Guidebook 1.4. STANDARDS Overview about selected procedural rights This Chapter aims at giving an overview about the existing standards in the context of some procedural safeguards and highlighting the added value of EU instruments where they do provide it, as well as practical challenges pointed out in the following selected thematic areas:69 1. 2. 3. 4. 5. Access to a lawyer and right to legal aid Right to inform a third party Right to interpretation and translation Right to information Presumption of innocence and the right to remain silent and the privilege against selfincrimination 6. Audio-visual recording 1.4.1. Right of access to a lawyer70 and right to legal aid71 RELEVANT QUESTIONS: »» »» »» »» Was there a lawyer present during the investigative phase (esp. police interrogation)? If not, why? (Derogation or Waiver) • Was the derogation/waiver recorded? • Was the person adequately informed about this right? Did he/she understand the right and the consequences of a waiver? • Was the person also informed about the right to legal aid? If there was a lawyer, was confidentiality ensured? Are there general complaints about the quality of lawyers or legal aid providers (e.g., frequency of visits, expertise in other field than criminal law, etc.)? The right of access to a lawyer is essential to ensure a fair trial and is recognised in all relevant human rights instruments as a procedural safeguard.72 At the same time, it is also a precondition for the equality of arms and protection against self-incrimination.73 The access to a lawyer is not only essential to ensure an appropriate defence and a fair trial, but has to be seen as a broader concept: Articles 2 and 16 CAT oblige States to take appropriate measures to prevent torture and other forms of illtreatment.74 As research and the practice of monitoring bodies has shown, the access to 26 a lawyer is proved to be amongst the most effective measures to prevent torture and ill-treatment.75 Thus, the effective assistance of a lawyer is key to ensure the rights of the person deprived of liberty and prevent that authorities exceed their legal powers.76 From which point in time does the right of access to a lawyer apply? The EU Directive states that the access to a lawyer needs to be ensured without undue delay, not only when the person is taken into custody or while being questioned, but also during other investigative procedures (e.g., identification or reconstruction). In other words, suspects should have access to a lawyer from one of the points in time that is the earliest: a) Before they are questioned by the police or by another law enforcement or judicial authority; b) Upon the carrying out by investigating or other competent authorities of an investigative or other evidence gathering act (eg, identity parades, confrontations, reconstruction of the scene of a crime); c) Without undue delay after deprivation of liberty; d) Where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court.77 The EU Directive builds on ECtHR case law.78 According to the ECtHR procedural safeguards, thus also the right of access to a lawyer, should be ensured from the moment of a ‘criminal charge’,79 i.e. once the authorities have substantial reasons for suspecting a person of having committed a crime. Thus, what is relevant is if the person was affected by the investigation act rather than the moment of the official notification.80 International standards provide that access to a lawyer should be ensured as soon as the person is deprived of his/her liberty or subjected to an interrogation or questioning.81 According to the HRC, Article 14 ICCPR “requires that the accused is granted prompt access to counsel.”82 The non-binding UN Basic Principles on the role of the lawyers states that governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer and in any case not later than forty-eight hours from the time of arrest or detention.83 27