Where’s my lawyer? Making legal assistance in pre-trial detention effective report entitled A Measure of Last Resort? The practice of pretrial detention decision-making in the EU. The report highlighted systemic failures resulting in the unjustified and excessive use of pre-trial detention41 and was updated in 2018.42 The lack of effective legal assistance prior to and during detention hearings was identified as a key barrier to fair and effective decision-making and gave rise to the work that underlies this report. Examining more closely the link between the lack of effective legal assistance and pre-trial detention is all the more relevant today because, since the publication of our research in 2016, all the Roadmap Directives should have been implemented into national legal systems. This includes in particular the Access to Lawyer Directive, which requires Member States to ensure that suspects and accused persons can access a lawyer in such time and manner so as to allow the exercise of their rights of defence ‘practically and effectively’.43 Effective legal assistance in pre-trial detention decision-making The decision to order pre-trial detention is one that carries grave consequences for the defendant and places them at a significant procedural disadvantage. The very fact of being in custody can make it much harder to prepare a defence. Lawyers play a key role in limiting the use of pre-trial detention to cases in which it is really justified. For this reason, European human rights standards require detention hearings to be oral, adversarial and to involve the effective participation of the defence.44 This protects suspects’ right to liberty, and provides valuable information to prosecutors, judges and probation services notably on the appropriateness of alternatives to detention. A lawyer’s presence and active participation in the proceedings from the moment of initial custody helps a suspect to understand the legal situation and the consequences of choices made at this crucial stage. If complied with, the lawyer’s presence at the initial stages of the criminal process serves as a ‘gateway’ to other rights and helps not only to prevent prejudice to the suspect’s defence, but can also increase the chance that alternative measures to detention are applied and as a result contribute to lower rates of pre-trial detention and reductions in prison overcrowding. Research shows, however, that many suspects find it impossible to obtain timely and meaningful access to a lawyer while in detention.45 In some cases, due to variations in legal regimes and the complexities of securing legal aid appointments, defendants face judicial authorities in initial hearings on pre-trial detention without the assistance of a 41 42 43 44 45 46 lawyer. Even where they are present, lawyers do not always provide a sufficient level of representation to safeguard the rights of their client. Methodology This report builds on work commenced in September 2017 which aims to improve the effectiveness of the legal assistance that suspects receive during the pre-trial stages and address the risk of them being subjected to unjustified pre-trial detention. With local partners in Bulgaria, Greece, Hungary, Italy and Romania, we have engaged groups of local practitioners to identify and advocate for solutions to address the barriers in law and in practice that prevent defence lawyers from effectively participating in the pre-trial decision-making process.46 Each partner updated existing research on the law, policy and practice on pre-trial detention in their country and created working groups of domestic stakeholders to work with them and address the overuse of pre-trial detention (including lawyers, prosecutors, judges, probation officers, and other criminal justice actors). The working groups met several times over the course of 2018-2019 to discuss the key issues and obstacles to effective legal assistance in pre-trial detention decision-making and drew up action plans for each country. These action plans focus on solutions and recommendations of how to tackle the identified obstacles in each country, targeting the justice sector, bar associations and policy-makers. Roundtable meetings were held with a broader range of criminal justice actors to discuss the obstacles and proposed solutions. In parallel, each partner held training sessions for lawyers on pre-trial detention and produced practical handbooks which explain the domestic and regional standards that lawyers can seek to rely upon. The handbooks also seek to offer practical solutions to overcome, where possible, the obstacles that lawyers may face. In addition, Fair Trials produced a handbook focused on regional standards, available at https://fairtrials.org/publication/legal-assistance-pretrialdetention-handbook . In the present report, we highlight the key common obstacles across jurisdictions to effective legal assistance in pre-trial detention decision-making; solutions that may be applicable in other EU Member States; as well as the key gaps in the existing legal framework that require legislative intervention at a regional level (Part 1). The report also provides an overview of the discussions and main outcomes of the activities undertaken by each of the five partners countries with a view to highlighting good practices that may serve as models in other countries (Part 2). Fair Trials, May 2016, “A measure of Last Resort? The practice of pre-trial detention decision making in the EU”, available at: https://www.fairtrials.org/wp-content/uploads/AMeasure-of-Last-Resort-Full-Version.pdf. Fair Trials, May 2018, “Update Report: A measure of Last Resort? The practice of pre-trial detention decision-making in the EU”, 2016, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/LEAP%20Update%20policy%20paper%20PTD.pdf. Article 3(1), Access to a Lawyer Directive. European Court of Human Rights, Göç v. Turkey, Judgment of 11 July 2002, App. no. 36590/97, para. 62. Fair Trials, May 2016, “A measure of Last Resort? The practice of pre-trial detention decision making in the EU”, p. 14. Bulgaria: Bulgarian Helsinki Committee (BHC); Greece: Centre for European Constitutional Law (CECL); Hungary: Hungarian Helsinki Committee (HHC); Italy: Associazione Antigone (Antigone); and Romania: Association for the Defense of Human Rights in Romania – the Helsinki Committee (APADOR-CH). 11