Where’s my lawyer? Making legal assistance in pre-trial detention effective Background Findings The EU is facing a long-standing crisis in prison overcrowding. The excessive use of pre-trial detention (which is supposed to be a measure of last resort) is fuelling this. The decision to order pre-trial detention carries grave and wide-ranging consequences for people who have not been convicted of any offence. The European Commission and Parliament have, over many years, repeatedly recognised the need to act to address the overuse of pre-trial detention. Recent decisions from the Court of Justice of the European Union have pushed this to the fore: inhumane prison conditions are threatening mutual trust and judicial cooperation in Europe. But, to date, there is still no proposal for EU legislation on pre-trial detention. EU standards on the procedural rights of suspects have the potential to make a positive impact on pre-trial detention decision-making. In practice, however, persistent legal and practical obstacles remain. Our research highlights five key areas of concern: Although the EU has so far failed to create robust standards on pre-trial detention, it has created other legislation protecting procedural rights for suspects, which have the potential to improve the fairness of decision-making on pretrial detention. These rights, including access to a lawyer at the initial stages of the criminal process, can prevent unfairness and increase the chance that a person will be released (perhaps with alternative measures like electronic monitoring), contributing to lower rates of pre-trial detention. Over the past two years, Fair Trials and its partners in Bulgaria, Greece, Hungary, Italy and Romania have engaged criminal justice stakeholders (civil society, lawyers, prosecutors, judges, and ministry of justice officials) to assess what impact these procedural rights protections are having on the fairness of pre-trial detention decision-making; in particular, whether suspects are receiving effective legal assistance. Our aim has been to empower local practitioners to improve practice and to advocate for ways to address persistent failures to implement EU law effectively. 1. Knowledge of defence rights: You can’t exercise your rights if you don’t know what they are, including crucially your right to a lawyer and to legal aid. Therefore, without effective communication to suspects about their rights, detained persons may not have the chance to consult a lawyer before the first judicial hearing at which decisions on pre-trial detention may be made, and by which time, they will likely have already been interviewed by the police. Thanks to EU law, all suspects must now promptly be given a written Letter of Rights (in accessible language). However, further action is required. Letters of Rights need to be reviewed to ensure that they are drafted in plain language that suspects can understand. A rigorous process is needed to ensure Letters of Rights are promptly provided upon arrest. Further, Letters of Rights should be available in a broader range of language. Effective judicial remedies must also be available where the right to information has been violated. 2. Right to access to a lawyer and legal aid: When you are detained prior to trial, your ability to participate in the preparation of your defence is dramatically impaired. In this respect, the right to access to a lawyer and legal aid serves as a ‘gateway’ for other procedural safeguards. EU law recognises this and requires Member States to give suspects access to a lawyer in police custody, including to provide confidential legal advice prior to questioning, and to assist suspects during questioning. In reality, there are significant obstacles to this crucial right. Not all countries properly protect this right in their domestic laws; this requires urgent reform. Even where the law on paper is good, practical implementation remains a challenge. For example, mechanisms for the early appointment of lawyers make it very hard for some suspects to exercise their right to a lawyer. Despite the right for suspects to consult their lawyer confidentially, in many places facilities for this are not available. 5