Guidebook
EU, indicating in what aspects and why the existing Letter of Rights is
not compatible with the Directive also providing recommendations on
how a Letter of Rights would be best drafted.300 Since the official Letter of
Rights appears to be overly formal and difficult to understand, the Polish
NHRI together with Helsinki Foundation prepared his version, drafted
in plain language and with visual aids, which was made available on the
websites of the Commissioner and the Helsinki Foundation.301
Some other motions concerned specifically the shortages in the transposition of the EU Directive 2013/48/EU, such as an overly narrow
personal scope of the transposition (possibly excluding a suspected
person, who formally is not a suspect, but e.g. becomes a suspect during a
questioning), lack of clear guarantees of access to a lawyer before a suspect
is questioned (connected to the obligation to hear the suspect immediately
after he or she is notified about the charges), or lack of judicial review
in certain cases of derogation of a right to communicate with his or her
lawyer.302 Others focused on the problems arising from the existing
law or the practical application of the law – for instance providing a
real access to a lawyer for persons inside police custody – and used the
Directive 2013/48/EU as one of the arguments for a change.303
In addition to the mandate to submit opinions and recommendations on
laws and practices, some NHRIs, especially Ombudsinstitutions, have the
power to engage with the Constitutional Court; that is to start proceedings before the Constitutional Court for an abstract constitutional review
of the laws and other acts (e.g. Croatia, Poland, Spain, Slovenia, Lithuania,
Portugal and Hungary).304 Other NHRIs can challenge only regulations
and international treaties but not laws before the constitutional court (e.g.
Austria).305
Challenging the constitutionality of laws is often described as one of the
most powerful and efficient instrument to achieve a change in the law.
Nevertheless, this is often a resource intense activity requiring careful
consideration of national and international standards on the protection of
human rights, and it often comes with high expectations towards the NHRI
to start a constitutionality review whenever seems relevant.
72
WAYS TO PROMOTE CHANGE
The power to engage with the Constitutional Court was rarely used in the
context of criminal matters, but additional examples could be found in
other human rights related contexts.306 One positive example specifically
concerning criminal matters comes from Poland.
Poland
In 2014 the Commissioner – acting as the NPM – filed a motion to the
Constitutional Tribunal for the review of some aspects of right to communicate with a lawyer of a temporary detained person, contesting the
constitutionality of a provision imposing an absolute ban on the use of
phones to contact lawyers by temporary detainees. The Constitutional
Tribunal agreed with the Commissioner and held that the said provision
was violating the constitutional right to defence.307 As a result, the Executive Penal Code was amended in 2015, and now persons in temporary
custody are allowed to use a phone (upon consent of the law enforcement
authority).308
However, in the years 2015-2016 the Polish Parliament adopted several
legal acts relating to the work of the Constitutional Tribunal, severely
undermining its position and independence.309 Moreover, since the end
of 2016 a number of judges, appointed without a valid legal basis, took
up their functions in the Constitutional Tribunal. In the aftermath of
these legislative changes, the Commissioner acknowledged that “when
legislation of highly political nature is adopted, citizens cannot count on
independent judicial review” by the Constitutional Tribunal,310 and, as a
result, withdrew several motions for constitutional review.311
As the Polish example shows, the effectiveness of a constitutionality
review is highly dependent on the independence of the judiciary (i.e.
Constitutional courts or tribunals). When there are these concerns, NHRIs
should consider resorting to all existing international, regional and EU
procedures as an additional pathway to strengthen human rights in the national context. This was for example done by the Polish NHRI, which used
his power to join the proceeding at the domestic level as third party intervener to join several preliminary rulings before the CJEU concerning the
question of the independence of the judiciary (see below, Chapter 5.2.3).
73
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