COMMISSION STAFF WORKING PAPER IMPACT ASSESSMENT  COMMISSION STAFF WORKING PAPER IMPACT ASSESSMENT
Date: 2011-06-08
Institutions: European Commission
Subjects: criminal procedure, judicial cooperation, lawyer, right to justice, rights of the defence

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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 PARLIAMENT AND OF THE COUNCIL ON 
THE RIGHTS OF ACCESS TO A LAWYER AND OF NOTIFICATION OF 
CUSTODY TO A THIRD PERSON IN CRIMINAL PROCEEDINGS 

COM(2011) 326 final 
SEC(2011) 687 final 

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COMMISSION STAFF WORKING PAPER 

IMPACT ASSESSMENT 

accompanying the 

Proposal for a  

DIRECTIVE OF THE EUROPEAN PARLIAMENT 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 

1 

2 

3 

4 

5 

6 

7 

8 

Introduction 

Procedural issues and consultation of interested parties 

Problem definition 

Objectives 

Policy options 

Comparison of options 

The preferred option 

Transposition, monitoring and evaluation 

Annexes: 

I The Procedural Rights Roadmap  

II: Country fiches 

III: EU overview on the right to access to a lawyer 

IV: General statistics 

V: Model calculations for Option 3 (preferred option) 

VI: Model calculations for Option 4 (discarded) 

VII: Overview of legal aid regimes in Member States 

VIII: Overview of notification of custody in Member States 

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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  authority    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  justice  within  the  EU  through  improving  judicial  cooperation 
between its Member Countries.   

The right to an effective remedy and to a fair trial, presumption of innocence and a right of defence 
are laid down in the Charter of Fundamental Rights of the European Union in Article 47 and Article 
48  and  have  the  same  meaning  and  scope  as  the  rights  guaranteed  by  Article  6(3)  of  the  ECHR. 
Both  the  right  of  access  to  a  lawyer  and  the  right  to  notification  of  custody  provide  formal 
safeguards  against  ill-treatment  and  thus  protect  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.  The  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  receive  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  common  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. 

PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

2.1. 

Policy context 

Insufficient levels of mutual trust between Member States' judicial authorities affect cooperation in 
criminal matters between them and is an obstacle to mutual recognition of judgments and judicial 
decisions in that field. Since the 1999 adoption of the Tampere Conclusions, Member States have 
agreed  that  mutual  recognition  should  be  the  cornerstone  of  judicial  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  provided by  the  State  to  cover  the  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. 

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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  fundamental  value  of  the  Union.  It  is  recognised  that 
judicial  cooperation  needs  to  be  founded  on  mutual  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 disproportionately detrimental effect on mutual trust and, in turn, on judicial 
cooperation.4 In fact, the Lisbon Treaty states that the principle of mutual 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 operation of mutual recognition, in November 2009 
the  Council  of  the  European  Union  adopted  the  Roadmap  on  Procedural  Rights5  (Annex  I,  "the 
Roadmap") setting out a step-by-step 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 rules 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 all Member States, thus protecting EU citizens 
and  third-country  nationals  alike  in  all  cases  including  cross-border  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 measure is supposed to address. The rights of 
suspects and defendants throughout the EU will therefore 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 the citizen' adopted December 2009. 
7 This measure will address the rights of juvenile and disabled suspects and accused persons in criminal proceedings. 

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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  advice  and  legal  aid"  of  the 
Roadmap  (measure  C);which  aims  to  improve  the  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  against  ill-treatment  of  detained  persons.  . 
Following  a  broad  consultation  with  Member  States  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  accordance  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  trial  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 liberty 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 consultation of interested parties have been followed 
in relation to this initiative. The views of all major stakeholders and Member States were sought.   

Stakeholders  were  consulted  on  several  occasions.  The  Commission  has  regular  and  frequent 
contact  with  major  stakeholders:  the  European  Criminal  Bar  Association,  the  CCBE  (Council  of 
Bars and Law Societies of Europe), national Bar associations, European Network 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 20038 and has been consulting interested parties ever 
since;  it  has  thus  accumulated  a  body  of  information  and  views  on  what  experts  consider  would 
promote fairer trials and greater mutual trust between Member States.  
A  Justice  Forum9  meeting  was  held  in  July  2008  to  canvas  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 legislation at EU level on procedural safeguards. There also was a 2-
day  experts'  meeting  devoted  to  procedural  rights  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 representatives 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 

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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 and liberties as 
well  as  representatives  of  Lawyers'  Associations,  have  expressed  very  strong  support  for  an  EU 
initiative  in  this  area.  Most  of  them  view  shortcomings  in  access  to  a  lawyer  as  one  of  the  most 
formidable hurdles to the proper functioning of judicial cooperation and mutual recognition across 
the  EU  and  underline  the  importance  of  notification  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 separate studies carried out from 2007 to 201011 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 gather  evidence for this IA  was commissioned  on 25 October 2010. The 
study, carried out by consultants CSES, focused on policy options and costs of the various options. 

(b)  Under  the  JPEN  (Criminal  Justice)  financial  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:  towards  best  practice")  reviewing  how  suspects  are 
informed about their rights in criminal proceedings in the 27 Member States, and considering the 
feasibility  of  a  model  'Letter  of  Rights'  to  be  applicable  throughout  the  EU13.  The  research  team 
submitted a final report in July 2010 detailing existing 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 identified current practice as regards 
access to lawyers for suspects and accused persons in all Member States.  

(d) "Effective Criminal Defence Rights in Europe", a study funded under the JPEN Programme, is a 
joint  initiative  of  JUSTICE,  the  University  of  the  West  of  England,  the  Open  Society  Justice 
Initiative  and  Maastricht  University.  It  was  carried  out  over  a  3  year  period  (2007-2010)  and 
provides empirical information on the extent to which procedural rights that are indispensable for an 
effective defence, such as the right to information, are provided in practice in 8 EU Member States 
and  one  accession  country  (Turkey).  Results  from  the  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  carrying  out  research  in  their  home  Member  State 

11 Additional sources of information used in preparing 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  criminal  proceedings  –  Taru  Spronken,  Gert  Vermeulen,  Dorris  de  Vocht,  Laurens  Van 
Puyenbroeck – JLS/2008/D3/002. 
15 The research project covers nine countries: Poland, Hungary, Belgium, France, Italy, Germany, England and Wales 
and Finland and an accession state (Turkey). "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 

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through  in-depth  interviews  and  questionnaires  with  practitioners,  civil  servants  of  ministries  of 
justice  responsible  for  negotiation  and  transposition  of  mutual  recognition  instruments,  judges, 
defence lawyers, liaison magistrates and prosecutors. The report found 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  more  to  redress  the  balance  between  facilitating 
prosecution and protecting the rights of suspects and accused persons. 

 2.2.3.  Internal consultation and scrutiny of the Impact Assessment 

An  Interservice  Impact  Assessment  Steering  Group  was  created  involving  representatives  from 
DGT, DG SCIC, DG COMP, DG MARKT, DG RELEX, 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 throughout 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 recommendations, additional information, explanations and 
data were introduced in this document. In particular, 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, clarifications have been added on the cost of the 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 views of stakeholders have been better explained and reflected across 
the document. 

3. 

3. PROBLEM DEFINITION   

Despite the existence of common principles and minimum standards stemming both from the ECHR 
and  the  EU  Charter,  provisions  governing  access  to  a  lawyer  and  notification  of  custody  vary 
significantly  from  one  Member  State  to  another.  Moreover,  the  criminal  justice  procedure  of  a 
significant number of Member States has serious shortcomings even when measured against these 
minimums criteria for access to lawyers and notification of custody. 
This lack of adequate standards affects the overall quality of justice within the EU and undermines 
judicial  cooperation  between  Member  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-treatment in custody in another jurisdiction, they may be unwilling to execute 
requests for judicial cooperation emanating from that jurisdiction, e.g. to order the surrender of a 
suspect or the sending of evidence for use in a trial.   
Insufficient  standards  across  Member  States  are  also  detrimental  to  the  protection  of  accused 
persons' and suspects' fundamental rights, as proper access to a lawyer 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 immediately following arrest.     

Before addressing the specific problem as it relates to the right to access to a lawyer and 
notification of custody, this section will deal with the general problem as it permeates all 
the measures envisaged in the Roadmap. 

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3.1 The general problem  

 3.1.1 Insufficient mutual trust between Member States 

Evidence17  and  consultation18  point  to  the  problem  of  insufficient  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 fundamental rights in criminal proceedings 

The  need  to  facilitate  prosecution  and  enforcement  of  sentences  while  protecting  fundamental 
procedural  rights  of  the  individual  was  already  highlighted  by  the  Commission  proposal  for  EU 
legislation put forward in 2004.19  However, discussions on procedural 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  rights  going  well  beyond  the  protection  currently  offered  by  Arts  5 
and 6 ECHR. Taking this course will also give a specific 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 the European Union adopted the Directive 2010/64 
on the right to interpretation and translation in criminal proceedings. The second measure envisaged 
in  the  Roadmap,  concerning  the  right  to  information  in  criminal  proceedings,  is  being  currently 
negotiated by the co-legislators and 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  criminal  justice  system  of  all 
Member States.  

In  addition,  the  strengthening  of  fair  trial  standards  will  reinforce  the  image  of  the  EU  on  the 
world's stage as standard-setter on fundamental 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 standards 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 Decision on certain procedural rights in criminal 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  pressure  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. 

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and  notification  of  custody  across  the  EU.  This  entails  adverse  effects  for  judicial  cooperation 
between Member States , which is the main problem (Problem A) Adverse effects exist also for the 
fundamental right of suspect and accused 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 trust 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 recognition 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 advice may render the criminal proceedings 
unfair and jeopardize the other suspects/accused defence rights as such access is a recognised fair 
trial guarantee  which together with the right of notification of custody  serves 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 cases 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 cooperation between Member States 

Instances of failure to provide prompt access to expert legal advice and to have the fact of detention 
notified to a third party undermine trust in the fairness of criminal proceedings conducted in other 
Member States. Perceptions of potential 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 the application of mutual recognition instruments, for instance the 
European  Arrest  Warrant,  under  which  a  Member  State  is  expected  to  surrender  suspects  or 
convicted persons, including its nationals, rapidly and without examination of the case file, for trial 
or to serve a custodial sentence in another Member State. Stakeholders, 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 standards for fair trial rights at EU level and the sub-
optimal functioning of judicial cooperation in the EU. 

All  instruments  aiming  to  facilitate  judicial  cooperation  between  Member  States  rely  on  the 
principle of mutual recognition: a decision of a court in one Member State (the issuing state), such 
as  an  arrest  warrant  or  a  final  judgment  imposing  a  prison  sentence,  shall  be  recognised  and 
enforced by the courts of another Member State (the executing state) and treated as equivalent to 
their  own  decisions,  i.e.  without  any  further  review  of  the  decision  or  any  lengthy  recognition 

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proceedings. Such quasi-automatic mutual recognition presupposes mutual trust between judges and 
courts throughout the EU in the fairness of criminal proceedings and the lawfulness of the decisions 
to be enforced. Thus Member State courts have already refused to execute EAWs on account of a 
probable  violation  of  the  sought  person's  fair  trial  rights  upon  surrender  to  the  issuing  Member 
State.21 

This  case  illustrate  that  the  provision  of  prompt  access  to  qualified  legal  advice  from  the  earliest 
applicable stage of the criminal proceedings is crucial to safeguard the fairness of such proceedings. 
It  will  have  therefore  to  be  ensured  that  adequate  EU-wide  standards  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  that  all  Member  States  provide  suspects  and 
accused persons with proper access to a qualified counsellor, will these judges be inclined to order 
the  execution  or  enforcement  of  a  judicial  decision  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 judicial cooperation instruments can be hampered 
significantly. This  is the case  where  the person sought on the basis of  an EAW appeals against a 
decision  to  recognise  and  execute  the  EAW  and,  eventually,  brings  an  application  against  the 
Member State wishing to surrender him before ECtHR, citing a likely infringement of his fair trial 
rights  in  the  Member  State  seeking  his  surrender.  Appeals  account  for  significant  costs  (albeit 
difficult  to  quantify)  in  terms  of  docket  backlog,  delayed  justice  and  victims'  dissatisfaction. 
Appeals to the ECtHR can cost Member States several thousands of Euros per case only as concerns 
liquidated damages, without factoring in the legal fees of State attorneys and the reputational costs 
of a condemnation by the Court for the justice system. 

This risk is expected to be magnified when those 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 penalties or the transfer of convicted persons serving a custodial 
sentence to another 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 the reputation of a Member State's criminal justice system as it only takes 
one high profile case to erode trust and thus jeopardise judicial cooperation. The NGO Fair Trials 
International  (FTI)  has  reported  that  even  when  the  right  to  legal  assistance  exists  in  theory,  it  is 
sometimes  not  safeguarded  in  practice  and  that  this  can  have  serious  consequences  given  the 
increasingly frequent use of instruments like the EAW. The CPT in its 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 practice it is not offered to all detainees or offered with considerable 
delays  (often  only  after  a  certain  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 throughout 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. 

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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 with friends in a bar in Albufeira, and while 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, and the lack of time before the hearing, 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, trial 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 the 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 application was also lodged at the ECtHR, where Mann argued that his accelerated 
trial had been, unfair owing to failure on the part of the Portuguese authorities to provide 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  effected  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 Headquarters in Prague at 2pm (some eleven 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 custody "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 allowed 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  

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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  suspected  or  accused  citizens  in  a  position  to  defend 
themselves  properly  in  the  face  of  the  investigating  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-treatment while in detention. 

If  someone  is  arrested  or  required  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 language 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  remain  silent  during  police questioning  and  may  thus 
make  statements  under  the  psychological  pressure  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 initial statement may appeal against his conviction 
and succeed in having the conviction 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 considering reputational damages and costs for the 
defendant  which  are  usually  non  recoverable  even  when  he  is  eventually  acquitted).  Similarly,  a 
suspect  held  in  pre-trial  detention  might  appeal  against  the  Court  order  although  he  might  have 
chosen  not  to  do  so  if  he  could  have  availed  himself  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 proceedings take place: court costs 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 authority in another Member State is requested judicial 
cooperation  which  it  refuses  to  provide  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 successful applicant, in a range between € 3,000 and 9,000. This figure, 
if  multiplied  by  the  number  of  findings  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). See 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. European Court of Human Rights, Annual Reports from 2003 to 2009.     

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Stakeholders who participated in the consultation process came out very forcefully in favour of EU 
minimum  rules  on  the  right  of  access  to  a  lawyer  and  have  argued  that  this  is  the  single  most 
effective way to strengthen all the other fair trial rights (access to a lawyer is seen as "the gate in the 
house of procedural rights", in the words of a participant 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 the right to a fair trial because Salduz who was under 
eighteen  at  the  time  of  the  offence  was  denied  legal  assistance  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 interrogation of a suspect by the police, unless it 
is  demonstrated  in  the  light  of  the  particular  circumstances  of  each  case  that  there  are  compelling  reasons  to 
restrict  this  right.  Even  when  compelling  reasons  may  exceptionally  justify  denial  of  access  to  a  lawyer,  such 
restriction- whatever it’s justification – must not unduly prejudice the rights of the accused under Article 6…the 
rights  of  the  defence  will  in  principle  be  irretrievably  prejudiced  when  incriminating  statements  made  during 
police interrogation without access to a lawyer are used for a conviction.” 

PANOVITS CASE:  

This  case  demonstrates  the  degree  of  the  impact  that  insufficient  access  to  a  lawyer  may  have  on 
suspects/accused fundamental rights as well as on the overall fairness of the proceedings  

P, at the time just 17 years old, was invited with this father 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 assistance 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 right of access to a lawyer and the right to notification of 
custody are combined into one piece of legislation or even one statutory provision.  Irish legislation (Section 5 of 
the Criminal Justice Act 1984) combines both rights into 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 for 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 against ill-treatment which are offered to persons deprived of their liberty 
by  the  police,  in  particular  the  rights  of  detained  persons  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 

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and  dependent  on  particular  circumstances  of  each  case,  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 down 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-invoked  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  shortcomings  of  access  to  a  lawyer  related  to  these 
parameters.  For  each  parameter,  information  is  provided  on  the  status  quoin  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 nominated by the detainee; 
is the person entitled to a lawyer throughout all the proceedings? (Temporal scope)   

In a significant proportion of Member States, the right to contact a lawyer cannot be exercised 
immediately  after  arrest  but  only  some  time  after  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-incriminatory 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' judicial authority's vis-à-
vis jurisdictions characterised by such shortcomings.  In respect of notification of custody, the 
CPT  found  that  in  six  Member  States,  the  right  to  notification  of  custody  was  in  practice 
repeatedly not afforded to detainees.  In 11 Member 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  detention  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 client? (Material scope)  

In eleven Member States, it is possible to supervise 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  Torture  and  Inhuman  or  Degrading  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 beginning of the deprivation of liberty and that is out 
of hearing of third parties and/or without its contents being monitored by any technical means. 
Provision  of  proper  access  to  legal  advice  out  of  hearing  of  third  parties  at  the  very  outset  of 
detention will give the individual concerned the possibility of making use of those rights (such 

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as the right to remain silent) and thus help prevent 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 assistance in criminal proceedings 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  notification  of  custody?  (consequences  of 
violations)  

Only  in  three  Member  States  (Spain,  Italy,  Portugal),  it  is  not  allowed  to  use  as  evidence  in 
court statements made by a suspect in the absence of his lawyer. The lack of a prohibition to use 
such evidence in court is conducive to lengthy litigation (and possible appeals to the ECtHR), 
which  in  turn  affects  the  credibility  of  the  justice  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  being  more  vulnerable  to  false  accusations  of  ill-treatment  in  custody-is 
heightened where notification of custody is not carried out promptly.  In the few Member States 
the  CPT  identified  any  sanction  existing  in  Member  States;  it  is  most  commonly  disciplinary 
action against for detaining police officers 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 Framework Decision on the European Arrest 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  deprived  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  Article  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) 

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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 meantime, 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 right 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 summer 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 reclassified 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  benefit  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. 

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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 police without access to legal advice 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 legislation, the Criminal Procedure 
Act on 27 October 2010, which enshrines the right of access 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 were likely to have been similar, if not greater, and 
there would have been further indirect costs, such as court 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  process  would  be  affected  or  whose 
convictions would be liable to review and possible setting aside. Lord Hope in the introduction (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 cases in which a Cadder-related issue has been raised. 

5. European Arrest Warrant: Alan 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 the 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 International found a lawyer to act for AH in Belgium on a 
pro  bono  basis,  to  try  and  uncover  this  crucial  information.  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  limited  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 killing Marcello Miguel Espana Castillo in Genoa, Italy in 
October 2004. He was given a sentence of 19 years, later reduced 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  Marcello  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 Albania. It was the first time he got knew of the charges against him in Italy, 
which  does  not  automatically  guarantee  a  re-trial  for  defendants  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  lawyer  in  both  issuing  and  executing  States,  delays  and 

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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:  Existing  legal  standards  appear  not  to  offer 
sufficient protection to suspects and accused persons 

Currently, there is a considerable discrepancy between Member States' laws and practice leading to 
shortcomings  in  relation  to  suspects  and  accused  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 level 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 "advised, defended and represented". Article 48 safeguards 
the presumption of innocence and guarantees the "respect for the rights of the defence". Article 4 
prohibits ill-treatment and Article 7 guarantees respect for private and family life. While the Charter 
binds the institutions and bodies in all instances, Member States are the addressees of the Charter 
only  when  they  are  implementing  Union  law.    This  entails  that,  in  the  absence  of  relevant  EU 
legislation in this field, Member States are not bound by Articles 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 their rights by domestic institutions. 

3.4.2 The limits of the procedural safeguards of Articles 3 and 6 ECHR  

Minimum rights and fair trial standards for all member States of the Council of Europe (including 
all of the EU Member States) are laid down in the ECHR. Stakeholders argue, persuasively, 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 lawyer 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 rights an individual may derive from them, both in terms of material scope 
and temporal scope. s. However, there are a number of issues which remain to-date only partially 
regulated  (because  left  to  the  Member  States'  margin  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 

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in  practice  if  the  person  has  served  a  sentence,  or  part  of  a  sentence).  This  leaves  scope  for 
diverging  implementation  of  a  common  standard.  Besides,  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  signatory  to  the  ECHR  may  bring  a  case 
before the ECtHR once he has pursued all available avenues of appeal in the State concerned. Thus, 
the system of protection granted by the ECtHR is ex-post only. Ensuring justice in individual cases 
ex-post  serves  a  different  purpose  from  laying  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 ECtHR32, so any remedy for the violation may come many 
years after.  There are also practical difficulties in bringing a case, 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 people whose rights have been violated never bring 
an  action  at  the  ECtHR.  Furthermore,  these  rights  may  not  be  enforceable  in  accordance  with 
certain  Member  States'  legal  traditions  where  the  ECHR  itself  is  not  directly  applicable,  thus 
making recourse to the ECtHR the only possibility of obtaining a remedy for a violation.  

In the light of these limitations to the current protection of the right to legal advice and notification 
of  custody  currently  afforded  by  the  ECHR  and  its  enforcement  mechanism,  it  becomes  apparent 
that an EU measure addressing the problem would possess much added value, since a EU directive 
would be applicable (upon transposition by Member States and, to a certain extent, even despite the 
absence  of  timely  transposition,  under  the  doctrine  of  direct  effect)  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 authorities 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  provisions,  in  the  course  of  (and  not  after)  national 
proceedings. .  

c) Application of ECtHR doctrine 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 acceptance  of  those  common  standards  by  all  Member 
States. However, reliance on decisions of the ECtHR (even when they constitute settled case-law, 
which may take years) at best promotes piecemeal and ad hoc pressure to reform national practice 
rather  than  a  comprehensive  and  consistent  development  of  EU-wide  procedures  to  ensure 
compliance with fair trial rights.   

Clearly, a consistent line of ECtHR 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  Courts  (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  (Legal  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 potential to increase that to 24 hours 
on “cause shown” by a senior police officer. 

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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 attempted to bring procedures into line with the ECHR, they have done 
so in a piecemeal fashion that has been 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 being 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  these  types  of  problem.  Moreover,  some  useful  indicators  may  be 
derived from reports and statistics of the European Court of Human Rights concerning article 6 § 3 
c) (right to legal advice) as well as article 6 in general (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 access to a lawyer during 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 the French Parliament, the suspect 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 Belgian Chamber of Representatives. As recently as March 
2009 the Belgian Cour de Cassation decided there was no legal 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  reached  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 following 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 phone call to a lawyer upon arrest 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  theoretical  safeguards  and  reality,  even  in  those  states  whose 
criminal procedures appear on paper to be compliant with ECHR 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  

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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 the last decade (from 234 in 2003 to 482 in 200936), this is 
not necessarily indicative of an increase in the number of instances where criminal proceedings in 
Member States may have fallen short of the standards 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  contingent  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  legal  aid  to  bring  a  case  to  the  ECtHR  can  skew  the 
proportionate  relationship  between  the  number  of  cases  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-publicised case is enough 
to impact judicial trust and cooperation. There is no evidence that such cases are becoming rarer, if 
anything ECtHR figures suggest the contrary. Certain stakeholders, and especially NGOs geared to 
the protection of fair trial rights, actually encourage defendants to bring their 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  significant  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 that 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 reports from the Committee for the Prevention of 
Torture  (CPT)    of  their  periodic  visits  to  Council  of  Europe  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 party, usually a relative, employer and consular 
authority (and in 20 Member States this right is contained in the same statutory provision 
as  access  to  a  lawyer)  in  practice  there  are  considerable  shortcomings  in  the  manner  in 
which this right is provided for and in its application- The CPT made recommendations as 
to how the right of notification of custody needs to be improved in terms of ensuring the 
right is given to all detainees; when it is given; when it is withheld and at whose discretion 
and the reasons for same; and feedback to detainees .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  authorities  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  notification  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.  

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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 introducing 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 procedures37. They might do this by way of either making changes 
to their criminal procedures or by national legislation. It is most unlikely that such reforms would 
result  in  any  true  universality  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 accused persons and notification of custody 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 the provision of access to legal advice to suspects 
and accused persons in criminal proceedings across the EU.  

Increased movement of citizens between Member States38 and activities of individuals 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 surrendered on the basis of 
an  European  Arrest  Warrant).  Between  2006  and  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  envisaging  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  mutual  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 last 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/portal/page?_pageid=1996,45323734&_dad=portal&_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 Prisoners, implementation deadline 5 December 2011. 

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3.7 

Does the EU have the power to act? 

3.7.1   The legal basis 

The  EU's  legislative  competence  for  a  Directive  laying  down  minimum  rights  in  criminal 
proceedings is set out in Art 82(2) (b) TFEU. Pursuant 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 mutual recognition of judgments and judicial decisions and police and 
judicial  cooperation  in  criminal  matters  having  a  cross-border  dimension.  The  necessity  for 
legislative  action  at  EU  level  is  demonstrated  by  the  problems  currently  encountered  in  Member 
States' courts in judicial cooperation litigation. 

Art  82(2)(b)  TFEU  provides  the  legal  basis  for  legislation  applicable  not  only  to  cross-border 
criminal  proceedings  (i.e.  proceedings  with  a  link  to  another  MS  or  a  third  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  irrespective  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  cooperation  (cf.  §  3.2.1  above),  judicial  authorities  need  to  be  aware  that 
sufficiently  high  fair  trial  standards  apply  across  the  board  in  the  jurisdictions  of  other  Member 
States. If Member States were at liberty to apply lower standards to purely 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 addressing 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  detrimental  to  the  protection  of  fundamental  rights.  In 
addition,  the  CFREU  guarantees  rights  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 judgment imposing a sentence on the defendant 
by the courts of his Member State of nationality, such a case could still turn into a cross-
border case necessitating judicial 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). 

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3.7.2  Subsidiarity: Why the EU is better placed 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 cooperation 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  protection  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 authority is requested to execute a court ruling from 
another  Member  State  where  standards  are  not  adequate,  it  may  either  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 trial standards (which, in relation to a number of 
rights,  cannot  always  be  considered  sufficient  in  the  scope  of  protection)  but  its  enforcement 
mechanisms cannot guarantee a sufficient and consistent 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 number of visits) has not proved adequate to change 
the practice of Member States. 

People  can  be  involved  in  criminal  proceedings  outside  their  own  Member  State,  and  the 

3. 
needs of these suspects or accused persons need to be tackled at EU level.  

EU action will enable economies of scale to be achieved, for instance in relation to 
4. 
the  development  of  training  programmes,  development  and  dissemination  of  information 
programmes,  which could all be based on  common EU rules, instead of largely  differing 
national regulations. 

5. 
New EU action, under the Lisbon Treaty, will enable effective implementation-monitoring 
and possible deficits of transposition to be rectified 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  directive  into  legislation  in  the  Member  State; 
implementation monitoring by the Commission; the possibility of infringement proceedings before 
the  ECJ  against  non-compliant  Member  States,  references  for  preliminary  rulings)  would  be 
available  to  make  sure  that  there  was  compliance  with  the  new  right  to  information  standards 
contained in EU legislation. 

4. 

4.  OBJECTIVES  

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. 

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Objectives: 

General: 

(cid:131)  To  improve  judicial  cooperation  in  the  EU  by  enhancing  mutual  trust 
between Member States in the fair operation of the criminal justice systems 
by  ensuring  a  high  level  of  protection  of  fundamental  rights  in  criminal 
proceedings  

(cid:131)  To ensure an adequate level of protection of fundamental rights in criminal 
proceedings for all individuals irrespective of their nationality; to contribute 
to fostering free movement of EU citizens throughout the EU; to promote EU 
values  

Specific: 

(cid:131)  To  reduce  costs  of  delays,  refusals,  appeals  in  the  execution  of  request  for 

judicial cooperation between Member States. 

(cid:131)  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. 

(cid:131)  To ensure that suspected or accused persons 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  providing  a  more  effective  safeguard  against 
ill-treatment  of  persons  in  custody  and  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  stages  of  criminal  proceedings  and  remain 

available in all phases of the proceedings  

•  it should encompass a well-specified range of activities by the lawyer  

•  the  right  of  access  to  a  lawyer  may  be  either  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  subjected  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 deprivation 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  have  the  right  to  have  the  consular 

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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  place  will  it  be  possible  to  achieve  the  general 
objective. The following options are assessed against the specific and operational objectives above. 

5. 

5. 

POLICY 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  Commission  on  the  Strategy  for  the  effective 
implementation  of  the  Charter  of  Fundamental  Rights  by  the  European  Union42,  this  impact 
assessment examines the impact on the Fundamental Rights of the options proposed, 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  "suspects  and  accused  persons"  – 
consistently  used  in  EU  policy  documents  and  previous  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 definition, 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 provides that any person whose position is affected by 
a criminal procedure has to be treated 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  right  to  a  lawyer  and 
notification of custody for suspects and accused persons across Europe.  

•  Policy option 1: Retention of the status quo. This option would involve 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 

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•  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  and  reinforcing  the  application  of  mutual 
recognition instruments. 

•  Policy  option  4:  Directive  applying  the  CPT  recommendations  on  notification  of  custody  and 
setting further approximating 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  legislation  have  been  assessed  against  the  five 
parameters described under § 3.3. . 

5.2 

Discarded options 

In  relation  to  both  non-legislative  and  legislative  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 analysis 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 the basis of effectiveness in achieving the specific and operational 
objectives in largely qualitative terms using input from stakeholders, and in terms of potential cost 
savings and efficiency gains of criminal proceedings.  

The specific issue of juvenile and other vulnerable suspects and accused persons receiving adequate 
information in relation to their circumstances will 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 nationals; 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  impact  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 

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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  States.  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  only  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 

Financial and 
economic impact 

Under  this  option,  access  of  suspects  and  accused  to  a  lawyer  and  to 
notification  of  custody  will  continue  to  be  protected  at  the  Member 
States  level  in  accordance  with  their  constitutional  and  international 
obligations. The fundamental rights will 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. 

There  are  no  immediate  new  financial  burdens  associated  with  this 
option. However, Member States who are currently not in compliance 
with  the  ECtHR  jurisprudence  will  incur  significant  costs  when 
carrying out reforms in order to extend 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  England  &  Wales,  a  jurisdiction 
fully compliant with the ECHR requirements (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  therefore  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,  aborted  prosecutions  and  protracted 
judicial  cooperation  litigation  in  Member  States  where  suspects  have 
not  been  provided  with  adequate  legal  advice  at  a  decisive  stage  of 
criminal proceedings. Given the increase in applications to the ECtHR, 
costs for Member  States linked with damages awarded to individuals 
are likely to augment. 

Impact on 
domestic justice 

towards  more 
Domestic 
convergence in the light of ECtHR jurisprudence and CPT reports but 

justice  systems  may  naturally  evolve 

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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  currently  comply  with  the  ECtHR 
Salduz jurisprudence: Belgium, the Netherlands, France, UK (Scotland 
only),  Portugal,  Luxembourg,  Austria,  Malta,  Ireland.    All  Member 
States except four (France, Ireland, 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  States  to  improve  the  provision  of 
access  to  legal  advice  and  notification  of  custody.  The  Recommendation  would  identify  current 
good practice in those Member States that already adhere to ECHR and CPT standards as regards 
provision  of  legal  advice  (see  Annexe  III)  and  notification  of  custody  respectively.  The 
Recommendation would envisage the commissioning by the  European Commission of a study on 
the effect of the Recommendation three years after its adoption. Given the non-binding nature of a 
Recommendation, it would not contain any reporting obligations on part of the Member States as 
concerns  its  implementation.  Most  non-government  stakeholders  did  not  consider  non-legislative 
options on their own as capable of promoting achievement of the objectives identified in part 4. 

Expected Impact 

Effectiveness in 
meeting objectives 

Impact on 
fundamental 
rights 

It  is  not  certain  that  the  non-binding  Recommendation  would  be 
implemented  fully  by  all  Member  States,  particularly  those  which  do  not 
currently  comply  with  minimum  ECtHR  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 Recommendation would be more effective than 
the current robust system of CPT visits and reports, at least where arrested 
or detained suspects are concerned. 

The impact of this option and the enhancement of the right to a fair trial the 
right  to  defence  of  the  suspect  and  accused,  and  safeguards  against  ill-
treatment  would  depend  on  how  Member  States  would  implement  an  EU 
recommendation. In general, it is possible to state that option 2 is likely to 
ensure  a  higher  positive  impact  on  suspect's  right  to  a  fair  trial,  right  to 
defence  and  right  not  to  be  ill-treated  than  option  1.  However,  consisting 
mainly of soft-law measures and giving the overall situation as regards the 
lack  of  possibilities  to  enforce  those  rights  (see  part  2.4),  this  positive 
impact remains limited. 

Financial and 

The  financial  or  administrative  burden  resulting  from  this  option  depends 

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economic impact 

on  the  level  of  Member  States'  implementation  of  all  or  some  of  the 
provisions contained in the Recommendation. 

Impact on 
domestic justice 
systems 

Given  its  non-binding  nature,  the  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 the 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 

Policy Option 4 

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 : 

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  notification  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  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 

to 

to  a 

lawyer  be  subject 

•  would  provide that any waiver of the right of 
access 
the 
requirement that the person has received prior 
legal  advice  or  has  otherwise  obtained  full 
knowledge of the consequences of the waiver 
and  has 
to 
understand  these  consequences;  The  right  to 
notification  of  custody  is  subject  to  the 
wishes of the detainee  

the  necessary  capacities 

•  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  

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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 

A  Directive  setting  minimum  rules  applying  the  ECtHR 
Policy Option 3: 
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  analysed  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 lawyer 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, see box under § 3.2.1 The Directive could provide that notification 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 manifestations of the right in 
hand (e.g. spell out rules about the activities that the lawyer can carry 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 require compulsory appointment of a lawyer if the 
interests of justice so require. Minimum requirements 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 

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of  the  consequences46  and  the  necessary  capacities  to  understand  these  consequences.  CPT 
recommendation  for  notification  of  custody:  The  right  to  have  a  third  party  notified  of  one's 
detention is subject to the 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 undue pressures especially 
when in detention) and has the necessary capacities to understand these consequences. The need for 
this measure is illustrated by the case of Yeremenko, see box under § 3.3. The Directive can provide 
that a detainee has a right to have "at least one person named by him" or the consular or diplomatic 
authorities of his home state, notified of his detention. 

4. Consequences of violations 

Charter/ECHR acquis requirement: Adverse consequences resulting from violations of the right to 
legal  advice  must  be  undone  by  placing  the  person  in  the  same  position  he  would  have  found 
himself  in,  had  the  violation  not  occurred  (in  practice,  need  to  provide  for  a  retrial).  Statements 
made by a suspect in the absence of his lawyer 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 prohibition 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 apply 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  States.  Article  11  paragraph  2  of  this  Framework 
Decision provides that any person arrested for the 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 Edmond Arapi, see box under § 
3.3. The Directive could apply the right 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  all  the  strengths  of  the  legislative  instrument 
set out above (binding nature, high enforceability). More in particular: 

1. Temporal scope: to provide access to a lawyer from the first police 
interrogation  and  notification  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   

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will  ensure  that  Member  States  comply  with  the  ECtHR  acquis  and 
CPT recommendations, thereby allaying 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  judicial  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  measures  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  minimum  rules  in  the  Directive  and  to 
varying national  provisions  implementing these rules, will represent a 
guarantee that suspects in other jurisdictions will always be granted the 
right to a lawyer, save where they have 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  professional  legal  advice).  (see  example  in 
table  under  §  3.3)  The  fact  that  whether  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 case 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  just  the  possibility  of  an  application  to  the 
ECtHR upon exhaustion of internal remedies) 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  instrument  of  judicial  cooperation.  It  is  expected 
that  many  fewer  refusals  to  execute  an  EAW  would  occur  if  the 
competent  judicial  authority  were  reassured  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 likely to be reduced. Confidence in the 
EAW  system  is  improved  by  extending  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. 

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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  strengthened  as  the  right  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 enhanced as notification of custody 
is a safeguard against ill-treatment in custody and, subject 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  intellectual  capacities  to  understand  the 
consequences  of  the  right  to  waive  the  legal  defence.  Any  legal 
measures should therefore contain the necessary safeguards. 

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 jurisprudence, 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  differences  in  the  number  of  EAWs 
received  even  between  Member  States  of  comparable  size  and  the 
differences  in  the  proportion  of  cases  where  legal  aid  is  granted  (at 
present) (see table under § 6 for further details). Greater costs are likely 
to  be  incurred  by  those  Member  States  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 reduction in Member States' expenditure 
for  aborted  prosecutions  and  appeals,  both  domestically  (e.g.  cost  of 
retrials) and as a result of condemnations 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  (most  commonly  telephone  and  will  be 
cost  neutral  if  e-mail  or  Skype  is  used)  and  a  short  amount  of  police 

Financial and 
economic impact 

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.   

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Impact on 
domestic justice 
systems 

time. 

This  option  would  ensure  that  domestic  justice  systems  are  broadly 
brought  in  line  with  the  precepts  of  the  ECHR  and  the  ECtHR 
jurisprudence,  and 
the  CPT  recommendations  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  providing  the  same  right  of  notification  of 
custody)  combine,  for  the  five  aspects  described  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  ECtHR.  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 discussed below and the impacts in respect of notification 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  provide  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 require  compulsory appointment  of a  lawyer if the 
interests of justice so require. Minimum requirements 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 

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Option 4: The Directive could impose mandatory defence across the board, excluding the possibility 
of  a  waiver  of  the  right  by  the  suspect  or  accused  person.  Mandatory  defence  across  the  board 
currently exists in one Member State, Italy, where 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 from violations of the right to 
legal  advice  must  be  undone  by  placing  the  person  in  the  same  position  he  would  have  found 
himself  in,  had  the  violation  not  occurred  (in  practice,  need  to  provide  for  a  retrial).  Statements 
made by a suspect in the absence of his lawyer 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  

This  option  would  be  the  most  effective  in  terms  of  achieving  the 
specific objectives, but on account of its content it would place a very 
high burden on member States and individuals alike. On account of its 
legislative  nature,  a  Directive  would  create  an  express  and 
unambiguous  obligation  to  ensure  that  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  mutual  trust  among  judicial  authorities, 
which  would  translate  into  better  functioning  judicial  cooperation. 
More in particular: 

Effectiveness in 
meeting 
objectives 

1.  Temporal  scope:  to  provide  access  to  a  lawyer  already  before  the 
first police interrogation would ensure that the suspect can prepare his 
defence  ahead  of  the  interrogation.  This  would  reassure  judges  called 
upon  to  execute  e.g.  an  EAW  that  the  right  of  defence  of  the  suspect 
will be adequately protected, irrespective of the jurisdiction where the 
proceedings take place.  

3. Mandatory defence: the requirement that a suspect must be always 
assisted  by  a  lawyer  would  represent  the  single  biggest  trust-boosting 
measure for judicial authorities; they would be reassured that each and 
every suspect, in any EU jurisdiction, will obtain access to a lawyer in 
any  individual  case,  as  opposed  to  the  possibility  that  abstract 
availability of a lawyer may not result 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 cooperation than to 

52 ECtHR, 27 November 2008, Salduz v. Turkey, no. 36391/02, § 58   

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leave  this  to  Member  States,  as  judicial  authorities  could  trust  that 
violations  of  the  right  to  a  lawyer  may  not  lead  to  miscarriages  of 
justice. Thus, refusal to execute requests for judicial cooperation based 
on this fear would be reduced. . 

This  option  would  have  a  significant  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  questioning  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 
to  effective  remedy  would  be  further 
proceedings.  The  right 
strengthened  by  the  introduction  of  intra-procedural  remedies  (the 
prohibition to use evidentiary material obtained in violation of the right 
to legal advice). 

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,  these  figures  should  be  taken  with 
caution  given  the  wide  disparities  across  Member  States  in  the 
proportion of cases where legal aid is granted as well as in the level of 
legal fees charged by defence counsels. 

Even Member States which are already compliant with the most recent 
pronouncements of the ECtHR, however, would need to take measures 
to  transpose  requirements  which  are  not  directly  linked  with  the 
ECtHR  jurisprudence,  in  particular  the  prescription  of  mandatory 
defence.    In  sum,  this  option  is  likely  to  result  in  very  high  costs  for 
Member States, especially on account of the requirement of mandatory 
defence which would translate in much bigger expenditure for legal aid 
than at present.  

Similarly as for Member States, potential costs for individuals will be 
significant,  in  particular  as  a  result  of  the  requirement  of  mandatory 
defence  which  will  impose  a  lawyer  even  on  defendant  who  are 
unwilling to remunerate one.  

Impact on 
fundamental 
rights 

Financial and 
economic impact 

Impact on 
domestic justice 

This option would yield the most significant results on domestic justice 
systems.  Significant  legislative  reforms  will  need  to  be  carried  out  to 

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systems 

comply  with  the  requirements  of  the  Directive.  The  judiciary  would 
have all the necessary tools 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  the  right  to  a  lawyer  at  trial  (e.g. 
Sweden). 

6. 

6. 

COMPARISON OF POLICY OPTIONS 

The table below sets out a comparison of the relative rating of the four policy options as described 
in part 5.3  against the specific and operational objectives as defined in part 4. The policy options 
are  classified  according  to  their  potential  to  meet  the  objectives  defined  in  part  4,  with  three 
checkmarks  ((cid:51)(cid:51)(cid:51))  indicating  highest  relative  potential.  Ratings  for  expected  effectiveness  in 
achieving the objectives are given equal weight in the final sum.  

Policy  option  3  (EU  Directive  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)  demonstrates  the  best  combination  of  costs  and 
effectiveness in meeting the objectives. It is therefore the 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.) 

Impact on 
fundamental rights 

0 

Low 

(cid:51) 

(cid:51)(cid:51) 

(cid:51)(cid:51)[(cid:51)] 

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. 

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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. 

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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 €
per suspect/accused 
person per case.  

 and 5,200 €

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  achieving  all  the  general  and  specific  objectives,  while 
Option 3 is only marginally less effective. In terms of efficiency, however, the costs for the Member 
States  associated  with  Option  4  (in  the  region  of  several  hundreds  of  millions  Euros)  are 
incomparably bigger than those likely to be incurred as a result of Option 3 (€ 300,000 per Member 
State). Therefore, the different magnitude of costs does not appear to be offset 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. 

THE PREFERRED OPTION 

7.1   EU added value and proportionality of the preferred option  

The preferred option would guarantee that all suspects 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  lawyer  and  notification  of  custody  are  essential 
guarantors  of  this  right  by  safeguarding  the  suspect  from  intimidation  or  coercion  and  from 
unintentional self-incrimination.  

This embedding of the new rights in Member States' respective legal orders, the right of Member 
State courts to seek binding interpretation of the Directive provisions from the European Court of 
Justice and the Commission's power to launch infringement 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 Directive and contribute to making the right to legal 
advice and to notification of custody practical and effective. It is, moreover, appropriate to enshrine 
the right to access to a lawyer and notification of custody explicitly within the 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 investigations and combining both 
access  to  a  lawyer  and  notification  of  custody  in  one  Directive  allows  the  very  limited 
circumstances in which a derogation can apply to be the same for both rights. 

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€
   
 
 
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,  which  will  take  into  account  the  all  of  the  CPT 
recommendations that come within EU competence, more “practical and effective” 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  reforming  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 rights 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 successful applicant, which 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  proportionate  in  relation  to  their  effect  as  none  of  the  alternative 
options display an equal level of efficient combination of limited costs and effectiveness in reaching 
the  objectives  identified  in  4  above.    Whilst  the  preferred  option  of  legislative  action  is  likely  to 
require a number of Member States to introduce changes to their criminal procedure laws in order to 
implement the Directive, there does not appear to be another equally 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  intraprocedural  remedies,  detailed  regulation  establishing 
the  exact  consequences  of  breach  of  the  right  to  access  to  a  lawyer  is  rejected  in  favour  of 
encouraging  self-regulation  by  Member  States,  combined  with  a  general  requirement  for  them  to 
take  measures  to  ensure  that  the  defendant  has  an  effective  remedy  in  instances  where  his  rights 
have been violated. The preferred option takes on board all of the 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 suspect’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 and 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 Reports from 2003 to 2009. 
56 I.e. with regard to the material scope and to EAW proceedings.  

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• 

the likelihood that the ECtHR case law is in any event evolving in that direction.  

7.2 

Potential magnitude of economic 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 infrastructure 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 Article 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  estimate,  with  a  sufficient  degree  of  accuracy,  the 
quantitative  increment  in  terms  of  additional  hours  of  legal  advice  that  the  implementation  of  the 
preferred option would entail as this will largely depend on case-by-case factors which cannot be 
realistically  assessed  in  advance.  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 (most commonly 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 limited data which has been possible to gather. Taking account of this, 
the financial impact on Member States and on individuals is expressed in costs ranges. Significant 
divergence between Member States in terms of the numbers obtained explains the wide ranges of 
estimated costs for individual Member States.  

Member States' potential savings owing to a reduction in the number of appeals, condemnations by 
the  ECtHR  or  delay  in  judicial  cooperation  proceedings  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,  therefore,  be  provided  based  on  stakeholders' 
judgement, including officials from Ministries of Justice, NGOs such as Fair Trial International and 
JUSTICE, and practitioners and Bar Associations responding to an ad hoc online survey.   

Unlike for the two previous measures envisaged in the Roadmap (on translation and interpretation; 
on  information  on  rights  and  information  about  the  charges),  which  were  costs-neutral  for 
individuals, in this case the potential 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  Member  States  and  for  private 
individuals and organisation) , for each parameter. 

8. 

8. 

TRANSPOSITION, 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  certain  extent,  mirrors  existing  ECHR  obligations  or 
obligations that already exist in some form in a number of Member States (26 Member States have 

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some form of statutory provision in the case of notification of custody) it is expected that a two-year 
deadline  would  provide  Member  States  with  sufficient  time  to  effect  necessary  changes  to  their 
respective  national  laws  and  practice.  The  combination  of  right  of  access  to  a  lawyer  and 
notification  of  custody  in  one  measure  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  domestic  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  recommendations  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 effected 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 Conseil Constitutionnel of 30 
June 2010: as prescribed by this ruling, new rules will have to be in force by 1 July 2011, when the 
previous rules will cease to be applicable (as unconstitutional). France looks set to bring the new 
statute law into force by the deadline set by the constitutional 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  and  evaluation  mechanism  is  crucial  to  ensure  that  the  rights 
envisaged in the Directive are complied with in practice as well as in legislation. The Directive will 
stipulate  that  Member  States'  should  report  on  the  effective  implementation  of  legislative  or  non-
legislative  measures  based  on  the  nature  of  the  proposed  changes.  Data  provided  by  Eurostat, 
Eurobarometer  and  the  Council  of  Europe  will  enable  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 compliance will be gathered from the 
Justice  Forum,  the  CPT57,  the  ECtHR,  the  European  Network  of  Councils  for  the  Judiciary  and 
national  and  European  Bar  Associations.  The  Fundamental  Rights  Agency  could  play  a  role  in 
collecting  data,  carrying  out  studies  and  compiling  reports  on  the  rights  covered  in  the  Directive. 
Member  States  should  be  encouraged  to  collect  relevant  data  to  assist  in  this  process  as  there  is 
currently a lack of reliable empirical data. 

The Commission envisages carrying out a specific empirical study with emphasis on data collection 
three  to  five  years  into  the  implementation  of  the  proposal.  In  order  to  gain  in-depth  quantitative 
and qualitative insights into the effectiveness of the proposal, this study will analyse the following 
indicators: 

1. 

number of refusals of requests for judicial cooperation; 

number of domestic appeals related to lack of or insufficient access to a lawyer and duration 

2. 
thereof; and related to denial of notification of custody 

number of applications to the ECtHR related to lack of or insufficient access to a lawyer or 

3. 
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.   

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The data would enable the Commission to evaluate the actual compliance in Member States more 
robustly than using the means hitherto available. Once 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. 

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ANNEXES 

Annexes: 

I The Procedural Rights Roadmap  

II:  Country fiches on the right of access to a lawyer  

III: EU overview on the right to access to a lawyer 

IV: General statistics 

V: Model calculations for Option 3 (preferred option) 

VI: Model calculations for Option 4 (discarded) 

VII: Overview of legal aid regimes in Member States 

VIII: Overview of notification of custody in Member States 

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156 

163 

165 

168 

174 

177 

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COUNCIL OF
THE EUROPEAN UNION

Brussels, 24 November 2009 

15434/09 

DROIPEN 149 
COPEN 220 

LEGISLATIVE ACTS AND OTHER INSTRUMENTS 
Subject: 

RESOLUTION OF THE COUNCIL 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  common  basis  for  the  protection  of  the  rights  of 

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46 

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(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

suspected  or  accused  persons  in  criminal  proceedings,  which  for  the  purposes  of  this  Resolution 
includes the pre-trial and trial stages.  

Furthermore, the Convention, as interpreted by the European Court of Human Rights, is an important 
foundation for Member States to have trust in each other’s criminal justice systems and to strengthen 
such trust. At the same time, there is room for further action on the part of the European Union to 
ensure full implementation and respect of Convention standards, and, where appropriate, to ensure 
consistent application of the applicable standards and to raise existing standards.  

The  European  Union  has  successfully  established  an  area  of  freedom  of  movement  and  residence, 
which citizens benefit from by increasingly travelling, 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 criminal 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. 

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. 

This  calls  for  specific  action  on  procedural  rights,  in  order  to  ensure  the  fairness  of  the  criminal 
proceedings.  Such  action,  which  can  comprise  legislation  as  well  as  other  measures,  will  enhance 
citizens' confidence that the European Union and its Member States will protect and guarantee their 
rights. 

The 1999 Tampere European Council concluded that, in the context of implementing the principle of 
mutual  recognition,  work  should  also  be  launched  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  fundamental  legal  principles  of  Member  States 
(Conclusion 37). 

Also,  the  2004  Hague  Programme  states  that  further  realisation  of  mutual  recognition  as  the 
cornerstone  of  judicial  cooperation  implies  the  development  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.). 

Mutual  recognition  presupposes  that  the  competent  authorities  of  the  Member  States  trust  the 
criminal  justice  systems  of  the  other  Member  States.  For  the  purpose  of  enhancing  mutual  trust 
within  the  European  Union,  it  is  important  that,  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.  

Recent  studies  show  that  there  is  wide  support  among  experts  for  European  Union  action  on 
procedural  rights,  through  legislation  and  other  measures,  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 

59 

60 

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.  
See e.g. the "European Parliament recommendation of 7 May 2009 to the Council on development of an EU criminal 
justice area", 2009/2012(INI), point 1 a). 
"An area of freedom, security and justice serving the citizen", COM (2009) 262/4 (point 4.2.2.). 

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(10)  Discussions on procedural rights within the context 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 strengthen procedural guarantees and the respect of the rule 
of law in criminal proceedings, no matter where citizens 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  overall  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  catalogue  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. 

2. 

3. 

4. 

5. 

Action should be taken at the level of the European 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.  

The  Council  endorses  the  "Roadmap  for  strengthening  procedural  rights  of  suspected  or  accused 
persons in criminal proceedings" (hereinafter referred to as "the Roadmap"), set out in the Annex to 
this Resolution, as the basis for future action. The 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.  

The Commission is invited to submit proposals regarding the measures set out in the Roadmap, and 
to consider presenting the Green Paper mentioned under point F.  

The Council will examine all proposals presented in the context of the Roadmap and pledges to deal 
with them as matters of priority.  

The  Council  will  act  in  full  cooperation  with  the  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 

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Short explanation: 

The  suspected  or  accused  person  must  be  able  to  understand  what  is  happening  and  to  make  him/herself 
understood. A suspected or accused person who does not speak 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  should  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  (through  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 her liberty shall be promptly informed of the right to 
have  at  least  one  person,  such  as  a  relative  or  employer,  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 authorities informed of the deprivation of liberty. 

Measure E: Special Safeguards for Suspected 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 

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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.  Excessively  long  periods  of  pre-trial  detention  are 
detrimental for the individual, can prejudice the judicial cooperation between the Member States and do not 
represent the values for which the European Union stands. Appropriate measures in this context should be 
examined in a Green Paper.  

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ANNEX II:  

Country fiches in relation to access to a lawyer 

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TEMPORAL SCOPE 

Dies a quo when 
the right to legal 
advice arises? 61 

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) 

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”)) 

Dies ad quem 

Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? 

- 

SCOPE RATIONE 
MATERIAE 

Questioning62 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
cover? 
questioning 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

Can  the  lawyer  and  the  client  deliberate  in 
private before questioning? 

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. 

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  

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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? 

Consultation63 

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? 

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 – 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.) 

Yes – see above.   

Yes (right not limited in: time; frequency; or permission needed). 

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  authentication  (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 

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DEFENCE/WAIVER of 
the right64 

(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;    

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. 

COMPETENCES OF 
LAWYERS AND 
QUALITY CONTROL65 

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). 

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 

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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  proportion  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 

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TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 67 

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) 

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 the right to contact a lawyer starts 
after this hearing 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes.  

SCOPE RATIONE 
MATERIAE 

Questioning68 

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. 

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 

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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.  

Consultation69 

to  supervise 

there  possibilities 

Are 
the  oral 
(including  telephone  conversation)  and/or  the 
written  communication  between 
and 
suspect,  notably  after  arrest?  If  so,  in  which  cases 
and to what extent? 

lawyer 

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. 

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) 

are 

cases 

There 
  Relevant 
circumstances/factors  include:  age  and  mental  capacity  of  the 
suspect; and severity of the sanction that can be imposed.    

of  mandatory 

defence. 

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. 

MANDATORY 
DEFENCE/WAIVER of the 
right70 

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 

57 

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. 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL71 

Is membership of the bar compulsory? 

Are  special  qualifications  and/or  special  training  required  to  practice  criminal 
law? 

Unknown.    However,  the  list  of  lawyers  who  may  provide  legal 
assistance (partially) free of charge is drawn up by the bar (see below).  

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. 

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 

58 

EN 

 
  
 
 
 
                                                 
EN 

59 

EN 

 
  
 
TEMPORAL SCOPE 

Dies a quo when 
the right to legal 
advice arises? 73 

BULGARIA  

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No  

Dies ad quem 

Access to legal advice applies all throughout 
the criminal proceedings, including the post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning74 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
cover? 
questioning 
(questioning  by 
the 
prosecutor,  by  the  investigating  judge,  by 
other officials) 

the  police,  by 

right 

does 

this 

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 

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 

60 

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) 

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  has  wide  scope  to  participate  during  the  suspect’s  questioning, 
including: intervening; asking questions; and making remarks. 

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. 

Consultation75 

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) 

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. 

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 

61 

EN 

 
  
                                                 
CONSEQUENCES OF 
VIOLATIONS 

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.  

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, including 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. 

COMPETENCES OF 
LAWYERS AND 
QUALITY CONTROL77 

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. 

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 

62 

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 expenditure 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 

63 

EN 

 
  
 
 
 
                                                                                                                                                                                                                                           
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 79 

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 given stage of the investigation or 
the proceedings) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer  after 
arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the  criminal 
proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

lawyer  the  right  to  be  present  throughout 
Has  the 
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. 

Questioning80 

Can  the  lawyer  and  the  client  deliberate  in  private  before 
questioning? 

Yes 

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 

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 

64 

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 

Consultation81 

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. 

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.  

MANDATORY 
DEFENCE/WAIVER of the 
right82 

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 advocate 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 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 

65 

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 practice criminal law? 

No.    However,  a  lawyer  provided  (partially)  free  of 
charge must be registered in the catalogue of the lawyers 
willing to offer their services for legal assistance. 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL83 

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)? 

Is the State obliged to provide the suspect with another lawyer if legal representation proves 
to be ineffective? 

-  

No 

-  

EUROPEAN ARREST 
WARRANT (EAW)84 

FINANCIAL COST 

Is  there  an  obligation  to  provide  legal  advice  when  the  suspect  is  the  subject  of  a  EAW, 
extradition request or other surrender proceedings? 

Yes 

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 

66 

EN 

 
  
 
 
 
 
                                                 
TEMPORAL SCOPE 

Dies a quo when 
the right to legal 
advice arises? 85 

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning86 

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 

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 

67 

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 
(e.g. 
consultation by phone, use of glass partition) 

right  be 

limited? 

this 

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 

Consultation87 

Can  the  lawyer  visit  his  client  at  the  police 
station? If so, can this right be limited? (e.g. in 
time, frequency, permission needed) 

Can the lawyer visit his client in prison? If so, 
in  time, 
can  this  right  be 
frequency, permission needed) 

limited?  (e.g. 

Yes – this right is not limited. 

Yes – this right is not limited. 

MANDATORY 
DEFENCE/WAIVER of the 
right88 

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  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 

68 

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? 

-  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL89 

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. 

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 

69 

EN 

 
  
 
 
 
 
                                                 
right to legal assistance (as a proportion of the overall legal aid budget)?  

EN 

70 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 91 

Immediately upon arrest 

Within x hours after arrest 

At a later stage (e.g. at a given stage of the investigation or 
the proceedings) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer  after 
arrest? If so, in which cases? 

No 

Dies ad quem 

Access to legal advice applies all throughout the criminal 
proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

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. 

Questioning92 

Can the lawyer and the client deliberate in private before 
questioning? 

Yes 

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 

The  lawyer  has  wide  scope  to  participate  during  the 
asking 
suspect’s  questioning, 

intervening; 

including: 

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  

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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 

Consultation93 

Are  there  possibilities  to  supervise  the  oral  (including 
telephone 
written 
communication between lawyer and suspect, notably after 
arrest? If so, in which cases and to what extent? 

conversation) 

and/or 

the 

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. 

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 
right94 

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 suspect; 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 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 
is 
permission 

the  Appeals  Permission  Board 

from 

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 

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obtained). 

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? 

Are there guarantees for the independence of defence lawyers (e.g. from the police) 

Yes 

- 

-  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL95 

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. 

Is  the  State  obliged  to  provide  the  suspect  with  another  lawyer  if  legal  representation 
proves to be ineffective? 

No.    However,  the  court  is  entitled  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 

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TEMPORAL SCOPE 

Dies a quo when 
the right to legal 
advice arises? 97 

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) 

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”)). 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning98 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
cover? 
questioning 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

Yes – this right covers questioning by police. 

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  

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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) 

Can the lawyer meet with his client in person? 
(e.g. 
this  right  be 
If  so,  can 
consultation by phone, use of glass partition) 

limited? 

The  lawyer  has  wide  scope  to  participate  during  the  suspect’s  questioning, 
including: intervening; asking questions; and making remarks. 

Yes – this right is not limited.  

Consultation99 

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? 

Can  the  lawyer  visit  his  client  at  the  police 
station?  If  so,  can  this  right  be  limited?  (e.g. 
in time, frequency, permission needed) 

Can the lawyer visit his client in prison? If so, 
can  this  right  be  limited?  (e.g.  in  time, 
frequency, permission needed) 

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. 

Yes – this right is not limited in principle. 

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 

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CONSEQUENCES OF 
VIOLATIONS 

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 

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? 

Yes (solicitors must be admitted to the Roll of Solicitors of the Senior Courts 
of England and Wales).  

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 Authority (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 called to the bar in England and Wales. 

Are there guarantees for the independence of defence lawyers (e.g. from 
the police) 

-  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL101 

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 wishing to undertake criminal legal aid work 
under contract to the LSC. 

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 

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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  England  and  Wales  (i.e.  covering  civil  and 
criminal  expenditure)  of  £2,186  million  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 

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TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 103 

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning104 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
questioning 
cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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 

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  

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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) 

Can the lawyer meet with his client in person? 
If  so,  can 
(e.g. 
this  right  be 
consultation by phone, use of glass partition) 

limited? 

The  lawyer  has  wide  scope  to  participate  during  the  suspect’s  questioning, 
including: intervening; asking questions; and making remarks. 

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 

Consultation105 

Can  the  lawyer  visit  his  client  at  the  police 
station?  If  so,  can  this  right  be  limited?  (e.g. 
in time, frequency, permission needed) 

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.  

Yes – this right it not limited.  

MANDATORY 
DEFENCE/WAIVER of 
the right106 

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  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 

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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? 

Are  special  qualifications  and/or  special  training  required  to  practice 
criminal law? 

Yes  (in  the  case  of  a  court-appointed  lawyer,  unless  there  are  exceptional 
circumstances and the court agrees to the lawyer’s suitability).  

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.  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL107 

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 

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 

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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 total 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 

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TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 109 

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) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer 
after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

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. 

Questioning110 

Can  the  lawyer  and  the  client  deliberate  in  private 
before questioning? 

Yes 

Can  the  lawyer  and  the  client  deliberate  in  private 
during questioning? 

Yes 

What  can  the  lawyer  do  during  questioning?  (e.g.  The suspect’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 

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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 

Consultation111 

to  supervise 

there  possibilities 

telephone  conversation)  and/or 

the  oral 
Are 
(including 
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.  

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 
right112 

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 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 

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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) 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL113 

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  legal  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. 

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 

84 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 115 

Within x hours after arrest 

At  a  later  stage  (e.g.  at  a  given  stage  of  the 
investigation or the proceedings) 

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. 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the criminal proceedings, including the post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning116 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
questioning 
cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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.  

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 

85 

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) 

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) 

Is  the  confidentiality  of  consultation  (either 
by phone or in person) guaranteed? 

The  lawyer  has  wide  scope  to  participate  during  the  suspect’s  questioning, 
including inter alia: intervening; asking questions; and making remarks. 

Yes – however the duration of the meeting is limited to 30 minutes.  

Yes (however there is no particular legal provision to guarantee this).  

Consultation117 

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) 

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 duration of the meeting is limited to 30 minutes. 

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  the  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 

86 

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; the 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? 

- 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL119 

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). 

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 

87 

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  proportion  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 million euros.   This budget is to meet 
the cost of, inter alia: 

• 

Notifying the suspect/accused of his right to silence. 

• 
and throughout the proceedings. 

Providing for the presence of a lawyer at the outset of garde à vue 

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 

88 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 121 

Immediately upon arrest 

Within x hours after arrest 

Yes (or at any stage of the defence proceedings: § 137 para 1 of the 
Code of Criminal Procedure) 

At  a  later  stage  (e.g.  at  a  given  stage  of  the 
investigation or the proceedings) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer 
after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning122 

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 

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 

89 

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 

Consultation123 

to  supervise 

there  possibilities 

telephone  conversation)  and/or 

the  oral 
Are 
(including 
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.  

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 
right124 

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 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 

90 

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 training, but a wide range of 

training courses are offered 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL125 

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  

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 

91 

EN 

 
  
 
 
 
 
                                                 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 127 

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) 

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. 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the  criminal 
proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

the 

lawyer 

the  right 

Has 
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) 

to  be  present 

Yes  –  this  right  covers  questioning  by  the  police, 
prosecutor and investigative judge. 

Questioning128 

Can  the  lawyer  and  the  client  deliberate  in  private  before 
questioning? 

No 

Can  the  lawyer  and  the  client  deliberate  in  private  during 
questioning? 

Yes 

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 

92 

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 

Consultation129 

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). 

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 
right130 

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  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 

93 

EN 

 
  
 
                                                 
COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL131 

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? 

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)? 

Is the State obliged to provide the suspect with another lawyer if legal representation proves 
to be ineffective? 

No 

No 

-  

No 

-  

EUROPEAN ARREST 
WARRANT (EAW)132 

FINANCIAL COST 

Is  there  an  obligation  to  provide  legal  advice  when  the  suspect  is  the  subject  of  a  EAW, 
extradition request or other surrender proceedings? 

Yes 

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 

94 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 133 

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.  

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning134 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
questioning 
cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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 

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 

95 

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) 

Can the lawyer meet with his client in person? 
If  so,  can 
(e.g. 
this  right  be 
consultation by phone, use of glass partition) 

limited? 

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. 

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 

Consultation135 

Can  the  lawyer  visit  his  client  at  the  police 
station? If so, can this right be limited? (e.g. in 
time, frequency, permission needed) 

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.  

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) 

MANDATORY 
DEFENCE/WAIVER of 
the right136 

  Grounds/factors 

for  mandatory  defence 

Yes. 
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  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 

96 

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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 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL137 

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 

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 

97 

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 

98 

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).  

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 139 

Immediately upon arrest 

Within x hours after arrest 

At a later stage (e.g. at a given stage of the investigation or the 
proceedings) 

Is it possible to limit the right to contact a lawyer after arrest? If 
so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the  criminal 
proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning140 

Has the lawyer the right to be present throughout questioning? 
If  so,  which  kind  of  questioning  does  this  right  cover? 
(questioning  by 
the 
investigating judge, by other officials) 

the  prosecutor,  by 

the  police,  by 

Can  the  lawyer  and  the  client  deliberate  in  private  before 
questioning? 

No 

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 

99 

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 
questioning – see above).  

(lawyer  not  present  during 

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 

Consultation141 

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  merits  by  the  member-in-
charge of 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 – this right is not limited.  

MANDATORY 
DEFENCE/WAIVER of the 
right142 

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  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 

100 

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 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL143 

Is membership of the bar compulsory? 

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)? 

Is the State obliged to provide the suspect with another lawyer if legal representation proves to 
be ineffective? 

-  

No 

-  

No 

-  

EUROPEAN ARREST 
WARRANT (EAW)144 

FINANCIAL COST 

Is  there  an  obligation  to  provide  legal  advice  when  the  suspect  is  the  subject  of  a  EAW, 
extradition request or other surrender proceedings? 

Yes 

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 

101 

EN 

 
  
 
 
 
 
                                                 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 145 

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning146 

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. 

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 

102 

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? 
(e.g. 
this  right  be 
If  so,  can 
consultation by phone, use of glass partition) 

limited? 

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 

Consultation147 

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 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). 

Can the lawyer visit his client in prison? If so, 
in  time, 
can  this  right  be 
frequency, permission needed) 

limited?  (e.g. 

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 

103 

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.  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL149 

Are  special  qualifications  and/or  special  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.  

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 

104 

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 

105 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 151 

Immediately upon arrest 

Within x hours after arrest 

Yes  (although  consultation  with  a  lawyer  is  not  possible  before  questioning 
by police – see below) 

At  a  later  stage  (e.g.  at  a  given  stage  of  the 
investigation or the proceedings) 

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) 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning152 

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 

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 

106 

EN 

 
  
 
 
 
 
 
 
                                                 
private before questioning? 

consultation  with  a  lawyer  is  not  possible  before  questioning  by  police; 
whereas  the  answer  to  Qn  23  (p.516)  that  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? 
(e.g. 
this  right  be 
If  so,  can 
consultation by phone, use of glass partition) 

limited? 

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 

Consultation154 

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.   

Can the lawyer visit his client in prison? If so, 
can  this  right  be 
in  time, 
frequency, permission needed) 

limited?  (e.g. 

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 

107 

EN 

 
  
                                                                                                                                                                                                                                           
DEFENCE/WAIVER of 
the right155 

CONSEQUENCES OF 
VIOLATIONS 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL156 

(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.  

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 

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)? 

Is  the  State  obliged  to  provide  the  suspect  with  another  lawyer  if  legal 
representation proves to be ineffective? 

-  

No 

-  

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 

108 

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 

109 

EN 

 
  
 
 
                                                 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 158 

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No  

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning159 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
cover? 
questioning 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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. 

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  

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to  see  or  consult  with  the  defence  lawyer  before  questioning.  NB  this 
response – see Qn 12 (p.534) of the Sponken 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 

Consultation160 

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). 

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 

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 

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DEFENCE/WAIVER of 
the right161 

CONSEQUENCES OF 
VIOLATIONS 

(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. 

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 

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 necessary, 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. 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL162 

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. 

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 

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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 

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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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 164 

Immediately upon arrest 

Within x hours after arrest 

At a later stage (e.g. at a given stage of the investigation or the 
proceedings) 

Is it possible to limit the right to contact a lawyer after arrest? 
If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the  criminal 
proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

the 

lawyer 

the  right 

throughout 
Has 
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) 

to  be  present 

Yes – this right covers questioning by the police and 
investigative judge. 

Questioning165 

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 

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  

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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 (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).   

Consultation166 

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. 

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 
right167 

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  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 

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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). 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL168 

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)? 

No 

-  

No 

Is the State obliged to provide the suspect with another lawyer if legal representation proves 
to be ineffective? 

- 

EUROPEAN ARREST 
WARRANT (EAW)169 

FINANCIAL COST 

Is  there  an  obligation  to  provide  legal  advice  when  the  suspect  is  the  subject  of  a  EAW, 
extradition request or other surrender proceedings? 

Yes 

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 

116 

EN 

 
  
 
 
 
 
 
 
                                                 
EN 

117 

EN 

 
  
 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 170 

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) 

Is  it  possible  to  limit  the  right  to contact  a  lawyer 
after arrest? If so, in which cases? 

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. 

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  lawyer  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.   

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  

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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. 

to  supervise 

there  possibilities 

Are 
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? 

Consultation172 

Can the lawyer visit his client at the police station? 
If  so,  can  this  right  be  limited?  (e.g.  in  time, 
frequency, permission needed) 

Can the lawyer visit his client in prison? If so, can 
this  right  be  limited?  (e.g.  in  time,  frequency, 
permission needed) 

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 
surveillance  of  written 
communication, but only if he has reason to suspect that any such 
correspondence contains matter not relating to the proceedings. 

also  order 

Yes.  Although  there  is  no  special  provision  in  national  law,  in 
practice, a lawyer is allowed to visit his client at the police station. 

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 

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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). 

categories of defendant and/or certain procedural stages) 

legal aid is provided; unless this is rejected by the accused. 

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? 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL174 

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) 

- 

No  

-  

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. 

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 

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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 

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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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 176 

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 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the  criminal  proceedings,  including  the  post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning177 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
cover? 
questioning 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

The lawyer may not be present during questioning by the police.  However, he 
may be present during questioning by the investigating judge. 

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 

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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) 

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 may intervene, ask questions, and make remarks. 

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? 

Consultation178 

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) 

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. 

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 

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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) 

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 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. 

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 assistance (partially) free of charge needs: 
to  have  completed  law  studies;  to  have  practical  experience  in  dealing  with 
criminal cases; and is obliged to participate in additional training every 2 years.  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL180 

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.  

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 

124 

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 

125 

EN 

 
  
 
                                                                                                                                                                                                                                           
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 182 

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) 

Is it possible to limit the right to contact a lawyer after 
arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

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 
in  penal 
proceedings. 

judge  and  any  authority 

involved 

Questioning183 

Can  the  lawyer  and  the  client  deliberate  in  private 
before questioning? 

Yes 

Can  the  lawyer  and  the  client  deliberate  in  private 
during questioning? 

Yes 

What  can  the  lawyer  do  during  questioning?  (e.g.  The  lawyer  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 

126 

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. 

Consultation184 

Are there possibilities to supervise the oral (including 
telephone 
the  written 
communication  between  lawyer  and  suspect,  notably 
after arrest? If so, in which cases and to what extent? 

conversation) 

and/or 

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.    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. 

Yes – with the permission of the police officer on duty.  

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 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 

MANDATORY 
DEFENCE/WAIVER of the 
right185 

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 

127 

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 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL186 

Are special qualifications and/or special training required to practice 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. 

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 

128 

EN 

 
  
 
                                                 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 188 

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) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer 
after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning189 

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  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 

129 

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. 

Consultation190 

to  supervise 

there  possibilities 

telephone  conversation)  and/or 

Are 
the  oral 
the 
(including 
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. 

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 
right191 

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 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 

130 

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. 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL192 

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)? 

Is  the  State  obliged  to  provide  the  suspect  with  another  lawyer  if  legal 
representation proves to be ineffective? 

No 

-  

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 

131 

EN 

 
  
 
 
 
                                                 
EN 

132 

EN 

 
  
 
 
TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 194 

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) 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout 
the criminal proceedings, including the post-
trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning195 

Has  the  lawyer  the  right  to  be  present 
throughout questioning? If so, which kind of 
questioning 
cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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? 

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 

133 

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) 

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  may  participate  during  the  suspect’s  questioning,  including  by: 
intervening; asking questions; and making remarks. 

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? 

Consultation196 

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 retain 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) 

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. 

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 

134 

EN 

 
  
                                                 
MANDATORY 
DEFENCE/WAIVER of 
the right197 

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 Article 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  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.  

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL198 

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) 

- 

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 

135 

EN 

 
  
 
 
                                                 
Is  the  State  obliged  to  provide  the  suspect  with  another  lawyer  if  legal 
representation proves to be ineffective? 

-  

subject to a disciplinary sanction.  

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 

136 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 201 

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) 

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. 

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 
cover? 
(questioning by the police, by the prosecutor, 
by the investigating judge, by other officials) 

right 

does 

this 

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  

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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. 

Consultation203 

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? 

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 (however see row below regarding written consultation). 

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. 

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 

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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 example, 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 

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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  special  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”).  

LAWYERS AND QUALITY 
CONTROL205 

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 quality of legal services, the solicitor may be 
called to account through the Law Society and the Scottish Legal Complaints 
Commission 

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 

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EN 

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TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 207 

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) 

Is it possible to limit the right to contact a lawyer 
after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage?

Yes 

SCOPE RATIONE 
MATERIAE 

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. 

Questioning208 

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 

What  can  the  lawyer  do  during  questioning?  (e.g. 

It  is  unclear  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  

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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  (but  the  lawyer  generally  needs  to 
produce identification and documents proving that he is authorised to 
in  the  criminal 
represent  the  client  as  a  defending  counsel 
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 

Consultation209 

Can the lawyer visit his client at the police station? 
If  so,  can  this  right  be  limited?  (e.g.  in  time, 
frequency, permission needed) 

Can the lawyer visit his client in prison? If so, can 
this  right  be  limited?  (e.g.  in  time,  frequency, 
permission needed) 

there  exists  a  substantiated  assumption  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.   

Yes.  However, the lawyer needs permission to visit the suspect and 
such visit is limited in time/frequency.  

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 

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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  and/or  special  training  required  to  practice  criminal 
law? 

Yes – defence lawyers provided (partially) free of charge must appear 
in  the  list  of  advocates  maintained  by  the  Slovak  Chamber  of 
Advocates. 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL211 

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)? 

Is  the  State  obliged  to  provide  the  suspect  with  another  lawyer  if  legal 
representation proves to be ineffective? 

No 

-  

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 

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to legal assistance (as a proportion of the overall legal aid budget)?  

EN 

145 

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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 213 

Immediately upon arrest 

Within x hours after arrest 

Yes – however legal aid is not available until after the investigative 
stage.  

At  a  later  stage  (e.g.  at  a  given  stage  of  the 
investigation or the proceedings) 

Is  it  possible  to  limit  the  right  to  contact  a  lawyer 
after arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

Questioning214 

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 

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  

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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. 

Consultation215 

Are there possibilities to supervise the oral (including 
telephone 
the  written 
communication between lawyer and suspect, notably 
after arrest? If so, in which cases and to what extent? 

conversation) 

and/or 

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. 

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 
right216 

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 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 

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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) 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL217 

Are special qualifications and/or special training required to practice criminal law? 

Yes.    By  an  Order  of  3rd  June  1997,  on  the  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.  

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 

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TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 219 

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 given stage of the investigation 
or the proceedings) 

Is it possible to limit the right to contact a lawyer after 
arrest? If so, in which cases? 

No 

Dies ad quem 

Access  to  legal  advice  applies  all  throughout  the 
criminal proceedings, including the post-trial stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

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 
judge,  by  other 
officials) 

investigating 

Yes  –  this  right  covers  questioning  by  the  police,  prosecutor 
and investigative judge. 

Questioning220 

Can  the  lawyer  and  the  client  deliberate  in  private 
before questioning? 

Yes 

Can  the  lawyer  and  the  client  deliberate  in  private 
during questioning? 

Yes 

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 

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EN 

 
  
 
 
 
 
 
                                                 
intervene, ask questions or have the police ask a given 
question,  make  remarks,  suggest  how  to  answer  the 
question posed, other competencies) 

questioning, 
making remarks. 

including: 

intervening;  asking  questions;  and 

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). 

Consultation221 

Are  there  possibilities  to  supervise  the  oral  (including 
telephone 
the  written 
communication  between  lawyer  and  suspect,  notably 
after arrest? If so, in which cases and to what extent? 

conversation) 

and/or 

The  judge  may  order  the  surveillance  of  communications 
between  the  suspect  and 
is  also 
automatically possible in cases involving terrorism offences. 

  Surveillance 

lawyer. 

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. 

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 
right222 

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 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 

150 

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 practice criminal law? 

To  provide  legal  assistance  (partially)  free  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) 

- 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL223 

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. 

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 

151 

EN 

 
  
 
 
 
                                                 
SWEDEN  

At the first police interrogation 

Yes (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 

TEMPORAL SCOPE 

Dies a quo when the 
right to legal advice 
arises? 225 

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 

Is  it  possible  to  limit  the  right  to  contact  a 
lawyer after arrest? If so, in which cases? 

Dies ad quem 

Access to legal advice applies all throughout the 
criminal  proceedings,  including  the  post-trial 
stage? 

Yes 

SCOPE RATIONE 
MATERIAE 

the 

lawyer 

Has 
to  be  present 
the  right 
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. 

Questioning226 

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 

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 

152 

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 limited? (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). 

Consultation227 

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.  

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  allowed  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. 

MANDATORY 
DEFENCE/WAIVER of the 
right228 

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  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 

153 

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 

COMPETENCES OF 
LAWYERS AND QUALITY 
CONTROL229 

Are there guarantees for the independence of defence lawyers (e.g. from the 
police) 

- 

Swedish Code of Judicial Procedure). 

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. 

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 

154 

EN 

 
  
 
 
                                                 
EN 

155 

EN 

 
  
 
 
 
ANNEX III:  

Current situation in Member States in relation to access to a lawyer 

NB. A summary of this table is provided below  

Dies a quo when the right to 
legal advice arises? 

TEMPORAL SCOPE 

Dies ad quem 

Questioning 

Consultation 

SCOPE RATIONE 
MATERIAE 

1.  At the first police interrogation 
2. 

time  before 

the  police 

Some 
interrogation 
Immediately upon arrest 

3. 
4.  Within x hours of the arrest 
5.  At  a  later  stage  (e.g.  at  a  given 
stage  of  the  investigation  or  the 
proceedings) 
Is  it  possible  to  limit  the  right  to 
contact a lawyer after arrest? 

6. 

7.  Access 

to 
legal  advice  applies 
criminal 
throughout 
proceedings,  and  until  the  final 
determination of guilt by the Court 
(including appeals)? 

the 

8.  Has  the  lawyer  the  right  to  be 
present throughout questioning? 
9.  Can  the  lawyer  and  the  client 
before 
in 

private 

deliberate 
questioning? 

10.  Can  the  lawyer  and  the  client 
during 
in 

private 

deliberate 
questioning? 

11.  Can  the  lawyer  play  an  active  role 
during questioning? (E.g. intervene, 
ask questions make remarks, etc.) 
of 
Is 
consultation  (either  by  phone  or  in 
person) guaranteed? 

confidentiality 

12. 

the 

13.  Are  there  possibilities  to  supervise 
the  oral 
telephone 
(including 
conversation)  and/or  the  written 
communication  between 
lawyer 
and suspect, notably after arrest? 
14.  Can the lawyer visit his client at the 

police station?  

15.  Can  the  lawyer  visit  his  client  in 

prison? 

MANDATORY 
DEFENCE/WAIVER of 
the right 

CONSEQUENCES OF 
VIOLATIONS 

16.  Are there circumstances in which legal assistance in criminal proceedings is 

obligatory (mandatory defence)? 

17.  Mandatory defence can be derogated or waived?  

18.  Can the confession made by a suspect in the absence of his lawyer be used 

as evidence in court? 

19. 
20. 
21. 

22.  Does  the  right  to  legal  advice  apply  when  the  suspect  is  the  subject  of  a 

EAW? 

EUROPEAN ARREST 
WARRANT (EAW) 

SHORT LEGENDA: 

N/A: non applicable 

EN 

156 

   EN 

 
 
 
 
 
 
(LA): required in order to provide legal assistance (partially) free of charges 

EN 

157 

   EN 

 
BE 

BG 

CZ 

DK 

DE 

EE 

IE 

EL 

ES 

FR 

IT 

CY 

LV 

LT 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

24h 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

YES 

NO 

YES 

NO 

NO 

NO 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

NO 

N/A 

N/A 

NO 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

NO 

NO 

NO 

NO 

YES 

YES 

YES 

YES 

YES 

N/A 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

YES 

NO 

NO 

NO 

NO 

NO 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10.   

11.   

12.   

13.   

14.   

15.   

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 

158 

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 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

√ 

NO 

YES 

YES 

YES 

NO 

YES 

NO 

YES 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

NO 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

EN 

159 

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.   

13.   

14.   

15.   

16.   

17.   

18.   

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

NO 

YES 

NO 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

NO 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

N/A 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

YES 

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 

160 

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 questioning 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 entitled to be present throughout questioning and 
in  19  of  these  countries  he  can  deliberate  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  prosecutor  may  order  the  monitoring  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 active role (notably to make remarks and ask 
questions).     

Consultation: 

• 

• 

In  nearly  all  MS  it  is  in  principle  guaranteed  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. However, in 11 MS there is the possibility 
to supervise the oral and/or the written communication between lawyer and suspect. 
It  is  possible  for  a  defence  lawyer  to  visit  his  client  at  the  police  station  in  all 
countries, except for one (BE). The lawyer can visit the suspect detained in prison in 

EN 

161 

   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 are 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 

162 

   EN 

 
 
 
 
 
 
ANNEX IV 

General statistical information on the number of criminal proceedings in the EU 

AT 

BE* 

BL 

CY 

CZ 

DK 

EE 

FI* 

FR 

DE 

HL 

HU 

IE* 

IT 

LV* 

LT* 

LU 

MT* 

NL 

PL 

PT 

RO* 

SK 

2006 

238111 

49884 

34840 

1441 

69445 

75202 

51834 

2007 

247021 

51243 

33577 

1903 

75728 

73078 

50375 

116979 

116789 

247626 

425941 

247252 

426914 

2008 

240554 

51127 

38313 

1903 

75728 

50977 

113462 

744832 

872573 

240042 

408407 

94215 

1207088 

1216655 

1195300 

51073 

75751 

10441 

9015 

134400 

481003 

50490 

74914 

10539 

9026 

127600 

477278 

110802 

48611 

72060 

10356 

8783 

127400 

12899 

431919 

460842 

104758 

EN 

163 

   EN 

 
 
 
  
 
 
 
 
 
 
 
 
 
 
 
 
SI 

SP 

SE 

E&W 

EU 27 

*data are not available 

14545 

1779300 

5073918 

15710 

944962 

1732500 

6094356 

15329 

995064 

119244 

1640000 

8174698 

9. 

10. 

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). 

2. WHERE NATIONAL STATISTICS ON NUMBER 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 

164 

   EN 

 
 
 
 
 
11. 

ANNEX V – MODEL CALCULATIONS FOR OPTION 3 (PREFERRED) 

Core elements of preferred 
option 

Financial or economic impact 

START-DATE 

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) 

This option is cost-neutral as any financial impact related to the right to have 
access  to  a  lawyer  as  from  the  first  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 suspects and accused persons at the level of 
EU law can be expected to lead to a limited increase in the 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 clarification of the scope of these 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 would 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  for  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-neutral  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 entail any relevant additional costs. 

EN 

165 

   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 remedies 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  processes  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  system  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 

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  lawyer231.  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  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  number  of  criminal  proceedings  :  total 
aggregate  number  of  EAWs  =  total  legal  aid  budget  :  X  (data  to  be 
calculated).   

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 

This calculation, applied to a large Member 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 
€1290233. Assuming that this is roughly the amount that would be spent on 
providing  legal  assistance  in  the  issuing  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,  the  magnitude  of  this  cost  can  be 
considered  to  be  rather  limited  for  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." Commission document SEC(2007)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 country report (annexes) of the Study on the Transparency of Costs 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 

166 

   EN 

 
 
   
                                                 
additional costs for 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 
issuing  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 any event, even without the Directive, albeit only upon surrender to that 
State. 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  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  requirement  can  be  calculated,  with  some 
approximation,  using  the  same  method  as  for  Member  States:  total 
aggregate  number  of  criminal  proceedings:  total  aggregate  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 basis 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  yields  a  total  aggregate  cost  in  the 
whole of the EU of around €30 million . 

In  the  issuing  states  there  would  not  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  State.    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 

167 

   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 the measure in hand so allows 

ANALYSED IN CONJUNCTION WITH OBLIGATORY DEFENCE 

However, a significant financial and economic 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  States  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  where  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 Efficiency 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 

168 

   EN 

 
 
 
 
 
 
 
  
                                                 
For  a  medium-sized  Member  State,  one  could  take  the  example  of  the 
Netherlands, where the Government itself 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 criminal 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 countries, 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  assistance  of  a  lawyer  is  made 
compulsory, the cost of this extension 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 proceedings 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  between  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  Justice  (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 

169 

   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 first 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  lawyer  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 formula: 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 who 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  ranges  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 suspects and accused persons at the level of 
EU law can be expected to lead to a limited increase in the 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 clarification of the scope of these 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 would 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 

170 

   EN 

 
 
 
 
 
 
Mandatory legal assistance in 
all circumstances 

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 

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 

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  for  appeals,  re-trials  and  aborted 
prosecutions (see further analysis of this under intra-procedural remedies). 

Potential  economic  and  financial  impact  for  this  parameter  has  been 
analysed above, in conjunction with that of start-date and end-date. 

Financial cost for Member States 

The provision of intra-procedural remedies 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  processes  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  system  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  the  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 years238, 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 

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  number  of  criminal  proceedings  :  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." Commission document SEC(2007)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 

171 

   EN 

 
 
 
   
                                                 
€1290241. Assuming that this is roughly the amount that would be spent on 
providing  legal  assistance  in  the  issuing  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  for  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  issuing  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 any event, even without the Directive, 
albeit  only  upon  surrender  to  that  State.  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 the 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 requirement can be calculated, with some 
approximation,  using  the  same  method  as  for  Member  States:  total 
aggregate  number  of  criminal  proceedings:  total  aggregate  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 basis 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  yields  a  total  aggregate  cost  in  the 
whole of the EU of around €30 million . 

In  the  issuing  states  there  would  not  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  State.    For  example,  if  the  Directive 
enables  counsel  in  the  issuing  State  to  share  information  regarding  the 

241 Figure taken from the country report (annexes) of the Study on the Transparency of Costs 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 

172 

   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 

173 

   EN 

 
 
ANNEX VII:  

Current situation in Member States in relation 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 

Austria   

Belgium 

Bulgaria 

Cyprus 

Czech 
Republic 

18,879,166246 

54,220,000 

3,256,423 

232,300 

No data 

No data 

No data 

No data 

21,618,962 

No data 

Denmark 

40,030,000 

Estonia 

Finland 

France 

3063 

33,300,000 

103,000,000 

No data 

2,409 

713 

627 

14,980247 

No data 

No data 
936248 

No data 

No data 

31,317 
9,300250 

403,161 

59,812 

No data 

26,295 

93,170 

103,329 

106,720 

33,550 

65,244 

1,124,074 

Percentage of 
criminal cases 
granted with 
legal aid out of 
the total 
number of 
criminal cases 
in 2008 
(columns 4 and 
5) 

25% 

No data 

No data 
37%249 

No data 

No data 

93% 

14% 

36% 

at 

by 

are 

State 

arrived 

dividing 

the  Member 

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 version of the study (Antwerp-Apeldoorn- 
Portland, Maklu, 2009) and the answers to question 53 of the Member States’ questionnaire on the electronic version 
available at http://arno.unimaas.nl/show.cgi?fid=16315.  
243  Figures  taken  from  the  study  by  the  European  Commission  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 annual number of cases for which legal aid 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) extrapolated from column 2.  
They 
at 
http://europa.eu/abc/european_countries/eu_members/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 instance courts (absolute figures).  
246  This  figure  relates  to  the  total  amount  of  legal  assistance,  including  legal  aid  in  civil  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 proceeded against for serious offences in 2008 (column five 
meanwhile refers to the number of criminal cases of all kinds).  See Republic of Cyprus statistical service, Criminal 
Statistics 2008, p.21. 
249 This figure represents the percentage of adult persons proceeded against for serious offences in 2008  who were 
legally represented.  It should be noted that it is not known what 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’  costs  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). 

population 

stated 

(as 

EN 

174 

   EN 

 
                                                 
EU  Member 
State 

National budget 
for legal 
assistance 
(partially) free of 
charge in 
criminal 
proceedings in 
absolute terms in 
2008 (€) 242 

Germany251 

Greece 

Hungary 

Ireland 

Italy 

Latvia 

No data 

No data 

No data 

55,300,000 

No data 

783,013 

Lithuania 

1,941,000  

Luxembourg 

No data 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovak 
Republic 

Slovenia 

Spain 

Sweden 

United 
Kingdom 

45,551 
180,400,000252 

21,454,645 
42,306,500253 

3,441,655 

No data 

 1,877,817254 

30,900,000 

83,074,374 

518,647,945 

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 

No data 

No data 

28 

1,245 

165 

No data 

32 

No data 

No data 

964 

No data 

No data 

No data 

No data 

42 

No data 

No data 

1,144255 

No data 

No data 

2,800 

56,025 

99,000 

No data 

1,060  

No data 

No data 

158,096 

No data 

No data 

No data 

No data 

840 

No data 

No data 

588,542256 

911,424 

No data 

262,113 

No data 

1,504,521 

38,085 

16,472 

49,441 

15,373 

499,847 

961,869 

144,852 

171,119 

37,593 

97,885 

1,266,284 

83,037 
140,600257 

Percentage of 
criminal cases 
granted with 
legal aid out of 
the total 
number of 
criminal cases 
in 2008 
(columns 4 and 
5) 

No data 

No data 

1% 

No data 

7% 

No data 

6% 

No data 

No data 

32% 

No data 

No data 

No data 

No data 

1% 

No data 

No data 
53%258 

EU average 

48,231,323 

737 

113,838 

325,530  

28% 

251 There is no legal aid as such in Germany.  Instead there are prescribed grounds for issuing a mandatory defence 
counsel which are set out in Article 140, paragraph 1 of the German Code of Criminal Procedure.  Under one of 
these  grounds  a  defence  counsel  is  then  issued  to  the  accused  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  for  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 population estimate by the Office for National Statistics of 
51,446,000.  The estimated number for Scotland 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 

175 

   EN 

 
                                                 
Sources:  EU  Member  States’  Ministries  of  Justice;  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 

176 

   EN 

 
 
ANNEX VIII: Overview of notification of custody in Member States 

Country

Is there a 
statutory right to 
communicate?

Applicable Provision

Can the right to communicate and the 
right to a lawyer be found in the same 
provision?

Is the right to 
communicate 
respected?

Yes

Constitutional Law on the 
Protection of Personal Liberty (s.4, 
Paragraph 7).

Yes, s.164 of the Code of Criminal Procedure 
provides the accused with a lawyer during 
interview.

Yes - generally well 
respected.

Austria

Administrative Criminal Code (s.36, 
paragraph 3)

Law on the Police (s.47, paragraph 
1)

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, o

Time of Access

Notification

Statutory Position

Position in Practice

To whom

By whom

How?

Feedback

Derogations 

Remedies

CPT Recommendations

Detainees not 
always informed 
from the outset. 

Detainee must be 
informed of the right 
from the outset of 
deprivation of liberty - 
"without undue delay" as 
afforded by the 
Constitutional Law.

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.

Yes for détention 
administrative

Belgium

s.171 paragraph 3(1) of the Code 
of Criminal Procedure
Loi sur la function de police, 
Chapitre IV, Sous-section 2, Art. 
33quater

No for détention 
judiciaire

None

Yes - 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 party

Detainee, although not 
explicitly mentioned.

Orally or in writing

This was not dealt 
with.

This was not dealt 
with.

Not known.

No further recommendation.

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Yes

Yes

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.

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 - 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.

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.

No 

N/A

N/A

N/A

N/A

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. 

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.

Many examples 
where accused 
brought into custody 
had to wait several 
hours before being 
informed they could 
contact their family.

Bulgaria

Cyprus

Czech 
Republic

Family, Consulate, 
third party

By the detainee or 
police officer.

Orally or in writing

Not known - needs 
further examination.

Not known.

A few detainees 
were denied abilty 
to call relatives 
themselves 
therefore were 
not sure that third 
party had been 
contacted.

N/A - the CPT calls for 
legislation in this area

Ensure thatdetainees given 
feedback as to whether the 
notification of their custody 
has been performed. 

Family, Consulate, 
third party

Police 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.

Family, Consulate

Detainee

Not clear

Not known.

N/A

Not known.

To pass legislation to 
recognise this right.

EN 

177 

EN 

 
  
 
Not clear

S.2 Circular no. 12154 of 12 June 
2001

Yes - 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, 
Consulate

By the accused or by 
the police officer.

Orally or in writing

0fficer 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 

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 to

Not known

No

Not known

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.

Detaine

Family, Employer, 
third party

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.

According 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 p

Orally or in writing

This was not dealt 
with.

Not known.

New Code makes explicit 
reference to right to notify.

That notification is rendered 
fully effective in custody.

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"

Yes

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 reasons

Most 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 

178 

Detainee.

Orally or in writing

This was not dealt 
with.

family, consulate, 
employer, third party

Detainee can choose 
not to notify.

Not known.

Notification is 
restricted in instances 
where it may seriously 
impede or prejudice 
criminal investigation. 
This decision is 
decided by the head 
of the investigation.

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 

Denmark

Yes

Estonia

Finland

EN 

 
  
 
France

Yes

Yes

Germany

Article 63-2 of the Code de 
Procédure Pénale

Yes, the right to a lawyer is found in Art. 63-4. Yes - but concerns 

over derogations

Any 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

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

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 

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 (since

Numerous 
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 
situa

Family, third party, 
Consulate.

Detainee

Orally or in writing

This was not dealt 
with.

Si l'officier de police 
judiciaire estime, en 
raison des nécessités 
de l'enquête, ne pas 
devoir faire droit à 
cette demande il en
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.

Not known.

No further recommendations.

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

Not clear

Not definitive 
conclusion 

Not clear.

Not 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.

Greece

Close relative, a third 
party.

N/A

Detainee, does not 
explicitly mention 
whether police can 
notify.

This was not dealt 
with.

Not known.

This right is subject to 
the Code of Criminal 
Procedure, the 
Correctional code and 
the "confidentiality of 
talks".

Half of cases 
reviewed said they 
were informed of 
this right whereas 
the other half 
detainees said they 
had not been 
informed. 

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 

179 

EN 

 
  
Yes

S.128 (1) of Act XIX on Criminal 
Proceedings 1998
S. 18 of the Police Act

Yes - 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.

Family, Employer, 
Consulate, third party

Usually done by police 
officers.

Orally or in writing.

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).

Poor feedback to 
detainees on 
whether 
notification had 
actually been 
made.

The government 
replies that police 
stations have 
been issued with 
guidelines on 

Yes

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 party

Detainee

Orally (telephone) or 
in writing (sending a 
letter).

N/A

Hungary

Ireland

Family, third party

Police officer, not clear 
about detainee

Orally or in writing.

This was not dealt 
with.

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.

Not known.

No further recommendations.

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.

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 
safety of guarding 
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.

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.

Yes

Art. 387 of the criminal proceedings 
code.

Yes, right to a lawyer is stated in Art. 386.

No

Italy

Latvia

Yes

EN 

Yes, Art. 266 of the Criminal Procedure Law 
also includes the right to access a lawyer.

No

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 Pr

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 ca

"At the moment of actual 
arrest"  for those 
detained under the CCP.

Even detainees 
formally arrested 
were deprived of 
rights (incl. 
notification) for 
several hours (or 
sometimes even 
more).

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. 

180 

Family, Employer, 
Consulate, 
educational institution

Police 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 

 
  
Yes

S. 140 (4) of the Code of Criminal 
Procedure 2002

Not 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)

Yes

Article 39 (3) of the Code 
d'instruction criminelle

Yes - the right to access a lawyer appears in 
Article 39 (7)

Yes - generally well 
respected.

Must be notified from the 
very outset of detention.

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.

Detainees were 
allowed to notify 
right from the 
outset.

Yes

Article 355AS of the Criminal Code Yes - Article 355AT of the Criminal Code 

Probably

provides for the right of a detained person to 
consult in private with a lawyer.

Must be notified "without 
undue delay" however 
can be delayed for max. 
6 hours (see derogation). 
No delay for minors.

No particular 
reference to 
position in practice -
assume that it may 
be working well.

Records kept of:
i) Notifying the detainee 
of the right, ii) whether 
the detainee accessed 
this right, iv) details of 
person informed in

Lithuania

Luxemburg

Malta

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.

Not known.

Ensure that right of 
notification is fully effective in 
practice with respect to all 
detainees from the very 
outset of their liberty.

The Prosecutor may 
refuse notification if 
detainee explains why 
such notification "can 
pose a threat to the 
security of his/her 
family”. 

Not known.

for

stated

reasons

refusal be
That
clearly
to
subject
appropriate safeguards, and that
is authorised by a senior
it
police officer independent to the
case or a prosecutor. 

Not known.

No further recommendations.

Detainee 

Anyone: Family, 
Employer, Consulate, 
third party

N/A

Orally (use of 
telephone is 
mentioned in the 
legislation) or in 
writing.

Family, closed friend Detainee

Orally or in writing

This was not dealt 
with.

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 are
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 infor

EN 

181 

EN 

 
  
 
Yes 

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.

Netherlands

Not known.

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 
a

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 

Poland

Portugal

Yes

No

Yes

S. 261 of Code of Criminal 
Procedure 1998

Yes this right appears in  1998 Code of 
Criminal Procedure

Yes - did not bring to 
light any particular 
problems.

Unknown - needs further 
examination.

Yes - 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.

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 p

Family , third party

Police officer

Orally or in writing.

Not known - needs 
further examination.

Not known.

Provide detainees with 
feedback that relatives have 
been notified.

Some detainees 
had doubts as to 
whether their 
family had been 
notified at all.

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

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 up.
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.

N/A

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

No right.

N/A

N/A

N/A

N/A

N/A

N/A

N/A

Again to amend legislation 
provide this right.

EN 

182 

EN 

 
  
Yes

Art. 137 (1) of Criminal Procedure 
Code

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)

Art. 31 (1) (b) de la loi loi relative à 
la police 2002 guarantees this right 
for those under preliminary 
investigation. 

Yes in certain 
cases

Article 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.

Romania

Slovak 
Republic

Yes

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 
concerns

Not clear in statute, but 
detainees should be 
allowed to notify between 
30 to 90 mins since first 
being detained.

Slovenia

Yes

Spain

EN 

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.

183 

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 g

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.  

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. 
Those held for 
ordinary offences 
were allowed to 
notify without delay 
and such requests 
had been properly 
recorded.

Family, third party

Not clear but likely to be 
detainee.

Orally or in writing.

This was not dealt 
with.

Not known.

Can be delayed as an 
exception by a 
prosecutor who 
believes notification 
risks compromising 
the investigation.

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.

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

Family, Consulate, 
third party

Detainee, 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. 

Family, Employer, 
Consulate, third party

Detainee or Police 
officer, although not 
explicit.

Orally or in writing.

This was not dealt 
with.

Not known.

Can be delayed for 
incommunicado 
detention - usually 
terrorism offences.

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 

 
  
Yes

Section 21a of Chapter 24 of the 
Code of Judicial Procedure (CJP)

Yes - the right to a lawyer appears in 10 of 
Chapter 23 of the CJP

No

Section 17a of the Police Act - right 
for individuals who have been 
taken into temporary custody to 
notify close relatives. 

“as soon as it may be 
done without harming 
the investigation”

Whether notification has 
been done or not is 
recorded.

Yes

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.

Sweden

England and 
Wales

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. 

From the very 
outset of 
deprivation of 
liberty.

Family 

It is not explicit who 
notifies.

Not specified.

This was not dealt 
with.

Not known.

Delay is decided by 
the person in charge 
of the investigation. It 
should only be done if 
risk of collusion.

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 

Detainee

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.    

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 unti

N.B – Further derogations for England Wales: 

This right may be denied or delayed if if the detainee is in connection with anindictable offence and an officer of inspector rank or above has reasonable grounds to 
believe that 

EN 

184 

EN 

 
  
 
 
(i)  their  exercise  will  interfere/harm  the  offence  or  cause  physical  harm  to  people,  (ii)  lead  to  alerting  other  people  suspected  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 officer 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 the grounds cease to apply within this time, the detainee must, as soon as practicable, declare that want to 
notify, this must be recorded. 

EN 

185 

EN