EN    EN EN
 
EN    EN  EUROPEAN COMMISSION 
Brussels, 8.6.2011 
SEC(2011) 686 final 
  
COMMISSION STAFF WORKING DOCUMENT 
IMPACT ASSESSMENT 
 
accompanying the 
Proposal for a  
DIRECTIVE OF THE EUROPEAN PARL IAMENT AND OF THE COUNCIL ON 
THE RIGHTS OF ACCESS TO A LAWY ER AND OF NOTIFICATION OF 
CUSTODY TO A THIRD PERSON IN CRIMINAL PROCEEDINGS 
COM(2011) 326 final 
SEC(2011) 687 final 
 
 
EN 2   EN COMMISSION STAFF WORKING PAPER 
IMPACT ASSESSMENT 
accompanying the 
Proposal for a  
DIRECTIVE OF THE EUROPEAN PARLIA MENT AND OF THE COUNCIL ON THE 
RIGHTS OF ACCESS TO A LAWYER AND OF NOTIFICATION OF CUSTODY TO A 
THIRD PERSON IN CRIMINAL PROCEEDINGS 
1. CONTENTS  
Section  Page 
1 Introduction 3 
2 Procedural issues and consultation of interested parties 3 
3 Problem definition 7 
4 Objectives 24 
5 Policy options 27 
6 Comparison of options 38 
7 The preferred option 30 
8 Transposition, monitoring and evaluation 42 
Annexes: I The Procedural Rights Roadmap  46 
 II: Country fiches 51 
 III: EU overview on the ri ght to access to a lawyer 156 
 IV: General statistics 163 
 V: Model calculations for Option 3 (preferred option) 165 
 VI: Model calculations for Option 4 (discarded) 168 
 VII: Overview of legal aid regimes in Member States 174 
 VIII: Overview of notification of  custody in Member States 177 
 
 
EN 3   EN INTRODUCTION  
The impact assessment is for a measure on the right to access to a lawyer1 for suspects and 
accused persons2 in criminal proceedings and the right of a suspect or accused person who is 
deprived of their liberty to have the fact of  their custody notified to a third person, most 
commonly a relative, employer or consular aut hority  This measure aims at setting minimum 
rules governing the provision of legal advice and notification of custody across the EU. This 
will not only strengthen the fair trial rights of suspects and accused but it will also ultimately 
benefit the overall quality of ju stice within the EU through improving judicial cooperation 
between its Member Countries.   
 
The right to an effective remedy and to a fair tria l, presumption of innocence and a right of defence 
are laid down in the Charter of Fundamental Rights of the European  Union in Articl e 47 and Article 
48 and have the same meaning and scope as the ri ghts guaranteed by Artic le 6(3) of the ECHR. 
Both the right of access to a lawyer and the ri ght to notification of custody provide formal 
safeguards against ill-treatment and thus protec t against a potential breach of Article 3 ECHR 
(prohibition of ill-treatment). The right to notification of custody promotes the right to respect for 
private and family life in Article 8 ECHR. Th e 1963 Vienna Convention on Consular Relations 
(VCCR)3 provides that on arrest or on detention a foreign national has the right to ask for his 
consulate to be informed of the detention and to receiv e visits from consular officials.  The 
existence of these common principles has proved not  to be sufficient to achieve the necessary level 
of mutual trust between Member States required  for smooth functioning of the area of freedom, 
security and justice. In fact, despite these comm on principles, there still exist divergent rules and 
practices leading to shortcomings with regard to the way in which these rights are applied by the 
Member States.    This impact assessment accompanies the Commission's proposal for a draft Directive on access to a lawyer.  
 
2. P
ROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES  
2.1. Policy context 
Insufficient levels of mutual trust between Member States' judicial authoriti es affect cooperation in 
criminal matters between them and is an obstacle to mutual rec ognition of judgments and judicial 
decisions in that field. Since th e 1999 adoption of the Tampere C onclusions, Member States have 
agreed that mutual recognition sh ould be the cornerstone of judi cial cooperation, that is, that 
judicial decisions taken in one Member State should be considered  as equivalent to each other 
wherever that decision is taken, and so enforceable anywhere in the EU. 
                                                 
1 Terminology explanation: for the purposes of this impact assessment access to a lawyer  will be used throughout to 
mean a right to legal advice and legal assistance. Legal advice  means the advice (written or oral) given by the lawyer to 
the suspect or accused, legal assistance  means the advice and other assistance given by the lawyer such as requesting 
documents, asking questions of the police or prosecutor and other tasks carried out for the benefit of the suspect or 
accused and legal aid  means the financial assistance pr ovided by the State to cover th e costs of the legal advice and 
legal assistance (i.e. the lawyer's fees). 
2 A suspect is someone who is suspected of having committed a criminal offence but has not yet been formally charged. 
An accused person is someone who has been  formally charged with an offence. Their rights are different according to 
their status. However, both categories are entitled to legal advice.  
3 United Nations, Treaty Series, vol. 596, p.261. 
 
EN 4   EN The Stockholm Programme (2010-2014) reiterates the importance of criminal judicial cooperation. 
A particular focus is on the rights of suspected  and accused persons in criminal proceedings. The 
programme calls for a thorough examination of the minimum procedural rights for accused and 
suspected persons which it refers to as a fundame ntal value of the Union. It is recognised that 
judicial cooperation needs to be founded on mutu al trust and confidence between the different 
judicial systems and the perception that the rights  of suspects and accused persons are not respected 
in every instance has a disproportiona tely detrimental effect  on mutual trust and, in turn, on judicial 
cooperation.4 In fact, the Lisbon Treaty st ates that the principle of mu tual recognition of judgements 
and judicial decisions should be facilitated by means of minimum rules on procedural rights. 
To increase mutual trust, and thus improve the operat ion of mutual recogn ition, in November 2009 
the Council of the European Union a dopted the Roadmap on Procedural Rights5 (Annex I, "the 
Roadmap") setting out a step-by-st ep approach to strengthening the rights of suspects and accused 
persons. This was incorporated  into the Stockholm Programme6 the following month (see section 
3.1).  
In the Roadmap, the Council invites the Commission to submit proposals on a number of 
measures to establish common minimum ru les for fair trial rights in the EU.  
Each measure will deal with a distinct procedural right or set of rights for suspects and 
accused persons as identified by Member States  and stakeholders alike as needing to be 
strengthened by action at EU level. Measures  may consist of binding legislation applying 
to every suspect in criminal proceedings in al l Member States, thus protecting EU citizens 
and third-country nationals alike in all ca ses including cross-borde r proceedings. Such 
legislation may clarify existing rights or even create new ones at EU level, but only in 
relation to the respective specific issue each meas ure is supposed to address. The rights of 
suspects and defendants throughout the EU will th erefore be strengthened step-by-step as 
set out below: 
 
Measures envisaged by the Commission as part of the Roadmap:  
- Translation and Interpretation (adopted on 7 October 2010)  
- Information on Rights and Information about the Charges (currently under negotiation between co- 
legislators)  
- Green Paper on Pre-Trial Detention  
- Access to a lawyer  and notification of custody  
 
- Special Safeguards for Suspected or Accused Persons who are Vulnerable7 
- Legal aid  
 
                                                 
4 ULB study: lack of trust: para 18 
5 2009/C 295/01 
6 'An open and secure Europe serving and protecting th e citizen' adopted December 2009. 
7 This measure will address the rights of juvenile and disa bled suspects and accused persons in criminal proceedings. 
 
EN 5   EN The measure covered by this Impact Assessment on access to a lawyer and the right to 
notification of custody relates to the measures on "legal a dvice and legal aid" of the 
Roadmap (measure C);which aims to improve th e situation of suspects by ensuring that 
these individuals receive proper access to qualified legal advice from the earliest stages of criminal proceedings, and to the measure on "communication with relatives, employers and 
consular authorities" (Measure D), which, in  conjunction with the right of access to a 
lawyer, is one of the important safeguards ag ainst ill-treatment of detained persons. . 
Following a broad consultation with Member St ates and stakeholders , it was decided to 
split  the Measure on "legal advice and legal aid" into two separate  measures, leaving the 
right to legal aid to a later, separate proposal. In accord ance with the personal scope of 
article 6 of the ECHR, this measure will cover also legal persons. 
Access to a lawyer  
Short explanation: The right to access to a lawyer for the suspected or accused person in 
criminal proceedings at the earliest appropriate stage of such proceedings is fundamental in 
order to safeguard his rights to a fair tria l and right of defence within the criminal 
proceedings.  
Notification of custody Short explanation:  The right to have the right of one's  detention notified to a third person 
as soon as possible after the deprivation of liber ty is fundamental as a safeguard against ill-
treatment of persons who have been deprived of their liberty and promotes the right to 
respect for private and family life. 
2.2. Chronology of the Impact Assessment 
2.2.1.  Consultation of stakeholders 
 
General principles and minimum standards for consu ltation of interested parties have been followed 
in relation to this initiative. Th e views of all major stakeholders and Member States were sought.   
 
Stakeholders were consulted on several occasions. The Commi ssion has regular and frequent 
contact with major stak eholders: the European Criminal Bar Association, the CCBE (Council of 
Bars and Law Societies of Europe), national Bar a ssociations, European Netw ork of Councils of the 
Judiciary, academics, NGOs such as  JUSTICE, Amnesty International and Fair Trials International. 
The Commission has been researching this area of criminal law for over 9 years. It issued a Green 
Paper on procedural safeguards in February 2003
8 and has been consulting interested parties ever 
since; it has thus accumulated a body of informa tion and views on what experts consider would 
promote fairer trials and greater mu tual trust between Member States.  
A Justice Forum9 meeting was held in July 2008 to can vas views on the Université Libre de 
Bruxelles (ULB) study on mutual recognition10 (see 2.2.2 (e) below). Most participants expressed 
their continuing wish to see legi slation at EU level on procedural  safeguards. There also was a 2-
day experts' meeting devoted to procedural righ ts in March 2009. An experts meeting devoted to 
                                                 
8 Green Paper on procedural safeguards, COM (2003) 75 of 19.2.2003 
9 The Justice Forum, an expert group convening European repr esentatives of all actors in the justice systems, including 
judges, prosecutors and defence lawyers, was constituted with  the aim of providing an arena in which the Commission 
could consult its stakeholders. It meets 4- 5 times a year for a themed discussion.  
10 "Analysis of the future of mutual recognition in criminal  matters in the European Union" by Gisèle Vernimmen-Van 
Tiggelen and Laura Surano (Call for tenders JLS/D3/2007/03 European Commission) – 20 November 2008  
 
EN 6   EN Measures on legal advice and on notification of custody (measures C and D) of the Roadmap was 
held in Brussels on 11 and 12 October 2010 with representatives of stakeholders and Member 
States.   Virtually all stakeholders, and in particular NGOs active in the field of civil rights a nd liberties as 
well as representatives of Lawyer s' Associations, have expressed very strong support for an EU 
initiative in this area. Most of them view shor tcomings in access to a lawyer as one of the most 
formidable hurdles to the proper functioning of j udicial cooperation and mutual recognition across 
the EU and underline the importance of notifica tion of custody as a safeguard against the ill-
treatment of suspects and accused persons who are deprived of their liberty. 
 
2.2.2.  Studies and publications  
The IA relies on the findings of five sepa rate studies carried out from 2007 to 2010
11 set out below 
in addition to information on notification of custody from the reports of the periodic country visits 
carried out by the Committee for the Prevention of Torture12  
(a) An external study to ga ther evidence for this IA wa s commissioned on 25 October 2010. The 
study, carried out by consultants CSES, focused on po licy options and costs of  the various options. 
(b) Under the JPEN (Criminal Justice) financ ial programme, the Commission funded a research 
project carried out by the German Federal Ministry of Justice and Maastricht University ("EU-Wide 
Letter of Rights in criminal proceedings: toward s best practice") review ing how suspects are 
informed about their rights in criminal proceedi ngs in the 27 Member States, and considering the 
feasibility of a model 'L etter of Rights' to be applicable throughout the EU13. The research team 
submitted a final report in July 2010 detailing existi ng Letters of Rights in Member States that use 
them. 
(c) In 2009, researchers from Maastricht and Ghent Universities carried out a comprehensive review 
of procedural rights in the EU14 for the Commission. The study identif ied current practice as regards 
access to lawyers for suspects and accuse d persons in all Member States.  
(d) "Effective Criminal Defence Rights in Europe ", a study funded under the JPEN Programme, is a 
joint initiative of JUST ICE, the University of the West of England, the Open Society Justice 
Initiative and Maastricht Univer sity. It was carried out over a 3 year period (2007-2010) and 
provides empirical information on the extent to whic h procedural rights that are indispensable for an 
effective defence, such as the right to informati on, are provided in practice in 8 EU Member States 
and one accession country (Turkey). Results from th e study were used as part of this impact 
assessment15. 
(e) The "Analysis of the future of  mutual recognition in criminal matters in the European Union",16  
carried out by ULB involved national experts carry ing out research in their home Member State 
                                                 
11 Additional sources of information used in preparin g this Impact Assessment are provided in the annexes 
12 http://www.cpt.coe.int/en/visits.htm 
13 JLS/2008/JPEN/032  
14 EU procedural rights in cr iminal proceedings – Taru Spronken, Gert Vermeulen, Dorris de Vocht, Laurens Van 
Puyenbroeck – JLS/2008/D3/002. 
15 The research project covers nine countries: Poland, Hunga ry, Belgium, France, Italy, Germany, England and Wales 
and Finland and an accession state (Tur key). "Effective Criminal Defence in Europe" by Ed Cape, Zaza Namoradze, 
Roger Smith and Taru Spronken.  16 "Analysis of the future of mutual recognition in criminal  matters in the European Union" by Gisèle Vernimmen-Van 
Tiggelen and Laura Surano (Call for tenders JLS/D3/2007/03 European Commission) – 20 November 2008
 
 
EN 7   EN through in-depth interviews and questionnaires with  practitioners, civil servants of ministries of 
justice responsible for negotiatio n and transposition of mutual re cognition instruments, judges, 
defence lawyers, liaison magistra tes and prosecutors. The report f ound that defence rights had been 
neglected in the development of mutual recognition. Levels of trust between Member States were 
not sufficient and the EU was encouraged to do mo re to redress the balance between facilitating 
prosecution and protecting the right s of suspects and accused persons. 
 
 2.2.3. Internal consultation and sc rutiny of the Im pact Assessment 
An Interservice Impact Assessment Steering Gr oup was created involving representatives from 
DGT, DG SCIC, DG COMP, DG MARKT, DG R ELEX, DG ELARG, OLAF, the Legal Service 
and the Secretariat-General. An  IASG meeting was held on 1st February 2011. At the meeting and 
in subsequent communication with individual DGs, comprehensive feedback was received which 
has been taken into account thr oughout this report (Annex VI). 
This Impact Assessment was examined by the European Commission's Impact Assessment Board 
on 23 March 2011. Further to the IAB's recommendati ons, additional information, explanations and 
data were introduced in this document. In partic ular, the presentation of the policy options 3 and 4 
has been improved, in order to show the status quo in Member States and the viability of both 
options. In addition, clarif ications have been added on the cost of th e base line option, which relates 
to the need for Member States to comply with the jurisprudence of the ECtHR.   The calculation of 
costs for Member States stemming from options  3 and 4 have been refined, by removing the 
reference to average Member State and by providing instead examples of cost for different groups 
of Member States. Lastly, the view s of stakeholders have been bette r explained and reflected across 
the document. 
 
3. 3. PROBLEM DEFINITION   
Despite the existence of common principles and minimum standards stemmi ng both from the ECHR 
and the EU Charter, provisions governing access to a lawyer and notification of custody vary 
significantly from one Member St ate to another. Moreover, the cr iminal justice procedure of a 
significant number of Member States has seriou s shortcomings even when measured against these 
minimums criteria for access to lawyers and notification of custody. 
This lack of adequate standards af fects the overall quality of jus tice within the EU and undermines 
judicial cooperation between Me mber States. If judicial authorities have doubts about the 
compliance with fair trial rights (and in particular with the pivotal right of access to a lawyer) and 
protection against ill-treat ment in custody in anoth er jurisdiction, they may be unwilling to execute 
requests for judicial coope ration emanating from that jurisdicti on, e.g. to order the surrender of a 
suspect or the sending of evi dence for use in a trial.    
Insufficient standards across Memb er States are also detrimenta l to the protection of accused 
persons' and suspects' fundamental ri ghts, as proper access to a law yer and notification of custody 
is essential in order to secure all other fair trial rights as well as to prevent intimidation including 
threat and abuse, notably by police staff in the crucial period imme diately following arrest.     
 
Before addressing the specific problem as it rela tes to the right to access to a lawyer and 
notification of custody, this sect ion will deal with the general problem as it permeates all 
the measures envisaged in the Roadmap. 
 
 
EN 8   EN 3.1 The general problem  
 3.1.1  Insufficient mutual trust between Member States 
Evidence17 and consultation18 point to the problem of insufficie nt mutual trust between judicial 
authorities. Judges and prosecutors throughout the EU  have argued that this must be addressed. 
They stress that the difficulties in the application of EU cooperation measures can be felt in day to 
day practice but are not always translated into a higher number of refusals to surrender persons 
requested under European Arrest Warrants. 
 
3.1.2 Insufficient level of protection of f undamental rights in criminal proceedings 
The need to facilitate prosecution and enforcem ent of sentences while protecting fundamental 
procedural rights of the individual was alread y highlighted by the Commission proposal for EU 
legislation put forward in 2004.19  However, discussions on procedur al rights within the EU had, for 
many years, not led to any concrete results.   
The Commission has a mandate to act on a series of measures, which,  taken together, will create a 
high standard of fundamental ri ghts going well beyond the protecti on currently offered by Arts 5 
and 6 ECHR. Taking this course will also give a sp ecific EU meaning to the fair trial safeguards 
enshrined in Arts 47 and 48 of the EU Charter. 
As a first step, on October 2010, the Council of th e European Union adopted the Directive 2010/64 
on the right to interpretation and translation in criminal proceedi ngs. The second measure envisaged 
in the Roadmap, concerning the right to informati on in criminal proceedings, is being currently 
negotiated by the co-legislators a nd its adoption is expected during 2011. 
The introduction of minimum rules across the EU  by implementation of the Procedural Rights 
Roadmap, therefore, will reassure citizens of the quality of the cr iminal justice system of all 
Member States.  
In addition, the strengthening of fair trial standards will reinfo rce the image of the EU on the 
world's stage as standard-setter on f undamental rights and the rule of law20.  
 
3.2 The specific problem: insufficient access to  a lawyer and notification of custody 
 
Currently, no adequate and properly enforced sta ndards govern the provision of access to a lawyer 
                                                 
17 ULB study, para 18. This assessment is supported by testimony of European Judicial Network members.  
18 Justice Forum July 2008. 
19 Proposal for a Council Framework Decisi on on certain procedural rights in cr iminal proceedings throughout the EU, 
COM (2004) 328 of 28 April 2004. 
20 The new harmonised minimum standards will also be part of the benchmarks (OT would like to have it reformulated 
so as to avoid against) against which candidate countries and potential candidate countries will have to measure their 
legislation if they are to enter the Union. Therefore, action in this field will have a positive impact on the functioning of 
justice in, and on the human rights record of, countries which are at the moment not members of the EU but which 
aspire to future membership. This may in turn exert pre ssure to raise standards in third countries further afield, 
whenever these States look at neighbouring (candidate) countries for standard-setting, spontaneously or as a 
consequence of bilateral treaties which so require. 
 
EN 9   EN and notification of custody across the EU. This entails adverse e ffects for judicial cooperation 
between Member States , wh ich is the main problem ( Problem A ) Adverse effects exist also for the 
fundamental right of suspect and accuse d persons (the additional problem, or Problem B )   
 
• Problem A:  Lack of adequate and consistent standards as regards access to lawyers and 
notification of custody weakens tr ust between judges and prosecutors  of different Member States 
as divergences in practice and a number of high profile cases have damaged the perception of 
justice in certain Member States . In practice this means that judges may hesitate to agree to 
judicial cooperation requests from other Member  States whose criminal procedure has showed 
serious shortcomings with regard to access to a lawyer and notification of custody. The situation 
will become exacerbated as more mutual recogniti on instruments become applicable in Member 
States, following on from the European Arrest Warrant ( see section 3.2.1 ). 
 
• Problem B: Failure to provide proper access to legal ad vice may render the criminal proceedings 
unfair and jeopardize the other suspects/accused defen ce rights as such access is a recognised fair 
trial guarantee which together with  the right of notific ation of custody  serv es as a preventative 
measure against abuse and forced confessions ( see section 3.2.2 ). 
 
• Both these two problems  should be considered on the basis of five parameters  (see section 3.3 ) 
 
The EU Charter of Fundamental Rights, in ca ses when EU law is applied and the ECHR, 
are not enough to redress the situation for various reasons  set out in this Impact 
Assessment ( see section 3.4 ) 
 
 
3.2.1 Problem A : Adverse effects on judicial coop eration between Member States 
 
Instances of failure to provide prompt access to expe rt legal advice and to have the fact of detention 
notified to a third party undermine tr ust in the fairness of criminal  proceedings conducted in other 
Member States. Perceptions of pot ential unfairness hamper cooperation in criminal matters between 
Member States which cooperation is  based on mutual recognition of judicial decisions across the 
EU because in order for mutual cooperation measures  to be fully effective, judges and others must 
have trust and confidence in  the quality of justice available in the criminal justice systems of other 
Member States. This can affect th e application of mutual recogniti on instruments, for instance the 
European Arrest Warrant, under which a Member St ate is expected to surrender suspects or 
convicted persons, including its nationals, rapidly a nd without examination of the case file, for trial 
or to serve a custodial sentence in another Member State. Stakehol ders, and in particular EU-wide 
associations of lawyers such as the ECBA and the CCBE and associations representing judges and 
prosecutors (but also NGOs such as Justice or Open Society), have been  drawing the Commission's 
attention to the link between lack of minimum standa rds for fair trial rights at EU level and the sub-
optimal functioning of judici al cooperation in the EU. 
All instruments aiming to facilit ate judicial cooperation between Member States rely on the 
principle of mutual recognition: a decision of a cour t in one Member State (the issuing state), such 
as an arrest warrant or a final judgment impo sing a prison sentence, shall be recognised and 
enforced by the courts of another Member State (t he executing state) and treated as equivalent to 
their own decisions, i.e. without any further re view of the decision or  any lengthy recognition 
 
EN 10   EN proceedings. Such quasi-automatic mutual recogn ition presupposes mutual trust between judges and 
courts throughout the EU in the fa irness of criminal proceedings an d the lawfulness of the decisions 
to be enforced. Thus Member State courts have already refused to execut e EAWs on account of a 
probable violation of the sought person's fair tr ial rights upon surrender to the issuing Member 
State.21 
This case illustrate that the pr ovision of prompt access to qualif ied legal advice from the earliest 
applicable stage of the criminal proceedings is cr ucial to safeguard the fairness of such proceedings. 
It will have therefore to be ensured that adequate EU-wide st andards are adopted to govern the 
provision of legal assistance and the consequences  of its violations across the EU. Only where 
judges throughout the EU can have the confidence th at all Member States provide suspects and 
accused persons with proper access to a qualified couns ellor, will these judges be inclined to order 
the execution or enforcement of a judicial deci sion taken in criminal proceedings in another 
Member State. 
But even where another Member State's court decision is eventually enforced by the courts in the 
executing Member State, the swift operation of j udicial cooperation instru ments can be hampered 
significantly. This is the case where the person s ought on the basis of an EAW appeals against a 
decision to recognise and execute the EAW and, ev entually, brings an a pplication against the 
Member State wishing to surrender him before ECtHR,  citing a likely infringement of his fair trial 
rights in the Member State seek ing his surrender. Appeals account  for significant costs (albeit 
difficult to quantify) in terms of docket backlog, delayed justic e and victims' dissatisfaction. 
Appeals to the ECtHR can cost Member States seve ral thousands of Euros pe r case only as concerns 
liquidated damages, without factoring in the legal fees of State attorneys and the reputational costs 
of a condemnation by the Cour t for the justice system. 
This risk is expected to be magnified when thos e mutual recognition measures adopted at EU level 
since the EAW Framework Decision22 have been implemented and when Member States seek to 
enforce freezing orders, financial pe nalties or the transfer of convi cted persons serving a custodial 
sentence to anothe r Member State.  
Insufficient or delayed access to a legal counsel is a common feature of cases that are known to 
have attracted media attention. These cases, although the exception rather than  the rule, are likely to 
have adverse effects on th e reputation of a Member State's criminal justice system as it only takes 
one high profile case to er ode trust and thus jeopardise judi cial cooperation. The NGO Fair Trials 
International (FTI) has reported that  even when the right to legal a ssistance exists in theory, it is 
sometimes not safeguarded in practice and that this can have serious consequences given the 
increasingly frequent use of inst ruments like the EAW. The CPT in it s contact with detainees in the 
course of its country visits has identified repeated  instances where although the right to notification 
of custody exists in statute, in pr actice it is not offered to  all detainees or offe red with considerable 
delays (often only after a certai n stage is reached – i.e. being brought before a judge) and they 
identified many instances where there is no feedback to the detainee in respect of the contact made with their nominee. 
 
 
                                                 
21 E.g. Case AU7667, Rechtbank Amsterdam  (judgment of 4 January 2006); Lisowski v Regional Court of Bialystok  
[2006] EWHC 3227 (Admin), High Court of England and Wales (judgment of 28 November 2006). Generally, it has to 
be noted, though, that the average refusal rate th roughout the EU currently stands at 4 to 8 %. 
22 Such as the Framework Decisions on Financial Penalties, Confiscation,  Freezing Orders, European Evidence 
Warrant, Transfer of Prisoners and European Supervision Order. 
 
EN 11   EN GARY MANN CASE 
This case provides ample illustration of the consequences that the lack of procedural safeguards, and in particular 
inadequate access to a lawyer, has on intra-EU judicial cooperation.  
Gary Mann, a 51 year old fireman from Kent went to Portugal during the Euro 2004 football tournament and was 
arrested on 15 June 2004 while he was w ith friends in a bar in Albufeira, and wh ile a riot took place in a nearby street. 
Together with several other football supporters he was tried the following day. All twelve defendants in the case were 
represented by only one lawyer. This, an d the lack of time before the hearin g, meant Mann was unable properly to 
instruct his lawyer. Furthermore, due to the quality of interpretation and translation provided he was unable to 
understand or participate in the proceedings. His arrest, tr ial and conviction took place in less than 48 hours and ended 
in his being sentenced to two years’ imprisonment on 16 June 2004. On 18 June 2004 he voluntarily agreed to be deported and was told that, provided he did not return to Portugal for a year, he would not have to serve his sentence.  
Back in the UK, Mann tried unsuccessfully to appeal his conviction. In October 2004 he lodged an appeal to the 
Constitutional Court in Lisbon but nothing was heard from th e court. Separately, the Metropolitan police applied for a 
worldwide football banning order against him, but in 2005 the UK Court held he had been denied a fair trial in 
Portugal and refused the order. The next development was that Mann was arrested on an EAW, which alleged he was wanted in Portugal to serve a two year prison sentence and, in August 2009, a UK court eventually ordered his 
extradition to Portugal.  
The execution of the Portuguese EAW by UK courts, however, took more than 14 months (in contravention of the 
Framework Decision on the EAW, which provides for a sixty-day deadline) and involved five decisions by UK 
courts, with several thousands of Euro spent on legal fees and costs of proceedings. The source of the problem was 
inadequate access to lawyer. An appli cation was also lodged at the ECtHR, wh ere Mann argued that his accelerated 
trial had been, unfair owing to failure on the part of th e Portuguese authorities to prov ide him with proper access to a 
lawyer.  
In the absence of serious issues surrounding the availability of adequate procedural safeguards in the issuing Member State, the execution of the EAW would have been effect ed significantly more swiftly  than was the case and in 
compliance with the applicable EU legislation. See R (on the application of Gary Mann) v City of Westminster 
Magistrates' Court  [2010] EWHC 48 (Admin) (judgment of 19 January 2010). 
Mann was surrendered to a Portuguese prison in May 2010, where he remains today, although he is due to be 
transferred back to the UK where he  will continue to serve his sentence.
  
CPT visits 
Czech Republic: The CPT recorded that "the delegation met a person who had been apprehended at 3a.m. in Prague 
but only detained in a cell in Kongressova Police Headquarter s in Prague at 2pm (some el even hours later) and who, a 
little while later, had still not been able to contact his family"  
Latvia: The CPT noted that "the right to notification of cust ody "often became effective in practice only when the 
detention protocol was drawn up, and not at the outset of deprivation of liberty.  Further, a number of detained persons alleged that police officers had not allowed them to exercise this right for periods of up to 24 hours" 
Denmark : "A number of detained persons (including juveniles) interviewed by the delegation during the 2008 visit 
complained that they had not been allo wed to contact their relatives in person and did nor know whether the person 
had informed them of the fact of their detention" 
Sweden : "a senior police officer at Örebro Police Department  stated that the police are not obliged to notify the 
family during the first 96 hours, which are a "crucial stage" of the investigation; the same officer indicated that, if the 
relatives of detained persons phone to enquire about their whereabouts, the police cannot tell them that they had been 
detained as the information about detention becomes public only after the court hearing." 
 
3.2.2  Problem B : Adverse effects on fundamental rights of accused and suspected persons  
 
EN 12   EN The need for a suspect or accused to have access to a lawyer - and for that legal access to be 
effective - is a key ingredient in placing suspec ted or accused citizens in a position to defend 
themselves properly in the face of the investig ating authorities possessing greater powers. In 
addition having the fact of one's custody notified to  a third person safeguards the fundamental right 
not be subjected to ill-tr eatment while in detention. 
If someone is arrested or require d to attend a police station in connection with an enquiry into a 
crime, they have certain rights, such as the right to remain silent or to have an interpreter present if 
they are a foreigner who does not speak the langu age of the proceedings. Without proper access to a 
lawyer, however, the effective exercise of these, as  well as of most other defence rights, may remain 
illusory.     
Therefore, where suspects and accused persons are not adequately provided with prompt access to 
qualified legal assistance, this can render the criminal proceedings unfair, as ruled by the European 
Court of Human Rights in  the landmark case of Yusuf Salduz v. Turkey  (see box below):23 a suspect 
might not be aware that he has the right to re main silent during police questioning and may thus 
make statements under the psychological pre ssure of detention which might be unduly 
incriminating and could be relied  on at trial by the prosecution.  
A suspect who is convicted on the basis of his in itial statement may appeal  against his conviction 
and succeed in having the convictio n overturned by an appellate court; the costs of the initial trial 
would thus be wasted (very often, the cost of a criminal case going all the way up to the Supreme 
Court is in the region of € 10-20,000, without cons idering reputational damages and costs for the 
defendant which are usually non recoverable even wh en he is eventually acquitted). Similarly, a 
suspect held in pre-trial deten tion might appeal against the C ourt order although he might have 
chosen not to do so if he could have availed hi mself of qualified legal advice from the outset of 
deprivation of liberty. Appeals and aborted proceedings such as this  result in unnecessary costs for 
the Member State in which these criminal proceedi ngs take place: court cost s and costs of keeping a 
suspect in pre-trial detention24. In addition, account must be taken of consequential costs in other 
Member States, for example when a judicial authorit y in another Member Stat e is requested judicial 
cooperation which it refuses to prov ide due to concerns about the fairness of proceedings in the 
issuing State.   
Eventually, suspects or accused persons might lodge applications with the ECtHR based on lack of 
proper access or ineffectiveness of legal assistance. This inevitably has cost consequences for those 
Member States, both in terms of the cost of the ECtHR proceedings themselves and, more 
significantly, the consequences of  the ECtHR’s judgment on those Member States’ justice systems 
in relation to appeals, potential re-trials for ongoing cases, etc. The average liquidated damages 
awarded by the ECtHR to a successf ul applicant, in a range betw een € 3,000 and 9,000. This figure, 
if multiplied by the number of findi ngs of breaches of Article 6 ECHR which are (directly or 
indirectly) related to the right of access to a lawyer  over the last seven years25, would result in an 
amount of € 4.23 million  to € 12.69 million  spent by Member States over the next ten years.   
                                                 
23 Salduz v. Turkey ( judgment  of 27 November 2008, GC, §§ 53-55). Se e also the following ECtHR cases: Ocalan v. 
Turkey (judgment of 12 May 2005); Adamkiewicz v.  Poland , (judgement of 2 March 2010, § 84); Dayanan v. Turkey , 
(judgement of 13 October 2009, § 32); Panovits v. Cyprus , (judgement of 11 December 2008, §§ 69-77). 
24 These costs vary significantly by Member State: in England and Wales, the costs of one day in prison average 130 € 
per day; in Germany they are around 70 € per day.  
25 Over the period 2003-2009, 990 findings of violation of Article 6 ECHR were linked, directly or indirectly, to the 
right of access to legal advice: cf. Eu ropean Court of Human Rights, Annua l Reports from 2003 to 2009.     
 
EN 13   EN Stakeholders who participated in the consultation process came out ve ry forcefully in favour of EU 
minimum rules on the right of access to a lawyer and have argued that th is is the single most 
effective way to strengthen all the other fair trial right s (access to a lawyer is s een as "the gate in the 
house of procedural rights", in the words of a pa rticipant at the experts' meeting organised by DG 
JUST in October 2010).  The right of access to a lawyer is complemented by the right of notification of custody to a third party, which in most cases will arise at the same time and as 
experts at the October 2010 experts meeting agreed is a fundamental safeguard against ill-treatment  
 
SALDUZ  DOCTRINE :  
In Salduz v Turkey ( Salduz v. Turkey,  GC, 27 November 2008) the ECHR held that there had been a violation of 
Article 6 of the European Convention which guarantees th e right to a fair trial because Salduz who was under 
eighteen at the time of the offence was denied legal a ssistance while in police custody, during which time he 
made a confession which he later claimed was made under duress. The ECHR said that Article 6 “requires that, 
as a rule, access to a lawyer should be provided as from the first interrogati on of a suspect by the police, unless it 
is demonstrated in the light of the particular circum stances of each case that ther e are compelling reasons to 
restrict this right. Even when comp elling reasons may exceptionally justify denial of access to a lawyer, such 
restriction- whatever it’s ju stification – must not unduly prejudice th e rights of the accused under Article 6…the 
rights of the defence will in principle be irretrievabl y prejudiced when incriminating statements made during 
police interrogation without access to a lawyer are used for a conviction.”  
PANOVITS CASE:  
This case demonstrates the degree of the impact that insufficient access to a lawyer may have on 
suspects/accused fundamental righ ts as well as on the overall fairness of the proceedings   
P, at the time just 17 years old, was invited with this fa ther to visit the police station in connection with a murder 
and robbery.  P confessed his guilt after being subjected to police questioning for about 30-40 minutes. He was 
not provided with access to legal advice either immediately after his arrest or  during questioning (the police only 
suggested to P’s father that P find a lawyer while the latter was being interrogated).   
P’s confession was decisive for the prospects of his defence and constituted a significant element on which his 
conviction was based.  During the interrogation, a police officer put his gun on the desk and told P he should 
hurry up as the police had other things to do.  The police officers also told him that if he wanted to go he should confess. 
P was sentenced in May 2001 to 14 years’ imprisonment for manslaughter and robbery. In March 2008 the 
ECtHR found that the lack of assist ance during P’s interrogation breached his right to a fair trial guaranteed by 
article 6 of the ECHR. It also held that there had been a violation of Article 6 § 1 due to the use of the applicant’s 
confession in his main trial. 
CPT REPORTS ON NOTIFICATION OF CUSTODY  
CPT reports show that in at least 21 Member States the ri ght of access to a lawyer and the right to notification of 
custody are combined in to one piece of legislation or even one statutory provision.  Irish legislation (Section 5 of 
the Criminal Justice Act 1984) combines both rights in to one statutory provision entitled "Access to Solicitor and 
notification of detention," which provides as follows: "Where a person not below the age of seventeen years is 
detained in a Garda Siochana station pursuant to Section 4 (detention after arrest), the member of the Garda Siochana in charge of the station shall inform him or cause him to be informed without delay that he is entitled 
to consult a Solicitor and to have notification of his detention and of the station where he is being detained sent 
to one other person reasonably named by him and shall, on request, cause the solicitor and the named person to be notified accordingly as soon as practicable. "   
The CPT has consistently identified a trilogy of rights fo r suspects and accused persons that provide protection 
against ill-treatment. They noted in their 2008 visit to Denmark "The CPT recalls that it attaches particular 
importance to the formal safeguards ag ainst ill-treatment which are offered to persons deprived of their liberty 
by the police, in particular the rights of detained pers ons to inform a relative or another third party of their 
situation, to have access to a lawyer and to access to a doctor." While access to a doctor is not a procedural right 
 
EN 14   EN and dependent on particular circumstances of each cas e, access to a lawyer and notification of custody are 
entirely complementary 
 
3.3 Key parameters to be considered in respect  of the right to access to a lawyer and 
notification of custody.  
The following five parameters provide a break do wn of the two problems as defined above. These 
parameters have been identified on  the basis of recurrent complaints  by stakeholders , in particular 
lawyer's associations, and the most oft-invo ked grounds for applications to the ECtHR by 
defendants who feel they have not received a fair trial. In addition, numerous violations of Article 6 
ECHR found by the ECtHR are due to shortcomi ngs of access to a lawyer related to these 
parameters. For each parameter, information is provided on the status quo in Member States. A 
more detailed overview of such state of play is provided in Annexe III. 
• The moment from which a suspect is allowed to see a lawyer; the moment from which 
the fact of deprivation of liberty is notified  to a third party nomi nated by the detainee; 
is the person entitled to a lawyer througho ut all the proceedings? (Temporal scope)   
In a significant proportion of Me mber States, the right to contact a lawyer cannot be exercised 
immediately after arrest but only some time af ter arrest or at a different stage of the 
investigation. Only in three Member States (Malta, Luxembourg and Denmark), is a suspect 
entitled to meet with his lawyer some time before a police interrogation. Therefore, in the 
majority of jurisdictions access to a lawyer occurs  at a stage where the suspect may have had to 
speak with the police. This can lead to self-i ncriminatory statements given by suspects without 
the assistance of a lawyer, consequent challenges  about the validity of such evidence, lengthy 
appeal proceedings and the attendant mistrust by other Member States' judi cial authority's vis-à-
vis jurisdictions characterised by such shortcomi ngs.  In respect of notification of custody, the 
CPT found that in six Member States, the right to notifica tion of custody was in practice 
repeatedly not afforded to detainees.  In 11 Memb er States, the CPT identified systematic delays 
(identifying periods of 6, 24 and even 96 hours in one Member  States) in the communication by 
the detaining authorities of the fact of the de tention to the outside world. The CPT has also 
identified many instances where there is no or inadequate feedback to the detainee and they are not aware therefore if  the notification of their custody to their nominee has been made. 
• What activities can the lawyer carry out on  behalf of his clie nt? (Material scope)   
In eleven Member States, it is possible to s upervise the oral and/or the written communication 
between lawyer and suspect and to limit the right of  the lawyer to visit his client at the police 
station or in prison. Even amongst those Member States, research noted a great variance in 
terms of the grounds allowing domestic authorities to restrict the right of accused/suspects in 
criminal proceedings to consult a lawyer. As far as this divergence in practice is concerned, the 
European Committee for the Prevention of Tort ure and Inhuman or De grading Treatment or 
Punishment (CPT) has stressed that  it is essential that the defence lawyer can visit his client at 
the police station and in prison as from the beginni ng of the deprivation of liberty and that is out 
of hearing of third parties and/or without its c ontents being monitored by any technical means. 
Provision of proper access to legal advice out of h earing of third parties at the very outset of 
detention will give the individua l concerned the possibi lity of making use of those rights (such 
 
EN 15   EN as the right to remain silent) and thus help pr event intimidation and ill- treatment by police staff 
in the crucial period immediately following arrest.26  
•  Waiving the right to a lawyer  
In relation to circumstances in which legal assi stance in criminal procee dings is obligatory, law 
and practice also vary considerably from one Member State to another27. In some cases, the 
factual and/or legal complexity of the case is a relevant factor. Only in two Member States are there no provisions for mandatory defence. In one Member State (Italy) the assistance of a 
lawyer is always obligatory in criminal cases. 
• What are the consequences for a Member State which fails to respect the 
suspect/accused's right to a lawyer and /or no tification of custody? (consequences of 
violations)  
Only in three Member States (Spain, Italy, Port ugal), it is not allowed to use as evidence in 
court statements made by a suspect in the absenc e of his lawyer. The lack of a prohibition to use 
such evidence in court is conducive to lengthy l itigation (and possible appeals to the ECtHR), 
which in turn affects the credibility of the justi ce system and is liable to generate mistrust in 
judicial authorities from other Member States. The risk of ill-treatment-including the risk of detaining authorities bei ng more vulnerable to false accusati ons of ill-treatment in custody-is 
heightened where notification of custody is not carried out promptl y.  In the few Member States 
the CPT identified any sanction existing in Memb er States; it is most commonly disciplinary 
action against for detaining police offi cers where the right is not observed. 
• Does the right to access to a lawyer apply when the suspect/accused is subject to an 
EAW? (European Arrest Warrant) 
In none of the Member States, there are legal provisions regulating the access to legal advice 
when the Member State concerned is the issuing state. As concerns the executing Member State, 
a generic provision in the Framew ork Decision on the European A rrest Warrant provides that 
the person subject to an EAW will have access to  a lawyer if the domestic law so provides. 
Therefore, this provision is by itself not sufficient to ensure the assistance of a lawyer across all 
Member States.  The EAW Framework Decision does not expressly provide for the right of 
notification of custody for those subject to an EAW and depriv ed of their liberty for the 
purposes of its execution. 
         
 
The purpose of the following case studies  is to show real life examples of failures of access 
to legal assistance as guaranteed under Artic le 6 of ECHR in Member States. These 
examples28 cover each of the five parameters listed above. 
 
                                                 
26 CPT, The CPT standards – "Substantive" sections of the CPT's General Reports , CPT/Inf/E (2002) 1 – Rev. 2009, 
p11; CPT Report Germany, CPT (2006) 36, adopted on 7 July 2006 as published by the Government of the Federal 
Republic of Germany on http://www.bmj.bund.de/files/-/2044/CPT%20Report%202006.pdf . 
27 EU procedural rights in criminal proceedings, p. 78. 
28 Most of these examples have been provided by the British Ngo Fair Trials International  (FTI) 
 
EN 16   EN 1 Temporal Scope: Panovits v Cyprus  and CPT Reports  
See boxes under paragraphs 3.2.1 and  3.2.2 
2.  Material Scope: Kevin Keogh (KK)  
KK, an Irish national, has been working as a lorry driver since 1995.  Less than six weeks into a new job with an 
Irish haulier, French Customs officers pulled his lorry out of a queue at the French boarder town of Perthus on a 
return journey from Spain.  His trailer was searched but nothing was found.  Customs officers then offloaded the 4 
batches of ceramic tiles that Kevin had loaded in Spain and broke through the metal floor of the trailer.  A total of 
1032 Kg of Cannabis resin was found. 
No lawyer was present at the police interview. In the mean time, shortly after Kevin's arrest, the Irish police arrested 
his employer and charged him with the importation of drugs into Ireland. When questioned about Kevin, the 
employer readily admitted that he had used him as a drugs mule without his knowledge. The Irish police informed 
their French counterparts of this, but the information did not seem to reach the investigating magistrate. 
On 18 November 2003, Kevin was released on bail after 18 months on remand and allowed to return to the UK. It is 
not known yet whether the charges against him will be dropped or whether he will have to return to France and stand 
trial. 
 3.  Waiving the righ t to a lawyer: Yaremenko  
Y was arrested on suspicion of murdering a taxi driver and of several other crimes committed in 2001. His lawyer 
attended the initial questioning of the applicant. Subsequently the applicant was questioned regarding his 
involvement in the death of another taxi driver in the su mmer of 1998.  This crime was classified as infliction of 
grievous bodily harm causing death, for which legal representation of a suspect was not obligatory. Y signed a 
waiver of his right to counsel. Y was then questioned and confessed that he and another had committed the 1998 
crime. Immediately after the confession  was obtained, the crime was reclassifi ed as, and the applicant was charged 
with, murder.   
Later, in his lawyer’s presence, Y denied his involvement in the 1998 crime. The same day, Y signed a waiver in 
respect of his counsel on the ground that the latter had prevented him from confessing to the 1998 crime.  Y’s lawyer 
was removed from the case and told that he had breached professional ethics by advising his client to assert his 
innocence and retract part of his previous confession.  
The ECtHR held that Y did not bene fit from the requirement of obligatory representation and was placed in a 
situation in which he was coerced by the police into waiving his right to counsel and incriminating himself. 
4.  Consequences of violations: Peter Cadder  
Peter Cadder was suspected by the police in Glasgow of being involved in an attack on two men in May 2007. On 
the day of the incident, he was first detained by the police at his home on the grounds of his suspected part in the 
assault and he was cautioned by being told that he was under no obligation to answer any questions other than those 
required for his identification. He said nothing and was taken to the police station. A few minutes after arriving he 
was again cautioned in the same way and then informed that he was entitled to have notice of his detention given to 
a solicitor, but he turned this down. Thereupon he was interviewed under caution by two police officers and made a 
number of admissions. He was told that  he was no longer being detained as  a suspect but was being placed under 
arrest, following which he was cautioned again and then charged with various offences relating to the assault. He did 
not reply to any of the charges. Over a year later an identification parade was held at which Peter Cadder was 
recognised as an attacker by one of  the severely injured victims of the assault. At the trial in May 2009 the 
prosecution advanced evidence of Cadder's identification by the victims, as well as playing the audio record of his 
                                                                                                                                                                  
29 This is the provisional estimate provided by the British Ngo JUSTICE (http://www.justice.org.uk/enterb/index1.html) 
30 Journal of the Law Society of Scotland , “Emergency bill to be presented following Cadder”, 26th October 2010 
(www.journalonline.co.uk/News/1008842.aspx ). 
31 FTI believes AH’s case illustrates the need for early access to  legal advice in both jurisdictions in extradition cases.  
If FTI had not arranged for AH to be represented pro bono  by a lawyer in Belgium, he would have lacked 
representation at important pre-trial hearings in Belgium and had no information about the Belgian prosecution case 
file. 
 
EN 17   EN police interview to the jury. Cadder was convicted on all charges against him.  
On 26 October 2010, the UK Supreme Court decided that the prosecution's citing in evidence of the admissions 
which made while Cadder was being interviewed by the po lice without access to legal ad vice was incompatible with 
his right to a fair trial under Article 6(1) and 6(3)(c) of the ECHR in light of the Salduz  judgment. Following the 
Cadder  ruling by the Supreme Court, the Scottish Parliament passed emergency legislatio n, the Criminal Procedure 
Act on 27 October 2010, which enshrines the right of acces s to a lawyer for anyone who is detained in Scotland. 
Cadder's legal costs throughout this process were borne by legal aid and have been estimated as at least £30,000 
(36,000€)29. The prosecution's costs falling directly on the state we re likely to have been similar, if not greater, and 
there would have been further indirect costs, such as cour t and judges' time and delays caused to other proceedings.  
More seriously, the police procedures that the Supreme Court ruled to be non-compliant with Article 6 ECHR 
applied to hundreds of other accused and convicted persons whose trial pr ocess would be affected or whose 
convictions would be liable to review and possible setting as ide. Lord Hope in the intr oduction (paragraph 4) to his 
judgment stated that up to 76,000 cases may be affected by the Cadder decision. Although the Scottish Crown Office 
has contradicted this figure,30 one of its spokesmen has confirmed there are 13 appeals before the Appeal Court 
which relate to a Cadder-related issue and 3,471 case s in which a Cadder-related issue has been raised. 
    
5. European Arrest Warrant: Al an Hickey and Edmond Arapi  
AH, a lorry driver from London, is serving an 18 month prison sentence in France for people-trafficking. AH 
pleaded guilty to this offence after being told orally by th e judge that if he did so, he would be free sooner, whereas 
if he pleaded not guilty, he would spend years in prison awaiting trial. Alan recently found out that Belgium has 
issued an EAW seeking his surrender from France to stand trial for people-trafficking “with aggravating 
circumstances” and as part of a criminal conspiracy. 
AH was not given clear information about whom he was meant to have conspired with or when or where the 
conspiracy was meant to have taken place. Fair Trials In ternational found a lawyer to  act for AH in Belgium on a 
pro bono basis, to try and uncover this crucial informat ion. Worryingly, AH’s lawyer was only granted limited 
access to the case file: only two hours to read 17 boxes of prosecution documents. 
AH believes the Belgian charges relate to the same matter for which he has already been sentenced in France. If he 
is right, his extradition from France to Belgium would be barred on the grounds of the right not to be tried or 
punished twice for the same criminal offence.  AH could not raise this at his extradition hearing, however, as his 
lawyer’s access to the Belgian prosecution file was too li mited and he could not show that the Belgian charges 
concerned the same facts as those in his French trial. AH must now finish his sentence in France and then be 
surrendered to Belgium to face a further period on remand awaiting trial.31    
 
Edmond Arapi was tried and convicted in his absence of k illing Marcello Miguel Espana Castillo in Genoa, Italy in 
October 2004. He was given a sentence of 19 years, later re duced to 16 years on appeal. Edmond had no idea that he 
was wanted for a crime or that the trial even took place. In  fact, Edmond hadn’t left the UK at all between the years 
of 2000 to 2006. On 26 October 2004, the day that Mar cello Miguel Espana Castillo was murdered in Genoa, 
Edmond was at work at Café Davide in Trentham, and attending classes to gain a chef’s qualification.  
Edmond was arrested in June 2009 at Gatwick Airport on a European Arrest Warrant from Italy, while he was on his 
way back from a family holiday in Alba nia. It was the first time he got knew  of the charges against him in Italy, 
which does not automatically guarantee a re-trial for defe ndants tried in absentia. A British court ordered his 
extradition on 9 April 2010.  
On 15 June 2010, the day his appeal of his extradition order was to be heard at the High Court, Italian authorities 
decided to withdraw the European Arrest Warrant, admitting that they had sought Edmond in error. They provided 
information indicating that Edmond’s fingerprints did not match those at the crime scene.  
 
Had Alan Hickney and Edmond Arapi had access to a lawy er in both issuing and ex ecuting States, delays and 
 
EN 18   EN misuse of the EAW system would have been avoided. 
There are several dozens cases like Alan Hickney's and Edmond Arapi's every year across the EU.  
 
3.4 Underlying cause of the problem: Existi ng legal standards appear not to offer 
sufficient protection to suspects and accused persons 
Currently, there is a considerable discrepancy betw een Member States' laws and practice leading to 
shortcomings in relation to suspects and accuse d persons' access to a lawyer and notification of 
custody. 
 
3.4.1 EU standards and the EU Charter of Fundamental Rights 
As things stand, there is no legislation at EU le vel on the right of suspects and accused persons to 
have access to a lawyer and to notification of custody. The Charter of Fundamental Rights 
(CFREU) sets out rights that are modelled on the ECHR. Art 47 of the Charter enshrines the right to 
fair trial and in particular the right to be "advi sed, defended and represen ted". Article 48 safeguards 
the presumption of innocence and guarantees the "r espect for the rights of the defence". Article 4 
prohibits ill-treatment and Article 7 guarantees resp ect for private and family life. While the Charter 
binds the institutions and bodies in all instances, Me mber States are the addr essees of the Charter 
only when they are implementing Union law.  This  entails that, in the absence of relevant EU 
legislation in this field, Memb er States are not bound by Articl es 47,48, 4 and 7 in the conduct of 
criminal proceedings. Conversely, individuals may not invoke these Charter provisions, either 
directly or indirectly, in order to  challenge the infringement of th eir rights by domestic institutions. 
 
3.4.2 The limits of the procedural sa feguards of Articles 3 and 6 ECHR  
Minimum rights and fair trial stan dards for all member States of the Council of Europe (including 
all of the EU Member States) are laid down in the ECHR. Stakeholders  argue, persuasi vely, that the 
ECHR and its enforcement mechanism do not, in  all cases, offer sufficient protection for the 
suspects and accused persons in general and guarantee the provision of adequate information on 
rights and charges in particular. There are three reasons for this: 
a) Right to access to a law yer contained in the ECHR 
Art 6 of the ECHR lays down minimum procedural rights and standards for ensuring that criminal 
proceedings are fair. Art 6(3), in particular, stipulates that everyone  charged with a criminal offence 
has the right "to have adequate time  and facilities for the preparation of his defence" (Article 6.3 b) 
and the right "to defend himself in  person or through legal assistance  of his own choosing" (Article 
6.3 c). Both these provisions have  been interpreted by ECtHR in a way which has progressively 
extended the concrete right s an individual may derive from them , both in terms of material scope 
and temporal scope. s. However, there are a number of issu es which remain to-date only partially 
regulated (because left to the Member States' ma rgin of appreciation) or unclear. By way of 
example, ECHR case-law has so far not touched on the precise consequences of a violation of the 
right of access to a lawyer: the Court has systematically held that it is up to the national authorities 
to undo the adverse consequences of any such violation, by placing the person in the same position he would have found himself had the violation not occurred (although of course  this is not possible 
 
EN 19   EN in practice if the person has served a sentence, or part of a sentence). This leaves scope for 
diverging implementation of a common standard. Be sides, EAW proceedings fall entirely outside 
the ambit of Article 6 ECHR, so that persons subjected to EAW proceedings do not benefit from similar procedural safeguards as a matter of ECHR-law.   
b) Procedure for obtaining redress  
Someone whose rights have been violated by a country signat ory to the ECHR may bring a case 
before the ECtHR once he has pursued all available avenues of appeal in th e State concerned. Thus, 
the system of protection granted by the ECtHR is ex-post  only. Ensuring justi ce in individual cases 
ex-post  serves a different purpose from layi ng down generally applicable rules ex-ante  and can 
never be said to be equivalent . Moreover, the enforcement system of the ECHR suffers from a huge 
backlog of cases awaiting disposal at the ECtHR
32, so any remedy for the violation may come many 
years after.  There are also prac tical difficulties in bringing a cas e, e.g. the requirement to pursue 
domestic appeals and the application to the ECtHR can be too expensive for some applicants in the 
absence of legal aid.  As a consequence, many peopl e whose rights have been violated never bring 
an action at the ECtHR. Furthermore, these righ ts may not be enforceable in accordance with 
certain Member States' legal trad itions where the ECHR itself is not directly ap plicable, thus 
making recourse to the ECtHR the only possibili ty of obtaining a remedy for a violation.  
In the light of these limitations to the current prot ection of the right to lega l advice and notification 
of custody currently afforded by the ECHR and its  enforcement mechanism, it becomes apparent 
that an EU measure addressing th e problem would possess much adde d value, since a EU directive 
would be applicable (upon transpos ition by Member States and, to a certain extent, even despite the 
absence of timely transposition, un der the doctrine of direct eff ect) before domestic courts and 
would take precedence, under the principle of primacy of EU law, over conflicting domestic 
provisions. Risks of violation of  EU standards by national author ities would be diminished by the 
mechanism of reference for a preliminary ruling, which allows the ECJ to provide the domestic 
court with the correct interpretation of EU provis ions, in the course of (and not after) national 
proceedings. .  
c) Application of ECtHR doc trine by national courts:  
Abstractly, one could assume that the existence of  an ECtHR body of case-law  which interprets the 
ECHR provisions may lead to progressive accep tance of those common standards by all Member 
States. However, reliance on decisions of the ECtH R (even when they constitute settled case-law, 
which may take years) at be st promotes piecemeal and ad hoc  pressure to reform national practice 
rather than a comprehensive and consistent de velopment of EU-wide procedures to ensure 
compliance with fair trial rights.   
Clearly, a consistent line of EC tHR case-law can lead some States  whose procedures were found to 
be in breach of Article 6 to amend their law and procedures. Such development of Member States' 
law is well illustrated by the Salduz ruling, which, once confirmed by subsequent ECtHR judgment, 
has triggered seminal decisions by the Supreme C ourts (and/or the Constitutional Court) of some 
EU Member States (France, the UK, and Belgium).33   
                                                 
32 139, 650 cases pending  as at December 2010. 
33 Following the Cadder  ruling (see box above) by the Supreme Court, the Scottish Parliament passed emergency 
legislation, in the form of The Criminal Procedure (Leg al Assistance, Detention and Appeals) (Scotland) Act on 27 
October 2010 which enshrines the right of access to a lawyer for anyone who is detained in Scotland .  The period 
permitted for detention without charge will also rise from 6 to  12 hours, with the potentia l to increase that to 24 hours 
on “cause shown” by a senior police officer. 
 
EN 20   EN However, this very example also demonstrates the inherent limits of the dialectics ECHR/Member 
States: the Salduz  doctrine has been interpreted differently  by different national courts and where 
courts and legislatures have atte mpted to bring procedures into lin e with the ECHR, they have done 
so in a piecemeal fashion that has be en reactive rather than proactive.  
 
3.5 The scope of the problem 
3.5.1 Access to a Lawyer  
Member States currently do not collect data on the number of proceedings in which insufficient 
access to a lawyer is complained about or has led to  judicial decisions bei ng appealed and upheld or 
reversed by a higher court34. Nevertheless, recent case such as Cadder in Scotland and the 
controversy about pre-trial custody in France and in the Netherlands may help illustrate the 
potential scale and impact of th ese types of problem. Moreover, some useful indicators may be 
derived from reports and statistics of the Europe an Court of Human Rights  concerning article 6 § 3 
c) (right to legal advice) as well as  article 6 in gene ral (right to a fair trial)  of the Convention.      
 
The Netherlands : approximately 360,000 persons are taken into custody every year. Of these, only juveniles, 
who are about 70,000, are entitled to the presence of a lawyer during questioning under Dutch law. The 
remaining 290,000  at present are not entitled to acces s to a lawyer du ring questioning35. 
France : the number of garde à vue  procedures, including traffic offenses , has increased significantly in recent 
years. In 2009, nearly 800,000  garde à vue  procedures were implemented, up from 336,000 in 2001. Under the 
garde à vue procedure, which is currently being reformed in th e French Parliament, the su spect does not have the 
benefit of legal assistance while undergoing questioning.   
Scotland : according to figures mentioned in the Cadder ruling, there are about 76,000 cases - being held in the 
system pending the hearing on an appeal - which may be affected by the decision in this case. 
                                                                                                                                                                  
Another country whose national law in relation to Article 6 rights is being debated is France . On 25 January 2011, the 
National Assembly has adopted a bill to reform police custody “garde à vue” that ensures the presence of the lawyer for 
the entire duration of the procedure. The draft legislation now heads to the French Senate.  
The Salduz  doctrine has had recent reverberations in Belgium . Although the right to legal advice is contained in the 
national constitution, the suspect's ability to communicate with  a lawyer under Art.20 (1) of the 1990 law on pre-trial 
custody only arises after the first police interview. Also the presence of a lawyer during police questioning and before 
the juge d'instruction  is not assured although legislation which would allow the presence of a lawyer once the first 
interrogation has taken place is under consideration in the Be lgian Chamber of Representatives. As recently as March 
2009 the Belgian Cour de Cassation decided there was no lega l requirement for the presence of  a lawyer during the first 
interrogation of a suspect. A new pronouncement of December 2010, however, following contradictory jurisprudence from courts in Antwerp, eventually reach ed the opposite conclusion and applied the Salduz  principle by rendering 
confession evidence deriving from interviews when lawyers had not been present inadmissible. 
In the Netherlands there have been similar problems in reconciling national law and the Salduz  doctrine. In essence the 
position until recently has been that there is  no entitlement to consult a lawyer fo llowing arrest or during interview by 
the police and the suspect can only be represented by a lawyer after being taken before an investigating judge. However, 
in 2009 the Supreme Court held that juvenile suspects have a right to legal assistance in interview. An amendment of 
the procedural law in April 2010 gave suspects a right to a ph one call to a lawyer upon arre st and allowed the suspect 30 
minutes private consultation. 
34 However, were they to do so this would still not reveal the number of abuses of rights that occur. The annual country 
reports of the CPT show the inevitable gaps between theore tical safeguards and reality, even in those states whose 
criminal procedures appear on paper to be compliant with EC HR jurisprudence. To this extent the precise scope of the 
human rights problems concerning access to lawyers is a 'known unknown'. 
35 Information provided by the Dutch Ministry of Justice  
 
EN 21   EN  
Whilst the number of cases in which the ECtHR found a signatory state in  breach of rights under 
Art 6 ECHR have increased steadily over th e last decade (from 234 in 2003 to 482 in 200936), this is 
not necessarily indicative of an in crease in the number of instances  where criminal proceedings in 
Member States may have fallen short of the standa rds of Art. 6 ECHR, let alone of the number of 
cases in which a suspect or accused person may not have been provided with adequate access to legal counselling.  
The number of cases reaching the ECtHR are con tingent on a variety of factors which do not all 
relate in proportion to the actual number of cases where violations of fair trial rights may have 
occurred. Factors such as the availability of le gal aid to bring a case to the ECtHR can skew the 
proportionate relationship between the number of cas es brought before the ECtHR and the actual 
number of cases where violations of fair trial rights occur but are not brought to the ECtHR.    
In any event, the problem is not essentially one of  numbers. A single well-publ icised case is enough 
to impact judicial trust and cooperation. There is no evidence that such case s are becoming rarer, if 
anything ECtHR figures suggest the contrary. Certain stakeholders, a nd especially NGOs geared to 
the protection of fair trial rights, actually encour age defendants to bring thei r case to the ECtHR and 
in some cases offer legal advice to defendants who are deemed to have received an unfair trial.  
Furthermore the fact that a signi ficant number of Member States are currently, or have recently 
been, examining their procedures with respect to ensuring suspects' effective access to a lawyer 
shows there is widespread acknowledgement th at procedural problems exist in the EU. 
3.5.1 Notification of custody 
The most reliable and comprehensive source of  data on the current position in Member 
States on notification of custody are the repor ts from the Committee for the Prevention of 
Torture (CPT)  of their period ic visits to Council of Euro pe countries, including all EU 
Member States, to inspect places and conditions  of detention.  The CPT reports show that 
while almost all Member States (except CZ, in addition to BE, DE, PT, ES having limited 
rights for some types of detention- see table in Annex VIII) have some statutory right to 
have the fact of custody notified to a third pa rty, usually a relative, employer and consular 
authority (and in 20 Member States this right is contained in the sa me statutory provision 
as access to a lawyer) in prac tice there are considerable shortcomings in the manner in 
which this right is provided for and in its a pplication- The CPT made recommendations as 
to how the right of notification of custody n eeds to be improved in terms of ensuring the 
right is given to all detainees; when it is give n; when it is withheld and at whose discretion 
and the reasons for same; and feedback to de tainees .See also examples in box under 3.2.1  
 
3.6 The baseline scenario: how would the problem evolve all things being equal?  
Mutual trust between Member States' judicial aut horities is expected to remain at the current 
insufficient level as it is likely that instances of Member States' authorities failing to provide 
suspects or accused persons with adequate access to  legal advice and notif ication of custody will 
continue to occur and be reported. While there is  a trend among certain Member States to adopt 
                                                
 
36 European Court of Human Rights, Annual Report from 2003 to 2009.  
 
EN 22   EN legislation in the view of bringing their judicial system in line with the ECHR's standards, there are 
no indications that this  trend will lead to all Member States introduci ng similar obligations.  
 The best that could be expected without action on an  EU level is that Member States would respond 
to particular developments in respect to the right of effective access to a lawyer in ECtHR 
jurisprudence and to CPT criticisms  on notification of custody insofar as they directly or indirectly 
affected their own practices and procedures
37. They might do this by way of either making changes 
to their criminal procedures or by national legisla tion. It is most unlikely that such reforms would 
result in any true univers ality of standards or that all Member  States would proceed at the same 
pace. Furthermore it is probable that such  reforms would be mainly reactive and ad hoc .  
 Without precise and binding obligations to ensure that suspects and accused persons have adequate 
access to qualified advice and to notification of custody from the earliest applicable stage of the 
proceedings, no further disincentives against Member  States failing to provide adequate access to 
legal advice to suspects and accu sed persons and notification of cu stody to those detained would be 
created to ensure that those instances of failure to  provide legal assistance or notification of custody 
would be prevented. The expected further increase in the caseload of the ECtHR would continue to 
limit the effectiveness of the ECHR in improving th e provision of access to legal advice to suspects 
and accused persons in criminal proceedings across the EU.  
 Increased movement of citi zens between Member States
38 and activities of indi viduals or businesses 
in one Member State having an effect  in other Member States will lead  to a greater need for judicial 
cooperation in criminal proceedings between Member States (e.g. evidence to be gathered in other 
Member States, financial penalties to be enforced  and more individuals su rrendered on the basis of 
an European Arrest Warrant). Between 2006 a nd 2009 the number of EAWs issued by Member 
States rose from 6,750 to 15,287 the number of persons surrendered from 1,890 to 4,431.39 This rise 
in the number of EAWs is likely to continue over the coming years and will make the problem of 
insufficient levels of mutual trust considerably more acute.   The need to improve mutual trust will become even more pressing with the implementation and 
application of the raft of EU judicial cooperation measures envi saging the mutual recognition of 
judicial decisions in criminal proceedings such as those concerning the transfer between Member 
States of convicted persons serving custodial sentences.
40 It is particularly this latter instrument the 
application of which will make promotion of mu tual trust between Member States' judicial 
authorities by strengthening fair trial rights at EU level essential. These measures which were 
adopted at EU level over the la st few years have been improving the effectiveness of prosecutions 
and enforcement of sentences across the EU. Yet there is a consensus among politicians, practitioners and other stakeholder that the absence of measures at EU level to promote the rights of 
citizens as suspects in criminal proceedings in  another Member State has created a sense of 
imbalance in EU justice policies.  
                                                
 
37 Such development of Member State' s law can be illustrated by the recent Cadder decision of the UK Supreme Court 
as well as recent debates and reforms in France , Belgium  and the Netherlands . 
38Eurostat data confirm that the percentage of foreigners in  the overall population in the EU increased from 3.5% in 
2000 to 6.1% in 2007: 
http://epp.eurostat.ec.europa.eu/port al/page?_pageid=1996,45323734&_dad=p ortal&_schema=PORTAL&screen=welc
omeref&open=/t_popula/t_pop/t_demo_pop&language=en&product=REF_TB_population&root=REF_TB_population&scrollto=0 
39 11371/4/07 (no data from BE, DE, IT and SE), 10330/3/08 (no data from BE, BG and IT); 9734/2/09 (no data from 
BE, BG, DK, IT, MT, NL, AT, PT and UK); 7551/7/10 (no data from BG and IT). Based on previous years' experience, figure for 2010 will become available by September 2011 at the earliest.  
40 Framework Decision on the Transfer of Pris oners, implementation deadline 5 December 2011. 
 
EN 23   EN  
 
3.7 Does the EU have the power to act? 
 
3.7.1  The legal basis 
The EU's legislative competence for a Direc tive laying down minimum rights in criminal 
proceedings is set out in Art 82(2) (b) TFEU. Purs uant to this provision, minimum rules concerning 
the rights of individuals in criminal proceedings  may be adopted by means of directives, to the 
extent necessary to facilitate mu tual recognition of judgments and judicial decisions and police and 
judicial cooperation in criminal matters ha ving a cross-border dimension. The necessity for 
legislative action at EU level is demonstrated by the problems currently encountered in Member 
States' courts in judici al cooperation litigation. 
 Art 82(2)(b) TFEU provides the le gal basis for legislation appli cable not only to  cross-border 
criminal proceedings (i.e. proceedings with a link to another MS or a thir d country) but also to 
domestic cases as a precise, ex ante  categorisation of criminal proceedings as cross-border or 
domestic is impossible in relation to a significant number of cases.  
 The future Directive will apply to all criminal proceedings irrespec tive of whether they present a 
cross-border element or not. The reason for this is  that both the policy objectives as described below 
can only be met if minimum rules apply to all criminal proceedings. In order to improve mutual 
trust and thus judicial cooperatio n (cf. § 3.2.1 above), judicial authorities need to be aware that 
sufficiently high fair trial standa rds apply across the board in the jurisdictions of other Member 
States. If Member States were at liberty to ap ply lower standards to pu rely domestic proceedings, 
the requisite mutual trust between judicial authorities could not be boosted. As concerns the need to 
safeguard the fundamental rights of citizens (cf. § 3.2.2 above), the enactment  of minimum rules for 
cross-border proceedings only, far from addressi ng the problem, would create two different classes 
of defendants in criminal proceedings, the ones with  more rights than the others: this distinction,  
made on the basis of the cross-border nature of the procedure, would lead to unreasonable 
differentiation and would eventually be detrimenta l to the protection of fundamental rights. In 
addition, the CFREU guarantees ri ghts to everyone suspected of a criminal offence, whether 
involved in cross border or purely national proceedings. 
Additionally, it must be noted that the cross-border nature of any given proceedings is 
difficult to define and in any event may not be clear from the outset, when it must be 
decided which rules to apply: for instance,  a purely domestic procedure may take on a 
cross-border dimension at a later stage, when the suspect flees to another country or when 
the need arises to gather relevant evidence in  another Member State. Even after criminal 
proceedings have concluded with a final j udgment imposing a sentence on the defendant 
by the courts of his Member St ate of nationality, such a case could still turn into a cross-
border case necessitating judici al cooperation between Member States where the convicted 
person moves (or flees) to another Member State prior to having served his sentence in full. An EAW might thus have to be issued for achieving the return of that person (or the 
enforcement of a financial penalty sought by the court which had imposed the penalty). 
 
 
 
EN 24   EN 3.7.2 Subsidiarity: Why the EU is better pla ced to take action than Member States 
It is considered that there is a need for EU action based on the following factors: 
1. The EU is establishing its own, unique system of judicial cooperati on based on the principle 
of mutual recognition throughout the EU. Such a novel system calls for a guarantee of uniform 
standards of fundamental procedural rights prot ection in the EU. The problem has a cross-border 
dimension because if certain Member States do not  respect the rights, this creates problems for 
other Member States. For example, if a judicial au thority is requested to execute a court ruling from 
another Member State where standa rds are not adequate, it may e ither refuse to do so, or may 
request additional information which would result in delayed execution and consequently delayed 
justice.    
2. The ECHR already sets European-wide fair tria l standards (which, in relation to a number of 
rights, cannot always be considered sufficient in  the scope of protectio n) but its enforcement 
mechanisms cannot guarantee a sufficient and consiste nt level of compliance by its signatory States, 
including EU Member States41.  Similarly repeated censure by the CPT (which in some Member 
States has been repeated over the course of a numb er of visits) has not pr oved adequate to change 
the practice of Member States. 
3. People can be involved in criminal proceedin gs outside their own Member State, and the 
needs of these suspects or accused persons  need to be tackled at EU level.  
4. EU action will enable economies of scale to  be achieved, for instance in relation to 
the development of training programmes, de velopment and dissemination of information 
programmes, which could all be based on comm on EU rules, instead of largely differing 
national regulations. 
5. New EU action, under the Lisbon Treaty, will en able effective implementation-monitoring 
and possible deficits of transposition to be rec tified by means of infringement proceedings by the 
Commission. This is a further indication that the EU would be better placed to take action than 
individual Member States  since if the EU takes legislative action, the full panoply of enforcement 
mechanisms (such as the duty to transpose a dire ctive into legislation in the Member State; 
implementation monitoring by the Commission; the po ssibility of infringement proceedings before 
the ECJ against non-compliant Member States, re ferences for preliminary rulings) would be 
available to make sure that there was complian ce with the new right to information standards 
contained in EU legislation. 
 
4. 4. O BJECTIVES  
 
                                                 
41 Even recurring CPT reports issued to Member State governments calling on them to ensure that arrested suspects are 
provided at an early stage with access to legal advice have only led to a minority of Member States to adopt a system of 
notification by such means.  
 
 
EN 25   EN Objectives: 
General:  To improve judicial cooperation in the EU by enhancing mutual trust 
between Member States in the fair oper ation of the crimin al justice systems 
by ensuring a high level of protecti on of fundamental rights in criminal 
proceedings  
 To ensure an adequate level of protec tion of fundamental rights in criminal 
proceedings for all individuals irrespec tive of their nationality; to contribute 
to fostering free movement of EU citi zens throughout the EU ; to promote EU 
values  
Specific:  To reduce costs of delays, refusals, a ppeals in the execut ion of request for 
judicial cooperation between Member States. 
 To ensure that suspected or accused persons have adequate access to a 
lawyer throughout criminal proceedings, so  as to exercise all their defence 
rights effectively. To provide them  with better and more effective 
enforcement mechanisms to assert their right to a lawyer. 
 To ensure that suspected or accused pers ons that are deprived of their liberty 
have the right to have the fact of this deprivation of liberty notified to a third party of their choice, thereby providi ng a more effective safeguard against 
ill-treatment of persons in custody a nd promoting the right to privacy and 
family life. 
Operation
al: Effective access to a lawyer  should include the following elements:  
• it should be available from the early stag es of criminal proceedings and remain 
available in all phases of the proceedings  
• it should encompass a well-specified ra nge of activities by the lawyer  
• the right of access to a lawyer may be eith er not waivable or subject to waiver 
only with strong guarantees so  as to avert any abuse 
• it should contain a general clause under which Member States shall ensure that 
the defendant has an effective remedy in  instances where his right has been 
violated 
• it should be available to persons subj ected to EAW proceedings both in the 
executing and in the issuing Member State 
Effective notification of custody  should include the following elements: 
• It should be available as  soon as possible upon the de privation of liberty and 
should be made with at least one person named by the detainee 
• The detainee should receive feedback  on the fact and outcome of the 
communication 
• A person who is a non-national should ha ve the right to have the consular 
 
EN 26   EN authorities of his home state informed of the detention as soon as possible 
and to communicate with such authorities  
 
The present initiative forms part of a package of measures for improving mutual trust. Only once all 
the measures envisaged in the Roadmap are in pl ace will it be possible to achieve the general 
objective. The following options are assessed agai nst the specific and ope rational objectives above.  
5. 5. P OLICY OPTIONS AND THEIR IMPACT  
The options for addressing the problem as defined in part 3 of this Impact Assessment, in line with 
the objectives as established in  part 4, are set out below. 
In accordance with Communication from the Co mmission on the Strategy for the effective 
implementation of the Charter of Funda mental Rights by the European Union42, this impact 
assessment examines the impact on the Fundamental Ri ghts of the options propos ed, in particular in 
the light of the 'fundamental rights check  list' presented in the Communication. 
For all the policy options, reference is made to suspects and accused persons as the category of 
persons who would be affected by these options. The phrase "sus pects and accused persons" – 
consistently used in EU policy documents and prev ious legislation in this area - encompasses all 
people who are involved in criminal proceedings, against whom a suspicion that they have committed a criminal offence exists, irrespective of the terms used in domestic law. The breadth of 
the phrase is such that it does not require a defini tion, which would be very complex and difficult to 
square with national definitions. In accordance with  the principle of proportionality of EU action, 
no rules should be made when no need for them can  be shown. In the present case, the absence of 
such a definition is unlikely to compromise the attainment of the objectives of the proposal. 
In any event, the jurisprudence of the ECHR provi des that any person whos e position is affected by 
a criminal procedure has to be treat ed as a suspect and enjoy all the rights attached to this status. 
 
5.1  Overview of policy options  
We have considered four options: retention of the status quo  (option 1), a soft law option 
(option 2) and two legislative policy options  (options 3 and 4). The retention of the status 
quo would involve taking no action
 at EU level, while the other three alternative policy 
options will improve, to a different extent, the protection of the ri ght to a lawyer and 
notification of custody fo r suspects and accused persons across Europe.  
• Policy option 1: Retention of the status quo.  This option would invo lve taking no action  at EU 
level.  
• Policy option 2 : Recommendation on good practice on suspects' and accused persons' right to 
access to a lawyer and notification of custody 
                                                 
42 http://ec.europa.eu/justice/news /intro/doc/com_2010_573_4_en.pdf 
 
EN 27   EN • Policy option 3 : Directive setting minimum rules applying the ECtHR acquis , on access to a 
lawyer (i.e. the Convention and the case law of  the European Court on Human Rights)  and CPT 
recommendations on notification of custody a nd reinforcing the app lication of mutual 
recognition instruments. 
• Policy option 4 : Directive applying the CPT recommendations on notification of custody and 
setting further approximati ng rules going beyond the ECtHR acquis on access to a lawyer  and 
reinforcing the application of mutual recognition instruments. 
 
Policy options 3 and 4 which are based on legi slation have been assessed against the five 
parameters described under § 3.3. . 
 
5.2 Discarded options 
In relation to both non-legislative and legislativ e options, limiting the scope of the options or 
measures to criminal proceedings of a cross-border  nature has been discarded as largely unworkable 
in practice.  
 
5.3 Description and impact an alysis of policy options 
There are currently no data on the overall number of criminal proceedings in which suspects and 
defendants are or are not provided with adequate  access to legal advice or  notification of custody. 
Options are therefore assessed on th e basis of effectiveness in achie ving the specific  and operational 
objectives in largely qualitative terms using input fr om stakeholders, and in terms of potential cost 
savings and efficiency gains of criminal proceedings.  
The specific issue of juvenile and other vulnerabl e suspects and accused pers ons receiving adequate 
information in relation to their circumstances w ill not be covered by the options presented but will 
be the subject of a separate measure. Legal persons will be covered inasmuch as they are subject to 
criminal sanctions, which depend on individual Member States. All policy options envisage equal 
treatment of EU and non-EU nationa ls; third-country nationals would receive the same protection as 
EU citizens in criminal proceedings throughout the EU. 
All options are expected to have a positive imp act on fundamental rights of suspects. The key 
fundamental rights concerned are:  right to liberty and security, right not to  be subject to ill-
treatment, right to privacy and family life, right to an effective remedy and to a fair trial and presumption of innocence and right to defence. 
 5.3.1  Policy option 1: Retention of the status quo No action would be taken at EU level. 
Expected Impact 
Effectiveness in As the ECHR and the ECtHR jurisprudence are not uniformly 
implemented by Member States, and criticism from the CPT often 
 
EN 28   EN meeting objectives does not result in action by Member States, the level of protection of 
suspects, resulting from the substantially diverging standards, remain inadequate at present,  although it may improve in the long term as a 
result of progressive compliance with this jurisprudence by an 
increasing number of Member St ates. There is a trend amongst 
Member States to align with the recent pronouncements of the ECtHR 
by modifying the rules applicable to criminal procedure (e.g. the 
provisions in the Code of Criminal  Procedure stipulating the suspect 
shall have access to a lawyer onl y after the police interrogation, or 
from the moment he is brought before  a judge). However, there are no 
indications that all Member States will follow this trend. Additionally, the ECHR and its jurisprudence do not cover certain aspects of the 
issue which are pivotal to ensure fair trial, e.g. EAW proceedings.  
Impact on 
fundamental 
rights Under this option, access of suspects and accused to a lawyer and to 
notification of custody w ill continue to be protected at the Member 
States level in accordance with their constitutional and international obligations. The fundamental rights w ill continue to be protected in a 
different manner according to each national system. The Charter of Fundamental Rights will be applied only when EU law is involved, for 
example under the regime of the European Arrest Warrant. 
Financial and 
economic impact There are no immediate new financial burdens associated with this 
option. However, Member States w ho are currently not in compliance 
with the ECtHR jurisprudence will incur significant costs when carrying out reforms in order to exte nd the right of access to a lawyer 
to the initial stages of criminal proceedings. For example, the cost of providing a lawyer throughout the pre- trial stage of the proceedings 
was found to be € 210 million for E ngland & Wales, a jurisdiction 
fully compliant with the ECHR requir ements (cf. further details in the 
table in Annex VI). This cost may represent the total expense incurred 
by a large Member State who does not provide for any access to a 
lawyer in the pre-trial stage, a situation which is purely hypothetical as 
all Member States provide for some access to a lawyer in the pre-trial 
stage. The actual cost of bringing domestic legislation into line with 
the ECHR jurisprudence is therefor e a proportion of this figure: an 
indication of the actual  cost for a medium-sized  Member States (both 
in terms of population and of number of criminal cases) could be the 
estimate provided by the Dutch Government, € 52 million.  
This option will not lead to a reduction in the costs to Member States' 
law enforcement budget and costs to individual suspects or accused 
persons incurred by appeals, aborte d prosecutions and protracted 
judicial cooperation litigation in Member States where suspects have not been provided with adequate le gal advice at a decisive stage of 
criminal proceedings. Given the increas e in applications to the ECtHR, 
costs for Member States linked with  damages awarded to individuals 
are likely to augment.  
Impact on 
domestic justice Domestic justice systems may naturally evolve towards more 
convergence in the light of ECtHR jurisprudence and CPT reports but 
 
EN 29   EN systems there is no guarantee that this will happen in the short to medium term. 
In fact, the need to implement certain ECtHR rulings may even augment the existing divergence, as there are indications that Member States interpret ECtHR pronouncements in different ways. The following Member States do not cu rrently comply with the ECtHR 
Salduz jurisprudence: Belgium, the Netherlands, France, UK (Scotland only), Portugal, Luxembourg, Austria,  Malta, Ireland.  All Member 
States except four (France, Irela nd, Malta, United Kingdom- see table 
in Annex VIII) have received recommendations from the CPT to address the current shortcomings in the manner in which the right of notification of custody is provided.  
 
5.3.2  Policy option 2: Recommendation on good practice in relation to suspects' 
and accused persons' right to a lawyer  
Description: A non-binding Recommendation for Member St ates to improve the provision of 
access to legal advice and notif ication of custody. The Recommendation would identify current 
good practice in those Member States that already adhere to ECHR and CP T standards as regards 
provision of legal advice (see  Annexe III) and notificatio n of custody respectively. The 
Recommendation would envisage  the commissioning by the European Commission of a study on 
the effect of the Recommendation three years afte r its adoption. Given the non-binding nature of a 
Recommendation, it would not contai n any reporting obligations on pa rt of the Member States as 
concerns its implementation. Most non-government stakeholders did not c onsider non-legislative 
options on their own as capable of promoting achie vement of the objectives identified in part 4. 
 
Expected Impact 
Effectiveness in 
meeting objectives It is not certain that the non- binding Recommendation would be 
implemented fully by all Member Stat es, particularly those which do not 
currently comply with minimum ECtH R standards. Despite repeated and 
strongly-worded exhortations  by the CPT to several Member States that the 
provision of legal advice and notification of custody is  essential, especially 
to those suspects or accused persons in  detention, not all Member States do 
so. It is uncertain whether a Recomme ndation would be more effective than 
the current robust system of CPT visits and reports, at least where arrested 
or detained suspects are concerned.  
Impact on 
fundamental 
rights The impact of this option and the enhancement of the right to a fair trial the 
right to defence of the suspect an d accused, and safeguards against ill-
treatment would depend on how Member  States would implement an EU 
recommendation. In general, it is possibl e to state that op tion 2 is likely to 
ensure a higher positive impact on suspec t's right to a fair trial, right to 
defence and right not to be ill-treat ed than option 1. However, consisting 
mainly of soft-law measures and givi ng the overall situati on as regards the 
lack of possibilities to enforce thos e rights (see part 2.4), this positive 
impact remains limited.  
Financial and The financial or administrative burden  resulting from this option depends 
 
EN 30   EN economic impact on the level of Member States' imple mentation of all or some of the 
provisions contained in the Recommendation.  
Impact on 
domestic justice 
systems Given its non-binding nature, th e Recommendation may not yield 
significant results on domestic justice systems. Legislative reforms will not 
be imposed when needed, but left to the good will of national legislatures. The Recommendation may help the judiciary to interpret domestic provisions in compliance with the ECHR, but it is unlikely that this effect 
would be any more significant than th e effect of ECtHR rulings alone.  
 
The following box provides a comparison of the substantial differences (highlighted in bold) 
between Policy Options 3 and 4 based on the five parameters. 
 
Policy Option 3 
A Directive setting minimum rules applying the 
ECtHR acquis on access to a lawyer  and CPT 
recommendations on notification of custody 
reinforcing the application of EU mutual 
recognition instruments : Policy Option 4 
A Directive applying CPT recommendations on 
notification of custody and setting further  
approximating rules going beyond the ECtHR 
acquis  on access to a lawyer and reinforcing 
mutual recognition instruments s: 
• would ensure that access to a lawyer is 
granted upon the first police interrogation 
(or from deprivation of liberty) and 
throughout the proceedings; would ensure 
that notification of custody is  granted from 
deprivation of liberty  • would ensure that access to a lawyer is 
granted ahead of any police questioning 
and throughout the proceedings; would 
ensure that notificati on of custody is granted 
from deprivation of liberty  
• would specify the content of right of access to 
a lawyer ; would provide for feedback to the 
detainee of the fact and outcome of the 
communication with their nominee  • would specify  the  c ontent of right of access 
to a lawyer ; would provide for feedback to 
the detainee of the fact and outcome of the 
communication with their nominee  
• would  provide that any waiv er of the right of 
access to a lawyer be subject to the 
requirement that the person has received prior 
legal advice or has otherwise obtained full 
knowledge of the consequences of the waiver 
and has the necessary capacities  to 
understand these consequences ; The right to 
notification of custody is subject to the 
wishes of the detainee   • would impose mandatory defence across 
the board , by excluding any waiver of the 
right to a lawyer ; The right to notification of 
custody is subject to the wishes of the 
detainee  
• would contain a general clause  under which 
Member States shall ensure that the defendant 
has an effective remedy in instances where 
his right of access to a lawyer has been 
violated (the prohibition to use evidence at 
trial would be one way to implement this • would lay down a prohibition to use at trial 
any evidence obtained in breach of the right 
to legal advice  
 
EN 31   EN requirement) ;  
• would apply to EAW proceedings, both in the 
issuing and in the executing Member State. 
and notification of custody is available to a 
person arrested for the execution of an EAW. • would apply to EAW proceedings, both in the 
issuing and in the executing Member State 
and notification of custody is available to a 
person arrested for the execution of an EAW. 
 
5.3.3 Policy Option 3: A Directive setting minimum rules applying the ECtHR 
acquis on access to a lawyer and CPT recommendations on notification of custody 
and reinforcing the application of mutual recognition instruments    
Description: A Directive streamlining minimum standards of access to legal advice and notification 
of custody stemming from the Charter and the ECHR  as interpreted by the European Court of 
Human Rights and the CPT. Below, we have anal ysed this option against the five parameters 
described under § 3.3.  
1. Temporal scope43  
Charter/ECHR  acquis  requirement for access to a lawyer: From the first interrogation and anyway 
as soon as from deprivation of liberty44 CPT recommendation for notification of custody  – as soon 
as possible after the deprivation of liberty  
Option 3:  The Directive could provide that access to a la wyer must be granted at the latest upon the 
first police interrogation (or from deprivation of liberty). The need for this measure is illustrated by the case of Panovits, se e box under § 3.2.1 The Directiv e could provide that no tification of custody 
must take place as soon as possible after the deprivation of liberty 
2. Material scope    
Charter/ECHR
 acquis  requirement: All intervention which pertain (" sont propres ") to legal advice 
must be accessible for the suspect45. CPT recommendation for notification of custody- feedback to 
the detainee on the fact and outcome of the communication must be given. 
Option 3:  The Directive could govern the precise content and different manifesta tions of th e right in 
hand (e.g. spell out rules about the activities that the lawyer can car ry out on behalf of his client, 
notably during the interrogation of the latter. These activities may include: intervene; ask questions; 
make remarks; consult with client in private; other competencies).  The need for this measure is illustrated by the case of Kevin Keogh, see box under § 3.3. The Directive can provide that a 
detainee must be advised without delay of the fact and outcome of the communication. 
3. Waiving the right to the lawyer Charter/ECHR
 acquis  requirement: The right to self-representation is not absolute: Member States 
enjoy a wide margin of appreciation and may requi re compulsory appointment of a lawyer if the 
interests of justice so require. Minimum requireme nts for waivers of rights include full knowledge 
                                                 
43 For the purpose of this analysis, only the start date has been considered, as the end-date would not differ in the two 
legislative options. 
44 ECtHR 13 October 2009, Dayanan v. Turkey , no. 7377/03, § 31 
45 ECtHR 13 October 2009, Dayanan v. Turkey , no. 7377/03, § 32 
 
EN 32   EN of the consequences46 and the necessary capacities  to understand thes e consequences. CPT 
recommendation for notification of custody: The right to have a third party notified of one's 
detention is subject to th e wishes of the detainee. 
Option 3:  The Directive could provide that any waiver of  the right be subject to  the requirement that 
the person has received prior legal advice or  has otherwise obtained full knowledge of the 
consequences of the waiver (in order to ensure that  he is not subject to u ndue pressures especially 
when in detention) and has the necessary capacitie s to understand these cons equences. The need for 
this measure is illustrated by the case of Ye remenko, see box under § 3.3. The Directive can provide 
that a detainee has a right to have "at least one pe rson named by him" or the consular or diplomatic 
authorities of his home stat e, notified of his detention. 
4. Consequences of violations  
Charter/ECHR  acquis  requirement: Adverse consequences resulting fr om violations of the right to 
legal advice must be undone by placing the pers on in the same position he would have found 
himself in, had the violation not occurred (in practi ce, need to provide for a retrial). Statements 
made by a suspect in the absence of his la wyer cannot be used as evidence in court.47 
Option 3:  The Directive could contain a general clause under which Member States shall ensure that 
the defendant has an effective remedy in instances  where his right has been  violated (this would 
require Member States e.g. to provide for a prohi bition to use at trial evidence obtained through a 
breach of the right to a lawyer). The need for this measure is illustrated by the case of Cadder, see box under § 3.3. 
5. EAW cases  
Charter/ECHR
 acquis  requirement: As yet, no case-law on the right of the defence in the EAW cases 
(Article 6 of the Convention does not appl y to extradition and surrender proceedings) 
EU acquis : Framework Decision 2002/584/EU of 13 June 2002 on the European arrest warrant and 
the surrender procedures between Member Stat es. Article 11 paragraph 2 of this Framework 
Decision provides that any person arrested for th e purpose of the execution of an EAW under shall 
have a right to be assisted by a legal counsel in accordance with domestic law. This provision 
therefore refers back to domestic legislation and as such does not guarantee that all persons 
subjected to an EAW will have access to a lawyer across the EU. 
Option 3:  The Directive could specify access to the lawyer in the issuing and executing MS, The 
need for this measure is  illustrated by the case of Alan Hickney and Ed mond Arapi, see box under § 
3.3. The Directive could apply the ri ght to notification of custody to all persons deprived of their 
liberty including those arrested for the execution of an EAW 
Expected Impact  
Effectiveness in 
meeting 
objectives This option would have a ll the strengths of the legislative instrument 
set out above (binding nature, high en forceability). More in particular: 
1. Temporal scope : to provide access to a lawyer from the first police 
interrogation and notifica tion of custody from deprivation of liberty 
                                                 
46 ECtHR 25 September 1992, Croissant v. Germany, no. 13611/88, § 27 
47 ECtHR, 27 November 2008, Salduz v. Turkey , no. 36391/02, § 58   
 
EN 33   EN will ensure that Member States comply with the ECtHR acquis and 
CPT recommendations, thereby al laying concern among judges called 
upon to execute requests of judicial cooperation. (see example in table 
under § 3.2.1) 
2. Material scope : specific regulation of the activity a counsel can 
carry out would ward off divergent implementation in Member States 
thereby strengthening judici al authorities' trust that suspects can avail 
of a lawyer who can effectively ensure their defence. Similarly .the right to notification is reinforced by the obligation to provide feedback. 
The trust engendered by both measur es is required to achieve the 
objective of a better functioning judicial cooperation.  (see example in 
table under § 3.3  
3. Waiving the right to a lawyer : the possibility of a waiver of the 
right to a lawyer, subject to mini mum rules in the Directive and to 
varying national provisions implemen ting these rules, will represent a 
guarantee that suspects in other jurisd ictions will always be granted the 
right to a lawyer, save where they ha ve given up that right after seeing 
a counsel or having obtained thorough information about the 
consequences of their waiver. This is expected to have positive knock-
on effects on judicial cooperation (e.g. some judges will find it easier 
to surrender a suspect under an EAW in the knowledge that that person will be given access to a lawyer, save  if he chooses freely and without 
constraint not to avail of professi onal legal advice). (see example in 
table under § 3.3) The fact that wh ether notification takes place is 
subject to the wishes of the detainee promotes the right to privacy and addresses situations (such as refugees) where detainees may not want 
heir home state to be advised of their detention  
4. Consequences of violations : to stipulate that Member States must 
set up legal remedies in cas e of violations of the right to a lawyer will 
boost trust among judicial authorities as they will be aware that internal 
remedies exist (and not ju st the possibility of an application to the 
ECtHR upon exhaustion of internal re medies) whenever a breach of the 
right to a lawyer has occurred. This will greatly contribute to improved judicial cooperation across EU. 
5. EAW cases: the requirement of a lawyer in the issuing and in the 
executing Member State would play a major role in improving the functioning of this instru ment of judicial cooper ation. It is expected 
that many fewer refusals to execute an EAW would occur if the competent judicial authority were r eassured that the person subject to 
the warrant is assisted by a lawyer in both the jurisdictions concerned. 
Occurrences such as the execution of  arrest warrants which later prove 
to have been wrongly issued are like ly to be reduced. Confidence in the 
EAW system is improved by extendi ng the right of notification of 
custody to persons arrested for the execution of an EAW. 
Impact on 
fundamental This option would be adequate to  streamline the provisions of the 
Charter and of the ECHR as  interpreted by the ECtHR. 
 
EN 34   EN rights The right to liberty and security (article 6 EU Charter; article 5 
ECHR ) would be enhanced as the access to a lawyer would allow the 
suspect or accused to have access to legal advice and defend his rights  more effectively at pre-trial stage.  
Right to an effective remedy and to a fair trial (article 47 EU 
Charter; articles 6 and 13 ECHR) as well as the presumption of 
innocence and right of defence (article 48 EU Charter; article 6 
ECHR) would be also st rengthened as the righ t to a lawyer would 
enable the suspect to exercise all his other rights of the defence more effectively through the intervention of a counsel..  
The prohibition against ill-treatment (Article 4 EU Charter, article 3 
ECHR) and the right to respect for private and family life (Article 7 EU Charter, Article 8 ECHR) would be e nhanced as notification of custody 
is a safeguard against ill-treatment in  custody and, subjec t to the wishes 
of the detainee, provides a mechanism for his family to be aware of his 
detention  
Rights of the child could be negatively impacted as children might 
lack necessary emotional and inte llectual capacities to understand the 
consequences of the right to waive the legal defence. Any legal measures should therefore contain the necessary safeguards. 
Financial and 
economic impact The financial impact on Member States  in respect of access to a lawyer 
would be as the requirements of the Directive will not substantially exceed those of the ECHR jurisprude nce, with which compliance must 
be ensured irrespective of any EU legislation. These costs have been 
calculated for France, Finland and Estonia at respectively € 300,000, € 4,100 and € 70,950. They could be considered to be representative, respectively, for a large Member State (France) and for a small Member State (Estonia, Finland). However, these figures should be 
taken with caution given the diffe rences in the number of EAWs 
received even between Member States of comparable size and the differences in the proportion of ca ses where legal ai d is granted (at 
present) (see table under § 6 for furthe r details). Greater  costs are likely 
to be incurred by those Member St ates which are less in compliance 
with the ECHR and the ECtHR case- law; however these costs are not 
created by this option as they stem from the requisite compliance with the ECHR. In addition, some reducti on in Member States' expenditure 
for aborted prosecutions and appeals,  both domestically (e.g. cost of 
retrials) and as a result of condemn ations by the ECtHR must be also 
factored in.
48 There would be only very small additional costs for 
providing notification of custody, which will arise at the same time as 
access to, a lawyer in most cases and involve only the costs of the 
mode of communication used (mos t commonly telephone and will be 
cost neutral if e-mail or Skype is used) and a short amount of police 
                                                 
48 As indicated above (see p. 4) the "right to legal aid" will be  dealt with within a later, separate proposal. Therefore, a 
detailed analysis of the relevant costs will be provided in the corresponding impact assessment.   
 
EN 35   EN time. 
Impact on 
domestic justice 
systems This option would ensure that dome stic justice systems are broadly 
brought in line with the precepts  of the ECHR and the ECtHR 
jurisprudence, and the CPT r ecommendations for which some 
legislative reforms will be needed. All Member States, albeit to a 
varying extent, will need to alter their regulations and practices in order 
to transpose the Directive provisions. It can be said that the apportionment of the burden resulting from the implementation is rather equal across Member States, as all of them are already in compliance with some requirements and not with others, as the table in 
Annex III.  
 
5.3.4 Policy Option 4: Directive applying CPT recommendations on notification of custody  and setting 
further rules going beyond the ECHR acquis  on access to a lawyer  and reinforcing the application of mutual 
recognition instruments 
 
Description : The present policy option would (while pr oviding the same right of notification of 
custody) combine, for the five aspects descri bed above under § 3.3, an even more ambitious 
approach to access to a lawyer by strengthening the rights enshrined in the Charter and in the ECHR 
as interpreted by the EC tHR. Under this option, the Directive would, in addition to what is 
described under Option 3, ensure that  access to a lawyer is granted ahead of  (instead of upon ) any 
policy questioning; it would impose mandatory defence across the board, thereby making any 
waiver of the right to a lawyer impermissible;  it would lay down a prohibition to use evidentiary 
material obtained in breach  of the right to a lawyer .  Therefore, only these three elements (aspects 1, 
3 and 4 respectively) will be disc ussed below and the impacts in re spect of notifica tion of custody 
set out in Option 3 are not repeated below.  
1. Temporal scope49  
Charter/ECHR  acquis  requirement: From the first interrogation and anyway as soon as from 
deprivation of liberty50 
Option 4:  the Directive could pr ovide that access to a lawyer must  be granted ahead of the first 
police interrogation, which is a reality in at least three jurisdictions (Luxembourg, Malta, and 
Denmark). 
3. Mandatory defence/waiver   
Charter/ECHR  acquis  requirement: The right to self-representation is not absolute: Member States 
enjoy a wide margin of appreciation and may requi re compulsory appointmen t of a lawyer if the 
interests of justice so require. Minimum requireme nts for waivers of rights include full knowledge 
of the consequences51 
                                                 
49 For the purpose of this analysis, only the start date has been considered, as the end-date would not differ in the two 
legislative options. 
50 ECtHR 13 October 2009, Dayanan v. Turkey , no. 7377/03, § 31 
51 ECtHR, 25 September 1992, Croissant v. Germany, no. 13611/88, § 27 
 
EN 36   EN Option 4:  The Directive could impose mandatory defe nce across the board, excluding the possibility 
of a waiver of the right by the suspect or ac cused person. Mandatory defence across the board 
currently exists in one Member State, Italy, wh ere the suspect or accused person may not choose, 
for any offence even minor, to waive his right to a lawyer.  
4. Consequences of violations  
Charter/ECHR  acquis  requirement: Adverse consequences resulting fr om violations of the right to 
legal advice must be undone by placing the pers on in the same position he would have found 
himself in, had the violation not occurred (in practi ce, need to provide for a retrial). Statements 
made by a suspect in the absence of his la wyer cannot be used as evidence in court.52 
Option 4 : The Directive could oblige Member States to provide for intra-procedural remedies (the 
prohibition to use evidentiary material obtained in violation of the right to legal advice). Similar 
provisions exist in Portugal, Spain and Italy.  
 
Expected Impact  
Effectiveness in 
meeting 
objectives This option would be the most eff ective in terms of achieving the 
specific objectives, but on account of its content it would place a very 
high burden on member States and indi viduals alike. On account of its 
legislative nature, a Directive would create an express and 
unambiguous obligation to ensure th at suspects are provided with 
effective legal advice, which all Member States would have to implement. The choice of a more  prescriptive content would yield 
results in terms of increased mutu al trust among judicial authorities, 
which would translate into better functioning judici al cooperation. 
More in particular: 
1. Temporal scope : to provide access to a la wyer already before the 
first police interrogation would ensure that the suspect can prepare his defence ahead of the interrogation. Th is would reassure judges called 
upon to execute e.g. an EAW that the right of defence of the suspect 
will be adequately protected, irresp ective of the jurisdiction where the 
proceedings take place.  
3. Mandatory defence : the requirement that a suspect must be always 
assisted by a lawyer would represen t the single biggest trust-boosting 
measure for judicial authorities; th ey would be reassured that each and 
every suspect, in any EU jurisdicti on, will obtain access to a lawyer in 
any individual case, as opposed to  the possibility that abstract 
availability of a lawyer may not re sult in the suspect's having access to 
him because of the waiver option. 
4. Consequences of violations : to provide at EU level that evidence 
obtained in breach of the right to a lawyer may not be used in court 
would have a more perceptible impact  on judicial coop eration than to 
                                                 
52 ECtHR, 27 November 2008, Salduz v. Turkey , no. 36391/02, § 58   
 
EN 37   EN leave this to Member States, as j udicial authorities could trust that 
violations of the right to a lawyer  may not lead to miscarriages of 
justice. Thus, refusal to execute requ ests for judicial cooperation based 
on this fear would be reduced. . 
  
Impact on 
fundamental 
rights This option would have a sign ificant positive impact on the 
fundamental rights of suspects and accused in several respects.  
The right to liberty and security (article 6 EU Charter; article 5 
ECHR ) would be enhanced as the access to a lawyer would allow the 
suspect or accused to have access to legal advice and defend his rights at pre-trial stage.  
Right to an effective remedy and to a fair trial (article 47 EU 
Charter; articles 6 and 13 ECHR) as well as the presumption of 
innocence and right of defence (article 48 EU Charter; article 6 
ECHR) would be strengthened as the right to access to a lawyer already before any police questioni ng would enable the suspect to 
enforce all his fair trial rights more effectively. This would also allow 
him or her to understand the procedure better and to use legal remedies in order to appeal against the decisions made within the criminal proceedings. The right to effective remedy would be further strengthened by the intr oduction of intra-proce dural remedies (the 
prohibition to use evidentiary material  obtained in violation of the right 
to legal advice). 
Financial and 
economic impact The financial impact of this option on Member States can be estimated, 
for a large Member State, in the region of €  179 million and for a 
medium-sized Member State at about € 110 mln (see table in Annex VI 
for further details). However, th ese figures should be taken with 
caution given the wide disparities across Member States in the proportion of cases where le gal aid is granted as we ll as in the level of 
legal fees charged by defence counsels. 
Even Member States which are alre ady compliant with the most recent 
pronouncements of the ECtH R, however, would need to take measures 
to transpose requirements which are not directly linked with the ECtHR jurisprudence, in particul ar the prescription of mandatory 
defence.  In sum, this option is likel y to result in ve ry high costs for 
Member States, especially on account of the requirement of mandatory 
defence which would translate in mu ch bigger expenditure for legal aid 
than at present.  
Similarly as for Member States, poten tial costs for individuals will be 
significant, in particular as a resu lt of the requirement of mandatory 
defence which will impose a lawyer even on defendant who are unwilling to remunerate one.  
Impact on 
domestic justice This option would yield the most si gnificant results on domestic justice 
systems. Significant legislative reforms will need to be carried out to 
 
EN 38   EN systems comply with the requirements of th e Directive. The judiciary would 
have all the necessary to ols to uphold the right to legal advice to very 
high standards. Some Member States may have problems to accept some of the requirements posited by  this option, such as mandatory 
defence across the board (e.g. France and Poland) or the prohibition to use evidence obtained in breach of th e right to a lawyer at trial (e.g. 
Sweden). 
6. 6. C OMPARISON OF POLICY OPTIONS  
The table below sets out a comparison of the relativ e rating of the four polic y options as described 
in part 5.3  against the specific and operational objectives as define d in part 4. The policy options 
are classified according to their potential to m eet the objectives defined in part 4, with three 
checkmarks ( 333 ) indicating highest relative potential. Ratings for expected effectiveness in 
achieving the objectives are given eq ual weight in the final sum.  
 
Policy option 3 (EU Directiv e setting common minimum rules applying the ECtHR acquis  on 
access to a lawyer and CPT recommendations on notification of custody and reinforcing the 
application of mutual recognition instruments) de monstrates the best combination of costs and 
effectiveness in meeting the objectives. It  is therefore th e preferred option   
Objectives/costs Policy option 1: 
Status quo Policy option 2:  
Recommendation Policy option 3: 
EU Directive setting 
common minimum 
rules applying the 
ECtHR acquis on 
access to lawyer and 
CPT 
recommendations 
on notification of 
custody   and 
reinforcing the 
application of 
mutual recognition 
instruments    Policy option 4: 
EU Directive 
applying CPT 
recommendations 
on notification of 
custody and setting 
further rules and 
going beyond the 
ECtHR acquis  on 
access to lawyer and 
reinforcing the 
application of 
mutual recognition 
instruments 
Savings due to better 
judicial cooperation 
(eliminating delays, refusals, appeals, 
etc.) 0 3 33 33[3] 
Impact on 
fundamental rights Low Low53 Medium to high High 
                                                 
53 Since a Recommendation is non binding, it is difficult to foresee the impact of such an instrument (even one 
containing very prescriptive norms) on fundamental rights, as this impact would depend on the extent to which any 
given Member State would implement the provisions of the Recommendation, which is very difficult to predict with 
any degree of precision. 
 
EN 39   EN Financial and 
Economic impact 
(see tables in 
Annexes V and VI  
for full explanation )   
 
 054 
  
 
 Variable, depending 
on the extent to 
which Member States 
would implement the 
provisions of the 
Recommendation  
  
For Member States: 
 
 
The cost of providing 
access to a lawyer in 
EAW proceedings in 
the executing 
Member State is 
estimated at about € 
300,000 for a large 
Member State and 
between € 4,100 and 
€ 70,950 for a small 
Member State 
[subject to the 
caveats mentioned in 
the table in § 5.3.3 ]. 
  
NB. All other 
additional 
requirements 
imposed by the 
Directive in excess of 
Option 1 have been 
found to be cost-
neutral. 
 (see further analysis 
of all these data in 
the table under 
Annex V)  
  
 
For Member States: 
The cost of this 
option as concerns 
the start-date  would 
be as high as  € 
179 million  for a 
large Member State 
and about  € 
110 million  for a 
medium-sized 
Member State 
[subject to the 
caveats mentioned in 
the table in § 5.3.4]. . 
  
 
The cost of this 
option as regards the 
end-date  would range 
between € 309 
million for a large 
Member State with a 
generous legal aid 
regime and € 
137,046 for a 
medium-sized 
member State with 
more restrictive 
access to legal aid . 
 
The cost of providing 
access to a lawyer in 
EAW proceedings  in 
the executing 
Member State is 
estimated at about € 
300,000 for a large 
Member State and 
between € 4,100 and 
€ 70,950  for a small 
Member State 
NB. All other 
additional 
requirements 
imposed by the 
Directive in excess of 
Option 1have been 
found to be cost-
neutral. 
 (see further analysis 
of all these data in 
the table in Annex 
VI)  
 
                                                 
54 As explained in § 5.3.1 above, however, this option will entail significant costs for Member States who are not 
compliant with the requirements of the ECHR. 
 
EN 40   EN For individuals : 
none  For individuals : 
none  
For individuals : 
about 1,500 €  per 
person subject to an 
EAW   
For individuals: 
1. Individuals subject 
to criminal 
proceedings: about 
4,170 €  and 5,200 €  
per suspect/accused 
person per case.  
2. Individuals subject 
to EAW: about 1,500 
€ per person subject 
to an EAW. 
   
Impact on domestic 
justice system 0 Low to medium Medium to high High 
 
Option 4 is evidently very effective in achievi ng all the general and specific objectives, while 
Option 3 is only marginally less effective. In term s of efficiency, however, the costs for the Member 
States associated with Option 4 (in the regi on of several hundreds of millions Euros) are 
incomparably bigger than those likely to be in curred as a result of Op tion 3 (€ 300,000 per Member 
State). Therefore, the different magnitude of costs does not appear to be offs et by the marginal gain 
in terms of reaching the objectives. As concerns the financial impact on individuals, there is also a 
marked difference between options 3 and 4, with the latter costing up to several thousands of Euros 
per individual per criminal case. 
7. 7. T HE PREFERRED OPTION  
 
7.1  EU added value and proportionality of the preferred option  
The preferred option would guarantee that all su spects and accused persons across the EU have a 
right to adequate and effective access to a lawyer. In addition all suspects and accused persons who are deprived of their liberty will have the right to have the fact of  their custody notified to a third 
person. The presumption of innocence and the right not  to be ill-treated are keystones of the human 
rights of all citizens and effective access to a la wyer and notification of custody are essential 
guarantors of this right by sa feguarding the suspect from in timidation or coercion and from 
unintentional self-incrimination.  
This embedding of the new rights in Member Stat es' respective legal orders, the right of Member 
State courts to seek bi nding interpretation of the Directive pr ovisions from the European Court of 
Justice and the Commission's power to launch infr ingement proceeding against Member States not 
implementing or misapplying the Directive would all create strong incentives for Member States to 
comply with their obligations arising from the Di rective and contribute to making the right to legal 
advice and to notific ation of custody practical an d effective. It is, moreover,  appropriate to enshrine 
the right to access to a lawyer and notification of cu stody explicitly within th e legal order of the EU, 
rather than rely on the ECHR and its case law. A provision for very limited derogations will address  any possibility of the rights having  an adverse effect on criminal i nvestigations and combining both 
access to a lawyer and notificat ion of custody in one Directiv e allows the very limited 
circumstances in which a derogation can apply to be the same for both rights. 
 
EN 41   EN The above can be expected to induce responsible authorities in Member States to focus keenly on 
observance of the requirements of the legislation and contribute to making the new right of access 
to lawyers and to notification of custody, whic h will take into account  the all of the CPT 
recommendations that come within EU competence, mo re “practical and effec tive” than is currently 
the case, as is clear from: 
• Member States’ uneven levels of compliance with ECtHR jurisprudence, including the 
Salduz  doctrine (see footnote 24). 
• The high ratio of ‘repetitive decisions’ by the ECtHR in relation to fair trial issues, 
suggesting that Member States are not reform ing their national legislation after they are 
found to be in breach of Article 6.  
• The findings in the CPT reports that in practice , both legal assistance ri ghts and the right of 
notification of custody are routinely not observed in many Member States.  
It is further apparent both that, as the Court itself has noted, the present caseload of the ECtHR is 
unsustainable; and that a Directive on the right to access to a lawyer would result in fewer 
applications to the ECtHR in this area.    
In addition, the preferred option will reduce costs associated with  individuals' application to the 
ECtHR. In order to get an idea of the magnitude of these savings, one can look at the average 
liquidated damages awarded by the ECtHR to a su ccessful applicant, whic h range between € 3,000 
and 9,000. This figure, if multiplied by the number of findings of breaches of Article 6 ECHR over 
the last seven years55, would result in an amount of € 4.23 million  to € 12.69 million  spent by 
Member states over the next ten years. 
The preferred option , comprising the five main aspects of these rights, as defined in problem 
definition (see section 3.2), are pro portionate in relation to their e ffect as none of the alternative 
options display an equal level of efficient combina tion of limited costs and effectiveness in reaching 
the objectives identified in 4 above.  Whilst the pr eferred option of legisla tive action is likely to 
require a number of Member States  to introduce changes to their crim inal procedure laws in order to 
implement the Directive, there doe s not appear to be another equa lly effective means of achieving 
the general and specific policy objectives .  
As regards the operational policy objectives , the preferred option is also sensitive to the principles 
of proportionality. For example, on the intrapro cedural remedies, detailed regulation establishing 
the exact consequences of breach of the right to access to a lawy er is rejected in favour of 
encouraging self-regulation by Member States, comb ined with a general re quirement for them to 
take measures to ensure that th e defendant has an effective remedy in instances where his rights 
have been violated. The preferre d option takes on board all of th e CPT recommendations (including 
feedback) in relation to notification of custody. In the case where the preferred option exceeds 
ECtHR jurisprudence56, this can be justified in light of: 
• the clear enhancement of the su spect’s fundamental rights – and thus of mutual trust between 
Member States – resulting from better spelling out the activities that lawyers can carry out 
during questioning a nd hearings, and 
                                                 
55 Over the period 2003-2009, 990 findings of violation of Article 6 ECHR were linked, directly or indirectly, to the 
right of access to legal advice: cf. European Court of Human Rights, Annual Re ports from 2003 to 2009. 
56 I.e. with regard to the material scope and to EAW proceedings.  
 
EN 42   EN • the likelihood that the ECtHR case law is in  any event evolving in that direction.  
 
7.2 Potential magnitude of econo mic and financial impact  
Assessing the likely financial and economic impact of  the preferred option and its various elements 
with a degree of quantitative precision has proved to be difficult.   
This is largely due to the lack of detailed data relating to, inter alia: 
• The cost (including infrastructu re and legal aid) to Member States of providing access to a 
lawyer, in particular at the pre- trial stage – both in absolute terms and as a proportion of their 
overall expenditure on legal aid. 
•  The cost to Member States of breaches of Artic le 6 of the ECHR with regard to a suspect's 
or accused person's access to a lawyer, in terms of appeals, re-trials, aborted prosecutions et 
cetera. 
This is equally due to the impossibility to es timate, with a sufficient degree of accuracy, the 
quantitative increment in terms of additional hour s of legal advice that the implementation of the 
preferred option would entail as this will larg ely depend on case-by-case factors which cannot be 
realistically assessed in advance. There would be only very small addi tional costs for providing 
notification of custody, which will ar ise at the same time as access t o, a lawyer in most cases and 
involve only the costs of the mode of communi cation used (most commonl y telephone and would 
be cost-neutral if e-mail or Skype are used) and a short amount of police time. 
Thus, model calculations for the costs of the preferred option provided below relied on 
extrapolations based on the limite d data which has been possible to  gather. Taking account of this, 
the financial impact on Member States and on indivi duals is expressed in co sts ranges. Significant 
divergence between Member States in terms of th e numbers obtained explains the wide ranges of 
estimated costs for individual Member States.  
Member States' potential savings owing to a reducti on in the number of appeals, condemnations by 
the ECtHR or delay in judicial cooperation pro ceedings cannot be estimated with any statistical 
precision due to lack of Member State data on costs per case. Only indicative qualitative 
expectations in non-numerical terms could, ther efore, be provided based on stakeholders' 
judgement, including officials from Mi nistries of Justice, NGOs such as Fair Trial International and 
JUSTICE, and practitioners and Ba r Associations responding to an ad hoc  online survey.   
Unlike for the two previous measures envisaged in  the Roadmap (on translat ion and interpretation; 
on information on rights and information about the charges), which were costs-neutral for 
individuals, in this case the poten tial economic and financial impact in respect of access to a lawyer 
is expected to have repercussions on the latter as  well. The table in Annex V provides full details of 
the methodology used for calculating the relevant costs (both for Me mber States and for private 
individuals and organisati on) , for each parameter. 
8. 8. T RANSPOSITION , MONITORING AND EVALUATION   
The timeframe for transposition of the Directive by Member States will be two years from its entry 
into force. As the Directive, at least to a ce rtain extent, mirrors exis ting ECHR obligations or 
obligations that already exist in some form in a number of Member States (26 Member States have 
 
EN 43   EN some form of statutory provision in the case of notif ication of custody) it is expected that a two-year 
deadline would provide Member States with suffici ent time to effect necessary changes to their 
respective national laws and prac tice. The combination of right of access to a lawyer and 
notification of custody in one meas ure with the same implementation date will facilitate Member 
States as in 21 Member States; their statutory provisions on access to a lawyer and notification of 
custody are currently in the same piece of dome stic legislation. In addition for many Member 
States, this will not be their first consideration of this issue as they can draw on responses many of 
them have already made to CPT recommendati ons on notification of custody. Judicial reforms 
recently carried out in some Member States with a view to aligning domestic legislation with the 
ECHR jurisprudence show that very  substantial changes can be eff ected within even a shorter time-
frame. For instance, France is at present in the process of finalising a major reform of access to a 
lawyer in the pre-trial stage which was prompted  by a ruling of the Cons eil Constitutionnel of 30 
June 2010: as prescribed by this ruling, new rules w ill have to be in forc e by 1 July 2011, when the 
previous rules will cease to be applicable (as unc onstitutional). France looks set to bring the new 
statute law into force by the dead line set by the constitu tional body, effectively in less than a year 
since the reform was envisaged.  
Potential risks to implementation in time will be identified in an Implementation Plan 
accompanying the proposal for the Directive which sets out relevant measures by the Commission aimed at countering these risks.  
Providing for a robust monitoring a nd evaluation mechanism is crucia l to ensure that the rights 
envisaged in the Directive are comp lied with in practice as well as in legislation. The Directive will 
stipulate that Member States' s hould report on the effective implem entation of legislative or non-
legislative measures based on the nature of th e proposed changes. Data  provided by Eurostat, 
Eurobarometer and the Council of Europe will en able the formation of a useful baseline for 
monitoring the situation. Besides quantitative data provided by Member States, other possible 
sources of qualitative information on legislative and practical complia nce will be gathered from the 
Justice Forum, the CPT
57, the ECtHR, the European Network of Councils for the Judiciary and 
national and European Bar Associations. The Funda mental Rights Agency c ould play a role in 
collecting data, carrying out studies  and compiling reports on the righ ts covered in the Directive. 
Member States should be encouraged to collect releva nt data to assist in this process as there is 
currently a lack of re liable empirical data. 
The Commission envisages carrying out a specific empirical study with empha sis on data collection 
three to five years into the implementation of th e proposal. In order to ga in in-depth quantitative 
and qualitative insights into the effectiveness of the proposal, this study will analyse the following 
indicators: 
1. number of refusals of reque sts for judicial cooperation; 
2. number of domestic appeals related to lack of  or insufficient access to a lawyer and duration 
thereof; and related to deni al of notification of custody 
3. number of applications to the ECtHR related to  lack of or insufficien t access to a lawyer or 
notification of custody; 
4. number of requests for preliminary rulings to  the ECJ from domestic courts and tribunals. 
                                                 
57. At the experts meeting on 26-27 March 2009, the CPT offered to assist in monitoring and evaluating the 
implementation of procedural safeguards instruments in the context of CPT visits to Council of Europe Member States.   
 
EN 44   EN The data would enable the Commission to evaluate  the actual compliance in Member States more 
robustly than using the means hitherto available. On ce all Roadmap Measures are in place, it will be 
essential to evaluate each Measure in context as well as the efficiency of the Roadmap as a whole. 
 
EN 45   EN  
ANNEXES 
 
Annexes: I The Procedural Rights Roadmap  46 
 II:  Country fiches on the right of access to a lawyer  51 
 III: EU overview on the ri ght to access to a lawyer 156 
 IV: General statistics 163 
 V: Model calculations for Option 3 (preferred option) 165 
 VI: Model calculations for Option 4 (discarded) 168 
 VII: Overview of legal aid regimes in Member States 174 
 VIII: Overview of notification of  custody in Member States 177 
 
  
 
  
 
  
 
  
 
  
 
EN 46   EN  
   
 
  
   
COUNCIL OF
THE EUROPEAN UNION Brussels, 24 November 2009 
 
 
  15434/09 
     
  DROIPEN 149 
COPEN 220 
LEGISLATIVE ACTS AND OTHER INSTRUMENTS 
Subject: RESOLUTION OF THE COUNCI L on a Roadmap for strengthening 
procedural rights of suspected or accused persons in criminal proceedings
Resolution of the Council 
of 
on a Roadmap for strengthening procedural rights of  
suspected or accused persons in criminal proceedings 
THE COUNCIL OF THE EUROPEAN UNION, 
Whereas: 
(1) In the European Union, the Convention for the Protection of Human Rights and Fundamental 
Freedoms (the "Convention") constitutes the comm on basis for the protection of the rights of 

 
EN 47   EN suspected or accused persons in criminal proceed ings, which for the purposes of this Resolution 
includes the pre-trial and trial stages.  
(2) Furthermore, the Convention, as interpreted by th e European Court of Human Rights, is an important 
foundation for Member States to have trust in each ot her’s criminal justice systems and to strengthen 
such trust. At the same time, there is room for fu rther action on the part of the European Union to 
ensure full implementation and respect of Conventi on standards, and, where appropriate, to ensure 
consistent application of the applicable st andards and to raise existing standards.  
(3) The European Union has successf ully established an area of freedom of movement and residence, 
which citizens benefit from by increasingly travellin g, studying and working in countries other than 
that of their residence. However, the removal of internal borders and the increasing exercise of the 
rights to freedom of movement and residence have, as an inevitable consequence, led to an increase 
in the number of people becoming involved in crimin al proceedings in a Member State other than 
that of their residence. In those situations, the procedural rights of suspected or accused persons are 
particularly important in order to safeguard the right to a fair trial. 
(4) Indeed, whilst various measures have been taken at  European Union level to guarantee a high level 
of safety for citizens, there is an equal need to address specific problems that can arise when a person 
is suspected or accused in criminal proceedings. 
(5) This calls for specific action on procedural rights,  in order to ensure the fairness of the criminal 
proceedings. Such action, which can comprise legi slation as well as other measures, will enhance 
citizens' confidence that the European Union and its Member States will protect and guarantee their 
rights. 
(6) The 1999 Tampere European Council concluded that, in the context of implementing the principle of 
mutual recognition, work should also be launc hed on those aspects of procedural law on which 
common minimum standards are considered necessary in order to facilitate the application of the 
principle of mutual recognition, respecting the fu ndamental legal principles of Member States 
(Conclusion 37). 
(7) Also, the 2004 Hague Programme states that fu rther realisation of mutual recognition as the 
cornerstone of judicial cooperation implies the deve lopment of equivalent standards of procedural 
rights in criminal proceedings, based on studies of the existing level of safeguards in Member States 
and with due respect for their legal traditions (point III 3.3.1.). 
(8) Mutual recognition presupposes that the compet ent authorities of the Member States trust the 
criminal justice systems of the other Member St ates. For the purpose of enhancing mutual trust 
within the European Union, it is important th at, complementary to the Convention, there exist 
European Union standards for the protection of procedural rights which are properly implemented 
and applied in the Member States.  
(9) Recent studies show that there is wide support among experts for European Union action on 
procedural rights, through legislation and other me asures, and that there is a need for enhanced 
mutual trust between the judicial authorities in the Member States58. These sentiments are echoed by 
the European Parliament59. In its Communication for the Stockholm programme60, the European 
Commission observes that strengthening the rights of defence is vital in order to maintain mutual 
trust between the Member States and public  confidence in the European Union. 
                                                 
58 See inter alia  the " Analysis of the future of mutual recognition in criminal matters in the European Union ", report of 20 
November 2008 by the Université Libre de Bruxelles .  
59 See e.g. the " European Parliament recommendatio n of 7 May 2009 to the Council on development of an EU criminal 
justice area ", 2009/2012(INI), point 1 a). 
60 " An area of freedom, security and justice serving the citizen ", COM (2009) 262/4 (point 4.2.2.). 
 
EN 48   EN (10) Discussions on procedural rights within the contex t of the European Union over the last few years 
have not led to any concrete results. However, a lot of progress has been made in the area of judicial 
and police cooperation on measures that facilitate prosecution. It is now time to take action to 
improve the balance between these measures and the protection of procedural rights of the 
individual. Efforts should be deployed to strengthe n procedural guarantees and the respect of the rule 
of law in criminal proceedings, no matter where citizen s decide to travel, study, work or live in the 
European Union.  
(11) Bearing in mind the importance and complexity of  these issues, it seems appropriate to address them 
in a step-by-step approach, whilst ensuring overa ll consistency. By addressing future actions, one 
area at a time, focused attention can be paid to each individual measure, so as to enable problems to 
be identified and addressed in a way that  will give added value to each measure. 
(12) In view of the non-exhaustive nature of the cat alogue of measures laid down in the Annex to this 
Resolution, the Council should also consider the possibility of addressing the question of protection 
of procedural rights other than those listed in that catalogue. 
(13) Any new EU legislative acts in this field should be consistent with the minimum standards set out by 
the Convention, as interpreted by the European Court of Human Rights, 
HEREBY ADOPTS THE FOLLOWING RESOLUTION: 
1. Action should be taken at the level of the Eu ropean Union in order to strengthen the rights 
of suspected or accused persons in criminal proceedings. Such action can comprise legislation as well as other measures.  
2. The Council endorses the "Roadmap for strengtheni ng procedural rights of suspected or accused 
persons in criminal proceedings" (hereinafter referre d to as "the Roadmap"), set out in the Annex to 
this Resolution, as the basis for future action. Th e rights included in this Roadmap, which could be 
complemented by other rights, are considered to  be fundamental procedural rights and action in 
respect of these rights should be given priority at this stage.  
3. The Commission is invited to submit proposals re garding the measures set out in the Roadmap, and 
to consider presenting the Green Pa per mentioned under point F.  
4. The Council will examine all proposals presented in the context of the Roadmap and pledges to deal 
with them as matters of priority.  
5. The Council will act in full cooperation with th e European Parliament, in accordance with the 
applicable rules, and will duly collaborate with the Council of Europe 
 
Roadmap for strengthening procedural rights of suspected 
or accused persons in criminal proceedings 
 
The order of the rights indicated in this Roadmap is indicative. It is emphasised that the explanations 
provided below merely serve to give an indication of the proposed action, and do  not aim to regulate the 
precise scope and content of the measures concerned in advance. 
 
Measure A: Translation and Interpretation  
 
EN 49   EN Short explanation: 
The suspected or accused person must be able to u nderstand what is happening and to make him/herself 
understood. A suspected or accused person who does not sp eak or understand the language that is used in the 
proceedings will need an interpreter and translation of essential procedural documents. Particular attention 
should also be paid to the needs of suspected  or accused persons with hearing impediments. 
 Measure B: Information on Rights and Information about the Charges
 
Short explanation: 
A person that is suspected or accused of a crime shoul d get information on his/her basic rights orally or, 
where appropriate, in writing, e.g. by way of a Letter of  Rights. Furthermore, that person should also receive 
information promptly about the nature and cause of the accusation against him or her. A person who has 
been charged should be entitled, at the appropriate time,  to the information necessary for the preparation of 
his or her defence, it being understood that this should not prejudice the due course of the criminal 
proceedings. 
 
Measure C: Legal Advice and Legal Aid  
Short explanation : 
The right to legal advice (throug h a legal counsel) for the suspected or accused person in criminal 
proceedings at the earliest appropriate stage of such proceedings is fundamental in order to safeguard the 
fairness of the proceedings; the right to legal aid should  ensure effective access to the aforementioned right 
to legal advice. 
 Measure D: Communication with Relatives, Employers and Consular Authorities
 
Short explanation : 
A suspected or accused person who is deprived of his or he r liberty shall be promptly informed of the right to 
have at least one person, such as a relative or employ er, informed of the deprivation of liberty, it being 
understood that this should not prejudice the due course of the criminal proceedings. In addition, a suspected 
or accused person who is deprived of his or her liberty in  a State other than his or her own shall be informed 
of the right to have the competent consular au thorities informed of the deprivation of liberty. 
 
Measure E: Special Safeguards for Suspect ed or Accused Persons who are Vulnerable  
Short explanation : 
In order to safeguard the fairness of the proceedings, it is important that special attention is shown to 
suspected or accused persons who cannot understand or follow the content or the meaning of the 
proceedings, owing, for example, to their age, mental or physical condition. 
 
Measure F: A Green Paper on Pre-Trial Detention  
 
EN 50   EN Short explanation : 
The time that a person can spend in detention before being tried in court and during the court proceedings 
varies considerably between the Member States. Ex cessively long periods of pre-trial detention are 
detrimental for the individual, can prejudice the judi cial cooperation between the Member States and do not 
represent the values for which the Euro pean Union stands. Appropriate me asures in this context should be 
examined in a Green Paper.  
  
 
EN 51   EN ANNEX II:  
Country fiches in relation to access to a lawyer  
 
EN 52   EN AUSTRIA 
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes.  
Within x hours after arrest  
At a later stage (e.g. at  a given stage of the 
investigation or the proceedings)  
Dies a quo when 
the right to legal 
advice arises? 61 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? Before taking the suspect to prison, contact with a lawyer may be 
monitored/limited where necessary in order to avoid any obstruction of the 
investigation or the evidence. (Section 59 para 1 Austrian Code of Civil 
Procedure (“CCP”)) TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-trial stage? - 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of 
questioning does this right cover? 
(questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes.  However, the right to call a lawyer may be waived whenever this appears 
to be necessary to avoid any risk to the investigation, or impairment of 
evidence. In this case, an audio or video recording shall be made where 
possible.   This right covers police, prosecutors and judges. SCOPE RATIONE 
MATERIAE Questioning62 
Can the lawyer and the client deliberate in 
private before questioning? Yes.  However, if the accused is detained because of a danger of conspiracy or 
collusion, the public prosecutor – before taking the accused to the court prison 
– may order the monitoring of his oral and written contact with the defence 
counsel (Section 59 para 2 CCP).  
                                                 
61 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
62 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 53   EN Can the lawyer and the client deliberate in 
private during questioning? Yes. 
What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer can ask questions.  
Can the lawyer meet with his client in 
person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes.   
 
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes – contact between an arrested suspect and his lawyer is not allowed to be 
monitored.  However, before taking the suspect to the court prison, this contact may be monitored/restricted to the extent necessary whenever this appears appropriate in order to ensure that the collection of evidence and further police 
investigation are not jeopardised.  (Every detained suspect must within 48 hours 
of arrest either be released from custody or be taken to the penal institution of that court.) 
Are there possibilities to supervise the oral (including telephone conversation) and/or 
the written communication between lawyer 
and suspect, notably after arrest? If so, in which cases and to what extent? Yes – see above.   
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. 
in time, frequency, permission needed) Yes (right not limited in: time; frequency; or permission needed). Consultation63 
Can the lawyer visit his client in prison? If 
so, can this right be limited? (e.g. in time, 
frequency, permission needed) Yes. The lawyer needs a formal au thentication (during the preliminary 
proceeding from the public prosecutor and during the trial proceeding from the 
presiding judge) to visit the suspect in prison.  The lawyers must also respect prison opening hours.  
MANDATORY Is the assistance by a lawyer mandatory in criminal proceedings Yes.  Assistance by lawyer is mandatory, inter alia, throughout  the proceedings 
                                                 
63 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 54   EN (mandatory defence)? If so, in which cases? (e.g. for certain categories of 
offences, certain categories of defendant and/or certain procedural 
stages) if and as long as the accused is detained  in pre-trial detention or in custodial 
detention.  Other relevant factors for mandatory defence include: the suspect’s 
age and mental/physical capacity; deprivation of liberty of the suspect; factual complexity of the case; legal complexity of the case; severity of the sanction tha can be imposed;    
DEFENCE/WAIVER of 
the right64 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is 
delayed or denied? If so, which kind of remedy? (e.g. exclusion of 
evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) According to Section 106 para 1 of the CCP, the suspect can file an objection 
against a violation of a personal right if a restriction by the authorities of his 
contact with a lawyer does not correspond with the law. 
Apart from cases in which the lawyer is provided (partially) free of 
charge, has the suspect the right to a lawyer of his own choosing? Yes. 
Is membership of the bar compulsory? No.  A defence counsel can be a person entitled to practice as a lawyer, or a 
person otherwise entitled by law to represent persons in criminal proceedings, or a person who has obtained the qualifications to teach criminal law and criminal procedural law at an Austrian university, once the suspect has 
authorized that person to act as his/her legal assistance. 
Are special qualifications and/or special training required to practice criminal law? No (see above). 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) - 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes (supervision by the Austrian bar). COMPETENCES OF 
LAWYERS AND 
QUALITY CONTROL65 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? - 
                                                                                                                                                                                                                                           
64 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
65 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 55   EN EUROPEAN ARREST 
WARRANT (EAW)66 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes. 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure 
the right to legal assistance (as a pr oportion of the overall legal aid 
budget)?  -  
 
 
  
                                                
 
66 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 56   EN BELGIUM 
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest Yes – within 24 hours of arrest. 
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 67 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No.  The arrested person has to be heard by the investigating judge 
within 24 hours of the arrest and th e right to contact a lawyer starts 
after this hearing TEMPORAL SCOPE Dies ad quem  Access to legal advice a pplies all throughout the 
criminal proceedings, including the post-trial stage? Yes.  
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other 
officials) No. 
Can the lawyer and the client deliberate in private 
before questioning? No. SCOPE RATIONE 
MATERIAE Questioning68 
Can the lawyer and the client deliberate in private 
during questioning? Not applicable. 
                                                 
67 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
68 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 57   EN What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to answer the question posed, other competencies) Not applicable. 
Can the lawyer meet with his client in person? If so, 
can this right be limited ? (e.g. consultation by 
phone, use of glass partition) The lawyer is not permitted to visit his client when held at the police 
station.  However, he is allowed to visit his client at a later stage in 
the proceedings, i.e. when his client is held in prison. This right is not 
limited.   
Is the confidentiality of consultation (either by phone or in person) guaranteed? No.  
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and 
suspect, notably after arrest? If so, in which cases 
and to what extent? Yes: the investigating judge may order surveillance of conversations 
between lawyer and suspect under exceptional circumstances (e.g. the lawyers himself is suspected of a criminal offence) – Article 90 of the 
ode of Criminal Procedure.   
Can the lawyer visit his client at the police station? 
If so, can this right be limited? (e.g. in time, frequency, permission needed) No. Consultation69 
Can the lawyer visit his client in prison? If so, can 
this right be limited? (e.g. in time, frequency, 
permission needed) Yes: this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) There are cases of mandatory defence.  Relevant 
circumstances/factors include: age and mental capacity of the suspect; and severity of the sanction that can be imposed.    
MANDATORY 
DEFENCE/WAIVER of the 
right70 Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes. 
CONSEQUENCES OF Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as Yes.  There is legal remedy providing for an appeal before the labour 
court ( tribunal du travail ) where a request for legal assistance (partially 
                                                 
69 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
70 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 58   EN VIOLATIONS prohibition using the confession of a suspect made in absence of his lawyer, 
prohibition on conducting procedural actions and/or judicial review/re-trial) free of charge) is denied  
(Article 508/16 of Judicial Code). 
Apart from cases in which the lawyer is provided (partially) free of charge, has 
the suspect the right to a lawyer of his own choosing? Yes. 
Is membership of the bar compulsory? Unknown.  However, the list of lawyers who may provide legal 
assistance (partially) free of charge is drawn up by the bar (see below).  
Are special qualifications and/or special training required to practice criminal law? To provide legal assistance (partially) free of charge, the lawyer has to 
be registered on the list of the lawyers who want to provide free legal aid (this list is drawn up by the bar). This list specifies the 
specialisation of the lawyers for which they have to justify or for 
which they have to follow some training. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes: the performance of lawyers (at least those who provide legal 
assistance (partially) free of charge) is supervised by the Austrian bar. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL71 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)72 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right 
to legal assistance (as a proportion of the overall legal aid budget)?  -  
 
 
                                                 
71 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
72 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 59   EN  
 
EN 60   EN BULGARIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not late r than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at  a given stage of the 
investigation or the proceedings)  
Dies a quo when 
the right to legal 
advice arises? 73 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No  TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the 
prosecutor, by the investigating judge, by 
other officials) Yes.  The defence counsel has the right to take part in all investigative actions 
involving the accused, including questioning from the police, prosecutor or investigating judge.  (However, his failure to appear is not an obstacle to their occurrence.) 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning74 
Can the lawyer and the client deliberate in Yes 
                                                 
73 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
74 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 61   EN private during questioning? 
What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the 
police ask a given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in 
person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes – consultations should be out of ear-shot and cannot be intercepted or 
recorded.  However, the consultation may be observed. 
Are there possibilities to supervise the oral (including telephone conversation) and/or the written communication between lawyer 
and suspect, notably after arrest? If so, in 
which cases and to what extent? No. 
Can the lawyer visit his client at the police 
station? If so, can this  right be limited? (e.g. 
in time, frequency, permission needed) Yes – this right is not limited. Consultation75 
Can the lawyer visit his client in prison? If 
so, can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
MANDATORY 
DEFENCE/WAIVER of 
the right76 Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of 
offences, certain categories of defendant and/or certain procedural stages) Yes.  Relevant circumstances/factors include: age and mental/physical capacity 
of the suspect; severity of the sanction that can be imposed; deprivation of liberty of the suspect; factual/legal complexity of the case; where the suspect does not speak Bulgarian; where the interests of the accused parties are 
contradictory and one of the parties has his/her own defence counsel; where the 
case is tried in the absence of the accused; and where the accused cannot afford to pay legal fees and wishes to have a defence counsel and the interests of justice 
                                                 
75 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
76 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 62   EN so requires.      
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes – no special guarantees or formal/substantive conditions attaching to right 
of waiver.  
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is 
delayed or denied? If so, which kind of remedy? (e.g. exclusion of 
evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes: decrees of investigative bodies may be appealed before the prosecutor. 
Decrees of the prosecutor not subject to judicial review may be appealed before 
a prosecutor with a higher office, and his decree shall not be subject to further appeal (Article 200 of the Criminal Procedural Code). 
The suspect has other rights where legal assistance is denied under Article 55 
CPC including: to be informed of the relevant criminal offence of which he is 
accused; provide or refuse to provide explanations in relation to the charges against him; and to study the case, incl uding information obtained through the 
use of special intelligence means. 
Apart from cases in which the lawyer is provided (partially) free of 
charge, has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes in respect  of lawyers provided (partially) free of charge. 
Are special qualifications and/or special training required to practice 
criminal law? - 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) - 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes.  Lawyers provided (partially) free of charge are monitored by the 
government/legal aid board/bar. COMPETENCES OF 
LAWYERS AND 
QUALITY CONTROL77 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST Is there an obligation to provide legal advice when the suspect is the Yes 
                                                 
77 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 63   EN WARRANT (EAW)78 subject of a EAW, extradition request or other surrender proceedings? 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure 
the right to legal assistance (as a proportion of the overall legal aid 
budget)?  Pre-trial legal assistance in the range of  1,200 to 2,400 leva (612 to 1,224 euros) 
in 2009.  This is from a total legal expe nditure of approximately 9 million leva (5 
million euros) a year.  In other words, only 0.01% – 0.03% of total expenditure 
on legal aid is directed towards providing access to lawyers during the police detention phase.   
 
 
 
                                                                                                                                                                                                                                           
78 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 64   EN CYPRUS  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is deprived 
of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a give n stage of the investigation or 
the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 79 
Is it possible to limit the ri ght to contact a lawyer after 
arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal 
proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right 
cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes.  This right covers questioning by the police, 
prosecutor, investigating judge or any other official. 
Can the lawyer and the client deliberate in private before 
questioning? Yes 
Can the lawyer and the client deliberate in private during 
questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning80 
What can the lawyer do during questioning? (e.g. intervene, 
ask questions or have the police ask a given question, make The lawyer may intervene/make remarks during the 
                                                 
79 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
80 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 65   EN remarks, suggest how to answer the question posed, other 
competencies) suspect’s questioning. 
Can the lawyer meet with his client in person? If so, can this 
right be limited? (e.g. consultation by phone, use of glass partition) Yes.  This right is not limited. 
Is the confidentiality of consultation (either by phone or in 
person) guaranteed? Yes 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written communication 
between lawyer and suspect, notably after arrest? If so, in 
which cases and to what extent? No 
Can the lawyer visit his client at the police station? If so, can 
this right be limited? (e.g. in time, frequency, permission needed) Yes.  The lawyer must obtain permission to visit, 
however the Director of the Police Station or other personnel at the Police Station must not hinder or 
restrain this right. Consultation81 
Can the lawyer visit his client in prison? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes, but the lawyer needs permission.  
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If so, 
in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes.  “ The Court may assign an advo cate to defend the accused 
or the appellant, as the case may be, if the gravity, difficulty or 
other circumstances of the case make  it desirable in the interests of 
justice ”, Article 54 of the Criminal Procedure.  MANDATORY 
DEFENCE/WAIVER of the 
right82 Mandatory defence can be derogated or waived? If so, are there special guarantees for the 
exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to  legal assistance is delayed or denied? If so, 
which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession 
of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes.  A right of appeal exists against a decision for not 
issuing a certificate for legal aid.  This is on the basis of 
the basic procedural rule that all decisions of the courts are subject to appeal. 
                                                 
81 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
82 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 66   EN Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect 
the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? - 
Are special qualifications and/or special training required to prac tice criminal law? No.  However, a lawyer provided (partiall y) free of 
charge must be registered in the catalogue of the lawyers 
willing to offer their services for legal assistance. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of 
defence lawyers and/or professional mechanisms used to deal with poor standards of 
performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL83 
Is the State obliged to provide the suspect with  another lawyer if legal representation proves 
to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)84 Is there an obligation to provide legal advice when the suspect is the subject of a EAW, 
extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to legal 
assistance (as a proportion of the overall legal aid budget)?  -  
 
 
                                                 
83 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
84 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 67   EN CZECH REPUBLIC  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when 
the right to legal 
advice arises? 85 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the 
investigating judge, by other officials) Yes.  This right covers questioning by the police, prosecutor and 
investigating judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning86 
Can the lawyer and the client deliberate in 
private during questioning? Yes 
                                                 
85 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
86 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 68   EN What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the police 
ask a given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this righ t be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited. 
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and 
suspect, notably after arrest? If so, in which 
cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. Consultation87 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes.
 Relevant circumstances/factors include: age and mental/physical 
capacity of the suspect; severity of the sanction that can be imposed; deprivation of liberty of the suspect.  Other grounds in Section 36, Code of Criminal Procedure include:
 if the accused is put in an observation ward in 
hospital; if it is deemed necessary by the court or by the public prosecutor in 
the pre-trial proceedings. MANDATORY 
DEFENCE/WAIVER of the 
right88 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
                                                 
87 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
88 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 69   EN  
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes – a complaint can be made. 
Apart from cases in which the lawyer is provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? -   
 
Are special qualifications and/or special training required to practice 
criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of the 
work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – lawyers provided (partially) free of charge are supervised by the bar. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL89 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)90 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the -   
                                                 
89 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
90 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 70   EN right to legal assistance (as a proportion of the overall legal aid budget)?   
 
 
 
EN 71   EN DENMARK  
At the first police interrogation  
Some time before the police interrogation Yes (in most cases)  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a give n stage of the investigation or 
the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 91 
Is it possible to limit the right to contact a lawyer after 
arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal 
proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this 
right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police and 
prosecutor. 
Can the lawyer and the client deliberate in private before 
questioning? Yes 
Can the lawyer and the client deliberate in private during 
questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning92 
What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a given The lawyer has wide scope to participate during the 
suspect’s questioning, including: intervening; asking 
                                                 
91 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
92 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 72   EN question, make remarks, suggest how to answer the 
question posed, other competencies) questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can 
this right be limited? (e.g. consultation by phone, use of glass partition) Yes.  This right is not limited. 
Is the confidentiality of consultation (either by phone or 
in person) guaranteed? Yes 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written 
communication between lawyer and suspect, notably after 
arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police station? If so, 
can this right be limited? (e.g. in time, frequency, permission needed) Yes.  This right is not limited. Consultation93 
Can the lawyer visit his client in prison? If so, can this 
right be limited? (e.g. in time, frequency, permission 
needed) Yes.  This right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If 
so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: 
deprivation of liberty of the su spect; and the severity of the 
sentence that can be imposed. Other grounds are set out in Section 731 of the Administration  of Justice Act (“AJA”).  
MANDATORY 
DEFENCE/WAIVER of the 
right94 Mandatory defence can be derogated or waived? If so, are there special guarantees for 
the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? If 
so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the 
confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes – the court’s decision to deny legal assistance (partially) 
free of charge can be brought before an appeal court 
(however, only before the Supreme Court if a special permission from the Appeals Permission Board is 
                                                 
93 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
94 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 73   EN obtained). 
Apart from cases in which the lawyer is pr ovided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes 
Are special qualifications and/or special training required to practice criminal law? - 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of 
defence lawyers and/or professional mechanisms used to deal with poor standards of 
performance (e.g. disciplinary mechanisms)? Yes – lawyers provided (partially) free of charge are 
supervised by the bar and the government/legal aid board. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL95 
Is the State obliged to provide the suspect with another lawyer if legal representation 
proves to be ineffective? No.  However, the court is en titled to dismiss a defence 
lawyer if there is a demonstrable risk that the lawyer hinders or prevents the smooth-running of the case. 
EUROPEAN ARREST 
WARRANT (EAW)96 Is there an obligation to provide legal advice when the suspect is the subject of a EAW, 
extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to legal 
assistance (as a proportion of the overall legal aid budget)?  -  
 
 
                                                 
95 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
96 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 74   EN ENGLAND & WALES  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when 
the right to legal 
advice arises? 97 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? Yes – where there are reasonable grounds for believing that the exercise of this 
right might harm evidence or other people; alert other susects; or hinder the 
recovery of property (Section 58 and Code of Practice C, section 6 of the 
Police and Criminal Evidence Act 1984 (“PACE”)). TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of 
questioning does this right cover? 
(questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by police. 
SCOPE RATIONE 
MATERIAE Questioning98 
Can the lawyer and the client deliberate in 
private before questioning? Yes 
                                                 
97 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
98 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 75   EN Can the lawyer and the client deliberate in 
private during questioning? Yes 
What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? 
If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes (however see row below). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or 
the written communication between lawyer 
and suspect, notably after arrest? If so, in which cases and to what extent? Yes – the suspect can give informed consent to the supervision of oral and 
written communications between him or herself and his or her lawyer.  
However, the right to communicate orally and in writing in private with a 
solicitor is fundamental. 
Can the lawyer visit his client at the police station? If so, can this right be limited? (e.g. 
in time, frequency, permission needed) Yes – this right is not limited in principle. Consultation99 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes, by arrangement.  Prison authorities cannot refuse a lawyer access to his 
client. 
MANDATORY 
DEFENCE/WAIVER of 
the right100 Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural 
stages) Yes. Grounds/factors for mandatory defence include: age and mental/physical 
capacity of the suspect; deprivation of liberty of the suspect; and the severity of the sentence that can be imposed.  Other circumstances include vulnerable 
persons as identified in PACE and PACE Code of Practice C. 
                                                 
99 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
100 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 76   EN Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) No 
Apart from cases in which the lawyer is provided (partially) free of 
charge, has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (solicitors must be admitted to the Roll of Solicitors of the Senior Courts 
of England and Wales).  
Are special qualifications and/or special training required to practice criminal law? Yes.  All solicitors and advocates are required to meet the professional 
standards set by the relevant professional body.  In respect of solicitors, these are set by the Solicitors Regulation Aut hority (SRA).  Duty Solicitors wishing 
to undertake duty solicitor work at the police station and magistrates’ court 
must hold a Duty Solicitor Qualification awarded by the SRA).  The Bar Standards Board regulates barristers calle d to the bar in England and Wales. 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to 
deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes: supervision is provided by the Government/legal aid board and the bar.  
In addition, the Legal Services Commission (LSC) sets a number of 
requirements for solicitors’ firms wishin g to undertake criminal legal aid work 
under contract to the LSC. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL101 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
                                                 
101 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 77   EN EUROPEAN ARREST 
WARRANT (EAW)102 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure 
the right to legal assistance (as a proportion of the overall legal aid 
budget)?  Out of a total legal aid spend in Engl and and Wales (i.e. covering civil and 
criminal expenditure) of £2,186 m illion in 2008/9, the most recent year for 
which figures are available, £192 million was spent on legal advice or 
representation at the police station. 
 
 
    
                                                
 
102 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 78   EN ESTONIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at  a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 103 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and investigative 
judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning104 
Can the lawyer and the client deliberate in 
private during questioning? Yes 
                                                 
103 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
104 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 79   EN What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the 
police ask a given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited. 
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer 
and suspect, notably after arrest? If so, in 
which cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right it not limited.  Consultation105 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right it not limited.  
Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes – at the trial stage only. Grounds/factors for mandatory defence include: 
age and mental/physical capacity of the suspect; deprivation of liberty of the suspect; and the severity of the sentence that can be imposed.  Other circumstances are set out in Article 45 of the Criminal Procedure Code 
(“CPC”) and include criminal proceedings that are conducted under the 
expedited procedure. MANDATORY 
DEFENCE/WAIVER of 
the right106 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes – the right can be waived at the pre-trial stage.  Usually written 
confirmation is required of the suspect/accused to confirm that he does not 
                                                 
105 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
106 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 80   EN wish for legal representation.  
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) No  
Apart from cases in which the lawyer is provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (in the case of a court-appointed lawyer, unless there are exceptional 
circumstances and the court agrees  to the lawyer’s suitability).  
Are special qualifications and/or special training required to practice 
criminal law? Yes.  To provide legal assistance (partially) free of charge, the lawyer must be: 
(1) an advocate or, with the permission of the body conducting the proceedings, any other person who meets the educational requirements 
established for contractual representatives by the CPC and whose competence 
in the criminal proceedings is based on an agreement with the person being defended (“contractual counsel”); or (2)
 an advocate whose competence in 
the criminal proceeding is based on an appointment by the body conducting 
the proceedings, Prosecutor’s Office or court (“appointed counsel”). 
Are there guarantees for the independence of defence lawyers (e.g. from the police) The Bar Association nominates the (public) defence lawyer and therefore  is 
responsible for guaranteeing his or her independence.  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL107 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? - 
 
                                                 
107 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 81   EN EUROPEAN ARREST 
WARRANT (EAW)108 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  Spending on access to lawyers at the pre-trial phase was therefore 37% 
(14,332,956 EEK, or 919,029 euros) of to tal state expenditure on legal aid (38, 
284,758 EEK, or 2,454,818 euros) in 2009. 
 
 
 
                                                 
108 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 82   EN FINLAND  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 109 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does 
this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police and prosecutor. 
Can the lawyer and the client deliberate in private 
before questioning? Yes 
Can the lawyer and the client deliberate in private 
during questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning110 
What can the lawyer do during questioning? (e.g. The susp ect’s lawyer may ask questions during the suspect’s police 
                                                 
109 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
110 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 83   EN intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to 
answer the question posed, other competencies) interrogation. 
Can the lawyer meet with his client in person? If so, 
can this right be limited ? (e.g. consultation by 
phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the 
written communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police station? If 
so, can this right be limited ? (e.g. in time , frequency, 
permission needed) Yes – this right is not limited.  Consultation111 
Can the lawyer visit his client in prison? If so, can 
this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental capacity of the suspect; deprivation of liberty of the suspect; 
and the severity of the sentence that can be imposed.  Other 
circumstances are if the existing defence counsel is incapable of defending the suspect, or if there is another special reason. MANDATORY 
DEFENCE/WAIVER of the 
right112 Mandatory defence can be derogated or waived? If so, are there special guarantees 
for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF Is there any remedy that applies when access to legal assistance is delayed or Yes – a rejected application can be submitted to  the court for a 
                                                 
111 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
112 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 84   EN VIOLATIONS denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, 
prohibition on conducting procedural actions and/or judicial review/re-trial) hearing (Section 24, Legal Aid Act). 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? No (see below) 
Are special qualifications and/or special training required to practice criminal law? Legal aid can be given either by a public  legal aid attorney working 
at the state legal aid office or a private attorney. A private attorney 
may be either an advocate (member of the Bar Association) or 
another lawyer. 
Are there guarantees for the independence of defence lawyers (e.g. from the 
police) - 
 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – the activities of public le gal aid attorneys and advocates are 
supervised by the Bar Association and the Chancellor of Justice. In addition, all attorneys are under the supervision of the court. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL113 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? Yes – this is a ground for mandatory defence (see above). 
 
EUROPEAN ARREST 
WARRANT (EAW)114 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  -  
 
 
                                                 
113 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
114 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 85   EN FRANCE  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 115 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? Yes – the garde à vue  procedure can be extended twice, each time for a period 
of 24 hours.  The person whose detention is extended in this way may ask a 
lawyer after the forty-eighth hour and then the seventy-second hour of the 
measure and is advised of that right or when the extensions are notified. 
However, when the police investigation concerns an offense within the scope of the 3 ° and 11 ° of Article 706-73 of the Code of Penal Procedure (“CPP”), 
the interview with a lawyer can intervene only after the seventy-second hour. TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) Yes – this right covers questioning by the prosecutor and investigative judge.  
However, the lawyer does not have the right to be present throughout 
questioning by the police.  SCOPE RATIONE 
MATERIAE Questioning116 
Can the lawyer and the client deliberate in Yes – but it is not a case of a “right” of the suspect to consult his lawyer, i.e. it 
                                                 
115 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
116 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 86   EN private before questioning? is not formalised in law.  In the absence of the lawyer, the police may listen in 
on the suspect.  
Can the lawyer and the client deliberate in 
private during questioning? Yes 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including inter alia: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. consultation by phone, use of glass partition) Yes – however the duration of the meeting is limited to 30 minutes.  
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes (however there is no particular legal provision to guarantee this).  
Are there possibilities to supervise the oral 
(including telephone conversation) and/or 
the written communication between lawyer 
and suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this  right be limited? (e.g. 
in time, frequency, permission needed) Yes – however the duration of the meeting is limited to 30 minutes. Consultation117 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  
MANDATORY 
DEFENCE/WAIVER of 
the right118 Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural 
stages) Yes. Grounds/factors for mandatory defence include: age and mental capacity 
of the suspect; deprivation of liberty of  the suspect; and th e severity of the 
sentence that can be imposed.   
                                                 
117 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 87   EN Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) Yes – decisions of the legal aid office may be appealed, as appropriate, to the 
President of the Court of Appeal or the Court of Cassation; the Chairman of the Administrative Court of Appeal; th e Chairman of the Litigation Division 
of the State Council; Vice-Chairman of the Industrial Disputes Tribunal; the 
President of the National Court of asylum or a member of the court to which 
the case has been assigned.  
Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? - 
 
Are special qualifications and/or special training required to practice 
criminal law? A lawyer’s certificate ( diplome d’avocat ) is required to provide legal assistance 
(partially) free of charge.  
Are there guarantees for the independence of defence lawyers (e.g. from the police) -
  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to 
deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – legal aid lawyers are supervised by the heads of court if they have signed 
a memorandum of criminal defence ( protocole de défense pénale ). COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL119 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
                                                                                                                                                                                                                                           
118 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
119 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 88   EN WARRANT (EAW)120 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure 
the right to legal assistance (as a pr oportion of the overall legal aid 
budget)?  In order to meet its fair trial obligations  as part of its garde à vue reform, the 
Ministry of Justice has provided for a significant increase in the budget 
allocated to legal aid, in the order of 80 m illion euros.   This budget is to meet 
the cost of, inter alia: 
• Notifying the suspect/accused of his right to silence. • Providing for the presence of a lawyer at the outset of garde à vue 
and throughout the proceedings. 
 
 
                                                                                                                                                                                                                                           
120 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 89   EN GERMANY  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes (or at any stage of the defence pr oceedings: § 137 para 1 of the 
Code of Criminal Procedure) 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 121 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other 
officials) Yes – this right covers questioning by the police, prosecutor and 
investigative judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning122 
Can the lawyer and the client deliberate in private 
during questioning? Yes 
                                                 
121 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
122 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 90   EN What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s 
questioning, including: intervening; asking questions; and making 
remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited ? (e.g. consultation by 
phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to 
what extent? No 
Can the lawyer visit his client at the police station? 
If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  Consultation123 
Can the lawyer visit his client in prison? If so, can 
this right be limited? (e .g. in time, frequency, 
permission needed) Yes – this right is not limited.  
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of the 
suspect; factual/legal complexity of the case; and the severity of the sentence that can be imposed.  Other circumstances are set out at § 140 para. 1 of the Code of Criminal Procedure. MANDATORY 
DEFENCE/WAIVER of the 
right124 Mandatory defence can be derogated or waived? If so, are there special guarantees 
for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
                                                 
123 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
124 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 91   EN CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) -
  
 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? - 
Are special qualifications and/or special training required to practice criminal law? There is no mandatory qualifications or t raining, but a wide range of 
training courses are offered 
Are there guarantees for the independence of defence lawyers (e.g. from the 
police) -  
 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor 
standards of performance (e.g. disciplinary mechanisms)? [There is no quality control of any kind  COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL125 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)126 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                 
125 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
126 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 92   EN GREECE  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is deprived of  
his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the investigation or the 
proceedings)  
Dies a quo when the 
right to legal advice 
arises? 127 
Is it possible to limit the right to contact a lawyer after arrest? 
If so, in which cases? Yes – though not expressly provided for in the law, in 
the 24 hours following arrest the suspect’s contact 
with his lawyer may occur in practice. TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, 
prosecutor and investigative judge. 
Can the lawyer and the client deliberate in private before 
questioning? No 
Can the lawyer and the client deliberate in private during 
questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning128 
What can the lawyer do during questioning? (e.g. intervene, The lawyer may make remarks during the suspect’s 
                                                 
127 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
128 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 93   EN ask questions or have the police ask a given question, make 
remarks, suggest how to answer the question posed, other 
competencies) questioning, as well as consult with his client in 
private (see above). 
Can the lawyer meet with his client in person? If so, can this 
right be limited? (e.g. consultation by phone, use of glass partition) After questioning by the police, the lawyer may visit 
the suspect at the police station – this right is not limited.  
Is the confidentiality of consultation (either by phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written communication 
between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police station? If so, can 
this right be limited? (e.g. in time, frequency, permission 
needed) Yes – this right is not limited (see above). Consultation129 
Can the lawyer visit his client in prison? If so, can this right 
be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If so, in 
which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence 
include: age and mental capacity of the suspect; the factual/legal complexity of the case; and the severity of the sentence that can be imposed.   
MANDATORY 
DEFENCE/WAIVER of the 
right130 Mandatory defence can be derogated or waived? If so, are there special guarantees for the 
exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? If so, 
which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of 
a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) No 
                                                 
129 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
130 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 94   EN Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect the 
right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? No 
Are special qualifications and/or special training required to practice criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of defence 
lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL131 
Is the State obliged to provide the suspect with another lawyer if legal representation proves 
to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)132 Is there an obligation to provide legal advice when the suspect is the subject of a EAW, 
extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to legal 
assistance (as a proportion of the overall legal aid budget)?  -  
 
 
 
                                                 
131 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
132 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 95   EN HUNGARY  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings) Yes – not later than the first questioning of the defendant.  
Dies a quo when the 
right to legal advice 
arises? 133 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and investigative 
judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning134 
Can the lawyer and the client deliberate in 
private during questioning? Yes 
                                                 
133 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
134 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 96   EN What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the 
police ask a given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions ; and making remarks.  The lawyer is 
also entitled to receive a copy of the minutes taken on the questioning of the suspect. 
Can the lawyer meet with his client in person? 
If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited. 
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer 
and suspect, notably after arrest? If so, in 
which cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  Consultation135 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of the suspect; and the severity of the sentence that can be imposed.  Other circumstances include: if the defendant does not speak Hungarian or the language of the 
procedure; if the defendant is unable to defend himself personally for any 
other reasons; or if the investigating judge holds the session by way of a closed-circuit communication system. MANDATORY 
DEFENCE/WAIVER of 
the right136 
Mandatory defence can be derogated or waived? If so, are there special Yes 
                                                 
135 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
136 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 97   EN guarantees for the exercise of the right to waiver? (e.g. to be recorded)  
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such 
as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes – the decision can be appealed (unless there is a relevant exception in the 
Act XIX of 1998 on Criminal Proceedings that applies). 
Apart from cases in which the lawyer is provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? -   
 
Are special qualifications  and/or special training  required to practice 
criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) Yes.  To guarantee the independence of the defence council, Act XIX of 1998 
on Criminal Proceedings (the ‘CPA’) provides that, inter alia, the following shall not act as counsels for the defence: 
- persons whose conduct was adverse to the interests of the defendant, or 
whose interests are adverse to those of the defendant, 
- persons who are or have been involved in the case as an expert or advisor, 
and 
- the lawyer acting for a witness cannot act simultaneously as a counsel for the 
defence. 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL137 
Is the State obliged to provide the suspect with another lawyer if legal No.  However, the defendant – with justification – may  request the 
appointment of another counsel. The request shall be judged by the court, 
                                                 
137 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 98   EN representation proves to be ineffective? prosecutor or investigating authority which is processing the case. 
EUROPEAN ARREST 
WARRANT (EAW)138 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                 
138 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 99   EN IRELAND 
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is deprived of  
his liberty Yes (when the suspect has been detained at the 
police station).  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the investigation or the 
proceedings)  
Dies a quo when the 
right to legal advice 
arises? 139 
Is it possible to limit the right to  contact a lawyer after arrest? If 
so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal 
proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout questioning? 
If so, which kind of questioning does this right cover? 
(questioning by the police, by the prosecutor, by the investigating judge, by other officials) No 
SCOPE RATIONE 
MATERIAE Questioning140 
Can the lawyer and the client deliberate in private before 
questioning? Yes.  Also with regards to inferences drawn from 
failure or refusal to account for objects, marks, 
etc., Part 4 of the Criminal Justice Act, 2007 
provides that such inferences 
shall not have effect unless the accused was 
afforded a reasonable opportunity to consult a 
                                                 
139 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
140 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 100   EN solicitor before such failure or refusal occurs. 
Can the lawyer and the client deliberate in private during 
questioning? No 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the police ask a given question, make 
remarks, suggest how to answer the question posed, other competencies) Not applicable (lawyer not present during 
questioning – see above).  
Can the lawyer meet with his client in person? If so, can this 
right be limited? (e.g. consultation by phone, use of glass 
partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either by phone or in 
person) guaranteed? Yes 
Are there possibilities to supervise the oral (including telephone 
conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police station? If so, can 
this right be limited? (e.g. in time, frequency, permission 
needed) Yes.  However, permission to visit is needed and 
the right is limited in time/frequency – each case 
is dealt with on its me rits by the member-in-
charge of the police station. Consultation141 
Can the lawyer visit his client in prison? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If so, in 
which cases? (e.g. for certain categories of offences, certain categories of defendant and/or 
certain procedural stages) No. 
MANDATORY 
DEFENCE/WAIVER of the 
right142 Mandatory defence can be derogated or waived? If so, are there special guarantees for the 
exercise of the right to waiver? (e.g. to be recorded) N/A 
                                                 
141 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
142 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 101   EN  
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? If so, 
which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a 
suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) No 
Apart from cases in which the lawyer is provided  (partially) free of charge, has the suspect the 
right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? -   
Are special qualifications and/or special training required to practice criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of defence 
lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. 
disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL143 
Is the State obliged to provide the suspect with another lawyer if legal representation proves to 
be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)144 Is there an obligation to provide legal advice when the suspect is the subject of a EAW, 
extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to legal 
assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                 
143 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
144 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 102   EN  
ITALY  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 145 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the 
investigating judge, by other officials) Yes – this right covers questioning by the prosecutor and investigative judge. 
SCOPE RATIONE 
MATERIAE Questioning146 
Can the lawyer and the client deliberate in 
private before questioning? Yes 
                                                 
145 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
146 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 103   EN Can the lawyer and the client deliberate in 
private during questioning? Yes 
What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? 
If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes.  However during preliminary investigations, when there are specific and 
exceptional reasons the court, at the request of the prosecutor, may delay for 
up to 5 days the suspect’s right to speak with a lawyer. 
Is the confidentiality of consultation (either by phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the 
written communication between lawyer and 
suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this ri ght be limited? (e.g. in 
time, frequency, permission needed) Yes – this right is not limited except that during preliminary investigations, 
when there are specific and exceptional reasons the court, at the request of the prosecutor, may delay for up to 5 days the suspect’s right to speak with a 
lawyer (see above). Consultation147 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited.  
MANDATORY 
DEFENCE/WAIVER of the Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, 
certain categories of defendant and/or certain procedural stages) Yes, in all cases.  
                                                 
147 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
148 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 104   EN right148 Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) No 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) Yes, the suspect may appeal the decision.  
Apart from cases in which the lawyer is provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes – see below.  
Are special qualifications and/or sp ecial training required to practice 
criminal law? Yes.  To be on the list of approved legal aid lawyers various conditions must 
be satisfied.  These relate to (a) the lawyer’s  skills and specific professional 
experience (distinguishing between civil, criminal, administrative, accounting, tax and business voluntary jurisdiction); (b) the absence of disciplinary 
sanctions imposed over the warning in the five years preceding the lawyer’s 
application; and (c) admission to the Roll of lawyers for at least 2 years. 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of the 
work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – lawyers provided (partially) free of charge are supervised by the bar.  COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL149 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
                                                 
149 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 105   EN WARRANT (EAW)150 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                                                                                                                                                                                                           
150 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 106   EN  
LATVIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes (although consultation with a lawyer is not possible before questioning 
by police – see below) 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 151 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No (although consultation with a lawyer is not possible before questioning 
by police – see below) TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning 
by the police, by the prosecutor, by the 
investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and investigative 
judge. 
SCOPE RATIONE 
MATERIAE Questioning152 
Can the lawyer and the client deliberate in It should be noted that the answers provided to the Spronken report153 are 
unclear on this point. The answer to Qn 12 (p.514) confirms that 
                                                 
151 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
152 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 107   EN private before questioning? consultation with a lawyer is not possible before questioning by police; 
whereas the answer to Qn 23 (p.516) th at pursuant to Section 82(2) of the 
Criminal Procedure Law the “ defence counsel may meet with the defendant both before 
and after a procedural action in order to prepare for the performance of the operation .”    
Can the lawyer and the client deliberate in 
private during questioning? No 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the 
police ask a given question, make remarks, 
suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this righ t be limited? (e.g. 
consultation by phone, use of glass partition) Consultation with a lawyer is not possible before questioning by police.  
Aside from this, the lawyer has a right (not limited) to visit his client held at 
the police station.   
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which 
cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. in time, frequency, permission needed) See above.  Consultation with a lawyer is not possible before questioning by 
police.  Aside from this, the lawyer has a right (not limited) to visit his client held at the police station.   Consultation154 
Can the lawyer visit his client in prison? If so, can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
MANDATORY Is the assistance by a lawyer mandatory in criminal proceedings  Yes.  Grounds/factors for mandatory defence include: age and 
                                                                                                                                                                                                                                           
153 http://arno.unimaas.nl/show.cgi?fid=16315   
154 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 108   EN (mandatory defence)? If so, in which cases? (e.g. for certain categories of 
offences, certain categories of defendant and/or certain procedural stages) mental/physical capacity of the suspect.  Other grounds are set out in 
Section 83 of the Criminal Procedure Law and include where the suspect is 
illiterate.  DEFENCE/WAIVER of 
the right155 Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his 
lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) No 
Apart from cases in which the lawyer is provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? -   
 
Are special qualifications and/or special training required to practice 
criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL156 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
                                                                                                                                                                                                                                           
155 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
156 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 109   EN EUROPEAN ARREST 
WARRANT (EAW)157 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  -  
 
 
                                                 
157 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 110   EN LITHUANIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes – Article 21(4) of the Code of Criminal Procedure (“the Code”) provides 
that the suspect has the right to have a defence lawyer from the moment of 
apprehension or first questioning. 
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 158 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No  TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of 
questioning does this right cover? 
(questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor, investigative 
judge and any other pre-trial investigation body as set out in Article 165 of the 
Code. SCOPE RATIONE 
MATERIAE Questioning159 
Can the lawyer and the client deliberate in 
private before questioning? The Code does not provide for the opportunity for the suspect to see/receive 
advice before the first police questioning, since the defence lawyer will be 
present during the first questioning only.  However, with respect to 
questioning of the suspect in general, the suspect is entitled to the opportunity 
                                                 
158 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
159 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 111   EN to see or consult with the defence lawyer before questioning. NB this 
response – see Qn 12 (p.534) of the Sponk en questionnaire – does not tally as 
Article 24(4) provides that the suspect has the right to have a defence lawyer from the moment of apprehension or first questioning – see above). 
Can the lawyer and the client deliberate in 
private during questioning? No 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the 
police ask a given question, make remarks, 
suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited (except that the Code does not provide for the 
opportunity for the suspect to see/receive advice before the first questioning, 
since the defence lawyer will be present during the first questioning only – see 
above). 
Is the confidentiality of consultation (either by phone or in person) guaranteed? Yes 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer 
and suspect, notably after arrest? If so, in 
which cases and to what extent? No 
Can the lawyer visit his client at the police 
station? If so, can this  right be limited? (e.g. 
in time, frequency, permission needed) Yes – this right is not limited (except that the Code does not provide for the 
opportunity for the suspect to see/receive advice before the first police questioning, since the defence lawyer will be present during the first 
questioning only – see above). Consultation160 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. 
MANDATORYIs the assistance by a lawyer mandatory in criminal proceedi ngs Yes. Grounds/factors for mandatory defence include: age and 
                                                 
160 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 112   EN (mandatory defence)? If so, in which cases? (e.g. for certain categories of 
offences, certain categories of defendant and/or certain procedural 
stages) mental/physical capacity of the suspect; the deprivation of liberty of the 
suspect; and the severity of the sanction that can be imposed.  Other grounds 
are set out in Section 51 of the Code and include proceedings under the accelerated trial procedure. 
DEFENCE/WAIVER of 
the right161 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such 
as prohibition using the confession of a suspect made in absence of his 
lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes.  If the participation of a defence lawyer is not necessary under Article 51 
of the Code or not mandatory in other cases prescribed by law, and the 
decision on the provision of legal assistance guaranteed by the state is made by 
the service of legal assistance guaranteed by the state, this decision may be appealed against to the administrative court or commission of administrative disputes.  
If participation of a defence lawyer is n ecessary, it is a duty of an investigating 
official, prosecutor or court to always check for the grounds of mandatory participation of a defence lawyer and appoint a defence lawyer for the suspect or defendant if such suspect or defendant has not invited a defence lawyer. 
Apart from cases in which the lawyer is  provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (see below) 
Are special qualifications  and/or special training  required to practice 
criminal law? Yes.  Lawyers provided (partially) free of charge must be defence lawyers who 
have entered into agreements t provide services of legal assistance guaranteed 
by the state. Only defence with a favourable reference from the Lithuanian Bar Association with regard to their suitability to provide legal assistance guaranteed by the state may take part in the competitions for defence lawyers 
providing secondary legal assistance. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL162 
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
                                                                                                                                                                                                                                           
161 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
162 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 113   EN  
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to 
deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – defence lawyers provided (partially) free of charge) are supervised by bar 
as well as the government/legal aid board.  
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)163 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  - 
 
   
                                                
 
163 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 114   EN LUXEMBOURG  
At the first police interrogation  
Some time before the police interrogation Yes  
In any event not later than the when the person is deprived of  
his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the investigation or the 
proceedings)  
Dies a quo when the 
right to legal advice 
arises? 164 
Is it possible to limit the right to contact a lawyer after arrest? 
If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal 
proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right 
cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers qu estioning by the police and 
investigative judge. 
Can the lawyer and the client deliberate in private before 
questioning? Yes (although there is no specific legal provision 
guaranteeing this right).   
Can the lawyer and the client deliberate in private during questioning?
 No SCOPE RATIONE 
MATERIAE 
Questioning165 
What can the lawyer do during questioning? (e.g. intervene, 
ask questions or have the police ask a given question, make The lawyer has wide scope to participate during the 
suspect’s questioning, including: intervening; asking 
                                                 
164 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
165 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 115   EN remarks, suggest how to answer the question posed, other 
competencies) questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this 
right be limited? (e.g. consultation by phone, use of glass partition) Yes – this right is not limit ed (although there is also 
no specific provision that guarantees it).  
Is the confidentiality of consultation (either by phone or in person) guaranteed? Yes (although there is no specific legal provision 
guaranteeing this right).   
Are there possibilities to supervise the oral (including telephone conversation) and/or the written communication 
between lawyer and suspect, notably after arrest? If so, in 
which cases and to what extent? No 
Can the lawyer visit his client at the police station? If so, can 
this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. Consultation166 
Can the lawyer visit his client in prison? If so, can this right 
be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If so, in 
which cases? (e.g. for certain categories of offences, certain categories of defendant and/or 
certain procedural stages) Yes – the age of a suspect is a ground for mandatory 
defence. 
MANDATORY 
DEFENCE/WAIVER of the 
right167 Mandatory defence can be derogated or waived? If so, are there special guarantees for the 
exercise of the right to waiver? (e.g. to be recorded) Yes.  Where legal assistance is not mandatory, the 
suspect/accused receives a receipt where he certifies that he has been informed of his right to receive legal 
counsel from a registered lawyer. 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? If so, 
which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or Yes, it is possible to appeal the decision.  
                                                 
166 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
167 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 116   EN judicial review/re-trial) 
Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect the 
right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (the lawyer must be registered). 
Are special qualifications and/or special training required to practice criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of defence 
lawyers and/or professional mechanisms used to deal with poor standards of performance 
(e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL168 
Is the State obliged to provide the suspect with  another lawyer if legal representation proves 
to be ineffective? - 
 
EUROPEAN ARREST 
WARRANT (EAW)169 Is there an obligation to provide legal advice when the suspect is the subject of a EAW, 
extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to legal 
assistance (as a proportion of the overall legal aid budget)?  -  
 
 
  
                                                
 
168 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
169 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 117   EN  
 
EN 118   EN MALTA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings) Yes.  Under current practice, the Malta Police Force allows the 
suspect to contact a lawyer after the police interrogation is over. However, it should be noted that Article 355AT of the Criminal 
Code (Chapter 9) – not yet in force  – provides for the right to legal 
advice during police interrogation. 
Dies a quo when the 
right to legal advice 
arises? 170 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No.  However, when  Article 355AT comes into force (see row 
above) it will be possible for the investigating officer to authorise delaying the right to contact a la wyer after the arrest on certain 
“reasonable grounds ”, such as if it would prevent the gathering of 
evidence.  These are set out in sub-sections (5) and (6) of Article 355AT.   TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-trial stage? Yes 
SCOPE RATIONE 
MATERIAE Questioning171 Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does 
this right cover? (questioning by the police, by the 
prosecutor, by the investigating judge, by other officials) No 
                                                 
170 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
171 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 119   EN Can the lawyer and the client deliberate in private 
before questioning? No – this right will eventually be introduced when Article 355AT (see 
above) enters into force. 
Can the lawyer and the client deliberate in private 
during questioning? No 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, other competencies) N/A.  The lawyer does not currently have the right to be present 
during questioning. However, when it comes into force Article 355AT will provide for the right to legal advice during police interrogation (see above). 
Can the lawyer meet with his client in person? If 
so, can this right be limited? (e.g. consultation by 
phone, use of glass partition) No – this right will eventually be introduced when Article 355AT (see 
above) enters into force. 
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? No – this guarantee of confidentiality will eventually be introduced 
when Article 355AT (see above) enters into force. 
Are there possibilities to supervise the oral (including telephone conversation) and/or the written communication between lawyer and 
suspect, notably after arrest? If so, in which cases 
and to what extent? Yes – the Director responsible for prisons may order surveillance the 
oral communication  between lawyer and suspect after arrestYes. 
However, personal communication with a lawyer with regard to the 
proceedings  remains confidential. 
The Director may also order surveillance of written 
communication , but only if he has reason to suspect that any such 
correspondence contains matter not relating to the proceedings. 
Can the lawyer visit his client at the police station? 
If so, can this right be limited? (e.g. in time, 
frequency, permission needed) Yes. Although there is no special provision in national law, in 
practice, a lawyer is allowed to visi t his client at the police station. Consultation172 
Can the lawyer visit his client in prison? If so, can 
this right be limited? (e .g. in time, frequency, 
permission needed) Yes (permission is required from the Prison Director). 
MANDATORY Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain No. However, there are cases, such as those were the suspect is a 
minor or where the offence carries a severe sanction, when usually 
                                                 
172 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 120   EN categories of defendant and/or certain procedural stages) lega l aid is provided; unless this is rejected by the accused. 
DEFENCE/WAIVER of the 
right173 Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes, the accused can waive legal aid (see above). 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes. A case could be filed against the Government for infringement 
of fundamental human rights. 
Apart from cases in which the lawyer is provided (partially) free of charge, has 
the suspect the right to a lawyer of his own choosing? Yes – this right is not explicitly recorded in statute, but  under 
paragraph 8 of Article 355AT (not yet in force) it is an offence for 
any police officer to try to indicate to a suspect whom they should 
engage as an advocate.  
Is membership of the bar compulsory? - 
Are special qualifications and/or special training required to practice criminal law? No  
Are there guarantees for the independence of defence lawyers (e.g. from the 
police) -  
 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor 
standards of performance (e.g. disciplinary mechanisms)? Yes – Judges of the Courts monitor the performance of lawyers 
providing legal assistance (partially) free of charge. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL174 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes – the right to legal advice is given upon arraignment. 
                                                                                                                                                                                                                                           
173 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
174 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 121   EN WARRANT (EAW)175 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right 
to legal assistance (as a proportion of the overall legal aid budget)?  - 
 
                                                                                                                                                                                                                                           
175 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 122   EN  
NETHERLANDS  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings) Yes 
Dies a quo when the 
right to legal advice 
arises? 176 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) The lawyer may not be present during questioning by the police.  However, he 
may be present during questioning by the investigating judge. 
SCOPE RATIONE 
MATERIAE Questioning177 
Can the lawyer and the client deliberate in 
private before questioning? No 
                                                 
176 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
177 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 123   EN Can the lawyer and the client deliberate in 
private during questioning? No 
What can the lawyer do during questioning? 
(e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer may intervene, ask questions, and make remarks. 
Can the lawyer meet with his client in 
person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited (although consultation before questioning by the 
police is not possible).  
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes (however see row below). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or 
the written communication between lawyer 
and suspect, notably after arrest? If so, in which cases and to what extent? Yes – the public prosecutor or the investigating judge may order surveillance 
measures, but this is usually not done at the very first stage of the investigation 
(i.e. first consultation between lawyer and suspect).  This can be ordered when 
it is suspected that the communication between lawyer and suspect (a) is intended to inform the suspect about aspects of the investigation that should, at that stage, remain unknown by the suspect in the interest of the 
investigation or (b) will be abused  to obstruct the investigation.
 The period of 
surveillance should be limited to the strictly necessary and may not exceed 6 days. 
Can the lawyer visit his client at the police station? If so, can this  right be limited? (e.g. 
in time, frequency, permission needed) Yes – this right is not limited. Consultation178 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
MANDATORY 
DEFENCE/WAIVER of Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural Yes, but only in circumstances where the deprivation of liberty of the suspect 
is at stake.  
                                                 
178 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 124   EN stages) 
the right179 Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes.  The suspect needs to be informed of his right to consult a lawyer and 
the consequences of his waiver. He normally needs to sign an agreement of 
waiver. Minors also need to be informed of the fact that with this waiver, he/she also waives his/her right to be assisted by a counsel during the hearing. 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his 
lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) Yes – the normal procedures for appealing an administrative decision apply 
pursuant to the general code on administrative law. 
Apart from cases in which the lawyer is  provided (partially) free of charge, 
has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? - 
Are special qualifications  and/or special training  required to practice 
criminal law? A lawyer who wants to provide legal assi stance (partially) free of charge needs: 
to have completed law studies; to have practical experience in dealing with criminal cases; and is obliged to particip ate in additional training every 2 years.  
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes – the lawyer providing legal assistance (partially) free of charge is 
supervised by the government/legal aid board.  COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL180 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST Is there an obligation to provide legal advice when the suspect is the Yes 
                                                                                                                                                                                                                                           
179 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
180 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 125   EN WARRANT (EAW)181 subject of a EAW, extradition request or other surrender proceedings? 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  The Netherlands estimates it will spend 52 million euros (including the cost of 
interpreters, but not police and training costs) bringing the right to legal 
assistance into line with Salduz . 
 
                                                                                                                                                                                                                                           
181 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 126   EN POLAND  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 182 
Is it possible to limit the ri ght to contact a lawyer after 
arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does 
this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor, 
investigative judge and any authority involved in penal 
proceedings. 
Can the lawyer and the client deliberate in private 
before questioning? Yes 
Can the lawyer and the client deliberate in private 
during questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning183 
What can the lawyer do during questioning? (e.g. The lawy er has wide scope to participate during the suspect’s 
                                                 
182 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
183 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 127   EN intervene, ask questions or have the police ask a given 
question, make remarks, suggest how to answer the 
question posed, other competencies) questioning, including: intervening; asking questions; and making 
remarks. 
Can the lawyer meet with his client in person? If so, 
can this right be limited? (e.g. consultation by phone, use of glass partition) Yes.  However, the person  who made the arrest may 
reserve the right to be present when such a conversation takes 
place.   
Is the confidentiality of consultation (either by phone or in person) guaranteed? No.  The consultation may be monitored for up to 14 days after 
the detention.  After this consultation must be out of hearing of 
third parties. 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? Yes.  Where particularly justified: (1) the officer who made the 
arrest may reserve the right to be present when the consultation takes place; and (2) as mentioned above, up to 14 days after the 
suspect’s detention the consultation may be monitored by the 
presence of an authorised person. 
Can the lawyer visit his client at the police station? If 
so, can this right be limited?  (e.g. in time, frequency, 
permission needed) Yes – with the permission of the police officer on duty.  Consultation184 
Can the lawyer visit his client in prison? If so, can this 
right be limited? (e.g. in time, frequency, permission needed) Yes – with the permission of the prosecutor under whose control 
detainee remains. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes. Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of 
the suspect; the factual/legal complexity of the case; and the severity of the sentence that can be imposed.  MANDATORY 
DEFENCE/WAIVER of the 
right185 Mandatory defence can be derogated or waived? If so, are there special guarantees 
for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
                                                 
184 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
185 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 128   EN CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? 
If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using 
the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) No 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes 
Are special qualifications and/or special training required to pr actice criminal law? No – (partially) free legal assistance is  rendered by regular 
attorneys. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
Is there any method of monitoring performance/assuring the quality of the work of defence lawyers and/or professional mechanisms used to deal with poor standards 
of performance (e.g. disciplinary mechanisms)? Yes – lawyers provided (partially) free of charge are supervised  
by the bar. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL186 
Is the State obliged to provide the suspect with another lawyer if legal representation 
proves to be ineffective? No. However, on a justifiable motion of the accused or his 
defence counsel, the president of the court having jurisdiction over the case may appoint a defence counsel in lieu of the acting defence counsel. 
EUROPEAN ARREST 
WARRANT (EAW)187 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                 
186 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
187 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 129   EN  
PORTUGAL  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 188 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does 
this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and 
investigative judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning189 
Can the lawyer and the client deliberate in private Yes 
                                                 
188 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
189 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 130   EN during questioning? 
What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s 
questioning, including: intervening; asking questions; and making 
remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. consultation by phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes – this right is not limited. 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to 
what extent? No 
Can the lawyer visit his client at the police station? If 
so, can this right be limited? (e.g. in time, frequency, 
permission needed) Yes – this right is not limited. Consultation190 
Can the lawyer visit his client in prison? If so, can 
this right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of 
the suspect; and the severity of the sentence that can be imposed.  Other circumstances are set out in Section 83 of the Criminal Procedure Law and include if  the suspect is illiterate. MANDATORY 
DEFENCE/WAIVER of the 
right191 
Mandatory defence can be derogated or waived? If so, are there special guarantees 
for the exercise of the right to waiver? (e.g. to be recorded) Yes 
                                                 
190 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
191 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 131   EN  
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) No 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? No – Article 62 of the Status of the Portuguese Bar Association 
determines that the choice of a lawyer is personal and cannot be 
limited in any way. 
Are special qualifications and/or special training required to practice criminal law? No 
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL192 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)193 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  -  
 
                                                 
192 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
193 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 132   EN  
 
 
EN 133   EN ROMANIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 194 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) Yes – this right covers questioning by the police and prosecutor. 
Can the lawyer and the client deliberate in 
private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning195 
Can the lawyer and the client deliberate in 
private during questioning? No 
                                                 
194 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
195 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 134   EN What can the lawyer do during questioning? 
(e.g. intervene, ask qu estions or have the 
police ask a given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer may participate during the suspect’s questioning, including by: 
intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. 
consultation by phone, use of glass partition) Yes – this right is not limited.  
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes (however see below). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer 
and suspect, notably after arrest? If so, in 
which cases and to what extent? Yes.  Oral communication  may be monitored under the Criminal Procedure 
Code, Articles 911- 916.
 The interception of communication can be ordered 
only by the judge, and under special exceptional circumstances (for example 
offences involving national security).  However, if in urgent cases it is 
necessary to intercept communications and there is not time to comply with a hearing before a judge, the prosecutor can order it for at maximum 48 hours in which the prosecutor must present the reasons and the results of this measure 
to the judge who in turn  must, within 24 hours, 
confirm the measure or reject it.  If he rejects it, the recordings will be deleted. 
As regards written communications , the court, on an application by the 
prosecutor and if requested by the interest of the criminal investigation or the 
trial, may order that any post office reta in and deliver to the authorities letters 
or any objects that are sent by the defendant or addressed to him.  
Can the lawyer visit his client at the police station? If so, can this right be limited? (e.g. 
in time, frequency, permission needed) Yes – this right is not limited. Consultation196 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, 
frequency, permission needed) Yes – this right is not limited. 
                                                 
196 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 135   EN Is the assistance by a lawyer mandatory in criminal proceedings 
(mandatory defence)? If so, in which cases? (e.g. for certain categories of 
offences, certain categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age of the suspect; legal 
complexity of the case; and deprivation of liberty of the suspect.  Other 
circumstances are set out in Articl e 171(2) and (3) of the Criminal 
Procedure Code and include cases when the punishment for the offence at 
issue is 5 years’ imprisonment or  greater, or life imprisonment. MANDATORY 
DEFENCE/WAIVER of 
the right197 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such 
as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) There is no remedy other than the general obligation for all judicial bodies to 
afford the parties the full exercise of their procedural rights at all times.  
Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes 
Are special qualifications and/or special training required to practice 
criminal law? Yes.  The bar appoints lawyers to be the Register of judicial assistance for 
granting judicial aid, taking into account such factors as the professional 
experience and the qualifications of the lawyer, as well as the nature and the complexity of the case.   
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
 COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL198 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to 
deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes.  The bar is obliged by law to check the quality of assistance granted and, 
if necessary, take appropriate measures.  The council of the bar can also refuse 
the lawyer’s request to be admitted to, or  delete the name of a lawyer from, the 
judicial assistance Register (see above) where for example the lawyer has been 
                                                 
197 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
198 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
 
EN 136   EN subject to a disciplinary sanction.  
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)199 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure 
the right to legal assistance (as a proportion of the overall legal aid 
budget)?  -  
 
 
  
                                                
 
199 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 137   EN SCOTLAND200  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the 
person is deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at  a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 201 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases? Yes – if some delay is necessary in the suspect’s exercise of his right to contact 
a lawyer in the interest of the investigation or the 
prevention of crime or the apprehension of offenders, that delay must be no 
more than is necessary. TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the criminal proceedings, including the post-trial stage? Yes 
SCOPE RATIONE 
MATERIAE Questioning202 Has the lawyer the right to be present 
throughout questioning? If so, which kind of 
questioning does this right cover? 
(questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police. 
                                                 
200 This country fiche has been updated to reflect The Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 .  The information therefore diverges 
from that included in the report by T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-
Apeldoorn-Portland, Maklu, 2009.  
201 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
202 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 138   EN Can the lawyer and the client deliberate in 
private before questioning? Yes.  However, in exceptional circumstances, a constable may delay the 
suspect’s exercise of this right of private consultation so far as it is necessary in 
the interest of the investigation or the prevention of crime or the apprehension of offenders that the questioning of the suspect by a constable begins or continues without the suspect having had a private consultation with 
a solicitor. 
Can the lawyer and the client deliberate in 
private during questioning? See the row above. 
What can the lawyer do during questioning? (e.g. intervene, ask questions or have the police ask a given question, make remarks, suggest how to answer the question posed, 
other competencies) The lawyer has wide scope to participate during the suspect’s questioning, 
including: intervening; asking questions; and making remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. consultation by phone, use of glass partition) Yes, however this right can be limited.  Section 15A of Criminal Procedure 
(Scotland) Act 1995 (as amended) provides that consultation a solicitor and suspect takes place “ by such means as may be appropriate in the circumstances, and 
includes, for example, consultation by means of telephone .” 
Is the confidentiality of consultation (either 
by phone or in person) guaranteed? Yes (however see row below regarding written consultation). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or 
the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? The oral communications  between lawyer and suspect may not be 
supervised.   
As regard written communications , under the Prisons and Young Offenders 
Institutions (Scotland) Rules 2006, rule 58, written correspondence can only be opened in the presence of the prisoner where there is reason to believe it 
contains a prohibited article. The contents can only be read specifically under 
the Governor’s authority where there is reasonable cause to believe that the content may endanger the security or safety of the prison. The prisoner must be informed about this. Consultation203 
Can the lawyer visit his client at the police 
station? If so, can this right be limited? (e.g. Yes – however, Section 15A of Criminal Procedure (Scotland) Act 1995 (as 
amended) suggests that this right may be limited.  It provides that consultation 
                                                 
203 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
 
EN 139   EN in time, frequency, permission needed) between a solicitor and suspect take place “ by such means as may be appropriate in 
the circumstances, and includes, for exampl e, consultation by means of telephone. ”  In other 
words, in certain circumstances the lawyer may be prevented from visiting his client at the police station.  
Can the lawyer visit his client in prison? If so, can this right be limited? (e.g. in time, 
frequency, permission needed) Yes.  The prisoner is entitled to receive a visit from his or her legal adviser at 
“any reasonable time ” for the purposes of consulting about any legal matter in 
which the prisoner is or may be directly interested (Rule 66(1) of the Prisons 
and Young Offenders Institutions (Scotland) Rules 2006). 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes. criminal legal aid is automatically available for: 
• representation at an identification parade; • certain proceedings where the accused has been taken into custody; • cases involving insanity, including an examination of facts; 
• sexual offences; 
• trials in absence (in solemn and summary cases); and • cases where on appeal the High Court has granted authority for a new 
prosecution for the same or a similar offence.   
MANDATORY 
DEFENCE/WAIVER of 
the right204 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed 
or denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial 
review/re-trial) No 
COMPETENCES OF Apart from cases in which the lawyer is provided (partially) free of Yes 
                                                 
204 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 140   EN charge, has the suspect the right to a lawyer of his own choosing? 
Is membership of the bar compulsory? Yes 
Are special qualifications and/or sp ecial training required to practice 
criminal law? Lawyers providing legal assistance (partially) free of charge need to be 
registered with the Scottish  Legal Aid Board (“SLAB”).  
Are there guarantees for the independence of defence lawyers (e.g. from 
the police) -  
 
Is there any method of monitoring performance/assuring the quality of 
the work of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? Yes.  SLAB can monitor whether the solicitor has correctly applied the 
eligibility rules etc.  In terms of qualit y of legal services, the solicitor may be 
called to account through the Law Society and the Scottish Legal Complaints Commission LAWYERS AND QUALITY 
CONTROL205 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)206 Is there an obligation to provide legal advice when the suspect is the 
subject of a EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  The estimated cost of bringing Scotland into line with Salduz  is 26 – 34 million 
euros. 
 
 
  
                                                                                                                                                                                                                                          
 
205 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
206 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 141   EN  
 
EN 142   EN SLOVAK REPUBLIC  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 207 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage?Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does 
this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and 
investigative judge. 
Can the lawyer and the client deliberate in private before questioning? Yes.  However this right is implicit  rather than expressly stated in 
statute.  
Can the lawyer and the client deliberate in private during questioning?
 No SCOPE RATIONE 
MATERIAE 
Questioning208 
What can the lawyer do during questioning? (e.g. It is uncl ear what are the precise competences of the lawyer during 
                                                 
207 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
208 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 143   EN intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to 
answer the question posed, other competencies) questioning. However, Section 34 paragraph 1 of Code on Criminal 
Procedure provides that " the suspect is not entitled to consult during 
questioning his defending counsel on  how to answer the question posed ”. 
Can the lawyer meet with his client in person? If 
so, can this right be limited? (e.g. consultation by phone, use of glass partition) Yes – this right is not limited (b ut the lawyer generally needs to 
produce identification and documents proving that he is authorised to represent the client as a defending counsel in the criminal 
proceedings). 
Is the confidentiality of consultation (either by phone or in person) guaranteed?  Yes (however see row below). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases 
and to what extent? Yes – the judge or prosecutor can order oral surveillance  in 
exceptional cases.  An order made by prosecutor must be later approved by the judge, otherwise it is invalid and cannot be used as evidence in court.  Such surveillance can only be ordered: (1) in cases 
of “enlisted criminal offences ” (corruption, money laundering etc.) if 
there exists a substantiated assump tion that facts relevant for the 
criminal proceedings might be find out; and (2) in other cases only with the consent of the user of the intercepted telecommunication 
device.  Written surveillance  is not permitted.   
Can the lawyer visit his client at the police station? 
If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes.  However, the lawyer needs permission to visit the suspect and 
such visit is limited in time/frequency.  Consultation209 
Can the lawyer visit his client in prison? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes.  However, the lawyer needs permission to visit the suspect and 
such visit is limited in time/frequency. 
MANDATORY 
DEFENCE/WAIVER of the 
right210 Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of the 
suspect; and the severity of the sentence that can be imposed.  Other situations include extradition cases, or cases against fugitive suspects.  
                                                 
209 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
210 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 144   EN Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on conducting procedural actions and/or judicial review/re-trial) Yes – the general remedy of judicial review provided for in the Code 
on Criminal Procedure. 
Apart from cases in which the lawyer is provided (partially) free of charge, has the suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (see row below) 
Are special qualifications an d/or special training required to practice criminal 
law? Yes – defence lawyers provided (partially) free of charge must appear 
in the list of advocates maintain ed by the Slovak Chamber of 
Advocates. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
 
Is there any method of monitoring performance/assuring the quality of the work 
of defence lawyers and/or professional mechanisms used to deal with poor standards of performance (e.g. disciplinary mechanisms)? No COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL211 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)212 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right -   
                                                 
211 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
212 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 145   EN to legal assistance (as a proportion of the overall legal aid budget)?   
 
EN 146   EN SLOVENIA  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than  the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes – however legal aid is not available until after the investigative 
stage.  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 213 
Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other 
officials) Yes – this right covers questioning by the police, prosecutor and 
investigative judge. 
Can the lawyer and the client deliberate in private before questioning? Yes SCOPE RATIONE 
MATERIAE Questioning214 
Can the lawyer and the client deliberate in private 
during questioning? Yes 
                                                 
213 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
214 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 147   EN What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a 
given question, make remarks, suggest how to answer the question posed, other competencies) The lawyer has wide scope to participate during the suspect’s 
questioning, including: intervening; asking questions; and making 
remarks. 
Can the lawyer meet with his client in person? If so, can this right be limited? (e.g. consultation by phone, 
use of glass partition) Yes – this right is not limited. 
Is the confidentiality of consultation (either by phone 
or in person) guaranteed? Yes – this right is not limited. 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? No 
Can the lawyer visit his client at the police station? If 
so, can this right be limited? (e.g. in time, frequency, 
permission needed) Yes – this right is not limited. Consultation215 
Can the lawyer visit his client in prison? If so, can this 
right be limited? (e.g. in time, frequency, permission needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes.  Grounds/factors for mandatory defence include: age and 
mental/physical capacity of the suspect; deprivation of liberty of 
the suspect; and the severity of the sentence that can be imposed.   MANDATORY 
DEFENCE/WAIVER of the 
right216 Mandatory defence can be derogated or waived? If so, are there special guarantees 
for the exercise of the right to waiver? (e.g. to be recorded) Yes 
 
CONSEQUENCES OF Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the confession of a suspect made in absence of his lawyer, prohibition on Yes. Article 20 of the Free Legal Assistance Law 1/1996 provides 
that persons entitled to free legal aid may appeal against any 
                                                 
215 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
216 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 148   EN VIOLATIONS conducting procedural actions and/or judicial review/re-trial) decision to deny this right. 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes. 
Is membership of the bar compulsory? Yes (see row below) 
Are special qualifications and/or special training required to pr actice criminal law? Yes.  By an Order of 3rd June 1997, on th e establishing of 
minimum general training and specialization requirements to 
provide free legal assistance services, the lawyer must be regulated 
by the Bar Association; have practised law for three years; and have the Legal Practice School certificate. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) -   
 
Is there any method of monitoring performance/assuring the quality of the work of 
defence lawyers and/or professional mechanisms used to deal with poor standards 
of performance (e.g. disciplinary mechanisms)? Yes – lawyers providing legal assistance (partially) free of charge 
are monitored by the bar and government/legal aid board.  COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL217 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? - 
EUROPEAN ARREST 
WARRANT (EAW)218 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  There is no expenditure on the right to legal assistance during the 
investigative stage of proceedings (i.e. during police interrogation)   
as legal aid is available only at the later trial stage.  
 
                                                 
217 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
218 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 149   EN SPAIN  
At the first police interrogation  
Some time before the police interrogation  
In any event not later than  the when the person is 
deprived of  his liberty  
Immediately upon arrest Yes 
Within x hours after arrest  
At a later stage (e.g. at a gi ven stage of the investigation 
or the proceedings)  
Dies a quo when the 
right to legal advice 
arises? 219 
Is it possible to limit the right to contact a lawyer after 
arrest? If so, in which cases? No TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present throughout 
questioning? If so, which kind of questioning does this 
right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor 
and investigative judge. 
Can the lawyer and the client deliberate in private before questioning? Yes 
Can the lawyer and the client deliberate in private 
during questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning220 
What can the lawyer do during questioning? (e.g. The lawyer has wide scope to participate during the suspect’s 
                                                 
219 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
220 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 150   EN intervene, ask questions or have the police ask a given 
question, make remarks, suggest how to answer the 
question posed, other competencies) questioning, including: intervening; asking questions; and 
making remarks. 
Can the lawyer meet with his client in person? If so, 
can this right be limited? (e.g. consultation by phone, use of glass partition) 12 and 13 
Is the confidentiality of consultation (either by phone 
or in person) guaranteed? Yes (however see row below). 
Are there possibilities to supervise the oral (including 
telephone conversation) and/or the written 
communication between lawyer and suspect, notably after arrest? If so, in which cases and to what extent? The judge may order the surveillance of communications 
between the suspect and lawyer.  Surveillance is also 
automatically possible in cases involving terrorism offences. 
Can the lawyer visit his client at the police station? If so, can this right be limited? (e.g. in time, frequency, 
permission needed) Yes – this right is not limited. Consultation221 
Can the lawyer visit his client in prison? If so, can this 
right be limited? (e.g. in time, frequency, permission 
needed) Yes – this right is not limited. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory defence)? 
If so, in which cases? (e.g. for certain categories of offences, certain categories of defendant and/or certain procedural stages) Yes. Legal assistance is compulsory in criminal 
proceedings. 
MANDATORY 
DEFENCE/WAIVER of the 
right222 Mandatory defence can be derogated or waived? If so, are there special guarantees for 
the exercise of the right to waiver? (e.g. to be recorded) The suspect may deny compulsory legal assistance if his/her 
detention is due to traffic offences. 
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or denied? 
If so, which kind of remedy? (e.g. exclusion of evidence such as prohibition using the 
confession of a suspect made in absence of his lawyer, prohibition on conducting Yes – the decision to deny legal aid may be appealed. 
                                                 
221 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
222 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 151   EN procedural actions and/or judicial review/re-trial) 
Apart from cases in which the lawyer is provided (partially) free of charge, has the 
suspect the right to a lawyer of his own choosing? Yes 
Is membership of the bar compulsory? Yes (see row below) 
Are special qualifications and/or special training required to pr actice criminal law? To provide legal assistance (partially) f ree of charge it is 
necessary: to belong to a firm that is a member of the Bar 
Association; to have three years’ experience of practicing as a lawyer; and to have the Legal Practice School certificate. A Bachelor in Law is also required. 
Are there guarantees for the independence of defence lawyers (e.g. from the police) - 
 
Is there any method of monitoring performance/assuring the quality of the work of 
defence lawyers and/or professional mechanisms used to deal with poor standards of 
performance (e.g. disciplinary mechanisms)? Yes – supervision by the bar and government/legal aid board. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL223 
Is the State obliged to provide the suspect with another lawyer if legal representation 
proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)224 Is there an obligation to provide legal advice when the suspect is the subject of a 
EAW, extradition request or other surrender proceedings? Yes 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the right to 
legal assistance (as a proportion of the overall legal aid budget)?  - 
 
                                                 
223 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
224 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 152   EN SWEDEN  
At the first police interrogation Ye s (by this time at the latest) 
Some time before the police interrogation  
In any event not later than the when the person 
is deprived of  his liberty  
Immediately upon arrest  
Within x hours after arrest  
At a later stage (e.g. at a given stage of the 
investigation or the proceedings) No 
Dies a quo when the 
right to legal advice 
arises? 225 
Is it possible to limit the right to contact a 
lawyer after arrest? If so, in which cases?  TEMPORAL SCOPE Dies ad quem  Access to legal advice applies all throughout the 
criminal proceedings, including the post-trial stage? Yes 
Has the lawyer the right to be present 
throughout questioning? If so, which kind of 
questioning does this right cover? (questioning by the police, by the prosecutor, by the investigating judge, by other officials) Yes – this right covers questioning by the police, prosecutor and other officials, 
for example customs officials and officials from the Swedish Coast Guard. 
Can the lawyer and the client deliberate in 
private before questioning? Yes.  There is not an unconditional right for the suspect to, at any time, speak 
with his lawyer; however, there must be a special reason for not granting it.  
Can the lawyer and the client deliberate in 
private during questioning? Yes SCOPE RATIONE 
MATERIAE 
Questioning226 
What can the lawyer do during questioning? (e.g. 
intervene, ask questions or have the police ask a The lawyer may participate during the suspect’s questioning, for example by 
                                                 
225 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 38-43   
226 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 50-55  
 
EN 153   EN given question, make remarks, suggest how to 
answer the question posed, other competencies) asking questions or making remarks. 
Can the lawyer meet with his client in person? If 
so, can this right be limit ed? (e.g. consultation by 
phone, use of glass partition) Yes.  See above – there is not an unconditional right for the suspect to, at any 
time, speak with his lawyer; however, there must be a special reason for not 
granting it. 
Is the confidentiality of consultation (either by 
phone or in person) guaranteed? Yes, defence counsel are permitted to speak in private with the arrested or 
detained person.  However, defence counsel other than public defence counsel may only speak in private with the consent of the leader of the inquiry or of the prosecutor, or when the court considers it would neither impede the inquiry nor 
threaten order and security at the place of detention (see also row below). 
Are there possibilities to supervise the oral 
(including telephone conversation) and/or the written communication between lawyer and suspect, notably after arrest? If so, in which 
cases and to what extent? Yes – it is possible to supervise the oral communication  between lawyer and 
suspect after arrest but only if the lawyer is not a public defence counsel.
 
Similarly, written communication  with defence counsels other than public 
defence counsels may under certain conditions be supervised, for example for 
security reasons or if there is a risk that evidence is removed or the inquiry into 
the matter in any other respect is complicated. 
Can the lawyer visit his client at the police station? If so, can this right be limited? (e.g. in time, frequency, permission needed) Yes: defence counsel are permitted to speak in private with the arrested or 
detained person.  However, defence counsel other than public defence counsel may only speak in private only on consent of the leader of the inquiry or of the prosecutor, or when the court considers it would neither impede the inquiry nor 
threaten order and security at the place of detention.  Consultation227 
Can the lawyer visit his client in prison? If so, 
can this right be limited? (e.g. in time, frequency, 
permission needed) Yes.  A client detained in prison is allo wed to have visitors to the extent it is 
considered as appropriate.  A visit by a member of the Bar Association (i.e. a lawyer) is supervised only if the inmate or the member of the Bar Association makes such a request. 
Is the assistance by a lawyer mandatory in criminal proceedings (mandatory 
defence)? If so, in which cases? (e.g. for certain categories of offences, certain 
categories of defendant and/or certain procedural stages) Yes. In certain instances a public defence counsel may be obligatory.  However, 
the particular grounds for obligatory defence are not prescribed by law.  In 
practice, a public defence counsel is seldom appointed against the suspect’s or defendant’s wish. MANDATORY 
DEFENCE/WAIVER of the 
right228 
Mandatory defence can be derogated or waived? If so, are there special 
guarantees for the exercise of the right to waiver? (e.g. to be recorded) Yes.  It appears that in practice (see above) the right to a public defence counsel 
may be waived if the suspect so wishes, without any special guarantees for 
                                                 
227 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 42-49 
228 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 78-79 
 
EN 154   EN exercising this right of waiver.   
 
CONSEQUENCES OF 
VIOLATIONS Is there any remedy that applies when access to legal assistance is delayed or 
denied? If so, which kind of remedy? (e.g. exclusion of evidence such as 
prohibition using the confession of a suspect made in absence of his lawyer, 
prohibition on conducting procedural actions and/or judicial review/re-trial) Yes.  The decision may be appealed to the Appeal Court. 
Apart from cases in which the lawyer is provided (partially) free of charge, has 
the suspect the right to a lawyer of his own choosing? Yes. 
Is membership of the bar compulsory? The court should seek to engage advocates who regularly function as attorneys 
before the court (Chapter 21, Section 5 of the Swedish Code of Judicial 
Procedure).  However, membership of the bar is not compulsory.  
Are special qualifications and/or special training required to practice criminal 
law? Yes - only an advocate who is considered “suitable for the assignment” can be 
appointed as public defence counsel (Chapter 21, Section 5 of the 
Swedish Code of Judicial Procedure). 
Are there guarantees for the independence of defence lawyers (e.g. from the 
police) - 
Is there any method of monitoring performance/assuring the quality of the 
work of defence lawyers and/or professional mechanisms used to deal with 
poor standards of performance (e.g. disciplinary mechanisms)? Yes – public defence counsel are monitored by the bar and government/legal aid 
board. COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL229 
Is the State obliged to provide the suspect with another lawyer if legal 
representation proves to be ineffective? -  
 
EUROPEAN ARREST 
WARRANT (EAW)230 Is there an obligation to provide legal advice when the suspect is the subject 
of a EAW, extradition request or other surrender proceedings? Yes: the same procedural rights apply as during an ordinary Swedish preliminary 
investigation and trial. 
FINANCIAL COST Is there any information on financial cost borne by the State to ensure the 
right to legal assistance (as a proportion of the overall legal aid budget)?  -  
                                                 
229 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, pp. 74-77 
230 T. Spronken, G. Vermeulen, D. de Vocht en L. van Puyenbroeck, EU Procedural Rights in Criminal Proceedings, Antwerp-Apeldoorn-Portland, Maklu, 2009, p. 100-101 
 
EN 155   EN  
 
 
 
EN 156   EN ANNEX III:  
Current situation in Member States in  relation to access to a lawyer 
 
NB. A summary of this table is provided below  
1. At the first police interrogation 
2. Some time before the police 
interrogation 
3. Immediately upon arrest 
4. Within x hours of the arrest 
5. At a later stage (e.g. at a given 
stage of the investigation or the 
proceedings) Dies a quo when the right to 
legal advice arises? 
6. Is it possible to limit the right to 
contact a lawyer after arrest? TEMPORAL SCOPE 
Dies ad quem  7. Access to legal advice applies 
throughout the criminal 
proceedings, and until the final 
determination of guilt by the Court 
(including appeals)? 
8. Has the lawyer the right to be 
present throughout questioning? 
9. Can the lawyer and the client 
deliberate in private before 
questioning? 
10. Can the lawyer and the client 
deliberate in private during 
questioning? Questioning 
11. Can the lawyer play an active role 
during questioning? (E.g. intervene, 
ask questions make remarks, etc.) 
12. Is the confidentiality of 
consultation (either by phone or in 
person) guaranteed? 
13. Are there possibilities to supervise 
the oral (including telephone 
conversation) and/or the written 
communication between lawyer 
and suspect, notably after arrest? 
14. Can the lawyer visit his client at the 
police station?  SCOPE RATIONE 
MATERIAE 
Consultation 
15. Can the lawyer visit his client in 
prison? 
16. Are there circumstances in which legal assistance in criminal proceedings is 
obligatory (mandatory defence)? MANDATORY 
DEFENCE/WAIVER of 
the right 17. Mandatory defence can be derogated or waived?  
CONSEQUENCES OF 
VIOLATIONS 18. Can the confession made by a suspect in  the absence of his lawyer be used 
as evidence in court? 
19.  
20.   21.  
EUROPEAN ARREST 
WARRANT (EAW) 22. Does the right to legal advice apply wh en the suspect is the subject of a 
EAW? 
SHORT LEGENDA : 
N/A : non applicable 
 
EN 157   EN (LA) : required in order to provide legal a ssistance (partially ) free of charges  
 
EN 158   EN  BE BG CZ DK DE EE IE EL ES FR IT CY LV LT 
1.                
2.     √           
3.   √ √  √ √ √ √ √ √ √ √ √ √ 
4.  24h              
5.                
6.  NO NO NO NO NO NO NO YES NO YES NO NO NO NO 
7.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
8.  NO YES YES YES YES YES NO YES YES YES YES YES YES YES 
9.  NO YES YES YES YES YES YES NO YES YES YES YES NO NO 
10.  N/A YES YES YES YES YES NO YES YES YES YES YES NO NO 
11.  N/A YES YES YES YES YES N/A YES YES YES YES YES YES YES 
12.  NO YES YES YES YES YES YES YES YES YES YES YES YES YES 
13.  YES NO NO NO NO NO NO NO YES NO NO NO NO NO 
14.  NO YES YES YES YES YES YES YES YES YES YES YES YES YES 
15.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
16.  YES YES YES YES YES YES NO YES YES YES YES, in 
all cases YES YES YES 
17.  YES YES YES YES YES YES N/A YES YES YES NO YES YES YES 
 
EN 159   EN 18.  YES YES YES YES YES YES YES YES NO YES NO YES YES YES 
               
               
               
19.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
 
 
  
 LU HU MT NL AT PL PT RO SI SK FI SE Engla
nd & 
Wales Scotland 
1.   √          √   
2.  √  √            
3.       √ √ √ √ √ √  √ √ 
4.                
5.     √ √          
6.  NO NO YES NO YES NO NO NO NO NO NO NO YES YES 
7.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
8.  YES YES NO NO YES YES YES YES YES YES YES YES YES YES 
9.  YES YES YES NO YES YES YES YES YES YES YES YES YES YES 
 
EN 160   EN 10.  NO YES NO NO YES YES YES NO YES NO YES YES YES YES 
11.  YES YES N/A YES YES YES YES YES YES Unclea
r YES YES YES YES 
12.  YES YES YES YES YES NO YES YES YES YES YES YES YES YES 
13.  NO NO YES YES YES YES NO YES NO YES NO YES YES YES 
14.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
15.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
16.  YES YES NO YES YES YES YES YES YES YES YES YES YES YES 
17.  YES YES N/A YES YES YES YES YES YES YES YES YES YES YES 
18.  YES YES YES YES YES YES NO YES YES YES YES YES YES YES 
               
               
               
19.  YES YES YES YES YES YES YES YES YES YES YES YES YES YES 
 
EN 161   EN  
SUMMARY 
 TEMPORAL SCOPE 
Start-date: 
• In the vast majority of MS (20) the right to contact a lawyer can be exercised 
immediately upon arrest while in some countries  this is possible at a certain stage of 
the investigation or the proceedings. Only in 3 MS (DK, LU and MT), the right to 
legal advice arises some time before the que stioning of the suspect  by the police. In 
one MS (BE) the right to contact a lawyer can  only be effected within a certain lapse 
of time after arrest (24h). 
• In the great majority of MS (22), it is not possible to limit the right to contact a lawyer 
after arrest. 
 
End-date: 
• In all MS the right to legal advice applies in principle in all phases of the criminal 
proceedings, including the trial, and until the final determination of guilt by the Court. 
 
SCOPE RATIONE MATERIAE 
Questioning: 
• In almost all MS (24) the lawyer is en titled to be present throughout questioning and 
in 19 of these countries he can delib erate with his client in private during  the 
interrogation. 
• In 23 MS the lawyer and the client can deliberate in private before  questioning. 
However, there may be limitations to this right (e.g., in AT, in  cases of risk of 
conspiracy or collusion, the public prosecu tor may order the mon itoring of oral and 
written contact with the defence counsel. 
• With respect to what the lawyer is able  to do during questioning, it appears that in 
most countries he is allowed to play an ac tive role (notably to make remarks and ask 
questions).     
 
Consultation: 
• In nearly all MS it is in principle guara nteed that consultation with a lawyer (in 
person or by telephone) is out of hearing of third parties and/or without its contents 
being monitored by any technical means. Ho wever, in 11 MS there is the possibility 
to supervise the oral and/or the writte n communication between lawyer and suspect. 
• It is possible for a defence lawyer to visi t his client at the police station in all 
countries, except for one (BE). The lawyer can  visit the suspect detained in prison in 
 
EN 162   EN all MS. However there may be limitations to these rights (e.g. in time and/or in 
frequency). 
 
MANDATORY DEFENCE 
• In the overwhelming majority of MS there ar e circumstances in which legal assistance 
in criminal proceedings is obligatory, although grounds for mandatory defence may 
vary significantly. Only in 2 MS (MT and IE ) are there no cases of obligatory defence. 
In one MS (IT) the assistance of a lawyer in criminal cases is always obligatory. This is also the only MS in which the right to  be represented by a lawyer can never be 
waived by the defendant.  
 
CONSEQUENCES OF VIOLATIONS 
• Only in 3 Member States (IT, ES, PT) it is not allowed to use as evidence in court 
statements made by a suspect in the absence of his lawyer. 
 
 
EUROPEAN ARREST WARRANT 
• In all MS the right to legal advice is applicable to EAW proceedings when the MS is 
the executing MS.  
 
 
EN 163   EN ANNEX IV  
 General statistical information on the num ber of criminal proceedings in the EU 
 
  2006 2007 2008 
AT 238111 247021 240554 
BE* 49884 51243 51127 
BL 34840 33577 38313 
CY 1441 1903 1903 
CZ 69445 75728 75728 
DK 75202 73078  
EE 51834 50375 50977 
FI* 116979 116789 113462 
FR   744832 
DE   872573 
HL 247626 247252 240042 
HU 425941 426914 408407 
IE*   94215 
IT 1207088 1216655 1195300 
LV* 51073 50490 48611 
LT* 75751 74914 72060 
LU 10441 10539 10356 
MT* 9015 9026 8783 
NL 134400 127600 127400 
PL   12899 
PT   431919 
RO* 481003 477278 460842 
SK  110802 104758 
 
EN 164   EN SI 14545 15710 15329 
SP  944962 995064 
SE   119244 
E&W 1779300 1732500 1640000 
EU 27 5073918  6094356  8174698  
*data are not available 
9. NB:   1. EVIDENCE ON THE NUMBER OF CRIMINAL PROCEEDINGS ACROSS MEMBER 
STATE WAS COLLECTED DIRECTLY FROM NATIONAL STATISTICS INSTITUTES , 
WHERE AVAILABLE . DATA ARE NOT AVAILABLE FOR SIX COUNTRIES (BELGIUM , 
FINLAND , IRELAND , LATVIA , LITHUANIA AND ROMANIA ). 
 
10. 2. WHERE NATIONAL STATISTICS ON NUMB ER OF CRIMINAL PROCEEDINGS ARE NOT 
AVAILABLE , WE HAVE RELIED ON EXTRAPOLATION ; WE HAVE CALCULATED THE 
ANNUAL PERCENTAGE OF CRIMINAL PROCEEDINGS WITHIN THE OVERALL POPULATION IN THOSE COUNTRIES FOR WHICH FIGURES ARE AVAILABLE AND CALCULATED A 
EUROPEAN AVERAGE USING THIS PERCENTAGES ; WE THEN USED 
THIS AVERAGE TO CALCULATE THE NUMBER OF CRIMINAL PROCEEDINGS IN THE COUNTRIES FOR WHICH DATA ARE NOT AVAILABLE
. BY MULTIPLYING THE 
AVERAGE FOUND BY THE OVERALL POPULATION IN EACH REMAINING MEMBER 
STATE (BELGIUM , FINLAND , IRELAND , LATVIA , LITHUANIA AND ROMANIA ), WE 
FOUND THE ANNUAL NUMBER OF CRIMINAL PROCEEDINGS IN THE MEMBER STATES 
FOR WHICH OFFICIAL STATISTICS ARE NOT AVAILABLE . 
 
EN 165   EN 11. ANNEX V – MODEL CALCULATIONS FOR OPTION 3 (PREFERRED ) 
 
Core elements of preferred 
option Financial or economic impact 
Temporal scope: Member State 
obliged to provide the suspect 
with the right to effective 
access to a lawyer   upon the 
first police interrogation and in 
any case from the very outset 
of deprivation of liberty ( start-
date) and ensure that such 
access remain available in all 
phases of the proceedings, until 
the final determination of guilt 
by the court ( end-date ) 
  
 
 
START-DATE  
This option is cost-neutral as any financial impact related to the right to have 
access to a lawyer as from the firs t police interrogation stems from the 
requisite compliance with the ECHR and is not created by this policy option.  
 
END-DATE  
As in all Member States the right to legal advice already applies in all 
phases of the criminal proceedings, including the trial, and until the final determination of guilt by the Court (see Annexe III, page 158), this provision should entail no additional costs either for Member States or for 
Individuals.    
 
IMPACT ON EU BODIES AND BUDGET: 
Introducing two new rights for suspect s and accused persons at the level of 
EU law can be expected to lead to a limited increase in th e case-load of the 
ECJ: particularly in the first decade following the lapse of the deadline for 
implementing the Directive in Member States' laws, Member States' courts 
are likely to seek clarifi cation of the scope of thes e rights and the potential 
consequences of their breach by making  preliminary references under Art. 
267 TFEU. This can have a low to medium impact on the ECJ's budget.  
 
Ensuring that lawyers can carry 
out a range of activities which 
are functional to effective 
exercise of fair trial rights, and 
in particular can take an active 
role during questioning and 
hearings   
This requirement does not appear to entail,  per se , additional costs either 
for Member States or for individuals.   
It seems very unlikely that a lawyer woul d charge his client (or the State, if 
legal aid applies) a different amount for his presence during interrogation depending on whether he is entitled or not, say, to intervene during the 
interrogation. 
If wisely implemented this parameter should, on the contrary, ultimately be 
positive in terms of its financial and economic impact because greater legal certainty would reduce the need fo r appeals, re-trials and aborted 
prosecutions (see further analysis of this under intra-procedural remedies). 
The waiver of the right to legal 
advice is subject to specific 
guarantees so as to avert any 
abuse especially when in 
detention  
This is expected to be cost-neutr al both for Member States and for 
individuals. While this provision might imply the need for training, generally such training is likely to be part of the normal recurring police 
training and therefore should not en tail any relevant additional costs. 
 
 
EN 166   EN Making intra-procedural 
remedies available to the 
suspect or accused in the event 
of breach of the right to legal 
advice, as well as the option of 
appeals/judicial review leading 
to re-trial Financial cost for Member States 
The provision of intra-procedural remedi es in the Directive is not just cost-
neutral, but possibly cost-saving: in particular, the prohibition to use 
evidentiary material gathered in breach of the right to legal advice would 
reduce the length of judicial proce sses and the need for appeals. Fewer 
convictions would need to be overturned on appeal or at retrial following a 
condemnation of the Member State by the ECtHR, with undisputable 
saving of costs for the justice syst em as a whole. Likewise, damages 
awarded by the ECtHR for violation of Article 6 rights would drastically 
drop, with the attendant reduction of costs for Member States.    
Financial cost for private individuals/organisations 
None 
 
Ensuring the right of access to 
lawyers as from the moment 
where a person is arrested 
under an EAW in both the 
executing State and issuing 
State  
   Financial costs for Member States 
Additional costs on executing states would concern only those Member 
States who at present do not provide in their legal order for the right of access to a lawyer
231. This would result in a situation similar to that 
described under start-date/end-date,  where those Member States would 
need to bear the cost of legal assistance only when the person is entitled to 
legal aid under domestic law. By as suming that the percentage of EAW 
cases where the defendant is entitled to legal aid is broadly similar to the 
percentage of criminal proceedings, this cost could be quantified, for any relevant year, as: total aggregate numb er of criminal pr oceedings : total 
aggregate number of EAWs = total legal aid budget : X (data to be 
calculated).   
This calculation, applied to a large Me mber State (France) for which these 
data are known for the year 2008, yields the following result.
232  
The total numbers of EAWs received by  judicial authorities in France was 
709, while legal aid was granted in approx. one third of criminal cases. On the basis of the ratio above, it could be expected that 236 EAW cases would warrant legal aid. 
The typical expenditure on criminal legal aid for a criminal case is 
€1290
233. Assuming that this is roughly the amount that would be spent on 
providing legal assistance in the issu ing state for a person arrested under 
an EAW, the total cost is approx. 236 X €1290, i.e. €304,440 . 
The same formula, applied to a small Member State for which all data are 
also available will yield the following result. For Estonia, where there were 
60 EAWs received in 2008 and a high percentage of legal aid cases out of 
total number of cases (93%): 55 X €1290 = € 70.950 . For Finland, where 
there were 23 EAWs received in 2008 and a low percentage of legal aid 
cases out of the total number of cases (14%): 3.2 X €1290 = € 4.153     
Therefore, the cost of this policy option varies significantly depending on 
the domestic rules on legal aid as well as on the number of EAWs received. In any event, however, th e magnitude of this cost can be 
considered to be rather limited fo r Member States.There would no be 
                                                 
231 Article 11 – Rights of a requested person All Member States have shown that they had either fully 
transposed this article or already had provisions in place." Co mmission document SEC(200 7)979Annex to the 
Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 
2002 on the European arrest warrant and the surrender procedures between Member States. 
232 See Cape et al, Effective Criminal Defence in Europe , Intersentia, 2010, pp 214 – 218. 
233 Figure taken from the countr y report (annexes) of the Study on the Transparency of Cost s of Civil Judicial Proceedings in 
the European Union , (valid for 2007).  The figure was then given a 3% increase to reflect inflation between 2007 and 
2008.  
 
EN 167   EN additional costs for the issuing Member  States as it would merely involve 
the duty to appoint a lawy er/have a lawyer appointed at an earlier stage  
(i.e. when the EAW is issued) than it is otherwise the case. In fact, the 
issuing State is the State where crim inal prosecution takes or has taken 
place, so the person subjected to the EAW would have the right to a lawyer 
in any event, even without the Directive, albeit only upon surrender to that State. The effect of this Directive pr ovision would only be to bring forward
 
the moment where the appointment must be made, but this will not per se  
increase the cost of legal advice, not even when the State provides legal 
aid.  
 
Financial costs for private individuals/organisations 
 
In the executing state, individual defendants in EAW cases would have to 
to remunerate their legal counsellor, unless they are entitled to legal aid. The cost stemming from this requirem ent can be calculated, with some 
approximation, using the same method as for Member States: total 
aggregate number of criminal procee dings: total aggr egate number of 
EAWs in 2009 = total aggregate expenses for lawyers in criminal proceedings : X (data to be calculated).   
Taking again France as a case example (2008 data), there were 709 EAW 
cases, while defendants in criminal cases remunerated their lawyer personally in two-thirds of all instances. ),  
The typical cost of a private criminal  lawyer in 2008 was €309 per hour 
according to the Study on the Transparency of Costs of Civil Judicial 
Proceedings in the European Union .  Assuming that legal advice is 
unlikely to exceed 5 hours (on the basi s that advice in the executing state is 
likely to be of a preliminary nature, focusing chiefly on the grounds for 
refusal), the approx. total cost is €1,500 . This figure, multiplied by 473, the 
total number of EAW cases, yields an aggregate cost for all private 
individuals subjected to an EAW in a large Member State of €730,785 . 
An extrapolation for EU-wide costs yi elds a total aggregate cost in the 
whole of the EU of around €30 million . 
 In the issuing states there would no t be – for the same reasons set out 
above as concerns Member States – additional costs for private individuals 
subject to EAW proceedings.  
In addition, from the costs as calculated above it is appropriate to subtract 
the costs, both for Member States and for the individuals concerned, 
occasioned by the execution of EAWs based on errors which could be 
remedied at an earlier stage owing to the presence of a lawyer in both the 
issuing and the executing Member Stat e.  For example, if the Directive 
enables counsel in the issuing State to share information regarding the 
client with counsel in the executing State, it may be possible to exchange vital information related to the application which may, depending on its 
nature, even result in the withdrawal of the EAW (e.g. in the case of 
mistaken identity). 
12.  
 
EN 168   EN 13. ANNEX VI – MODEL CALCULATIONS FOR OPTION 4 (DISCARDED ) 
 
Core elements of preferred 
option Financial or economic impact 
Member State obliged to 
provide the suspect with the 
right to effective access to a 
lawyer before and in 
preparation for the first police 
interrogation ( start-date ) and 
ensure that such access remain 
available in all phases of the 
proceedings, until the final 
determination of guilt by the 
court ( end-date ) 
  
 
The financial and economic burden resulting from both these elements 
taken per se can not be predicted with any degree of reliability as in the great majority of Member States it would ultimately essentially depend on accused/suspect's case-by-case choice to avail himself or not of the 
assistance of a lawyer where th e measure in hand so allows 
 
ANALYSED IN CONJUNCTION WITH OBLIGATORY DEFENCE 
However, a significant financial and eco nomic impact is expected to stem 
from the combination with mandatory defence 
 
    Financial cost for Member States 
    Start-date
 
As this aspect of the policy option requires Member States to grant 
access to a lawyer before the first police interrogation, its financial 
impact will vary significantly depending on Member States' legislative status quo  and current practice. 
The cost of the provision of access to a lawyer at the pre-trial stage is a 
fraction of Member States’ total expenditure for legal aid. According to the CEPEJ study,
234 in 2006 EU Member St ates spent a total of € 5.20 
billion  on legal aid. The average expenditure per Member State was € 
202 million235.   
In England and Wales, € 210 million (£ 192 million – cf. p. 66)  was 
spent on legal aid at pre-trial stage in 2006. This figure, however, accounts for only those cases wher e the suspect/accused person has 
exercised his right to a lawyer: these cases represent 54% of the total in 
England & Wales (in the remainder, the defendant was not assisted by a lawyer, whether paid by himself of through legal aid schemes). 
Therefore, in order to factor in the cost of the combination of start-date 
and mandatory defence, the additional legal aid cost stemming from the other 46% of cases currently tried without  a lawyer, must be calculated. 
Assuming the ratio of legal aid as constant, the additional legal aid cost 
resulting from mandatory defence would be, for England & Wales, as high as of € 179 million  and the aggregate cost as high as € 389 million.   
This amount can be taken as a tentative benchmark figure for a large 
Member State’s spending on legal aid related to access to a lawyere in the pre-trial stage where a Member State is at least in line with Salduz . 
A large Member State who is not at all compliant with Salduz  may 
therefore expect to spend up to this amount.  
                                                 
234 European Commission for the Ef ficiency of Justice (CEPEJ),” European judicial systems - Edition 2008 (2006 
data): Efficiency and quality of justice ”, Council of Europe, September 2008, Table 2, p.21.   
235 Bulgaria and Romania are included in this figure, even  though they were not EU Member States in 2006.  
 
EN 169   EN For a medium-sized Member State, one could take the example of the 
Netherlands, where the Government its elf has indicated that the cost of 
bringing the legislation into line with the ECHR requirements will cost € 
52 million. If one factors in that legal aid presently covers 32% of criminal cases in the Netherlands,  the cost of Option 4 could be 
calculated (following the same formula used for England & Wales 
above), as € 110.5 million and the aggregate  as € 162.5 million.  
 End-date
 
The financial impact of this option on Member States will depend on 
the extent to which Member States  already impose mandatory defence 
and therefore on the extent to which they would have to adjust their 
current practice and legislative status quo  to the requirements of the 
Directive (e.g. Italy, which already imposes mandatory defence to all 
defendants in all phases of the cr iminal proceedings, would not need 
to alter its system at all and would therefore incur no cost). 
 In order to calculate the average cost of imposing mandatory defence 
across the board, regard can be had to a large country where 
mandatory defence is at present only marginal, France, and a small-
medium-sized country where mandatory defence is more widely 
imposed, Hungary. In these two countr ies, the current annual legal aid 
expenditure ranges between €103 million (France, 2008)  and € 
319,765 (Hungary, 2006)
236 while the ratio of defendants who chose 
not to avail of a lawyer varied between 75% (France, 2009) and 30% 
(Hungary, 2006-2007). If the assi stance of a lawyer is made 
compulsory, the cost of this extens ion for the Member State's legal aid 
budget will hover around between € 309 million and € 137,046 .  
   
   Financial cost for private individuals/organizations  
   Start-date  
Taken in conjunction with obligatory defence, this would require 
suspects/accused in criminal proceedi ngs to appoint a lawyer as from 
before and in preparation for the first police interrogation and to 
remunerate him, unless they are entitled to legal aid. According to estimates provided by the Dutch Ministry of Justice, ensuring that 
access to a lawyer is made available as from the first interrogation by 
the police to all the persons taken into custody (360,000 persons are taken into custody in Holland every year. Of these, about 70,000 are 
juveniles who are already entitled to  this early access) would entail the 
additional cost in legal aid expenditure of Euros 52 million, that is 
approximately € 179  per person (52 million / (360,000 – 70,000)).   
 These figures broadly dovetail with those available for Germany, 
where (save individual agreement be tween the lawyer and his or her 
client provides otherwise), the additional lawyer’s fees for the period before and during the first police investigation hover around €170 to 
                                                                                                                                                         
236 European Commission for the Efficiency of Justi ce (CEPEJ), "European judicial systems - Edition 2008 
(2006 data):  
Efficiency and quality of justice", Council of Europe, September 2008,  Table 2, p.20 
237 Ibid. 
 
EN 170   EN €200 . 
 
Similar data are provided by practitioners in Cyprus: an estimate of the cost of legal advice or assistance during the first police interview, 
based on the minimum hourly fee of  €135 (according to  the rules of 
the Cyprus bar Association) and on the assumption that legal assistance before or during the fi rst police interview does not exceed 
five hours, defines the average cost for the private individual in the 
region of €135 – €675. 
 
End-date
 
Taken in conjunction with mandatory defence, this would require 
defendants to be assisted by a la wyer in all phases of the criminal 
proceedings, until the final determination of guilt by the court, and to 
remunerate him, unless they are entitled to legal aid. The cost stemming from this requirement can be calculated, with some 
approximation, by using the ratio between the legal aid budget of a 
Member State and the overall number of cases where legal aid is granted, in accordance with this fo rmula: aggregate expense for legal 
aid : number of criminal cases where legal aid is granted  = X (data to 
be calculated) : number of criminal cases where no legal aid is granted 
and the lawyer is remunerated by the client. The result will represent 
the aggregate cost for defendants in criminal proceedings resulting from requiring legal advice throughout the proceedings.    
If we take Italy  with reference to 2007 (most recent year in which 
relevant data was available), with a total national cost of legal aid in criminal proceedings of €84.91 million for 94,041  cases (6.3 % of the 
overall number of criminal proceedings, i.e. 1,499,841 ), the resulting 
aggregate cost for defendants wh o do not receive legal aid (i.e. 93.7%  
of cases) would be € 1.26 billion . In order to reflect the higher cost of 
counsel to private individuals than to the State under legal aid scheme 
which according to the experts rang es between 2 and 2.5 times, the 
estimate cost hovers between 2.53 million and 3.17 million.  
  
The equivalent cost for a private practitioner is between three and four 
times higher, in the region of €4,000 – 5,000 .237   
 
IMPACT ON EU BODIES AND BUDGET: 
Introducing two new rights for suspect s and accused persons at the level of 
EU law can be expected to lead to a limited increase in th e case-load of the 
ECJ: particularly in the first decade following the lapse of the deadline for 
implementing the Directive in Member States' laws, Member States' courts 
are likely to seek clarifi cation of the scope of thes e rights and the potential 
consequences of their breach by making  preliminary references under Art. 
267 TFEU. This can have a low to medium impact on the ECJ's budget.  
 
Ensuring that lawyers can carry 
out a range of activities which 
are functional to effective 
exercise of fair trial rights, and 
in particular can take an active 
role during questioning and 
hearings   
This requirement does not appear to entail,  per se , additional costs either 
for Member States or for individuals.   
It seems very unlikely that a lawyer woul d charge his client (or the State, if 
legal aid applies) a different amount for his presence during interrogation depending on whether he is entitled or not, say, to intervene during the interrogation. 
 
EN 171   EN If wisely implemented this parameter should, on the contrary, ultimately be 
positive in terms of its financial and economic impact because greater legal 
certainty would reduce the need fo r appeals, re-trials and aborted 
prosecutions (see further analysis of this under intra-procedural remedies). 
Mandatory legal assistance in 
all circumstances Potential economic and financial impact for this parameter has been 
analysed above, in conjunction with that of start-date and end-date. 
 
Making intra-procedural 
remedies available to the 
suspect or accused in the event 
of breach of the right to legal 
advice, as well as the option of 
appeals/judicial review leading 
to re-trial Financial cost for Member States 
The provision of intra-procedural remedi es in the Directive is not just cost-
neutral, but possibly cost-saving: in particular, the prohibition to use evidentiary material gathered in breach of the right to legal advice would 
reduce the length of judicial proce sses and the need for appeals. Fewer 
convictions would need to be overturned on appeal or at retrial following a condemnation of the Member State by the ECtHR, with undisputable 
saving of costs for the justice syst em as a whole. Likewise, damages 
awarded by the ECtHR for violation of Article 6 rights would drastically drop, with the attendant reduction of costs for Member States.    
Taking into account th e average liquidated damages awarded by the 
ECtHR, in a range between € 3,000 and 9,000, and the, on the whole, steady number of violations found by the ECtHR in relation to breaches of 
Article 6 ECHR over the last 10 years
238, one can estimate the savings for 
all Member States for the next ten years in the region of € 3.73 million  to € 
11.19 million  EUR.   
Financial cost for private individuals/organisations 
None 
 
Ensuring the right of access to 
lawyers as from the moment 
where a person is arrested 
under an EAW in both the 
executing State and issuing 
State  
   Financial costs for Member States 
Additional costs on executing states would concern only those Member 
States who at present do not provide in their legal order for the right of 
access to a lawyer239. This would result in a situation similar to that 
described under sub-option 1, where those Member States would need to bear the cost of legal assistance only when the person is entitled to legal 
aid under domestic law. By assuming that the percentage of EAW cases 
where the defendant is entitled to legal aid is broadly similar to the percentage of criminal proceedings, this cost could be quantified, for any 
relevant year, as: total aggregate numb er of criminal pr oceedings : total 
aggregate number of EAWs = total legal aid budget : X (data to be calculated).   
This calculation, applied to a Member State (France) for which these data 
are known for the year 2008, yields the following result.
240  
The total numbers of EAWs received by  judicial authorities in France was 
709, while legal aid was granted in approx. one third of criminal cases. On 
the basis of the ratio above, it could be expected that 236 EAW cases 
would warrant legal aid. 
The typical expenditure on criminal legal aid for a criminal case is 
                                                 
238 In all, 990 findings of violations (from 164 in 2003 to 158 in 2009). European Court of Human Rights, 
Annual Report from 2003 to 2009.     
239 Article 11 – Rights of a requested person All Member States have shown that they had either fully 
transposed this article or already had provisions in place." Co mmission document SEC(200 7)979Annex to the 
Report from the Commission on the implementation since 2005 of the Council Framework Decision of 13 June 
2002 on the European arrest warrant and the surrender procedures between Member States. 
240 See Cape et al, Effective Criminal Defence in Europe , Intersentia, 2010, pp 214 – 218. 
 
EN 172   EN €1290241. Assuming that this is roughly the amount that would be spent on 
providing legal assistance in the issu ing state for a person arrested under 
an EAW, the total cost is approx. 236 X €1290, i.e. €304,440 . 
 Based on those numbers we have a provided a preliminary extrapolation 
with an EU-wide cost of €1.2 million.   
There would no be additional costs fo r the issuing Member States as it 
would merely involve the duty to appoint a lawyer/have a lawyer appointed at an earlier stage  (i.e. when the EAW is issued) than it is 
otherwise the case. In fact, the issui ng State is the State where criminal 
prosecution takes or has taken place, so the person subjected to the EAW 
would have the right to a lawyer in an y event, even without the Directive, 
albeit only upon surrender to that Stat e. The effect of this Directive 
provision would only be to bring forward
 the moment where the 
appointment must be made, but this will not per se  increase the cost of 
legal advice, not even when th e State provides legal aid.  
 
Financial costs for private individuals/organisations 
 
In the executing state, individual defendants in EAW cases would have to 
appoint a lawyer and to remunerate him, unless they are entitled to legal aid. The cost stemming from this requ irement can be calculated, with some 
approximation, using the same method as for Member States: total 
aggregate number of criminal procee dings: total aggr egate number of 
EAWs in 2009 = total aggregate expenses for lawyers in criminal 
proceedings : X (data to be calculated).   
Taking again France as a case example (2008 data), there were 709 EAW 
cases, while defendants in criminal cases remunerated their lawyer personally in two-thirds of all instances. ),  
The typical cost of a private criminal  lawyer in 2008 was €309 per hour 
according to the Study on the Transparency of Costs of Civil Judicial 
Proceedings in the European Union .  Assuming that legal advice is 
unlikely to exceed 5 hours (on the basi s that advice in the executing state is 
likely to be of a preliminary nature, focusing chiefly on the grounds for 
refusal), the approx. total cost is €1,500 . This figure, multiplied by 473, the 
total number of EAW cases, yields an aggregate cost for all private 
individuals subjected to an EAW in a large Member State of €730,785 . 
An extrapolation for EU-wide costs yi elds a total aggregate cost in the 
whole of the EU of around €30 million . 
 
In the issuing states there would no t be – for the same reasons set out 
above as concerns Member States – additional costs for private individuals subject to EAW proceedings.  
In addition, from the costs as calculated above it is appropriate to subtract 
the costs, both for Member States and for the individuals concerned, 
occasioned by the execution of EAWs based on errors which could be 
remedied at an earlier stage owing to the presence of a lawyer in both the 
issuing and the executing Member Stat e.  For example, if the Directive 
enables counsel in the issuing State to share information regarding the 
                                                                                                                                                         
241 Figure taken from the countr y report (annexes) of the Study on the Transparency of Cost s of Civil Judicial Proceedings in 
the European Union , (valid for 2007).  The figure was then given a 3% increase to reflect inflation between 2007 and 
2008.  
 
EN 173   EN client with counsel in the executing State, it may be possible to exchange 
vital information related to the application which may, depending on its 
nature, even result in the withdrawal of the EAW (e.g. in the case of mistaken identity). 
 
 
EN 174   EN ANNEX VII:   
Current situation in Member States in re lation to legal aid budget for criminal 
proceedings and number of cases where the defendant receives legal aid  
EU Member 
State National budget 
for legal 
assistance 
(partially) free of 
charge in 
criminal 
proceedings in 
absolute terms in 
2008 (€)242 Criminal cases 
granted with 
legal aid per 
100,000 
inhabitants in 
2008243 Number of 
criminal cases 
granted with 
legal aid in 
2008244  Number of 
criminal 
cases in 
2008245 Percentage of 
criminal cases 
granted with 
legal aid out of 
the total 
number of 
criminal cases 
in 2008 
(columns 4 and 
5) 
Austria  18,879,166246 No data 14,980247 59,812 25% 
Belgium 54,220,000 No data No data No data No data 
Bulgaria 3,256,423 No data No data 26,295 No data 
Cyprus 232,300 No data 936248 93,170 37%249 
Czech 
Republic 21,618,962 No data No data 103,329 No data 
Denmark 40,030,000 No data No data 106,720 No data 
Estonia 3063 2,409 31,317 33,550 93% 
Finland 33,300,000 713 9,300250 65,244 14% 
France 103,000,000 627 403,161 1,124,074 36% 
                                                 
242 Figures taken from the study by T. Spronken, G.  Vermeulen, D. de Vocht and L. van Puyenbroeck, EU Procedural 
Rights in Criminal Proceedings. See the table on p.73 of the hardcopy ve rsion of the study (Antwerp-Apeldoorn- 
Portland, Maklu, 2009) and the answers to question 53 of the Member States’ questionna ire on the electronic version 
available at http://arno.unimaas. nl/show.cgi?fid=16315 .  
243 Figures taken from the study by the European Comm ission for the Efficiency of Justice (CEPEJ), " European 
judicial systems - Edition 2010 (2008 data) : Efficiency and quality of justice ", Council of Europe, October 2010, Table 3.3, 
p.52.  Criminal cases means here the a nnual number of cases for which legal ai d has been granted to  persons going to 
court (see the explanatory note for Question 23 on p.374).  
244 The figures in this column are estimates that have been (unless otherwise indicated) ex trapolated from column 2.  
They are arrived at by dividing the Member State population (as stated at 
http://europa.eu/abc/eur opean_countries/eu_member s/estonia/index_en.htm ) by 100,000, then multiplying this 
figure by the number of criminal cases stated in the second column.  
245 See the CEPEJ study, Table 9.25, p.161.  The figures refer to the number of incoming criminal cases (severe 
criminal offences) and misdemeanour cases (minor offences) in first in stance courts (absolute figures).  
246 This figure relates to the total amount of legal assistan ce, including legal aid in civ il and criminal matters.  A 
further breakdown is not available.  
247 The figure represents the number of  lawyers ordered to provide legal aid representation in 2008. It should be 
noted that more than one lawyer may be ordered to assist in a single cases (where there is more than one  accused). 
Therefore this figure is approximate only.  
248 This figure represents the number of adult persons proc eeded against for serious of fences in 2008 (column five 
meanwhile refers to the number of criminal cases of a ll kinds).  See Republic of Cyprus statistical service, Criminal 
Statistics 2008 , p.21.  
249 This figure represents the percentage of adult persons proceeded agai nst for serious offences in 2008  who were 
legally represented.   It should be noted that it is not known wh at proportion of these were funded by legal aid. 
However, it should also be noted that in any case the rules on legal aid (Section 13 of the Legal Assistance Laws 
2003-2006) do not provide for lawyers’ co sts for consulting with the suspect or accused person either before or 
during court proceedings to be covered by legal aid in Cyprus.  
250 Cape et al, Effective Criminal Defence in Europe , Intersentia, 2010, p.177 (footnote 82).  
 
EN 175   EN EU Member 
State National budget 
for legal 
assistance 
(partially) free of 
charge in 
criminal 
proceedings in 
absolute terms in 
2008 (€)242 Criminal cases 
granted with 
legal aid per 
100,000 
inhabitants in 
2008243 Number of 
criminal cases 
granted with 
legal aid in 
2008244  Number of 
criminal 
cases in 
2008245 Percentage of 
criminal cases 
granted with 
legal aid out of 
the total 
number of 
criminal cases 
in 2008 
(columns 4 and 
5) 
Germany251 No data No data No data 911,424 No data 
Greece No data No data No data No data No data 
Hungary No data 28 2,800 262,113 1% 
Ireland 55,300,000 1,245 56,025 No data No data 
Italy No data 165 99,000 1,504,521 7% 
Latvia 783,013 No data No data 38,085 No data 
Lithuania 1,941,000  32 1,060  16,472 6% 
Luxembourg No data No data No data 49,441 No data 
Malta 45,551 No data No data 15,373 No data 
Netherlands 180,400,000252 964 158,096 499,847 32% 
Poland 21,454,645 No data No data 961,869 No data 
Portugal 42,306,500253 No data No data 144,852 No data 
Romania 3,441,655 No data No data 171,119 No data 
Slovak 
Republic No data No data No data 37,593 No data 
Slovenia  1,877,817254 42 840 97,885 1% 
Spain 30,900,000 No data No data 1,266,284 No data 
Sweden 83,074,374 No data No data 83,037 No data 
United 
Kingdom 518,647,945 1,144255 588,542256 140,600257 53%258 
EU average 48,231,323 737 113,838 325,530  28% 
                                                 
251 There is no legal aid as such in Ge rmany.  Instead there are prescribed grounds for issuing a mandatory defence 
counsel which are set out in Article 140, paragraph 1 of th e German Code of Criminal Procedure.  Under one of 
these grounds a defence counsel is then issued to the ac cused without regards to his/ her financial situation. The 
costs for the defence councel are costs of the proceedings.  If the accused loses the trial, he/she has to bear those 
costs and therefore has to pay for the defence counsel.  But,  if he/she is found not guilty, the state has to bear the 
costs of the proceedings, including those for the defence counsel.  The German MoJ has not been able to provide 
any statistics indicating the cost to the state of either  where the defendant loses and is unable/unwilling to pay the 
costs of his/her defence or where the defendant wins and the costs of the mandatory defence counsel are borne by 
the state.   
252 This figure relates to 2007.  
253 This figure relates to 2009.  
254 This figure refers to the national budget for legal aid fo r civil and criminal cases.  The actual expenditure was 
€2,821,428.  
255 This figure is for England & Wales.  For Scotland  it is 3749; and for Northern Ireland it is 1,740.  
256 This figure is for England & Wales, based on a 2008 popula tion estimate by the Office for National Statistics of 
51,446,000.  The estimated number for Sc otland is 74,884 (Scottish Legal Board Annual Report 2008/9, p.51-54) and 
Northern Ireland is 31,129.     
257 This figure is for Scotland only.  
258 This figure is for Scotland only.   
 
EN 176   EN Sources: EU Member States’ Ministries of Justi ce; EU Procedural Rights in Criminal 
Proceedings;  European judicial systems - Edition 2010 (2008 data): Efficiency and quality of 
justice;  and Effective Criminal Defence in Europe . 
 
 
EN 177   EN Statutory Position Position in Practice To whom By whom How?
AustriaYes Constitutional Law on the 
Protection of Personal Liberty (s.4, 
Paragraph 7).
Administrative Criminal Code (s.36, 
paragraph 3) 
Law on the Police (s.47, paragraph 
1)
s.171 paragraph 3(1) of the Code 
of Criminal ProcedureYes, s.164 of the Code of Criminal Procedure 
provides the accused with a lawyer during 
interview.
s. 171 para 3(1) of the Code states that when 
a suspect is apprehended, he has the right to inform a relative, trustworthy person or lawyer 
of his arrest, oYes - generally well 
respected.Detainee must be 
informed of the right 
from the outset of deprivation of liberty - 
"without undue delay" as 
afforded by the Constitutional Law.Detainees not 
always informed 
from the outset. Family, third party Detainee, although not 
explicitly mentioned.Orally or in writing N/A Not known - needs 
further examination.Not known. Ensure notification from the 
outset of deprivation of 
liberty.
BelgiumYes for détention 
administrativeLoi sur la function de police, 
Chapitre IV, Sous-section 2, Art. 33quaterYes - accused has the right to inform a 
trustworthy person, this could potentially mean a lawyer.Yes - generally well 
respected.Not known Detainees usually 
allowed to notify from the outset of 
deprivation of liberty.Family, Consulate, 
third partyDetainee, although not 
explicitly mentioned.Orally or in writing This was not dealt 
with.This was not dealt 
with.Not known. No further recommendation.
No for détention 
judiciaireNone N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A - the CPT calls for 
legislation in this area
BulgariaYes Law on the Ministry of Internal 
Affairs - the Ministry introduced a 
new Instruction No. IZ-2451 of 29 December 2006 placing duty on the 
police to inform accused of his 
rights.Yes - in the Instruction, the police must inform 
the accused of his right to a lawyer, to contact 
family, consular and to medical care.Yes - working 
reasonably well. Must be informed of their 
rights immediately after 
detention.A few detainees had 
not been allowed to 
make a phone call themselves and 
were thus not aware 
whether the person indicated by them to 
the police had been 
notified of the fact of their detention. Family, Consulate, 
third partyBy the detainee or 
police officer.Orally or in writing A few detainees 
were denied abilty 
to call relatives themselves 
therefore were 
not sure that third party had been 
contacted.Not known - needs 
further examination.Not known. Ensure thatdetainees given 
feedback as to whether the 
notification of their custody has been performed. 
CyprusYes Law 163(I)/2005, the Law on the 
Rights of Arrested and Detained 
Persons, Art. 3(1).
Before this legislation, the right to 
communicate and the right to a 
lawyer derived from Police Standing Order 5/3. Yes - this particular Article covers the right to 
a lawyer and the right to inform a third party. No That with the new 
legislation - notification 
should happen immediately after arrest.In 2004, Police 
officers still 
exercised a wide 
discretion as regards notification of a 
relative of the 
detained person and they sometimes 
delayed such 
notification. 
Unable to find 
current data on this.Family, Consulate, 
third partyPolice officer Orally or in writing This was not dealt 
with.Not known - needs 
further examination.Not known. The CPT expressed  concern 
about unjustified delays in 
the accused being able to 
access this right.
Czech 
RepublicNo N/A N/A N/A N/A Many examples 
where accused brought into custody 
had to wait several 
hours before being informed they could 
contact their family.Family, Consulate Detainee Not clear Not known. N/A Not known. To pass legislation to 
recognise this right.CountryIs there a 
statutory right to 
communicate?Applicable ProvisionCan the right to communicate and the 
right to a lawyer be found in the same 
provision?Time of Access
CPT RecommendationsIs the right to 
communicate 
respected?Feedback Derogations RemediesNotificationANNEX VIII: Overview of notificati on of custody in Member States 
 
EN 178   EN DenmarkNot clear S.2 Circular no. 12154 of 12 June 
2001Yes - the right to access a lawyer appears in 
s. 3 of the Circular.No Without undue delay. A number 
complained had not been allowed to make contact.Relatives or other 
revelant persons (such as the employer) - S. 2(2) of 
the Circular, 
ConsulateBy the accused or by 
the police officer.Orally or in writing Compliance with 
procedures must be recorded. If person not 
allowed to contact 
family, the reason must also be recorded in 
reports. 
However, reports 
sometimes omitted to 
mention whether 
the notification had taken place.
Several persons 
were unsure as to0fficer on duty or in 
charge of the investigation has an "unfettered discretion" 
to delay notification of 
custody, if it might obstruct investigation.Disciplinary 
action for the officer if breaches the 
right.That legal provisions be 
adopted so as the right is formally recognised.
That delay is circumscribed 
by law "made subject to appropriate safeguards (e.g reasons given by senior 
police officer or prosecutor).
That feedback is given to 
accused on whether 
EstoniaYes Article 21 of the Constitution 
provides that detainees have the right to a notify a third party of their custody.
The amended Criminal Procedure 
Code,  s.111 (10) states that a detainee is allowed to have a third person of their choice notified.
DetaineNot known No Not known A number 
complained had not been allowed to make contact.
Detainees are 
suppose to sign a form when notification been 
made - some 
entries left blank.Family, Employer, 
third partyAccording to the old 
Criminal procedure code, notification could be done through "a preliminary investigator, 
prosecutor or the court" 
as long as it did not "damage criminal proceedings". 
The amended code 
does not seem to clarify who notifies the third pOrally or in writing This was not dealt 
with.The right "may be 
restricted only in the cases and pursuant to procedure provided by law to combat a 
criminal offence or in 
the interests of ascertaining the truth in a criminal 
procedure"Not known. New Code makes explicit 
reference to right to notify.
That notification is rendered 
fully effective in custody.
FinlandYes Act on the Treatment of Persons in 
Police Custody (Act 841/2006)Yes - under this provision, has the right to 
notify his lawyer.Yes  - generally well 
with concerns.That once detained, 
notification to be made in a reasonable period of time and no later than 
before the end of 
custody.
Police not obliged to 
notify if custody does not 
exceed 12 hours 
(Chapter 2, Section 2 of the Act) and there are no compelling reasonsMost stated that 
were allowed to inform shortly after apprehension, or at 
the very latest at 
the beginning of the first formal interview with an investigating 
officer. However, 
there were a few reports about notification having 
been delayed 
significantly family, consulate, 
employer, third party
Detainee can choose 
not to notify.Detainee. Orally or in writing This was not dealt 
with.Notification is 
restricted in instances where it may seriously impede or prejudice 
criminal investigation. 
This decision is 
decided by the head of the investigation.Not known. The delay in denying the 
detainee the right to be shortened substantially (e.g. to 48 hours).
The types of situation in 
xhere exercising the right is delayed is to be clarified.
That any delay notifying the 
detainee is subject to the approval of a senio
 
 
EN 179   EN FranceYes Article 63-2 of the Code de 
Procédure PénaleYes, the right to a lawyer is found in Art. 63-4. Yes - but concerns 
over derogationsAny delay to this right no 
later than 3 hours after 
being apprehended.Adhered to in 
practice.Family Detainee is allowed to 
telephone them.Orally or in writing N/A Si l'officier de police 
judiciaire estime, en 
raison des nécessités 
de l'enquête, ne pas devoir faire droit à 
cette demande il enNot known. No further recommendations.
GermanyYes Section 114b of the Code of 
Criminal Procedure (StPO) - for those held under the Länder 
authorities.
For individuals held in preventative 
police custody under the Federal 
authorities, Federal Police Act (s 41, para.2) and the Act on the 
Federal Criminal Yes - the right to access a lawyer are found in 
s.136, para. 1, s.137, para. 1, s.148, para. 1, and 163a, para. 4, of the StPO. No For detainees officially 
recognised as criminal suspects - the right 
applies from the moment 
of formal questioning. 
For detainees that are 
provisionally apprehended, they do 
not have the right to 
notify until they have been brought before a 
judge (sinceNumerous 
allegations from detainees that, 
whilst in the 
custody of the police, they had not 
been able at all - or 
at least not from the outset of their 
deprivation of 
liberty - to inform a close relative or a 
third person of their 
choice about their situaFamily, third party, 
Consulate.Detainee Orally or in writing This was not dealt 
with.Delay to notification 
can be made if police officers dealing with 
the case think that it 
may interferes with the investigation - this 
leaves a large 
discretion to the police.Disciplinary 
action for the officer if 
breaches the 
right. To ensure without further 
delay that all persons deprived of their liberty by 
any federal or Länder police 
service, for whatever reason, are granted the right to notify 
a close relative or third party 
of their choice about their situation as from the ver
GreeceNot clear None - appears not to have a 
positive base in law, rather 
circumstances where right is restricted has a legal basis 
according to Article 105 of the 
Code of Criminal Procedure.Not clear Not definitive 
conclusion Not clear. Half of cases 
reviewed said they 
were informed of this right whereas 
the other half 
detainees said they had not been 
informed. Close relative, a third 
party.Detainee, does not 
explicitly mention 
whether police can notify.N/A This was not dealt 
with.This right is subject to 
the Code of Criminal 
Procedure, the Correctional code and 
the "confidentiality of 
talks".Not known. To ensure that detainees 
have an effective right to 
notify a close relative or third party of their choice of their 
situation, as from the very 
outset of their deprivation of liberty.
Legal provisions adopted to 
specify the circumstances 
when the exercis
 
EN 180   EN HungaryYes S.128 (1) of Act XIX on Criminal 
Proceedings 1998S. 18 of the Police ActYes - according to Section 47, Subsection (3) 
of the Code on Criminal Proceedings, defence counsel ought to be notified.Yes - although with 
some misgivings.Police must notify within 
24 hours of custody.Lots of discretion 
given to police officers (see derogations) .  However, almost all interviewed said that third person 
had been notified 
(done mostly through police officer).Family, Employer, 
Consulate, third partyUsually done by police 
officers.Orally or in writing. Poor feedback to 
detainees on whether notification had actually been made.
The government 
replies that police stations have been issued with guidelines on Under S. 18 of the 
Police Act  delay of notification can only 
occur if threat of 
escaping/hiding, alteration/destruction of evidence, of further criminal offences being committed, or a wide discretion of "to the 
extent which serves the 
safet
y of guardin g Not known. That feedback given to 
detainees. 
Clearer definition the 
circumstances in which notification of custody may exceptionally be delayed, 
The legislation should 
provide for appropriate safeguards.
IrelandYes S.5 Criminal Justice Act 1984 Yes - this section includes access to a lawyer. Yes As soon as practicable. 
Time and date of notification must be recorded.Right from the 
outset.Family, Employer, 
Consulate, third partyDetainee Orally (telephone) or 
in writing (sending a letter).N/A Notification allowed if 
station manager ('member in charge") is satisfied that it will not hinder or delay the 
investigation of crime. 
Telephone calls may be listened and terminated if, as well as prohibiting the letter from being sent.Not known. No further recommendations.
ItalyYes Art. 387 of the criminal proceedings 
code.Yes, right to a lawyer is stated in Art. 386. No That once formally 
arrested, family 
members are notified promptly.
Notification usually takes 
place once the detainee is formally arrested, rather than he has been taken into custody.
Individuals detained for 
reasons other that for a criminal offence caEven detainees 
formally arrested 
were deprived of rights (incl. notification) for several hours (or sometimes even more).Family, third party Police officer, not clear 
about detaineeOrally or in writing. This was not dealt 
with.Notification can be 
restricted by judicial 
authority, as 
circumscribed by law. Moreover, under exceptional circumstances of necessity and urgency,  a 
delay of 96 hours can be 
authorised by a judge.Not known. Notification at the outset of 
deprivation of liberty for both 
those suspected of criminal offences qnd those who are legally obliged to be present at a police station.
LatviaYes S. 62&63 of the Code of Criminal 
Procedure (CCP) - this relates to being informed of the right on the moment of arrest.
S. 253 of Administrative Violations 
Code (AVC) - concerns persons arrested for administrative violations.
Art. 266 of the Criminal PrYes, Art. 266 of the Criminal Procedure Law 
also includes the right to access a lawyer.No "At the moment of actual 
arrest"  for those detained under the CCP.Notification in 
practice occured when the detention protocol was drawn 
up, and not at the 
outset of deprivation of liberty. 
A number of 
detainees complained of being withheld this 
right for to 24 
hours. Family, Employer, 
Consulate, educational institutionPolice officer 
(particularly for those detained under the AVC), and the  detainee 
(although not clear)Orally or in writing. This was not dealt 
with.Not known - needs 
further examination.Not known. Ensure that right of 
notification is fully effective in practice with respect to all detainees from the very 
outset of their liberty.
Latvia looking into making 
amendments to their law to allow for notification from the outset.
 
EN 181   EN LithuaniaYes S. 140 (4) of the Code of Criminal 
Procedure 2002Not clear - further examination needed No Must be notified from the 
very outset of detention.
The Prosecutor is 
required to ensure that information about a 
person’s detention is 
provided to a close relative of a detainee’s choice (Article 107)Notification 
occured only when "protocol of apprehension" (forms detainees are requested to 
sign which police 
need before able to notify) was drawn up, which is up to 5 hours after first being detained.Family, Consulate Detainee, the 
Prosecutor (at his discretion if detainee does not choose to do so).Orally or in writing This was not dealt 
with.The Prosecutor may 
refuse notification if detainee explains why such notification "can pose a threat to the security of his/her 
family”. Not known. Ensure that right of 
notification is fully effective in practice with respect to all detainees from the very outset of their liberty.
LuxemburgYes Article 39 (3) of the Code 
d'instruction criminelleYes - the right to access a lawyer appears in 
Article 39 (7)Yes - generally well 
respected.Must be notified from the 
very outset of detention.Detainees were 
allowed to notify right from the 
outset.Anyone: Family, 
Employer, Consulate, third partyDetainee Orally (use of 
telephone is mentioned in the 
legislation) or in 
writing.N/A Can be refused or 
delayed if this is deemed necessary for 
the investigation. 
Decision is made a police officer (does not clarify rank) who has have the grounds of refusal in writing.
According to 
Government, these 
written reasons areNot known. That reasons for refusal be
clearly stated subject toappropriate safeguards, and thatit is authorised by a seniorpolice officer independent to thecase or a prosecutor. 
MaltaYes Article 355AS of the Criminal Code Yes - Article 355AT of the Criminal Code 
provides for the right of a detained person to 
consult in private with a lawyer.Probably Must be notified "without 
undue delay" however 
can be delayed for max. 6 hours (see derogation). No delay for minors.
Records kept of:
i) Notifying the detainee of the right, ii) whether the detainee accessed this right, iv) details of person informed inNo particular 
reference to 
position in practice 
-
assume that it may be working well.Family, closed friend Detainee Orally or in writing This was not dealt 
with.Delay for investigative 
purposes,  must be 
decided by a judge, on a case-by-case basis. The judge is first informed verbally of the delay by a senior police officer, giving reasons.  After permission has been given, the officer files a note formally inforNot known. No further recommendations.
 
 
EN 182   EN NetherlandsYes Article 27 (1) of the Police Service 
Guidelines, however this right can 
be restricted according to Article 62 
(2) b of the Code of Criminal 
Procedure.Not clear - further examination needed No Those held purely under 
Article 27 (1) without any 
restrictions of Article 62 
(2) b have the right to 
notify, however it not 
clear what the terms are 
of this right. In most cases, 
detainees claimed 
they were not given 
the right to inform 
their families or 
others .Family Detainee Not detail given. This was not dealt 
with.Detainees held under 
Article 62 (2) b may 
have “all restrictions” 
imposed on them, 
whereby they are 
deprived of outside 
contact except for 
access to a lawyer. 
Such a regime may 
be imposed “in the 
interest of the 
investigation” by a 
public prosecutor, an 
aNot known. Article 62 (2) b needs to 
more precise and needs to 
be amended accordingly and 
calls upon the Netherlands 
authorities to give a proper 
follow-up to this 
recommendation. 
That all detained persons not 
subjected to the restrictions 
of Article 62 (2) b are 
PolandYes S. 261 of Code of Criminal 
Procedure 1998Yes this right appears in  1998 Code of 
Criminal ProcedureYes - did not bring to 
light any particular 
problems.Unknown - needs further 
examination.Detainees had 
been informed of 
this right either at 
the time of their 
physical 
apprehension or 
soon afterwards, 
when the protocol 
of apprehension 
was drawn u p.Family , third party Police officer Orally or in writing. Some detainees 
had doubts as to 
whether their 
family had been 
notified at all.Not known - needs 
further examination.Not known. Provide detainees with 
feedback that relatives have 
been notified.
PortugalYes Article 14 (4) of  of the Ministry of 
Interior - concerns individuals held 
in Public Security Police (PSP) and 
National Republican Guard (GNR) 
stations.
Article 250 (9) of the Code of 
Criminal Procedure (CCP) states 
that persons held for identification pYes - in the case of those held in a PSP and 
GNR, the right to contact a lawyer appears in 
Article 15 of Regulation 8684/99 (although 
notification only be telephone)No Not clear when in entitled 
to notify. Contact with 
family members must be 
kept on file.A number of 
detainees claimed 
they had not been 
allowed to notify 
anyone. According 
to Portuguese Law 
Society, this 
practice is not 
uncommon. 
That only those 
detainees who became formely 
recognised as 
suspects 
"arguidos" were 
allowed to notify.Family, third party Detainee Orally - use of 
telephone.This was not dealt 
with.Not stated but are 
criticised as being 
vaguely defined.Not known. That the right to notify is put 
into practice and that 
notification to a third person 
other than family be used as 
an alternative.
Derogations should be 
clearly defined and strictly 
limited in time, and resort to 
them should be accompanied 
by appropriate
No Those held under Art. 211 (1) of 
the CCP - detainee subjected to 
incommunicado detention or 
restricted communitcation. This is 
issued by "a competent authority" 
and in writing.N/A N/A No right. N/A N/A N/A N/A N/A N/A N/A Again to amend legislation 
provide this right.
 
EN 183   EN RomaniaYes Art. 137 (1) of Criminal Procedure 
Code
Art. 31 (1) (b) de la loi loi relative à 
la police 2002 guarantees this right for those under preliminary investigation. Yes, the right to a lawyer is also stated in Art. 
31 (1) (b) de la loi loi relative à la police 2002.No From the outset of 
detention (la Loi 
275/2006)Usually only 
allowed to inform 
after signed some 
sort of statement/legal document (procès verbal)  (usually up 
several hours after 
first being detained) or worse, or after the the first hearing infront of a 
judge.
No measures had 
been formally taken to gFamily, third party Not clear but likely to be 
detainee.Orally or in writing. This was not dealt 
with.Can be delayed as an 
exception by a 
prosecutor who 
believes notification risks compromising the investigation.Not known. All detainees are allowed to 
notify from the outset of 
custody. That any delay in 
this right needs to be under strict time-limits and subject to written reasons.
Slovak 
RepublicYes in certain 
casesArticle 19 (1) of the Police Act, with 
this right defined in the Annex.Yes - this article covers both right to inform a 
third party and request defence counsel.No. Not all detainees but only 
those subject to Art. 19.According to both 
detainees and police officers, in 
most cases 
notification of a third party was left to the discretion of the investigating 
police officer and, 
in practice, it was often denied.  Family, Consulate Not clear Not specified. This was not dealt 
with.Not known - needs 
further examination.Not known. All detainees notify a third 
party of their choice as from the outset of the deprivation 
of liberty is recognised in law 
and applied in practice. Any exceptions to this right should be clearly defined and strictly limited in time and be 
accompanied by app
SloveniaYes Art. 48 of The Police Act and the 
Rules on Police Powers Yes - this Article covers both right to inform a 
third party and request defence counsel.Yes - in general 
although some concernsNot clear in statute, but 
detainees should be allowed to notify between 30 to 90 mins since first 
being detained.Nearly all 
detainees able to notify soon after detention, however 
there were 
complaints (incl. juveniles) that relatives only informed a day 
after first being 
apprehended. Family, Consulate, 
third partyDetainee, although not 
explicit.Not specified. This was not dealt 
with.Not known - needs 
further examination.Not known. All detainees allowed to notify 
from the very outset of their 
deprivation of liberty. 
SpainYes Need further clarification but right is 
covered by Article 520 (2) (d) of the Code of Criminal Procedure. For incommunicado detention - right 
restricted by s.527(b) of the 
Criminal Procedure Act - need further examination.No - but need further examination. Yes - for those held for 
ordinary criminal offences.Those held 
incommunicado are delayed the right for up to 18 days.Those held for 
ordinary offences were allowed to notify without delay 
and such requests 
had been properly recorded.Family, Employer, 
Consulate, third partyDetainee or Police 
officer, although not 
explicit.Orally or in writing. This was not dealt 
with.Can be delayed for 
incommunicado detention - usually terrorism offences.Not known. Further clarification of 
Spain's commitments to ensure notification of custody (including those held 
incommunicado) from the 
very outset of the deprivation of liberty.
 
EN 184   EN  
SwedenYes Section 21a of Chapter 24 of the 
Code of Judicial Procedure (CJP)
Section 17a of the Police Act - right 
for individuals who have been 
taken into temporary custody to 
notify close relatives. Yes - the right to a lawyer appears in 10 of 
Chapter 23 of the CJPNo “as soon as it may be 
done without harming the investigation”
Whether notification has 
been done or not is 
recorded.Right is delayed 
until a person has been remanded in custody by a court (which may take up 
to 96 hours after 
arrival at the police station).
Police officers 
believe that 
notification is not a right and it depends on the decision of the prosecutor. Family It is not explicit who 
notifies.Not specified. This was not dealt 
with.Delay is decided by 
the person in charge of the investigation. It should only be done if risk of collusion.Not known. Clear guidelines regarding 
possible delays in notification of custody; such delays should be exceptional rather than commonplace. 
Detainees be provided with 
feedback on whether it has been possible to notify a close relative or other person 
of the fact 
England and 
WalesYes Code C of Police and Criminal 
Evidence Act 1984 - but this does 
not apply to those held under the 
Terrorism Act.Yes - according to paragraph 3.1 (i) - the 
individual has the right to have someone 
informed of their right and (ii) to consult 
privately with a solicitor.Yes - generally well 
respected.As soon as practicable. 
Detainee must sign 
custody record to 
confirm whether would 
like someone notified.From the very 
outset of 
deprivation of 
liberty.Family , Employer, 
Consulate, third party. 
If the person cannot 
be contacted the 
detainee may choose 
up to two alternatives. 
If they cannot be
contacted, the person 
in charge of detention 
or the investigation 
has discretion to allow
further attempts untiDetainee Orally or in writing. This is not dealt 
with.Any delay or denial of 
the right should be 
proportionate and 
should last no longer 
than is necessary 
(Code C PACE 1984, 
para. 5.7A)Action if in 
breach of the 
Code.All custody officers be 
reminded of their duty to 
enable detained persons to 
exercise their rights 
throughout the period of their 
custody.    
 
N.B – Further derogations for England Wales:  
This right may be denied or delayed if if the detainee is in co nnection with anindictable offen ce and an officer of inspector r ank or above has reasonable grounds to 
believe that 
 
EN 185   EN (i) their exercise will interfere/harm the o ffence or cause physical harm to people, (ii) lead to alerting other people suspect ed of having committed an indictable 
offence but not yet arrested for it; or iii) hinder the recovery of  property obtained in consequence of the commission of such an offence. 
2. These rights may also be delayed if the o fficer has reasonable grounds to believe that: 
(i) the person detained for an indictable  offence has benefited from their criminal  conduct (decided in accordance with Part 2 of the Proceeds of Crime Act 2002); 
and (ii) the recovery of the value of the property constituting that benefit will be hindered by the exercise of either right. 
These rights may be delayed for no longer than 36 hours. If th e grounds cease to apply within this time, the detainee must, as soon as practicable, declare that want to 
notify, this must be recorded.