# Directive 2013/48/EU of the European Parliament and of the CouncilShow full title

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in            criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation            of liberty and to communicate with third persons and with consular authorities while deprived of liberty         

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# Directive 2013/48/EU of the European Parliament and of the Council

# of 22 October 2013

# on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to                        have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities                        while deprived of liberty                     

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular point (b) of Article 82(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(1),                        

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure(2),                        

Whereas:

(1)Article 47 of the Charter of Fundamental Rights of the European Union (the Charter), Article 6 of the European Convention                              for the Protection of Human Rights and Fundamental Freedoms (the ECHR) and Article 14 of the International Covenant on Civil                              and Political Rights (the ICCPR) enshrine the right to a fair trial. Article 48(2) of the Charter guarantees respect for the                              rights of the defence.

(2)The Union has set itself the objective of maintaining and developing an area of freedom, security and justice. According to                              the Presidency conclusions of the European Council in Tampere of 15 and 16 October 1999, and in particular point (33) thereof,                              the principle of mutual recognition of judgments and other decisions of judicial authorities should become the cornerstone                              of judicial cooperation in civil and criminal matters within the Union because enhanced mutual recognition and the necessary                              approximation of legislation would facilitate cooperation between competent authorities and the judicial protection of individual                              rights.

(3)Pursuant to Article 82(1) of the Treaty on the Functioning of the European Union (TFEU), ‘judicial cooperation in criminal                              matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions...’.

(4)The implementation of the principle of mutual recognition of decisions in criminal matters presupposes that Member States                              trust in each other’s criminal justice systems. The extent of the mutual recognition is very much dependent on a number of                              parameters, which include mechanisms for safeguarding the rights of suspects or accused persons and common minimum standards                              necessary to facilitate the application of the principle of mutual recognition.

(5)Although the Member States are party to the ECHR and to the ICCPR, experience has shown that that alone does not always provide                              a sufficient degree of trust in the criminal justice systems of other Member States.

(6)Mutual recognition of decisions in criminal matters can operate effectively only in a spirit of trust in which not only judicial                              authorities, but all actors in the criminal process consider decisions of the judicial authorities of other Member States                              as equivalent to their own, implying not only trust in the adequacy of other Member States’ rules, but also trust that those                              rules are correctly applied. Strengthening mutual trust requires detailed rules on the protection of the procedural rights                              and guarantees arising from the Charter, the ECHR and the ICCPR. It also requires, by means of this Directive and by means                              of other measures, further development within the Union of the minimum standards set out in the Charter and in the ECHR.

(7)Article 82(2) TFEU provides for the establishment of minimum rules applicable in the Member States so as to facilitate mutual                              recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border                              dimension. That Article refers to ‘the rights of individuals in criminal procedure’ as one of the areas in which minimum rules                              may be established.

(8)Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn,                              should lead to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights                              culture in the Union. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the                              territory of the Member States. Such common minimum rules should be established in relation to the right of access to a lawyer                              in criminal proceedings, the right to have a third party informed upon deprivation of liberty and the right to communicate                              with third persons and with consular authorities while deprived of liberty.

(9)On 30 November 2009, the Council adopted a Resolution on a Roadmap for strengthening the procedural rights of suspected or                              accused persons in criminal proceedings (‘the Roadmap’)(3). Taking a step-by-step approach, the Roadmap calls for the adoption of measures regarding the right to translation and interpretation                              (measure A), the right to information on rights and information about the charges (measure B), the right to legal advice and                              legal aid (measure C), the right to communicate with relatives, employers and consular authorities (measure D), and special                              safeguards for suspects or accused persons who are vulnerable (measure E). The Roadmap emphasises that the order of the rights                              is only indicative and thus implies that it may be changed in accordance with priorities. The Roadmap is designed to operate                              as a whole; only when all its components are implemented will its benefits be felt in full.

(10)On 11 December 2009, the European Council welcomed the Roadmap and made it part of the Stockholm programme — An open and secure                              Europe serving and protecting citizens(4) (point 2.4). The European Council underlined the non-exhaustive character of the Roadmap, by inviting the Commission to examine                              further elements of minimum procedural rights for suspects and accused persons, and to assess whether other issues, for instance                              the presumption of innocence, need to be addressed, in order to promote better cooperation in that area.

(11)Two measures have been adopted pursuant to the Roadmap to date, namely Directive 2010/64/EU of the European Parliament and                              of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings(5) and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal                              proceedings(6).

(12)This Directive lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings                              for the execution of a European arrest warrant pursuant to Council Framework Decision 2002/584/JHA of 13 June 2002 on the                              European arrest warrant and the surrender procedures between Member States(7) (European arrest warrant proceedings) and the right to have a third party informed upon deprivation of liberty and to communicate                              with third persons and with consular authorities while deprived of liberty. In doing so, it promotes the application of the                              Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, by building upon Articles 3, 5, 6 and 8 ECHR, as interpreted by                              the European Court of Human Rights, which, in its case-law, on an ongoing basis, sets standards on the right of access to                              a lawyer. That case-law provides, inter alia, that the fairness of proceedings requires that a suspect or accused person be                              able to obtain the whole range of services specifically associated with legal assistance. In that regard, the lawyers of suspects                              or accused persons should be able to secure without restriction, the fundamental aspects of the defence.

(13)Without prejudice to the obligations of Member States under the ECHR to ensure the right to a fair trial, proceedings in relation                              to minor offending which take place within a prison and proceedings in relation to offences committed in a military context                              which are dealt with by a commanding officer should not be considered to be criminal proceedings for the purposes of this                              Directive.

(14)This Directive should be implemented taking into account the provisions of Directive 2012/13/EU, which provide that suspects                              or accused persons are provided promptly with information concerning the right of access to a lawyer, and that suspects or                              accused persons who are arrested or detained are provided promptly with a written Letter of Rights containing information                              about the right of access to a lawyer.

(15)The term ‘lawyer’ in this Directive refers to any person who, in accordance with national law, is qualified and entitled,                              including by means of accreditation by an authorised body, to provide legal advice and assistance to suspects or accused persons.

(16)In some Member States an authority other than a court having jurisdiction in criminal matters has competence for imposing                              sanctions other than deprivation of liberty in relation to relatively minor offences. That may be the case, for example, in                              relation to traffic offences which are committed on a large scale and which might be established following a traffic control.                              In such situations, it would be unreasonable to require that the competent authorities ensure all the rights under this Directive.                              Where the law of a Member State provides for the imposition of a sanction regarding minor offences by such an authority and                              there is either a right of appeal or the possibility for the case to be otherwise referred to a court having jurisdiction                              in criminal matters, this Directive should therefore apply only to the proceedings before that court following such an appeal                              or referral.

(17)In some Member States certain minor offences, in particular minor traffic offences, minor offences in relation to general                              municipal regulations and minor public order offences, are considered to be criminal offences. In such situations, it would                              be unreasonable to require that the competent authorities ensure all the rights under this Directive. Where the law of a Member                              State provides in respect of minor offences that deprivation of liberty cannot be imposed as a sanction, this Directive should                              therefore apply only to the proceedings before a court having jurisdiction in criminal matters.

(18)The scope of application of this Directive in respect of certain minor offences should not affect the obligations of Member                              States under the ECHR to ensure the right to a fair trial including obtaining legal assistance from a lawyer.

(19)Member States should ensure that suspects or accused persons have the right of access to a lawyer without undue delay in accordance                              with this Directive. In any event, suspects or accused persons should be granted access to a lawyer during criminal proceedings                              before a court, if they have not waived that right.

(20)For the purposes of this Directive, questioning does not include preliminary questioning by the police or by another law enforcement                              authority the purpose of which is to identify the person concerned, to verify the possession of weapons or other similar safety                              issues or to determine whether an investigation should be started, for example in the course of a road-side check, or during                              regular random checks when a suspect or accused person has not yet been identified.

(21)Where a person other than a suspect or accused person, such as a witness, becomes a suspect or accused person, that person                              should be protected against self-incrimination and has the right to remain silent, as confirmed by the case-law of the European                              Court of Human Rights. This Directive therefore makes express reference to the practical situation where such a person becomes                              a suspect or accused person during questioning by the police or by another law enforcement authority in the context of criminal                              proceedings. Where, in the course of such questioning, a person other than a suspect or accused person becomes a suspect or                              accused person, questioning should be suspended immediately. However, questioning may be continued if the person concerned                              has been made aware that he or she is a suspect or accused person and is able to fully exercise the rights provided for in                              this Directive.

(22)Suspects or accused persons should have the right to meet in private with the lawyer representing them. Member States may                              make practical arrangements concerning the duration and frequency of such meetings, taking into account the circumstances                              of the proceedings, in particular the complexity of the case and the procedural steps applicable. Member States may also make                              practical arrangements to ensure safety and security, in particular of the lawyer and of the suspect or accused person, in                              the place where such a meeting is conducted. Such practical arrangements should not prejudice the effective exercise or essence                              of the right of suspects or accused persons to meet their lawyer.

(23)Suspects or accused persons should have the right to communicate with the lawyer representing them. Such communication may                              take place at any stage, including before any exercise of the right to meet that lawyer. Member States may make practical                              arrangements concerning the duration, frequency and means of such communication, including concerning the use of videoconferencing                              and other communication technology in order to allow such communications to take place. Such practical arrangements should                              not prejudice the effective exercise or essence of the right of suspects or accused persons to communicate with their lawyer.

(24)In respect of certain minor offences, this Directive should not prevent Member States from organising the right of suspects                              or accused persons to have access to a lawyer by telephone. However, limiting the right in this way should be restricted to                              cases where a suspect or accused person will not be questioned by the police or by another law enforcement authority.

(25)Member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate                              effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court                              hearings. Such participation should be in accordance with any procedures under national law which may regulate the participation                              of a lawyer during questioning of the suspect or accused person by the police or by another law enforcement or judicial authority,                              including during court hearings, provided that such procedures do not prejudice the effective exercise and essence of the                              right concerned. During questioning by the police or by another law enforcement or judicial authority of the suspect or accused                              person or in a court hearing, the lawyer may, inter alia, in accordance with such procedures, ask questions, request clarification                              and make statements, which should be recorded in accordance with national law.

(26)Suspects or accused persons have the right for their lawyer to attend investigative or evidence-gathering acts, insofar as                              they are provided for in the national law concerned and in so far as the suspects or accused persons are required or permitted                              to attend. Such acts should at least include identity parades, at which the suspect or accused person figures among other                              persons in order to be identified by a victim or witness; confrontations, where a suspect or accused person is brought together                              with one or more witnesses or victims where there is disagreement between them on important facts or issues; and reconstructions                              of the scene of a crime in the presence of the suspect or accused person, in order to better understand the manner and circumstances                              under which a crime was committed and to be able to ask specific questions to the suspect or accused person. Member States                              may make practical arrangements concerning the presence of a lawyer during investigative or evidence-gathering acts. Such                              practical arrangements should not prejudice the effective exercise and essence of the rights concerned. Where the lawyer is                              present during an investigative or evidence-gathering act, this should be noted using the recording procedure in accordance                              with the law of the Member State concerned.

(27)Member States should endeavour to make general information available, for instance on a website or by means of a leaflet that                              is available at police stations, to facilitate the obtaining of a lawyer by suspects or accused persons. However, Member States                              would not need to take active steps to ensure that suspects or accused persons who are not deprived of liberty will be assisted                              by a lawyer if they have not themselves arranged to be assisted by a lawyer. The suspect or accused person concerned should                              be able freely to contact, consult and be assisted by a lawyer.

(28)Where suspects or accused persons are deprived of liberty, Member States should make the necessary arrangements to ensure                              that such persons are in a position to exercise effectively the right of access to a lawyer, including by arranging for the                              assistance of a lawyer when the person concerned does not have one, unless they have waived that right. Such arrangements                              could imply, inter alia, that the competent authorities arrange for the assistance of a lawyer on the basis of a list of available                              lawyers from which the suspect or accused person could choose. Such arrangements could include those on legal aid if applicable.

(29)The conditions in which suspects or accused persons are deprived of liberty should fully respect the standards set out in                              the ECHR, in the Charter, and in the case-law of the Court of Justice of the European Union (the Court of Justice) and of                              the European Court of Human Rights. When providing assistance under this Directive to a suspect or to an accused person who                              is deprived of liberty, the lawyer concerned should be able to raise a question with the competent authorities regarding the                              conditions in which that person is deprived of liberty.

(30)In cases of geographical remoteness of the suspect or accused person, such as in overseas territories or where the Member                              State undertakes or participates in military operations outside its territory, Member States are permitted to derogate temporarily                              from the right of the suspect or accused person to have access to a lawyer without undue delay after deprivation of liberty.                              During such a temporary derogation, the competent authorities should not question the person concerned or carry out any of                              the investigative or evidence-gathering acts provided for in this Directive. Where immediate access to a lawyer is not possible                              because of the geographical remoteness of the suspect or accused person, Member States should arrange for communication via                              telephone or video conference unless this is impossible.

(31)Member States should be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase when                              there is a need, in cases of urgency, to avert serious adverse consequences for the life, liberty or physical integrity of                              a person. During a temporary derogation on that ground, the competent authorities may question suspects or accused persons                              without the lawyer being present, provided that they have been informed of their right to remain silent and can exercise that                              right, and provided that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination.                              Questioning may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to                              avert serious adverse consequences for the life, liberty or physical integrity of a person. Any abuse of this derogation would                              in principle irretrievably prejudice the rights of the defence.

(32)Member States should also be permitted to derogate temporarily from the right of access to a lawyer in the pre-trial phase                              where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings,                              in particular to prevent destruction or alteration of essential evidence, or to prevent interference with witnesses. During                              a temporary derogation on that ground, the competent authorities may question suspects or accused persons without a lawyer                              being present, provided that they have been informed of their right to remain silent and can exercise that right, and provided                              that such questioning does not prejudice the rights of the defence, including the privilege against self-incrimination. Questioning                              may be carried out for the sole purpose and to the extent necessary to obtain information that is essential to prevent substantial                              jeopardy to criminal proceedings. Any abuse of this derogation would in principle irretrievably prejudice the rights of the                              defence.

(33)Confidentiality of communication between suspects or accused persons and their lawyer is key to ensuring the effective exercise                              of the rights of the defence and is an essential part of the right to a fair trial. Member States should therefore respect                              the confidentiality of meetings and other forms of communication between the lawyer and the suspect or accused person in the                              exercise of the right of access to a lawyer provided for in this Directive, without derogation. This Directive is without                              prejudice to procedures that address the situation where there are objective and factual circumstances giving rise to the                              suspicion that the lawyer is involved with the suspect or accused person in a criminal offence. Any criminal activity on the                              part of a lawyer should not be considered to be legitimate assistance to suspects or accused persons within the framework                              of this Directive. The obligation to respect confidentiality not only implies that Member States should refrain from interfering                              with or accessing such communication but also that, where suspects or accused persons are deprived of liberty or otherwise                              find themselves in a place under the control of the State, Member States should ensure that arrangements for communication                              uphold and protect confidentiality. This is without prejudice to any mechanisms that are in place in detention facilities                              with the purpose of avoiding illicit enclosures being sent to detainees, such as screening correspondence, provided that such                              mechanisms do not allow the competent authorities to read the communication between suspects or accused persons and their                              lawyer. This Directive is also without prejudice to procedures under national law according to which forwarding correspondence                              may be rejected if the sender does not agree to the correspondence first being submitted to a competent court.

(34)This Directive should be without prejudice to a breach of confidentiality which is incidental to a lawful surveillance operation                              by competent authorities. This Directive should also be without prejudice to the work that is carried out, for example, by                              national intelligence services to safeguard national security in accordance with Article 4(2) of the Treaty on European Union                              (TEU) or that falls within the scope of Article 72 TFEU, pursuant to which Title V on an area of Freedom, Security and Justice                              must not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and                              order and the safeguarding of internal security.

(35)Suspects or accused persons who are deprived of liberty should have the right to have at least one person, such as a relative                              or an employer, nominated by them, informed of their deprivation of liberty without undue delay, provided that this does not                              prejudice the due course of the criminal proceedings against the person concerned or any other criminal proceedings. Member                              States may make practical arrangements in relation to the application of that right. Such practical arrangements should not                              prejudice the effective exercise and essence of the right. In limited, exceptional circumstances, however, it should be possible                              to derogate temporarily from that right when this is justified, in the light of the particular circumstances of the case,                              by a compelling reason as specified in this Directive. When the competent authorities envisage making such a temporary derogation                              in respect of a specific third person, they should firstly consider whether another third person, nominated by the suspect                              or accused person, could be informed of the deprivation of liberty.

(36)Suspects or accused persons should, while deprived of liberty, have the right to communicate without undue delay with at least                              one third person, such as a relative, nominated by them. Member States may limit or defer the exercise of that right in view                              of imperative requirements or proportionate operational requirements. Such requirements could include, inter alia, the need                              to avert serious adverse consequences for the life, liberty or physical integrity of a person, the need to prevent prejudice                              to criminal proceedings, the need to prevent a criminal offence, the need to await a court hearing, and the need to protect                              victims of crime. When the competent authorities envisage limiting or deferring the exercise of the right to communicate in                              respect of a specific third person, they should first consider whether the suspects or accused persons could communicate with                              another third person nominated by them. Member States may make practical arrangements concerning the timing, means, duration                              and frequency of communication with third persons, taking account of the need to maintain good order, safety and security                              in the place where the person is being deprived of liberty.

(37)The right of suspects and accused persons who are deprived of liberty to consular assistance is enshrined in Article 36 of                              the 1963 Vienna Convention on Consular Relations where it is a right conferred on States to have access to their nationals.                              This Directive confers a corresponding right on suspects or accused persons who are deprived of liberty, subject to their                              wishes. Consular protection may be exercised by diplomatic authorities where such authorities act as consular authorities.

(38)Member States should clearly set out in their national law the grounds and criteria for any temporary derogations from the                              rights granted under this Directive, and they should make restricted use of those temporary derogations. Any such temporary                              derogations should be proportional, should be strictly limited in time, should not be based exclusively on the type or the                              seriousness of the alleged offence, and should not prejudice the overall fairness of the proceedings. Member States should                              ensure that where a temporary derogation has been authorised under this Directive by a judicial authority which is not a judge                              or a court, the decision on authorising the temporary derogation can be assessed by a court, at least during the trial stage.

(39)Suspects or accused persons should be able to waive a right granted under this Directive provided that they have been given                              information about the content of the right concerned and the possible consequences of waiving that right. When providing such                              information, the specific conditions of the suspects or accused persons concerned should be taken into account, including                              their age and their mental and physical condition.

(40)A waiver and the circumstances in which it was given should be noted using the recording procedure in accordance with the                              law of the Member State concerned. This should not lead to any additional obligation for Member States to introduce new mechanisms                              or to any additional administrative burden.

(41)Where a suspect or accused person revokes a waiver in accordance with this Directive, it should not be necessary to proceed                              again with questioning or any procedural acts that have been carried out during the period when the right concerned was waived.

(42)Persons subject to a European arrest warrant (‘requested persons’) should have the right of access to a lawyer in the executing                              Member State in order to allow them to exercise their rights effectively under Framework Decision 2002/584/JHA. Where a lawyer                              participates in a hearing of a requested person by an executing judicial authority, that lawyer may, inter alia, in accordance                              with procedures provided for under national law, ask questions, request clarification and make statements. The fact that the                              lawyer has participated in such a hearing should be noted using the recording procedure in accordance with the law of the                              Member State concerned.

(43)Requested persons should have the right to meet in private with the lawyer representing them in the executing Member State.                              Member States may make practical arrangements concerning the duration and frequency of such meetings, taking into account                              the particular circumstances of the case. Member States may also make practical arrangements to ensure safety and security,                              in particular of the lawyer and of the requested person, in the place where the meeting between the lawyer and the requested                              person is conducted. Such practical arrangements should not prejudice the effective exercise and essence of the right of requested                              persons to meet with their lawyer.

(44)Requested persons should have the right to communicate with the lawyer representing them in the executing Member State. It                              should be possible for such communication to take place at any stage, including before any exercise of the right to meet with                              the lawyer. Member States may make practical arrangements concerning the duration, frequency and means of communication between                              requested persons and their lawyer, including concerning the use of videoconferencing and other communication technology in                              order to allow such communications to take place. Such practical arrangements should not prejudice the effective exercise                              and essence of the right of requested persons to communicate with their lawyer.

(45)Executing Member States should make the necessary arrangements to ensure that requested persons are in a position to exercise                              effectively their right of access to a lawyer in the executing Member State, including by arranging for the assistance of                              a lawyer when requested persons do not have one, unless they have waived that right. Such arrangements, including those on                              legal aid if applicable, should be governed by national law. They could imply, inter alia, that the competent authorities                              arrange for the assistance of a lawyer on the basis of a list of available lawyers from which requested persons could choose.

(46)Without undue delay after being informed that a requested person wishes to appoint a lawyer in the issuing Member State, the                              competent authority of that Member State should provide the requested person with information to facilitate the appointment                              of a lawyer in that Member State. Such information could, for example, include a current list of lawyers, or the name of a                              lawyer on duty in the issuing State, who can provide information and advice in European arrest warrant cases. Member States                              could request that the appropriate bar association draw up such a list.

(47)The surrender procedure is crucial for cooperation in criminal matters between the Member States. Observance of the time-limits                              contained in Framework Decision 2002/584/JHA is essential for such cooperation. Therefore, while requested persons should                              be able to exercise fully their rights under this Directive in European arrest warrant proceedings, those time-limits should                              be respected.

(48)Pending a legislative act of the Union on legal aid, Member States should apply their national law in relation to legal aid,                              which should be in line with the Charter, the ECHR and the case-law of the European Court of Human Rights.

(49)In accordance with the principle of effectiveness of Union law, Member States should put in place adequate and effective remedies                              to protect the rights that are conferred upon individuals by this Directive.

(50)Member States should ensure that in the assessment of statements made by suspects or accused persons or of evidence obtained                              in breach of their right to a lawyer, or in cases where a derogation from that right was authorised in accordance with this                              Directive, the rights of the defence and the fairness of the proceedings are respected. In this context, regard should be                              had to the case-law of the European Court of Human Rights, which has established that the rights of the defence will, in principle,                              be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are                              used for a conviction. This should be without prejudice to the use of statements for other purposes permitted under national                              law, such as the need to execute urgent investigative acts to avoid the perpetration of other offences or serious adverse                              consequences for any person or related to an urgent need to prevent substantial jeopardy to criminal proceedings where access                              to a lawyer or delaying the investigation would irretrievably prejudice the ongoing investigations regarding a serious crime.                              Further, this should be without prejudice to national rules or systems regarding admissibility of evidence, and should not                              prevent Member States from maintaining a system whereby all existing evidence can be adduced before a court or a judge, without                              there being any separate or prior assessment as to admissibility of such evidence.

(51)The duty of care towards suspects or accused persons who are in a potentially weak position underpins a fair administration                              of justice. The prosecution, law enforcement and judicial authorities should therefore facilitate the effective exercise by                              such persons of the rights provided for in this Directive, for example by taking into account any potential vulnerability                              that affects their ability to exercise the right of access to a lawyer and to have a third party informed upon deprivation                              of liberty, and by taking appropriate steps to ensure those rights are guaranteed.

(52)This Directive upholds the fundamental rights and principles recognised by the Charter, including the prohibition of torture                              and inhuman and degrading treatment, the right to liberty and security, respect for private and family life, the right to                              the integrity of the person, the rights of the child, integration of persons with disabilities, the right to an effective                              remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. This Directive should be                              implemented in accordance with those rights and principles.

(53)Member States should ensure that the provisions of this Directive, where they correspond to rights guaranteed by the ECHR,                              are implemented consistently with those of the ECHR and as developed by case-law of the European Court of Human Rights.

(54)This Directive sets minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher                              level of protection. Such higher level of protection should not constitute an obstacle to the mutual recognition of judicial                              decisions that those minimum rules are designed to facilitate. The level of protection should never fall below the standards                              provided by the Charter or by the ECHR, as interpreted by the case-law of the Court of Justice and of the European Court of                              Human Rights.

(55)This Directive promotes the rights of children and takes into account the Guidelines of the Council of Europe on child friendly                              justice, in particular its provisions on information and advice to be given to children. This Directive ensures that suspects                              and accused persons, including children, are provided with adequate information to understand the consequences of waiving                              a right under this Directive and that any such waiver is made voluntarily and unequivocally. Where the suspect or accused                              person is a child, the holder of parental responsibility should be notified as soon as possible after the child’s deprivation                              of liberty and should be provided with the reasons therefor. If providing such information to the holder of parental responsibility                              is contrary to the best interests of the child, another suitable adult such as a relative should be informed instead. This                              should be without prejudice to provisions of national law which require that any specified authorities, institutions or individuals,                              in particular those that are responsible for the protection or welfare of children, should be informed of the deprivation                              of liberty of a child. Member States should refrain from limiting or deferring the exercise of the right to communicate with                              a third party in respect of suspects or accused persons who are children and who are deprived of liberty, save in the most                              exceptional circumstances. Where a deferral is applied the child should, however, not be held incommunicado and should be                              permitted to communicate, for example with an institution or an individual responsible for the protection or welfare of children.

(56)In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory                              documents(8), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one                              or more documents explaining the relationship between the components of a directive and the corresponding parts of national                              transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be                              justified.

(57)Since the objectives of this Directive, namely setting common minimum rules for the right of access to a lawyer in criminal                              proceedings and in European arrest warrant proceedings and the right to have a third person informed of the deprivation of                              liberty and to communicate with third persons and with consular authorities while deprived of liberty, cannot be sufficiently                              achieved by the Member States, but can rather, by reason of the scale of the measure, be better achieved at Union level, the                              Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with                              the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order                              to achieve those objectives.

(58)In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the                              Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU and without prejudice to Article 4 of that Protocol,                              those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

(59)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark                              is not taking part in the adoption of this Directive, and is not bound by it or subject to its application,

HAVE ADOPTED THIS DIRECTIVE:

## Article 1U.K.Subject matter

This Directive lays down minimum rules concerning the rights of suspects and accused persons in criminal proceedings and of                     persons subject to proceedings pursuant to Framework Decision 2002/584/JHA (‘European arrest warrant proceedings’) to have                     access to a lawyer, to have a third party informed of the deprivation of liberty and to communicate with third persons and                     with consular authorities while deprived of liberty.                  

## Article 2U.K.Scope

1.This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the                        competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having                        committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of                        the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person                        has committed the offence, including, where applicable, sentencing and the resolution of any appeal.                  

2.This Directive applies to persons subject to European arrest warrant proceedings (requested persons) from the time of their                        arrest in the executing Member State in accordance with Article 10.                  

3.This Directive also applies, under the same conditions as provided for in paragraph 1, to persons other than suspects or accused                        persons who, in the course of questioning by the police or by another law enforcement authority, become suspects or accused                        persons.                  

4.Without prejudice to the right to a fair trial, in respect of minor offences:                  

(a)where the law of a Member State provides for the imposition of a sanction by an authority other than a court having jurisdiction                        in criminal matters, and the imposition of such a sanction may be appealed or referred to such a court; or                  

(b)where deprivation of liberty cannot be imposed as a sanction;                  

this Directive shall only apply to the proceedings before a court having jurisdiction in criminal matters.

In any event, this Directive shall fully apply where the suspect or accused person is deprived of liberty, irrespective of                     the stage of the criminal proceedings.                  

## Article 3U.K.The right of access to a lawyer in criminal proceedings

1.Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such                        a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.                  

2.Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall                        have access to a lawyer from whichever of the following points in time 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                        in accordance with point (c) of paragraph 3;                  

(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.                  

3.The right of access to a lawyer shall entail the following:                  

(a)Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer                        representing them, including prior to questioning by the police or by another law enforcement or judicial authority;                  

(b)Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate                        effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such                        procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during                        questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with                        the law of the Member State concerned;                  

(c)Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend                        the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect                        or accused person is required or permitted to attend the act concerned:                  

identity parades;

confrontations;

reconstructions of the scene of a crime.

4.Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or                        accused persons.                  

Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary                     arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively                     their right of access to a lawyer, unless they have waived that right in accordance with Article 9.                  

5.In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application                        of point (c) of paragraph 2 where the geographical remoteness of a suspect or accused person makes it impossible to ensure                        the right of access to a lawyer without undue delay after deprivation of liberty.                  

6.In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application                        of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case,                        on the basis of one of the following compelling reasons:                  

(a)where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;                  

(b)where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.                  

## Article 4U.K.Confidentiality

Member States shall respect the confidentiality of communication between suspects or accused persons and their lawyer in the                     exercise of the right of access to a lawyer provided for under this Directive. Such communication shall include meetings,                     correspondence, telephone conversations and other forms of communication permitted under national law.                  

## Article 5U.K.The right to have a third person informed of the deprivation of liberty

1.Member States shall ensure that suspects or accused persons who are deprived of liberty have the right to have at least one                        person, such as a relative or an employer, nominated by them, informed of their deprivation of liberty without undue delay                        if they so wish.                  

2.If the suspect or accused person is a child, Member States shall ensure that the holder of parental responsibility of the                        child is informed as soon as possible of the deprivation of liberty and of the reasons pertaining thereto, unless it would                        be contrary to the best interests of the child, in which case another appropriate adult shall be informed. For the purposes                        of this paragraph, a person below the age of 18 years shall be considered to be a child.                  

3.Member States may temporarily derogate from the application of the rights set out in paragraphs 1 and 2 where justified in                        the light of the particular circumstances of the case on the basis of one of the following compelling reasons:                  

(a)where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person;                  

(b)where there is an urgent need to prevent a situation where criminal proceedings could be substantially jeopardised.                  

4.Where Member States temporarily derogate from the application of the right set out in paragraph 2, they shall ensure that                        an authority responsible for the protection or welfare of children is informed without undue delay of the deprivation of liberty                        of the child.                  

## Article 6U.K.The right to communicate, while deprived of liberty, with third persons

1.Member States shall ensure that suspects or accused persons who are deprived of liberty have the right to communicate without                        undue delay with at least one third person, such as a relative, nominated by them.                  

2.Member States may limit or defer the exercise of the right referred to in paragraph 1 in view of imperative requirements or                        proportionate operational requirements.                  

## Article 7U.K.The right to communicate with consular authorities

1.Member States shall ensure that suspects or accused persons who are non-nationals and who are deprived of liberty have the                        right to have the consular authorities of their State of nationality informed of the deprivation of liberty without undue                        delay and to communicate with those authorities, if they so wish. However, where suspects or accused persons have two or more                        nationalities, they may choose which consular authorities, if any, are to be informed of the deprivation of liberty and with                        whom they wish to communicate.                  

2.Suspects or accused persons also have the right to be visited by their consular authorities, the right to converse and correspond                        with them and the right to have legal representation arranged for by their consular authorities, subject to the agreement                        of those authorities and the wishes of the suspects or accused persons concerned.                  

3.The exercise of the rights laid down in this Article may be regulated by national law or procedures, provided that such law                        or procedures enable full effect to be given to the purposes for which these rights are intended.                  

## Article 8U.K.General conditions for applying temporary derogations

1.Any temporary derogation under Article 3(5) or (6) or under Article 5(3) shall                  

(a)be proportionate and not go beyond what is necessary;                  

(b)be strictly limited in time;                  

(c)not be based exclusively on the type or the seriousness of the alleged offence; and                  

(d)not prejudice the overall fairness of the proceedings.                  

2.Temporary derogations under Article 3(5) or (6) may be authorised only by a duly reasoned decision taken on a case-by-case                        basis, either by a judicial authority, or by another competent authority on condition that the decision can be submitted to                        judicial review. The duly reasoned decision shall be recorded using the recording procedure in accordance with the law of                        the Member State concerned.                  

3.Temporary derogations under Article 5(3) may be authorised only on a case-by-case basis, either by a judicial authority, or                        by another competent authority on condition that the decision can be submitted to judicial review.                  

## Article 9U.K.Waiver

1.Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that,                        in relation to any waiver of a right referred to in Articles 3 and 10:                  

(a)the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and                        understandable language about the content of the right concerned and the possible consequences of waiving it; and                  

(b)the waiver is given voluntarily and unequivocally.                  

2.The waiver, which can be made in writing or orally, shall be noted, as well as the circumstances under which the waiver was                        given, using the recording procedure in accordance with the law of the Member State concerned.                  

3.Member States shall ensure that suspects or accused persons may revoke a waiver subsequently at any point during the criminal                        proceedings and that they are informed about that possibility. Such a revocation shall have effect from the moment it is made.                  

## Article 10U.K.The right of access to a lawyer in European arrest warrant proceedings

1.Member States shall ensure that a requested person has the right of access to a lawyer in the executing Member State upon                        arrest pursuant to the European arrest warrant.                  

2.With regard to the content of the right of access to a lawyer in the executing Member State, requested persons shall have                        the following rights in that Member State:                  

(a)the right of access to a lawyer in such time and in such a manner as to allow the requested persons to exercise their rights                        effectively and in any event without undue delay from deprivation of liberty;                  

(b)the right to meet and communicate with the lawyer representing them;                  

(c)the right for their lawyer to be present and, in accordance with procedures in national law, participate during a hearing                        of a requested person by the executing judicial authority. Where a lawyer participates during the hearing this shall be noted                        using the recording procedure in accordance with the law of the Member State concerned.                  

3.The rights provided for in Articles 4, 5, 6, 7, 9, and, where a temporary derogation under Article 5(3) is applied, in Article                        8, shall apply, *mutatis mutandis*, to European arrest warrant proceedings in the executing Member State.                  

4.The competent authority in the executing Member State shall, without undue delay after deprivation of liberty, inform requested                        persons that they have the right to appoint a lawyer in the issuing Member State. The role of that lawyer in the issuing Member                        State is to assist the lawyer in the executing Member State by providing that lawyer with information and advice with a view                        to the effective exercise of the rights of requested persons under Framework Decision 2002/584/JHA.                  

5.Where requested persons wish to exercise the right to appoint a lawyer in the issuing Member State and do not already have                        such a lawyer, the competent authority in the executing Member State shall promptly inform the competent authority in the                        issuing Member State. The competent authority of that Member State shall, without undue delay, provide the requested persons                        with information to facilitate them in appointing a lawyer there.                  

6.The right of a requested person to appoint a lawyer in the issuing Member State is without prejudice to the time-limits set                        out in Framework Decision 2002/584/JHA or the obligation on the executing judicial authority to decide, within those time-limits                        and the conditions defined under that Framework Decision, whether the person is to be surrendered.                  

## Article 11U.K.Legal aid

This Directive is without prejudice to national law in relation to legal aid, which shall apply in accordance with the Charter                     and the ECHR.                  

## Article 12U.K.Remedies

1.Member States shall ensure that suspects or accused persons in criminal proceedings, as well as requested persons in European                        arrest warrant proceedings, have an effective remedy under national law in the event of a breach of the rights under this                        Directive.                  

2.Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal                        proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their                        right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights                        of the defence and the fairness of the proceedings are respected.                  

## Article 13U.K.Vulnerable persons

Member States shall ensure that the particular needs of vulnerable suspects and vulnerable accused persons are taken into                     account in the application of this Directive.                  

## Article 14U.K.Non-regression clause

Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that                     are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State                     which provides a higher level of protection.                  

## Article 15U.K.Transposition

1.Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive                        by 27 November 2016. They shall immediately inform the Commission thereof.                  

2.When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such                        a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the                        Member States.                  

3.Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered                        by this Directive.                  

## Article 16U.K.Report

The Commission shall, by 28 November 2019, submit a report to the European Parliament and to the Council, assessing the extent                     to which the Member States have taken the necessary measures in order to comply with this Directive, including an evaluation                     of the application of Article 3(6) in conjunction with Article 8(1) and (2), accompanied, if necessary, by legislative proposals.                  

## Article 17U.K.Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the *Official Journal of the European Union*.                  

## Article 18U.K.Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Strasbourg, 22 October 2013.

*For the European Parliament*                            

*The President*                            

M. Schulz                            

*For the Council*                            

*The President*                            

V. Leškevičius                            

1

OJ C 43, 15.2.2012, p. 51.                           

2

Position of the European Parliament of 10 September 2013 (not yet published in the Official Journal) and decision of the Council                              of 7 October 2013.                           

3

OJ C 295, 4.12.2009, p. 1.                           

4

OJ C 115, 4.5.2010, p. 1.                           

5

OJ L 280, 26.10.2010, p. 1.                           

6

OJ L 142, 1.6.2012, p. 1.                           

7

OJ L 190, 18.7.2002, p. 1.                           

8

OJ C 369, 17.12.2011, p. 14.