• Lawyers’ competence: Even where lawyers are present, their assistance is not always enough to protect the defendant’s rights. A passive attitude and insufficient engagement in the individual case was highlighted where lawyers are not sufficiently trained in pre-trial detention issues or where legal aid lawyers are not specialised in criminal law, particularly in Romania. Another barrier to adequate and effective legal representation was the involvement of various lawyers at different stages of the proceedings, which increases the likelihood that they have not established a relationship with the defendant and are not sufficiently acquainted with the circumstances of the case to provide effective legal assistance. • A remedy should be available in cases where a lawyer (including a legal aid lawyer) encounters obstacles to be present and/or effectively participate in the hearings. • • In general, the same lawyer should represent the client through the entire criminal proceedings to ensure sufficient knowledge of the case file and build trust with the client. • The legal obligation to explain the consequences of a waiver to consulting a lawyer must be explicitly implemented, as well as the obligation to record the grounds for the waiver. • Training opportunities must be provided on the legal framework and judicial practice on pre-trial detention and a competence test should be undertaken for lawyers before they are placed on the list of legal aid lawyers (through, for instance, an accreditation mechanism). • Bar associations should set out clearly and in sufficient detail the role of the lawyer during pre-trial detention hearings. • Defendants are not universally represented in hearings. Defendants should not appear unrepresented at pre-trial detention hearings unless they have specifically, knowingly and intelligently waived the right to a lawyer. However, the presence of a lawyer at pretrial detention hearings is not compulsory in all Member States, such as in Hungary. • Where the lawyer cannot attend the questioning in person, domestic law should expressly provide for the right of suspects and accused persons in detention to consult with a lawyer via telephone prior to any interrogation. • A mandatory minimum time should be prescribed between notification of a hearing and the date of the hearing to enable defence lawyers to attend and to prepare for hearings. Information about consequences of exercising the waiver to the right to a lawyer: The Access to a Lawyer Directive requires that suspects/defendants be fully informed of the possible consequences of waiver.68 This implies a positive obligation on the criminal investigation authorities to explain the consequences of a waiver. However, Member States, including Romania have not implemented such an obligation. In a number of countries, including Bulgaria, partners reported active practices by police officers to discourage the exercise of the right of access to a lawyer, through manipulation and threats of ill-treatment.69 • Police officers must be trained not to discourage the exercise of rights; and their interactions with people in detention must be actively supervised and tactics to discourage the exercise of rights should be sanctioned through disciplinary measures. • Restrictions on role of lawyers. Further obstacles to effective legal assistance exist, for example where the law does not permit defence lawyers to adduce evidence in pre-trial detention hearings (as in Romania); or where lawyers are not permitted to intervene during questioning by the police and/or judges (as reported in Greece), or even to be present during questioning (as in Bulgaria). • Laws restricting the role of lawyers in a way that is contrary to the Directives require urgent reform. • The proper implementation of the Directives in law and practice must be monitored to ensure that lawyers are not confronted with restrictions to effectively assist their clients. • Audio-visual recordings of interrogations should be envisaged as a way of monitoring the ability of lawyers to participate effectively during questioning. • If there has been some practical challenge to appointing a lawyer, or if a lawyer has elected not to appear at a pre-trial detention hearing without the consent of the defendant, pre-trial detention should be strictly limited to a time period in which a lawyer can be appointed or be present, with a de novo hearing held as soon as possible following that appointment. 68 69 20 Article 9, Access to a Lawyer Directive. This was also a finding in Ed Lloyd-Cape’s Inside Police Custody 2 report of December 2018 in other Member States, such as Lithuania (p. 47). Available at: https://www.iccl.ie/wp-content/uploads/2018/12/Inside-Police-Custody.pdf.