Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest
Date: 2011-06-08
Institutions: European Commission
Subjects: arrest, fundamental rights, lawyer, right to justice, rights of the defence

EUROPEAN COMMISSION 

Brussels, 8.6.2011 
COM(2011) 326 final 

2011/0154 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the right of access to a lawyer in criminal proceedings and on the right to 
communicate upon arrest 

{SEC(2011) 686 final} 
{SEC(2011) 687 final} 

 
 
  
 
 
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EXPLANATORY MEMORANDUM 

INTRODUCTION 

This proposal for a Directive of the European Parliament and the Council aims to set 
common  minimum  standards  on  the  rights  of  suspects  and  accused  persons  in 
criminal proceedings throughout the European Union to have access to a lawyer and 
to  communicate  upon  arrest  with  a  third  person,  such  as  a  relative,  employer  or 
consular authority. The proposal is the next step in the series of measures laid down 
in  the  Resolution  of  the  Council  of  30  November  2009  on  a  Roadmap  for 
strengthening  procedural  rights  of  suspects  and  accused  persons  in  criminal 
proceedings,  appended  to  the  Stockholm  Programme  approved  by  the  European 
Council  of  10-11  December  2010.  The  Roadmap  invites  the  Commission  to  put 
forward  proposals  on  a  ‘step-by-step’  basis.  This  proposal  should  therefore  be 
considered as part of a comprehensive package of legislation to be presented over the 
next  few  years,  which  will  provide  a  minimum  set  of  procedural  rights  in  criminal 
proceedings in the European Union. The issue of legal aid, which was conflated with 
that of access to a lawyer in the Roadmap, warrants a separate proposal owing to the 
specificity and complexity of the subject. 

The  first  step  is  Directive  2010/64/EU  of  20  October  2010  on  the  right  to 
interpretation and translation1. 

The  second  step  will  be  a  Directive,  currently  under  negotiation  on  the  basis  of  a 
Commission proposal2, on the right to information, which will set out minimum rules 
on the right to receive information on one’s rights, and on the charges, as well as on 
the right of access to the case file. 

This proposal, similarly to the two previous measures, seeks to improve the rights of 
suspects and accused persons. Having common minimum standards governing these 
rights  should  boost  mutual  trust  between  judicial  authorities  and  thus  facilitate  the 
application of the principle of mutual recognition. A certain degree of compatibility 
between the legislation of Member States is pivotal to improve judicial cooperation 
in the EU. 

The  proposal  is  based  on  Article  82(2)  of  the  Treaty  on  the  Functioning  of  the 
European  Union  (TFEU).  That  Article  provides  that,  ‘[t]o  the  extent  necessary  to 
facilitate  mutual  recognition  of  judgments  and  judicial  decisions  and  police  and 
judicial  cooperation  in  criminal  matters  having  a  cross-border  dimension,  the 
European  Parliament  and  the  Council  may,  by  means  of  directives  adopted  in 
accordance  with  the  ordinary  legislative  procedure,  establish  minimum  rules.  Such 
rules shall take into account the differences between the legal traditions and systems 
of the Member States. 

1 
2 

OJ L280, 26.10.2010, p. 1. 
COM(2010) 392, 20.7.2010. 

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They shall concern: 

(a) mutual admissibility of evidence between Member States; 

(b) the rights of individuals in criminal procedure; 

(c) the rights of victims of crime; 

(d)[…].’  

Article 47 of the Charter of Fundamental Rights of the European Union (the Charter) 
stipulates the right to a fair trial. Article 48 guarantees the rights of the defence and 
has  the  same  meaning  and  scope  as  the  rights  guaranteed  by  Article  6(3)  of  the 
European  Convention  of  Human  Rights  and  Fundamental  Freedoms  (ECHR)3. 
Article  6(3)(b)  ECHR  stipulates  that  everyone  charged  with  a  criminal  offence  has 
the  right  ‘to  have  adequate  time  and  facilities  for  the  preparation  of  his  defence’ 
while  Article  6(3)(c)  enshrines  the  right  ‘to  defend  [one]self  in  person  or  through 
legal assistance of [one’s] own choosing’. Article 14(3) of the International Covenant 
on  Civil  and  Political  Rights  (ICCPR)4  contains  very  similar  provisions.  Both  the 
right of access to a lawyer and the right to communicate upon arrest provide formal 
safeguards against ill treatment and thus protect against a potential breach of Article 
3  ECHR  (prohibition  of  ill  treatment).  The  right  to  communicate  upon  arrest 
promotes the right to respect for private and family life in Article 8 ECHR. The 1963 
Vienna  Convention  on  Consular  Relations  (VCCR)5  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 receive visits from consular officials. 

The  Commission  carried  out  an  impact  assessment  to  underpin  the  proposal.  The 
report on the impact assessment is available at http://ec.europa.eu/governance....  

BACKGROUND 

Article  6(3)  of  the  Treaty  on  European  Union  (TEU)  provides  that  fundamental 
rights,  as  guaranteed  by  the  ECHR  and  as  they  result  from  the  constitutional 
traditions  common  to  the  Member  States,  constitute  general  principles  of  EU  law. 
Article 6(1) TEU provides that the European Union recognises the rights, freedoms 
and principles set out in the Charter of Fundamental Rights of the European Union of 
7 December 2000, as adapted at Strasbourg, on 12 December 20076, which has the 
same legal value as the TFEU and TEU. The Charter is addressed to EU institutions 
and  Member  States  when  they  implement  EU  law,  such  as  in  the  field  of  judicial 
cooperation in criminal matters in the European Union.  

OJ C 303, 14.12.2007, p. 30. Explanations relating to the Charter of Fundamental Rights. 
999  U.N.T.S.  171.  The  ICCPR  is  an  international  convention  on  civil  and  political  rights  opened  for 
signature by resolution of the United Nations General Assembly on 16 December 1966 which has been 
ratified by, and is thus binding in international law on, all EU Member States. 
United Nations, Treaty Series, vol. 596, p. 261. 
OJ C 303, 14.12.2007 p. 1. 

6. 

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9. 

10. 

11. 

In  2004,  the  Commission  put  forward  a  comprehensive  proposal7  for  legislation 
covering  the  most  important  rights  of  defendants  in  criminal  proceedings.  This 
proposal was not adopted by Council.  

On  30  November  2009,  the  Justice  Council  adopted  a  Roadmap  for  strengthening 
procedural rights of suspected or accused persons in criminal proceedings8 calling for 
the adoption of measures covering the most basic procedural rights, based on a ‘step-
by-step’ approach and inviting the Commission to present proposals to this end. The 
Council  recognised  that  to  date,  not  enough  had  been  done  at  European  level  to 
safeguard  the  fundamental  rights  of  individuals  in  criminal  proceedings.  The  full 
benefit  of  EU  legislation  will  only  be  felt  once  all  measures  are  transposed  into 
legislation. The third and fourth measures in the Roadmap concern the right of access 
to  a  lawyer  and  the  right  to  communicate  with  a  third  person,  such  as  a  relative, 
employer or consular authority. 

The  Stockholm  Programme,  adopted  by  the  European  Council  of  10-11  December 
2009,9  reaffirmed  the  importance  of  the  rights  of  the  individual  in  criminal 
proceedings  as  a  fundamental  value  of  the  European  Union  and  an  essential 
component of mutual trust between Member States and of public confidence in the 
EU.  Protecting  individuals’  fundamental  rights  will  also  remove  obstacles  to  free 
movement. The Stockholm Programme cites the Roadmap as an integral part of the 
multiannual  programme  and  calls  on  the  Commission  to  present  proposals  to 
implement it swiftly. 

3. 

THE  RIGHT  OF  ACCESS  TO  A  LAWYER  AS  ESTABLISHED  UNDER  THE  CHARTER  AND 
THE ECHR  

12. 

Article 6 of the Charter — Right to liberty and security — stipulates that: 

‘Everyone has the right to liberty and security of person.’ 

Article  47  of  the  Charter  —  Right  to  an  effective  remedy  and  to  a  fair  trial  — 
provides that: 

‘(…) Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent  and  impartial  tribunal  previously  established  by  law.  Everyone  shall 
have the possibility of being advised, defended and represented (…).’ 

Article  48  of  the  Charter  —  Presumption  of  innocence  and  right  of  defence  — 
stipulates that: 

‘2.  Respect  for  the  rights  of  the  defence  of  anyone  who  has  been  charged  shall  be 
guaranteed.’ 

Within its scope of application, the Charter guarantees and reflects the corresponding 
rights enshrined in the ECHR. 

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COM(2004) 328, 28.4.2004. 
OJ C 295, 4.12.2009, p. 1. 
OJ C 115, 4.5.2010. 

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Article 6 — Right to a fair trial — stipulates that: 

‘(3) Everyone charged with a criminal offence has the following minimum rights: 

(b) to have adequate time and facilities for the preparation of his defence 

(c) to defend himself in person or through legal assistance of his own choosing[…]’ 

A number of recent rulings of the European Court of Human Rights (ECtHR) have 
clarified the scope of these provisions. The Court has repeatedly held that Article 6 
applies  to  the  pre-trial  stage  of  criminal  proceedings10  and  that  a  suspect  must  be 
offered the assistance of a lawyer at the initial stages of police questioning11 and as 
soon as he is deprived of his liberty, irrespective of any questioning12. The Court also 
ruled  that  these  guarantees  must  apply  to  witnesses  whenever  they  are  in  reality 
suspected  of  a  criminal  offence,  as  the  formal  qualification  of  the  person  is 
immaterial13. In the case of Panovits,14 the ECtHR found a breach of Article 6 where 
statements  made  by  the  suspect  in  the  absence of his lawyer were used to secure a 
conviction, even though they were not the sole evidence available. The court found 
that  the  lack  of  legal  assistance  during  an  applicant’s  questioning  constitutes  a 
restriction  of  his  defence  rights,  in  the  absence  of  compelling  reasons  that  do  not 
prejudice the overall fairness of the proceedings15. The number of complaints about 
the  right  of  access  to  a  lawyer  has  been  growing  steadily  over  the  last  few  years. 
Without  proper implementation  of  the ECtHR's case-law, Member States are likely 
to incur substantial costs stemming from liquidated damages awarded by the Court to 
successful applicants16.  

In  line  with  the  mandate  set  out  in  the  Procedural  Rights  Roadmap,  this  Directive 
lays down minimum requirements at EU level governing the right of suspected and 
accused persons to have access to a lawyer. It thus promotes the application  of the 
Charter  of  Fundamental  Rights,  and  in  particular  Articles  6,  47  and  48  therein,  by 
building upon Article 6 ECHR as interpreted by the ECtHR. 

THE RIGHT TO COMMUNICATE UPON ARREST 

A  suspected  or  accused  person  deprived  of  his  liberty  should  be  entitled  to 
communicate  upon  arrest  with  at  least  one  person  named  by  him,  such  as  a  family 
member  or  employer.  Member  States  should  also  make  sure  that  the  legal 
representatives  of  a  child  suspected  or  accused  of  crime  are  informed  as  soon  as 
possible that the child has been taken into custody and the reasons why the child has 
been taken into custody, unless it is contrary to the best interests of the child. This 
right should only be subject to derogation in very limited circumstances. 

13. 

14. 

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15. 

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Salduz v Turkey, judgment of 27 November 2008, application no. 36391/02, § 50. 
Ibidem, § 52. 
Dayanan v Turkey, judgment of 13 January 2010, application No. 7377/03, § 32. 
Brusco v France, judgment of 14 October 2010, application No. 1466/07, § 47. 
Panovits v. Cyprus, judgment of 11 December 2008, application No. 4268/04 § 73-76. 
Ibidem § 66. 
cf. Impact Assessment accompanying this proposal, quoted at § 7, p. 12. 

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16. 

Where  the  detained  person  is  a  non-national,  it  is  appropriate  for  the  consular 
authorities  of  the  person’s  home  state  to  be  informed.  Foreign  suspects  and 
defendants  are  an  easily  identifiable  vulnerable  group  who  sometimes  need 
additional protection such as is offered by the 1963 Vienna Convention on Consular 
Relations (VCCR), which 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 receive 
visits from consular officials.  

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SPECIFIC PROVISIONS 

Article 1 — Objective 

17. 

The objective of the Directive is to lay down rules governing the rights of suspected 
and  accused  persons  and  persons  subject  to  an  European  Arrest  Warrant  to  have 
access  to  a  lawyer  in  criminal  proceedings  against  them,  and  rules  governing  the 
right  of  suspects  and  accused  persons  who  are  deprived  of  their  liberty  to 
communicate upon arrest with a third party. 

Article 2 — Scope 

18. 

19. 

The  Directive  applies  from  the  time  that  a  person  is  made  aware  by  the  competent 
authorities  of  a  Member  State,  by  official  notification  or  otherwise,  that  he  is 
suspected or accused of having committed a criminal offence until the conclusion of 
the proceedings (including any appeal). 

European Arrest Warrant (EAW)17 proceedings are explicitly covered. The Directive 
states that the procedural guarantees contained in Articles 47 and 48 of the Charter 
and  Articles  5  and  6  ECHR  apply  to  surrender  proceedings  based  on  a  European 
Arrest Warrant. 

Article 3 — The right of access to a lawyer in criminal proceedings  

20. 

This Article lays down the general principle that all suspected and accused persons in 
criminal proceedings should have access to a lawyer as soon as possible, in time and 
in  a  manner  that  allows  them  to  exercise  their  defence  rights.  Access  to  a  lawyer 
must be granted at the latest upon deprivation of liberty, as soon as possible in the 
light  of  the  circumstances  of  each  case.  Irrespective  of  any  deprivation  of  liberty, 
access to a lawyer must be granted upon questioning. It must also be granted when 
there is a procedural or evidence-gathering act requiring or permitting the presence 
of  a  suspect  or  accused  person,  except  where  the  evidence  to  be  gathered  could  be 
altered, removed or destroyed as a result of the passage of time needed for the lawyer 
to  arrive.  This  reflects  ECtHR  jurisprudence,  which  has  established  that  a  suspect 
must  be  offered  the  assistance  of  a  lawyer  ‘already  at  the  initial  stages  of  police 
interrogation’  and  as  soon  as  he  is  deprived  of  his  liberty,  irrespective  of  any 
questioning. 

17 

Council  Framework  Decision  of  13  June  2002  on  the  European  arrest  warrant  and  the  surrender 
procedures between Member States (2002/584/JHA) (OJ L 190, 18.7.2002 p. 1). 

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Article 4 — Content of the right of access to a lawyer 

21. 

This Article sets out the activities that a lawyer representing an accused or suspected 
person  must  be  entitled  to  carry  out  to  ensure  effective  exercise  of  defence  rights, 
including meeting with  the suspect or accused person for an adequate duration and 
frequency  to  ensure  the  effective  exercise  of  the  rights  of  defence;  attending  any 
questioning  or  hearing;  subject  to  the  exception  set  out  above  where  a  delay  may 
affect the availability of evidence, attending any investigative or evidence-gathering 
act for which the applicable national law requires or expressly permits the presence 
of  a  suspect  or  accused  person;  and  accessing  the  place  of  detention  to  check  the 
conditions  of  detention.  The  provisions  of  this  Article  reflect  repeated  ECtHR 
judgments  that  emphasise  that  the  exercise  of  defence  rights  must  be  effective  and 
identify the activities18 that a lawyer representing a suspected or accused person must 
be permitted to carry out. 

Article 5 — The right to communicate upon arrest  

22. 

This  Article  provides  for  the  right  of  persons  deprived  of  their  liberty  in  criminal 
proceedings  to  communicate  as  soon  as  possible  upon  arrest  with  one  person 
nominated by them, which is most likely to be a relative or employer, so as to inform 
him  of  the  detention.  Legal  representatives  of  children  deprived  of  their  liberty 
should  be  notified  as  soon  as  possible  of  the  child’s  custody  and  the  reasons 
pertaining thereto, unless it is against the best interests of the child. Where it is not 
possible to communicate with or notify the person designated by the detained person 
despite  best  endeavours  to  do  so  (for  example  if  the  designated  person  does  not 
answer  the  telephone),  the  detained  person  is  to  be  informed  of  the  fact  that  the 
notification  did  not  occur.  Any  consequences  are  left  to  national  law.  Derogation 
from this right is only possible in the limited circumstances set out in Article 8. The 
provisions of  this Article reflect the call by the European Commission to make the 
justice  system  more  child-friendly  in  Europe19,  the  repeated  identification  by  the 
Committee for the Prevention of Torture of the right to notification of custody as an 
important safeguard against ill treatment and the provisions of the Guidelines of the 
Committee of Ministers of the Council of Europe on child-friendly justice20.  

Article 6 — The right to communicate with consular or diplomatic authorities  

23. 

This Article confirms the right to communicate with consular authorities. It places a 
duty  on  Member  States  to  ensure  that  all  foreign  detainees  are  able  to  have  the 
consular authorities of their State of nationality informed of the detention if they so 
wish. Derogation from this right is only possible in the limited circumstances set out 
in Article 8. 

Article 7 — Confidentiality 

24. 

Defence rights are protected by the obligation to ensure that all communications, in 
whatever form they take, between a suspected and accused person and his lawyer are 

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20 

Dayanan v Turkey, judgment of 13 January 2010, application no. 7377/03, § 32. 
Communication from the Commission on an EU Agenda for the Rights of the Child — COM(2011) 60, 
15.2.2011. 
Council of Europe Guidelines on child-friendly justice of 17.10.2010. 

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entirely confidential, with no scope for derogations. The ECtHR identified one of the 
key  factors  to  a  lawyer’s  effective  representation  of  a  client’s  interests  as  the 
principle of protecting the confidentiality of information exchanged between them. It 
held that confidential communication with one’s lawyer is protected by the ECHR as 
an important safeguard of one’s right to defence21. 

Article 8 — Derogations 

25. 

The  paramount  importance  of  the  rights  enshrined  in  this  Directive  suggests  that 
derogations for Member States should not be possible, in principle. Limited scope for 
derogations  to  Article  3,  Article  4  paragraphs  1  to  3,  Article  5  and  Article  6, 
however,  is  admitted  by  the  ECtHR  jurisprudence  as  concerns  the  initial  stages  of 
criminal  proceedings.  The  ECtHR  has  established  that,  while  the  right  of  a  person 
charged  with  a  criminal  offence  to  be  effectively  defended  by  a  lawyer  is  not 
absolute, any exception to the exercise of this right should be clearly circumscribed 
and  strictly  limited  in  time22  and  it  must  not,  in  the  light  of  the  entirety  of  the 
proceedings,  deprive  the  accused  of  a  fair  hearing23.  This  provision  draws  on  this 
jurisprudence  by  allowing  Member  States  to  derogate  from  the  right  of  access  to  a 
lawyer  only  in  exceptional  circumstances,  subject  to  necessity  and  to  procedural 
safeguards. Any derogation must be justified by compelling reasons pertaining to the 
urgent need to avert danger for the life or physical integrity of one or more people. In 
addition,  any  derogation  must  comply  with  the  principle  of  proportionality,  which 
implies  that  the  competent  authority  must  always  choose  the  alternative  that  least 
restricts the right of access to a lawyer and must limit the duration of the restriction 
as  much  as  possible.  In  accordance  with  ECtHR  case  law,  no  derogation  may  be 
based  exclusively  on  the  type  or  seriousness  of  the  offence  and  any  decision  to 
derogate  requires  a  case-by-case  assessment  by  the  competent  authority.  In  any 
event,  no  derogation  may  have  the  effect  of  compromising  the  fairness  of  the 
proceedings and statements made by the person in the absence of a lawyer may never 
be used as evidence against him. Finally, this provision requires that derogations may 
only be authorised by a reasoned decision of a judicial authority, which means that 
the decision cannot be taken by the police or other law enforcement authorities which 
are not regarded as judicial authorities under national law and the ECHR. The same 
principle and limitations apply to derogations from the  entitlement  to communicate 
upon arrest with a third person. 

Article 9 — Waiver 

26. 

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The ECtHR has held that if a waiver is to be effective for ECHR purposes, it must be 
voluntary,  established  unequivocally  and  underpinned  by  minimum  safeguards 
commensurate to its importance24. This jurisprudence is reflected in Article 9, which 
provides that a waiver (the fact and circumstances of which must be recorded) must 
be voluntary and unequivocal and be made in full knowledge of its consequences, via 

Castravet v Moldova, judgment of 13 March 2007, application no. 23393/05 § 49, Istratii and others v 
Moldova, judgment of 27 March 2007, application nos. 8721/05, 8705/05, 8742/05 §89. 
Salduz v Turkey, judgment of 27 November 2008, application no. 36391/02, § 55. 
Ibedem §52. 
Salduz  v  Turkey,  judgment  of  27  November  2008,  application  no.  36391/02  §59,  Panovits  v  Cyprus, 
judgment  of  11  December  2008,  application  no.  4268/04  §68,  Yoldaş  v  Turkey,  judgment  of  23 
February 2010, application no. 27503/04 § 52. 

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legal  advice  on  such  consequences  or  otherwise.  The  person  must  also  be  able  to 
understand the consequences. 

Article 10 — Persons other than suspects and accused persons  

27. 

This  Article  provides  protection  and  remedies  for  people  such  as  witnesses  who, 
during questioning or a hearing, become suspects or accused persons. This builds on 
ECtHR jurisprudence that the guarantee of a fair trial, including access to a lawyer, 
must apply to witnesses whenever they are in reality suspected of a criminal offence, 
as the formal qualification of the person is immaterial25. 

Article 11 — The right to a lawyer in European Arrest Warrant proceedings 

28. 

This Article reflects the mandate in Article 82(2) of the Treaty to adopt directives on 
minimum  rules  taking  into  account  ‘the  extent  necessary  to  facilitate  mutual 
recognition of judgments and judicial decisions and police and judicial cooperation 
in criminal matters having a cross-border dimension.’ Improving the EAW system is 
a  central  tenet  of  the  Commission’s  third  report  on  implementation  of  the  Council 
Framework Decision on the EAW26. This Article builds on Article 11 of Framework 
Decision 2002/584/JHA27 on the European arrest warrant, which states that a person 
who is arrested for the purpose of execution of a EAW has the right to be assisted by 
a legal counsel in accordance with the national law of the executing Member State. 
This  provision  will  not  have  the  effect  of  compromising  mutual  recognition;  the 
merit of the case will not be addressed by the lawyer in the issuing Member State at 
this stage since his role will be limited to enabling the requested person to exercise 
his  rights  under  the  Framework  Decision.  To  this  end,  the  lawyer's  function  in  the 
issuing Member State will be to provide assistance and information to the lawyer in 
the executing Member State. 

The  promotion  of  mutual  trust  essential  to  mutual  recognition  are  achieved  by 
providing that a person arrested pursuant to a EAW must have the fact of his arrest 
communicated to the issuing Member State and can have his interests furthered by a 
lawyer  in  the  issuing  Member  State  assisting  the  lawyer  in  the  executing  Member 
State in order to exercise his rights most effectively in the executing Member State, 
in  line  with  Council  Framework  Decision  2002/584/JHA.  Such  assistance  can 
facilitate  effective  exercise  of  the  rights  of  the  persons  under  the  Framework 
Decision  in  the  executing  Member  State  notably  the  possibility  to  invoke  a  ground 
for non execution of the EAW under Articles 3 and 4, for instance: the assistance of a 
lawyer in the issuing Member State may be important in order to adduce evidence of 
a  previous  judgment  which  would  entail  the  application  of  the  "ne  bis  in  idem"-
principle under Article 3(2). Proceedings for the execution of the EAW will not be 
delayed  since  this  article  is  without  prejudice  to  the  deadlines  set  out  in  the 
Framework  decision.  On  the  contrary,  the  involvement  of  a  lawyer  in  the  issuing 
Member State will result in speedier consent since the requested person will receive 

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27 

Brusco v France, judgment of 14 October 2010, application no. 1466/07, § 47. 
Report from the Commission to the European Parliament and the Council on the implementation since 
2007  of  the  Council  Framework  Decision  of  13  June  2002  on  the  European  arrest  warrant  and  the 
surrender procedures between Member States - COM(2011) 175, 11.4.2011. 
OJ L 190, 18.7.2002, p. 1. 

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fuller  information  on  the  procedure  in  the  issuing  Member  State  and  on  the 
consequences of his consent. 

Article 12 — Legal aid 

29. 

Article 47(3) of the Charter provides that: 

‘Legal aid shall be made available to those who lack sufficient resources in so far as 
such aid is necessary to ensure effective access to justice’. 

Article 6(3) of the ECHR stipulates that everyone charged with a criminal offence is 
entitled  to  free  legal  assistance  ‘if  he  has  not  sufficient  means  to  pay  for  [it],  […] 
when the interest of justice so requires’. 

Although this Directive does not seek to regulate the issue of legal aid, it lays down a 
provision  requiring  Member  States  to  continue  to  apply  their  domestic  legal  aid 
regimes. These domestic legal aid regimes must be in line with the Charter and the 
ECHR. In addition, Member States may not apply less favourable conditions to legal 
aid  covering  instances  where  access  to  a  lawyer  is  granted  under  this  Directive, 
compared to instances where access to a lawyer was already available under national 
law. 

Article 13 — Remedies in the event of breaches of the right of access to a lawyer 

30. 

This Article reflects ECtHR jurisprudence that the most appropriate form of redress 
for  breaching  the  ECHR  right  to  a  fair  trial  is  to  ensure  that  a  suspect  or  accused 
person is put, as far as possible, in the position in which he would have been had his 
rights  not  been  so  breached28.  The  ECtHR  has  ruled  that  even  where  compelling 
reasons  may  exceptionally  justify  denial  of  access  to  a  lawyer,  such  restriction  — 
whatever  its  justification  —  must  not  unduly  prejudice  the  rights  of  the  accused 
under  Article  6  of  the  ECHR  and  such  rights  will  in  principle  be  irretrievably 
prejudiced  when  incriminating  statements  made  during  police  interrogation  without 
access  to  a  lawyer  are  used  for  a  conviction29.  Therefore,  this  Article  bans,  in 
principle, the use of evidence obtained where access to a lawyer was denied save in 
those exceptional cases where the use of such evidence will not prejudice the rights 
of the defence. 

Article 14 — Non-regression clause  

31. 

The purpose of this Article is to ensure that setting common minimum standards in 
accordance  with  this  Directive  does  not  have  the  effect  of  lowering  standards  in 
certain Member States and that the standards set in the Charter and in the ECHR are 
maintained. Since this Directive provides for minimum rules, in line with Article 82 
TFEU, Member States remain free to set standards higher than those agreed in this 
Directive. 

28 
29 

Salduz v Turkey, judgment of 27 November 2008, application no. 36391/02, § 72. 
Salduz v Turkey, judgment of 27 November 2008, application no. 36391/02, § 55. 

EN 

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Article 15 — Transposition 

32. 

This  Article  requires  that  Member  States  must  implement  the  Directive  by  xx/xx/ 
20xx  and,  by  the  same  date,  transmit  the  text  of  the  provisions  transposing  it  into 
national law to the Commission. 

Article 16 — Entry into force 

33. 

6. 

34. 

7. 

35. 

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

SUBSIDIARITY PRINCIPLE 

The  objective  of  the  proposal  cannot  be  sufficiently  achieved  by  Member  States 
alone, since there is still significant variation in the precise method and timing of the 
right  of  access  to  a  lawyer  in  criminal  proceedings  across  the  European  Union.  As 
the aim of the proposal is to promote mutual trust, only action taken by the European 
Union  will  establish  consistent  common  minimum  standards  that  apply  throughout 
the  whole  of  the  European  Union.  The  proposal  will  approximate  Member  States’ 
procedural  rules  regarding  the  time  and  manner  of  access  to  a  lawyer  for  suspects 
and accused persons and for persons subject to an EAW, the aim being to enhance 
mutual trust. The proposal therefore complies with the subsidiarity principle.  

PROPORTIONALITY PRINCIPLE 

The  proposal  complies  with  the  proportionality  principle  in  that  it  does  not  go 
beyond  the  minimum  required  in  order  to  achieve  the  stated  objective  at  European 
level and what is necessary for that purpose. 

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2011/0154 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the right of access to a lawyer in criminal proceedings and on the right to 
communicate upon arrest 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

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

Having regard to the opinion of the European Economic and Social Committee30, 

Having regard to the opinion of the Committee of the Regions31, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

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

(2) 

The  principle  of  mutual  recognition  of  judgments  and  judicial  decisions  is  the 
cornerstone of judicial cooperation in criminal matters in the Union; 

(3)  Mutual  recognition  can  only  operate  effectively  where  there  is  mutual  trust,  which 
requires detailed rules on the protection of procedural rights and guarantees stemming 
from the Charter, the ECHR and the ICCPR. Common minimum rules should increase 
confidence in the criminal justice systems of all Member States, which in turn should 
lead  to  more  efficient  judicial  cooperation  in  a  climate  of  mutual  trust  and  to  the 
promotion  of  a  fundamental  rights  culture  in  the  Union.  They  should  also  remove 
obstacles to the free movement of citizens. Such common minimum rules should apply 
to the right of access to a lawyer and the right to communicate upon arrest; 

30 
31 

OJ C , , p. . 
OJ C , , p. . 

EN 

11 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

32 
33 
34 

35 

Although  Member  States  are  parties  to  the  ECHR  and  the  ICCPR,  experience  has 
shown  that  this  in  itself  does  not  always  provide  a  sufficient  degree  of  trust  in  the 
criminal justice systems of other Member States; 

On  30  November  2009,  the  Council  adopted  the  Roadmap  for  strengthening  the 
procedural  rights  of  suspected  and  accused  persons  in  criminal  proceedings  (‘the 
Roadmap’)32.  In  the  Stockholm  Programme,  adopted  on  11  December  200933,  the 
European  Council  welcomed  the  Roadmap  and  made  it  part  of  the  Stockholm 
Programme  (point  2.4.).  Taking  a  step-by-step  approach,  the  Roadmap  calls  for  the 
adoption of measures regarding the right to translation and interpretation34, the right to 
information on rights and information about the charges35, the right to legal advice and 
legal  aid,  the  right  to  communication  with  relatives,  employers  and  consular 
authorities,  and  special  safeguards  for  suspected  or  accused  persons  who  are 
vulnerable.  The  Roadmap  emphasises  that  the  order  of  the  rights  is  indicative, 
implying that it may be changed according to priorities. It is designed to operate as a 
whole; only when all its components are implemented will its benefits be felt in full; 

This Directive sets out minimum rules on the right of access to a lawyer and the right 
to  communicate  upon  arrest  with  a  third  party  in  criminal  proceedings,  excluding 
tax 
administrative  proceedings 
proceedings, and in proceedings for the execution of an European Arrest Warrant. In 
doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 
and  48,  by  building  upon  Articles  3,  5,  6  and  8  of  the  ECHR  as  interpreted  by  the 
European Court of Human Rights; 

to  sanctions  such  as  competition  or 

leading 

The right of access to a lawyer is enshrined in Article 6 of the ECHR and in Article 
14(2)  of  the  ICCPR.  The  right  to  communicate  with  a  third  party  is  one  of  the 
important safeguards against ill treatment prohibited by Article 3 ECHR and the right 
to  have  one’s  consulate  informed  of  detention  builds  upon  the  1963  Vienna 
Convention  on  Consular  Relations.  This  Directive  should  facilitate  the  practical 
application of those rights, with a view to safeguarding the right to fair proceedings; 

The European Court of Human Rights has consistently held that the suspect or accused 
person should have access to a lawyer at the initial stages of police questioning, and in 
any event from the start of detention, to protect the right to a fair trial, and in particular 
the privilege against self-incrimination and to avoid ill treatment; 

A similar right to the presence of a lawyer should be granted every time that national 
law expressly allows or demands the presence of the suspected or accused person at a 
procedural  step  or  evidence  gathering  such  as  a  search;  in  these  cases,  in  fact,  the 
presence of the lawyer can strengthen the rights of the defence without affecting  the 
need to preserve the confidentiality of certain investigative acts, since the presence of 
the person excludes the confidential nature of the acts in question; this right should be 
without prejudice to the need to secure evidence which by its very nature is liable to be 

OJ C 295, 4.12.2009, p. 1. 
OJ C 115, 4.5.2010. 
Directive 2010/64/EU of the European Parliament and of the Council on the rights to interpretation and 
translation in criminal proceedings of 20 October 2010 (OJ L 280, 26.10.2010, p. 1). 
Directive 2011/XXX/EU of the European Parliament and of the Council on the right to information in 
criminal proceedings. 

EN 

12 

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altered, removed or destroyed if the competent authority was to wait until the arrival of 
a lawyer; 

(10)  To be effective, access to a lawyer should entail the possibility for the lawyer to carry 
out all the wide range of activities which pertain to legal counselling, as the European 
Court  of  Human  Rights  has  held.  This  should  include  active  participation  in  any 
interrogation or hearing, meetings with the client to discuss the case and prepare the 
defence, the search for exculpatory evidence, support to a distressed client and control 
of detention conditions; 

(11)  The  duration  and  frequency  of  meetings  between  the  suspect  or  accused  person  and 
their  lawyer  depend  on  the  circumstances  of  every  proceeding,  notably  on  the 
complexity of the case and the procedural steps applicable. It should therefore not be 
limited in a general way, as this could prejudice the effective exercise of the rights of 
defence;  

(12)  Suspects or accused persons deprived of their liberty should have the right promptly to 
communicate  upon  arrest  with  a  person  of  their  choice,  such  as  a  family  member  or 
employer, in order to inform them of the detention; 

(13)  Suspects  or  accused  persons  deprived  of  their  liberty  should  also  have  the  right  to 
communicate  with  any  relevant  consular  or  diplomatic  authorities.  The  right  to 
consular  assistance  is  enshrined  by  Article  36  of  the  1963  Vienna  Convention  on 
Consular  Relations  where  it  is  a  right  conferred  on  States  to  have  access  to  their 
nationals.  This  Directive  confers  the  right  on  the  detained  person,  subject  to  their 
wishes; 

(14)  Since confidentiality of communication between a suspect or accused person and their 
lawyer is key to ensuring the effective exercise of the rights of the defence, Member 
States  should  be  required  to  uphold  and  safeguard  the  confidentiality  of  meetings 
between the lawyer and the client and of any other form of communication permitted 
under national law. Confidentiality should not be subject to any exception; 

(15)  Derogations from the right of access to a lawyer and the right to communicate upon 
arrest should be permitted only in exceptional circumstances, in line with case law of 
the European Court of Human Rights, where there are compelling reasons relating to 
the urgent need to avert serious adverse consequences for the life or physical integrity 
of  another  person  and  where  there  are  no  other  less  restrictive  means  to  achieve  the 
same result, such as, in cases of a risk of collusion, replacement of the lawyer chosen 
by  the  suspect  or  accused  person  or  nomination  of  a  different  third  party  to 
communicate with; 

(16)  Any such derogation should only lead to a deferral, as limited as possible, of the initial 
access to a lawyer and should not affect the substance of this right. It should be subject 
to  a  case-by-case  assessment  by  the  competent  judicial  authority,  which  should  give 
reasons for its decision; 

(17)  Derogations should not prejudice the right to a fair trial and in particular should never 
lead to statements made by the suspect or accused person in the absence of his lawyer 
to be used to secure his conviction; 

EN 

13 

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(18)  The  suspect  or  accused  person  should  be  allowed  to  waive  the  right  to  a  lawyer,  as 
long as they are fully aware of the consequences of the waiver, notably because they 
have met with a lawyer before making this decision and have the necessary capacity to 
understand  these  consequences  and  provided  that  the  waiver  is  given  freely  and 
unequivocally. The suspect or accused person should be able to revoke the waiver at 
any time in the course of the proceedings;  

(19)  Any  person  heard  by  the  competent  authority  in  a  different  capacity  than  that  of 
suspect or accused person, e.g. as a witness, should be immediately given access to a 
lawyer  if  the  authority  considers  that  he  has  become  a  suspect  in  the  course  of  the 
questioning,  and  any  statements  made  before  he  became  a  suspect  or  an  accused 
person should not be used against him; 

(20) 

In order to improve the functioning of judicial cooperation in the European Union, the 
rights  provided  for  in  this  Directive  should  also  apply,  mutatis  mutandis,  to 
proceedings for the execution of a European Arrest Warrant according to the Council 
Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant 
and the surrender procedures between Member States36; 

(21)  The person subject to a European Arrest Warrant should have the right of access to a 
lawyer  in  the  executing  Member  State  in  order  to  allow  him  to  exercise  his  rights 
effectively under the Council Framework Decision 2002/584/JHA;  

(22)  That person should also have the possibility to have a lawyer in the issuing Member 
State to assist the lawyer in the executing Member State in specific cases during the 
surrender  proceedings  without  prejudice  to  the  deadlines  set  out  in  Council 
Framework Decision 2002/584/JHA; that lawyer should be able to assist the lawyer in 
the  executing  Member  State  when  exercising  the  person's  rights  under  the  Council 
Framework Decision 2002/584/JHA in the executing State, in particular in respect of 
the grounds of refusal under its Articles 3 and 4; since the European Arrest Warrant is 
predicated upon the principle of mutual recognition, this should not entail any right to 
question  the  merits  of  the  case  in  the  executing  Member  State;  as  there  is  no 
incompatibility  between  defence  rights  and  mutual  recognition;  enhancing  fair  trial 
rights both in the executing and in the issuing Member State will boost mutual trust; 

(23) 

(24) 

In order to make the right of access to a lawyer in the issuing Member State effective, 
the executing judicial authority should promptly notify the issuing judicial authority of 
the  arrest  of  the  person  and  of  his  request  to  have  access  to  a  lawyer  in  the  issuing 
Member State; 

In the absence to-date of EU legislative instrument on legal aid, Member States should 
continue to apply their domestic provisions on legal aid, which should be in line with 
the  Charter,  the  ECHR  and  the  case-law  of  the  European  Court  of  Human  Rights. 
Whenever  new  domestic  provisions,  enacted  to  implement  this  Directive,  grant  a 
broader right of access to a lawyer than was previously available under national law, 
the rules currently in place on legal aid should apply with no distinction between the 
two situations;  

36 

OJ L 190, 18.7.2002, p. 1. 

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14 

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(25)  The  principle  of  effectiveness  of  EU  law  should  require  that  Member  States  put  in 
place adequate, effective remedies in the event of a breach to a right conferred upon 
individuals by Union law; 

(26)  The  European  Court  of  Human  Rights  has  consistently  held  that  any  adverse 
consequences  deriving  from  a  breach  of  the  right  to  a  lawyer  must  be  undone  by 
placing  the  person  in  the  same  position  they  would  have  found  themselves  had  the 
breach  not  occurred.  This  may  require  retrial  or  equivalent  measures  if  a  final 
conviction was made in breach of the right to a lawyer;  

(27)  Since the European Court of Human Rights has established that irretrievable damage 
to the rights of the defence results from the use of an incriminating statement made by 
the  suspect  or  accused  person  without  access  to  a  lawyer,  Member  States  should  be 
required in principle to prohibit the use of any statements given in breach of the right 
of access to a lawyer as evidence against the suspect or accused person unless the use 
of such evidence would not prejudice the rights of the defence. This should be without 
prejudice  to  the  use  of  statements  for  other  purposes  permitted  under  national  law, 
such  as  the  need  to  execute  urgent  investigative  acts  or  to  avoid  the  perpetration  of 
other offences or serious adverse consequences for any person; 

(28)  This  Directive  sets  minimum  rules.  Member  States  may  extend  the  rights  set  out  in 
this Directive in order to afford a higher level of protection in situations not explicitly 
dealt  with  in  this  Directive.  The  level  of  protection  should  never  go  below  the 
standards provided by the Charter and by the ECHR, as interpreted in the case law of 
the European Court of Human Rights;  

(29)  This  Directive  upholds  the  fundamental  rights  and  principles  recognised  by  the 
Charter  of  Fundamental  Rights  of  the  European  Union,  including  the  prohibition  of 
torture and inhuman and degrading treatment, the right to liberty and security, respect 
for  private  and  family  life,  the  right  to  the  integrity  of  the  person,  the  rights  of  the 
child, integration of persons with disabilities, the right to an effective remedy and to a 
fair trial, the presumption of innocence and the right of defence. This Directive must 
be implemented according to these rights and principles; 

(30)  This Directive promotes the rights of the child and takes into account the Guidelines of 
the  Council  of  Europe  on  child  friendly  justice,  in  particular  its  provisions  on 
information and advice. The Directive ensures that children cannot waive their rights 
under this Directive when they lack the capacity to understand the consequences of the 
waiver. Legal representatives of a suspect or accused child should be always notified 
as soon as possible of his custody and be informed about the reasons for the custody, 
unless it is against the best interests of the child; 

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

(32)  Since  the  aim  of  achieving  common  minimum  standards  cannot  be  achieved  by 
Member  States  acting  unilaterally,  either  at national,  regional  or  local  level,  and  can 
only be achieved at European Union level, the European Parliament and the Council 
may adopt measures in accordance with the principle of subsidiarity as referred to in 

EN 

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Article  5  of  the  Treaty  on  European  Union.  In  accordance  with  the  principle  of 
proportionality, as set out in the latter Article, this Directive does not go beyond what 
is necessary in order to achieve that objective; 

(33) 

[In accordance with Articles 1, 2, 3 and 4 of the Protocol on the position of the United 
Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed 
to the Treaty on European Union and to the Treaty on the Functioning of the European 
Union, the United Kingdom and Ireland have notified their wish to participate in the 
adoption  and  application  of  this  Directive]  OR  [without  prejudice  to  Article  4  of the 
Protocol on the position of the United Kingdom and Ireland in respect of the Area of 
Freedom,  Security  and  Justice,  annexed  to the Treaty on  European Union and  to the 
Treaty  on  the  Functioning  of  the  European  Union,  the  United  Kingdom  and  Ireland 
will  not  participate  in  the  adoption  of  this  Directive  and  will  not  be  bound  by  or  be 
subject to its application]37; 

(34) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark will not participate in the adoption of this Directive, and is 
therefore not bound by it or subject to its application, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Objective  

The  Directive  lays  down  rules  concerning  the  right  of  suspects  and  accused  persons  in 
criminal proceedings and of  persons  subject to proceedings pursuant to Council Framework 
Decision  2002/584/JHA  to  have  access  to  a  lawyer  and  to  communicate  upon  arrest  with  a 
third party. 

Article 2 
Scope 

1. 

This  Directive  applies  from  the  time  a  person  is  made  aware  by  the  competent 
authorities  of  a  Member  State,  by  official  notification  or  otherwise,  that  he  is 
suspected or accused of having committed a criminal offence until the conclusion of 
the proceedings, which is understood to mean the final determination of the question 
whether  the  suspected  or  accused  person  has  committed  the  offence,  including, 
where applicable, sentencing and the resolution of any appeal. 

2. 

This  Directive  applies  to  persons  subject  to  proceedings  pursuant  to  Framework 
Decision 2002/584/JHA, from the time they are arrested in the executing State. 

37 

The final wording of this recital in the Directive will depend on the position of the United Kingdom and 
Ireland taken in accordance with the provisions of protocol (No 21). 

EN 

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Article 3 
The right of access to a lawyer in criminal proceedings 

1. 

Member States shall ensure that suspects and accused persons are granted access to a 
lawyer as soon as possible and in any event: 

before  the  start  of  any  questioning  by  the  police  or  other  law  enforcement 

(a) 
authorities; 

(b) 
upon  carrying  out  any  procedural  or  evidence-gathering  act  at  which  the 
person’s presence is required or permitted as a right in accordance with national law, 
unless this would prejudice the acquisition of evidence; 

(c) 

from the outset of deprivation of liberty. 

2. 

Access to a lawyer shall be granted in such a time and manner as to allow the suspect 
or accused person to exercise his rights of defence effectively.  

Article 4 
Content of the right of access to a lawyer 

The  suspect  or  accused  person  shall  have  the  right  to  meet  with  the  lawyer 
representing him. 

The lawyer shall have the right to be present at any questioning and hearing. He shall 
have  the  right  to  ask  questions,  request  clarification  and  make  statements,  which 
shall be recorded in accordance with national law.  

The lawyer shall have the right to be present at any other investigative or evidence-
gathering  act  at  which  the  suspect  or  accused  person’s  presence  is  required  or 
permitted as a right, in accordance with national law, unless this would prejudice the 
acquisition of evidence. 

The  lawyer  shall  have  the  right  to  check  the  conditions  in  which  the  suspect  or 
accused person is detained and to this end shall have access to the place where the 
person is detained. 

The duration and frequency of meetings between the suspect or accused person and 
his  lawyer  shall  not  be  limited  in  any  way  that  may  prejudice  the  exercise  of  his 
rights of defence.  

Article 5 
The right to communicate upon arrest 

Member  States  shall  ensure  that  a  person  to  whom  Article  2  refers  and  who  is 
deprived of his liberty has the right to communicate with at least one person named 
by him as soon as possible.  

Where  the  person  is  a  child,  Member  States  shall  ensure  that  the  child’s  legal 
representative or another adult, depending on the interest of the child, is informed as 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

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17 

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soon  as  possible  of  the  deprivation  of  liberty  and  the  reasons  pertaining  thereto, 
unless it would be contrary to the best interests of the child, in which case another 
appropriate adult shall be informed. 

Article 6 
The right to communicate with consular or diplomatic authorities  

Member States shall ensure that persons to whom Article 2 refers, who are deprived of their 
liberty and who are non-nationals have the right to have consular or diplomatic authorities of 
their  State  of  nationality  informed  of  the  detention  as  soon  as  possible  and  to  communicate 
with the consular or diplomatic authorities. 

Article 7 
Confidentiality 

Member  States  shall  ensure  that  the  confidentiality  of  meetings  between  the  suspect  or 
accused  person  and  his  lawyer  is  guaranteed.  They  shall  also  ensure  the  confidentiality  of 
correspondence, telephone conversations and other forms of communication permitted under 
national law between the suspect or accused person and his lawyer. 

Article 8 
Derogations 

Member  States  shall  not  derogate  from  any  of  the  provisions  of  this  Directive  save,  in 
exceptional circumstances, from Article 3, Article 4 paragraphs 1 to 3, Article 5 and Article 6. 
Any such derogation: 

(a) 

shall be justified by compelling reasons pertaining to the urgent need to avert 
serious adverse consequences for the life or physical integrity of a person; 

(b) 

shall not be based exclusively on the type or seriousness of the alleged offence; 

(c) 

shall not go beyond what is necessary; 

(d) 

shall be limited in time as much as possible and in any event not extend to the 
trial stage;  

(e) 

shall not prejudice the fairness of the proceedings. 

Derogations may only be authorised by a duly reasoned decision taken by a judicial authority 
on a case-by-case basis.  

Article 9 
Waiver 

1. 

Without prejudice to national law that requires the mandatory presence or assistance 
of a lawyer, any waiver of the right to a lawyer referred to in this Directive shall be 
subject to the following conditions: 

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2. 

3. 

1. 

2 

1. 

2. 

(a) 

the  suspect  or  accused  person  has  received  prior  legal  advice  on  the 
consequences of the waiver or has otherwise obtained full knowledge of these 
consequences; 

(b)  he has the necessary capacity to understand these consequences and  

(c) 

the waiver is given voluntarily and unequivocally.  

The  waiver  and  the  circumstances  in  which  it  was  given  shall  be  recorded  in 
accordance with the law of the Member State concerned. 

Member States shall ensure that a waiver can be subsequently revoked at any stage 
of the proceedings. 

Article 10 
Persons other than suspects and accused persons 

Member States shall ensure that any person other than a suspect or accused person 
who is heard by the police or other enforcement authority in the context of a criminal 
procedure is granted access to a lawyer if, in the course of questioning, interrogation 
or  hearing,  he  becomes  suspected  or  accused  of  having  committed  a  criminal 
offence.  

Member  States  shall  ensure  that  any  statement  made  by  such  person  before  he  is 
made aware that he is a suspect or an accused person may not be used against him.  

Article 11 
The right of access to a lawyer in European Arrest Warrant proceedings 

Member  States  shall  ensure  that  any  person  subject  to  proceedings  pursuant  to 
Council  Framework  Decision  2002/584/JHA  has  the  right  of  access  to  a  lawyer 
promptly  upon  arrest  pursuant  to  the  European  Arrest  Warrant  in  the  executing 
Member State.  

With regard to the content of the right of access to a lawyer, this person shall have 
the following rights in the executing Member State:  

– 

– 

– 

– 

the  right  of  access  to  a  lawyer  in  such  a  time  and  manner  as  to  allow  him  to 
exercise his rights effectively; 

the right to meet with the lawyer representing him; 

the right that his lawyer is present at any questioning and hearing, including the 
right to ask questions, request clarification and make statements, which shall be 
recorded in accordance with national law; 

the right that his lawyer has access to the place where the person is detained in 
order to check the conditions of detention. 

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3. 

4. 

5. 

1. 

2. 

1. 

2. 

3. 

The duration and frequency of meetings between the person and his lawyer shall not 
be  limited  in  any  way  that  may  prejudice  the  exercise  of  his  rights  under  Council 
Framework Decision 2002/584/JHA.  

Member  States  shall  ensure  that  any  person  subject  to  proceedings  pursuant  to 
Council  Framework  Decision  2002/584/JHA,  upon  request,  also  has  the  right  of 
access to a lawyer promptly upon arrest pursuant to a European Arrest Warrant in the 
issuing Member State, in order to assist the lawyer in the executing Member State in 
accordance with § 4. This person shall be informed of that right. 

The lawyer of this person in the issuing Member State shall have the right to carry 
out activities limited to what is needed to assist the lawyer in the executing Member 
State,  with  a  view  to  the  effective  exercise  of  the  person's  rights  in  the  executing 
Member  State  under  that  Council  Framework  Decision,  in  particular  under  its 
Articles 3 and 4. 

Promptly upon arrest pursuant to a European Arrest Warrant, the executing judicial 
authority shall notify the issuing judicial authority of the arrest and of the request by 
the person to have access to a lawyer also in the issuing Member State. 

Article 12 
Legal aid 

This Directive is without prejudice to domestic provisions on legal aid, which shall 
apply in accordance with the Charter of Fundamental Rights of the European Union 
and the European Convention on Human Rights. 

Member  States  shall  not  apply  less  favourable  provisions  on  legal  aid  than  those 
currently in place in respect of access to a lawyer provided pursuant to this Directive. 

Article 13 
Remedies  

Member States shall ensure that a person to whom Article 2 refers has an effective 
remedy in instances where his right of access to a lawyer has been breached.  

The remedy shall have the effect of placing the suspect or accused person in the same 
position in which he would have found himself had the breach not occurred.  

Member States shall ensure that statements made by the suspect or accused person or 
evidence obtained in breach of his right to a lawyer or in cases where a derogation to 
this right was authorised in accordance with Article 8, may not be used at any stage 
of the procedure as evidence against him, unless the use of such evidence would not 
prejudice the rights of the defence.  

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Article 14 
Non-regression clause 

Nothing in this Directive shall be construed as limiting or derogating from any of the rights 
and  procedural  safeguards  enshrined  in  the  Charter  of  Fundamental  Rights  of  the  European 
Union, the European Convention of Human Rights and Fundamental Freedoms, other relevant 
provisions of international law or the laws of any Member State that provides a higher level of 
protection. 

Article 15 
Transposition 

1. 

2. 

3. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by [24 months after publication of 
this Directive in the Official Journal] at the latest.  

They shall communicate the text of those provisions and a correlation table between 
those provisions and this Directive to the Commission. 

When  Member  States  adopt  these  provisions  they  shall  contain  a  reference  to  this 
Directive or be accompanied by such a reference when the provisions are officially 
published. Member States shall determine how such reference is to be made. 

Article 16 
Entry into force 

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

Article 17 
Addressees 

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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