly. The assistance of a lawyer is also mandatory in all cases when suspects or accused persons are deprived of liberty (during police arrest,45 pre-trial detention, or detained in a detention centre or in an educational centre or when the safety measure of medical hospitalisation has been ordered). Persons who are deprived of liberty have limited access to resources of any kind and the presence of a lawyer represents a safeguards to a fair investigation and all procedural rights. For example, the right to silence and the right not to self-incriminate have a great impact on the investigation and can influence its outcome.46 Having a lawyer in police custody reduces the risk of ill-treatment and torture before or even during the interview as well as later during the criminal proceedings. Effective defence ensures proper information on rights and as well as the procedure and reduces the risk of agreeing to uninformed guilty pleas.47 43. Ed Lloyd Cape, Inside Police Custody 2, Comparative Report 2018. 44. CPC, Art 506. 45. Police arrest is a deprivation of liberty preventive measure regulated by the CPC. The duration of the initial arrest cannot exceed 24 hours. The arrest takes effect as soon as the detention order is issued. The detention order can only be issued after hearing the suspects or accused persons, who has the right to be assisted by a lawyer (chosen or legal aid). 46. ECtHR, Beuze v. Belgium, op.cit., § 128; See also the EmprRiSe Project (‘Empiricial and Legal Research on the Right to Silence during Police Investigations’), a collaboration between Maastricht, Dublin City, Antwerp and KU Leuven Universities aimed at studying the right to silence in pre-trial investigations across the Netherlands, Ireland, Belgium and Italy (about this topic: see A. Beazley & A. Pivati, “The right to silence in pre-trial investigation”, in New Journal of European Criminal Law, May 2021, available at: https://journals.sagepub.com/doi/pdf/10.1177/20322844211028320). 47. APADOR-CH, Study concerning the respect for procedural rights of suspects and defendants- from their perspective, 2022, p. 50, available at https://apador.org/wp-content/uploads/2022/09/Raport-detinuti_En_online_2-pag.pdf. In a study carried out by APADOR-CH on 1000 detainees during 2021 and 2022, 77% of the detainees stated that their criminal investigation ended with a guilty plea. Only in two cases out of ten did the criminal investigation end with a judgment delivered by a court of appeal. The majority of those surveyed were dissatisfied with the sentence they received following the conclusion of the guilty plea, as they felt that the punishment they received was more severe than what was promised when they agreed to the guilty plea. 15