Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings

Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need certain powers to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards. Such safeguards take on various forms, and include the right to certain information and to a lawyer.

This report looks at how these key criminal procedural rights are applied in practice. It is based on interviews with over 250 respondents in eight Member States, including judges, prosecutors, police officers, lawyers, staff of bodies that monitor prisons, as well as defendants. In highlighting diverse challenges, the report aims to spur efforts to ensure that criminal procedural rights are applied both effectively and consistently throughout the EU.

FRA opinions

Procedural rights in domestic criminal proceedings

The various rights guaranteed by the Charter and outlined in the Roadmap include defendants’ right to information in criminal proceedings from the moment they are aware they are suspected of having committed a crime; the right to silence and the privilege against self-incrimination; and the right to access a lawyer.

FRA’s research highlights several challenges when it comes to accessing these rights.

Informing defendants about their rights in an effective manner

FRA’s fieldwork shows that authorities in the eight EU Member States covered in this report inform defendants about their criminal procedural rights in various ways. Most practitioners and defendants agree that defendants receive this information before the first official questioning. However, the information given differs in its scope and content, and in how it is conveyed. This ranges from law enforcement authorities providing defendants with comprehensive information, both in writing and orally, to authorities handing defendants a written leaflet about rights without further explanation.

Several factors determine whether or not defendants receive information about their rights in an effective manner. These include, among others:

  • law enforcement officers assigning defendants a procedural status other than that of a suspect – for example person of interest, witness, person invited for an ‘intelligence talk’ – during the first phases of the criminal proceedings, in cases in which the person is in fact suspected;
  • barriers to defendants accessing information due to particular vulnerabilities, such as language barriers, a lack of education, a disability or intoxication with alcohol or drugs;
  • the overall accessibility of the format in which the information about rights is provided;
  • authorities not having practices to verify a defendant’s understanding of the information provided, especially when no lawyer is present. Directive 2012/13/EU on the right to information in criminal proceedings provides, in Article 3 (2) and Article 4, that information about rights should be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable defendants. Only when defendants are deprived of liberty do the relevant authorities have to provide them with a written ‘letter of rights’, drafted in simple and accessible language so that it can be easily understood by a lay person without any knowledge of criminal procedural law. Accordingly, the directive stresses the need for people to actually understand the information provided. Relevant case law of the European Court of Human Rights (ECtHR) also establishes requirements of accessibility of information, as only a defendant’s effective understanding of rights makes it possible for him or her to exercise those rights.

Treating defendants as witnesses

FRA’s research identifies cases in which law enforcement authorities question a person as a witness or ‘informally’ ask them questions, even when there are plausible reasons for suspecting that person’s involvement in a crime. This means that defendants do not receive information about their rights as a suspect – in particular, the right to remain silent and not to incriminate themselves. FRA’s research also highlights instances in which law enforcement authorities establish informal practices so that defendants’ self-incriminatory statements, made as a witness, can be later used against them legally in the course of the proceedings – for example, by questioning former witnesses again, this time as defendants, and asking them if they stand by their previous statements.

Directive 2013/48/EU on the right of access to a lawyer guarantees rights to persons who become suspects in the course of questioning by the police. In addition, Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings requires Member States to respect the right to silence and the privilege against self-incrimination. Those rights are also recognised by the ECtHR.

Facilitating defendants’ direct and prompt access to legal assistance

Respondents in FRA’s research highlight the crucial importance of defendants having access to legal assistance – especially from the very beginning of criminal proceedings. Respondents argue that defendants deprived of liberty, in particular, face difficulties in accessing lawyers directly and/or in private. For example, police officers or defendants’ relatives call lawyers on their behalf. Sometimes, these calls are significantly delayed after the moment of arrest or detention. When such ‘indirect’ or delayed contact occurs, defendants cannot obtain advice at an early stage, such as to remain silent. Lawyers cannot ask questions that may help them to prepare an effective defence. Moreover, findings show that defendants deprived of liberty do not always have the possibility of talking to their lawyers in private before the first questioning. Instead, where conversations happen at all, they are often short and/or take place in public corridors in the presence of police officers.

According to the standards of the ECtHR and the requirements set out in Directive 2013/48/EU on the right of access to a lawyer, defendants should have access to a lawyer without undue delay and the confidentiality of their communication should be respected.

Providing accurate and clear information about the charges against a defendant and reasons for their arrest

Respondents in FRA’s research indicate that very often, when informing defendants about the accusations (charges) against them and the reasons for arrest, authorities tend to limit themselves to indicating the relevant provisions of criminal law, using technical language, and not specifying the actual allegations. In addition, in some cases, both persons deprived and persons not deprived of liberty receive information about the accusation after some delay, and suspects deprived of liberty learn about the grounds for arrest only after being detained for some time. This creates practical challenges for building an effective defence and impedes a defendant’s ability to challenge deprivation of liberty, especially for defendants who do not benefit from legal assistance.

Directive 2012/13/EU on the right to information obliges Member States to promptly inform defendants about the necessary details of the criminal act that they are suspected of having committed and about the reasons for their arrest. The ECtHR has also reiterated this obligation.

Surrender proceedings under the European arrest warrant

Persons arrested pursuant to an EAW benefit from the right to the presumption of innocence, the right to a defence, the right to a fair trial and the right to an effective remedy, as set out in Articles 47 and 48 of the Charter. The measures introduced pursuant to the Roadmap more specifically outline what these rights entail.

In accordance with Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, defendants should benefit from interpretation and translation services to the extent set by this directive. In addition, pursuant to Directive 2012/13/EU on the right to information, defendants should receive a written letter of rights drafted in simple and accessible language. In addition to the procedural rights set by this directive, in accordance with Framework Decision 2002/584/JHA (EAW Framework Decision), persons arrested pursuant to an EAW have a right to receive information about the warrant and its contents, the possibility of consenting to transfer and a right to legal assistance. Directive 2013/48/EU on the right of access to a lawyer, confirming the right to access a lawyer in both the executing and the issuing Member State, further specifies the scope of the right to legal assistance.

FRA’s fieldwork shows that defendants in EAW proceedings (‘requested persons’) face similar challenges to those involved in domestic criminal proceedings (see FRA opinion 1, in particular). Moreover, requested persons can face additional challenges, particularly given the cross-border nature of EAW cases.

Informing defendants about their rights in an effective manner

In EAW cases, language barriers frequently impede individuals’ ability to benefit from their right to information about their rights, including to a lawyer. Respondents also highlight problems with understanding the possibility of consenting to the transfer to another EU Member State, which is also their right. Requested persons often misunderstand such information. Several respondents indicated that, as a result, they made decisions that were contrary to their interests.

Ensuring effective legal representation in both the issuing and executing Member States

FRA’s research shows that, overall, the right to be assisted and represented by a lawyer in surrender proceedings under an EAW is respected in executing Member States. However, the main practical problems arise from language barriers. Given the cross-border nature of EAW proceedings, which frequently involve defendants who do not speak the national language, ensuring access to interpretation services at the initial stage of the proceedings – and, in particular, facilitating communication with lawyers – is one of the most important safeguards of fair proceedings.

In addition, Member States do not effectively provide defendants (requested persons) with information about their right to access a lawyer in the issuing Member State. This leads to problems in defendants exercising this right in practice. One reason for this is that executing authorities do not feel competent to comment on laws in other states. In practice, relatives of defendants and/or lawyers in executing Member States often fill this gap by resorting to their own private contacts, including through different professional associations, hence facilitating defendants’ access to legal representation in issuing Member States.