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

EUROPEAN COMMISSION 

Brussels, 8.6.2011 
SEC(2011) 687 

COMMISSION STAFF WORKING PAPER 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying document to the 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the rights of access to a lawyer and the right of notification of custody to a third 
person in criminal proceedings 

{COM(2011) 326 final} 
{SEC(2011) 686} 

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EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT  

The impact assessment is for a measure on the rights of access to a lawyer and of notification 
of  custody  to  a  third  person  for  suspects  and  accused  persons  in  criminal  proceedings.  This 
measure aims to set minimum rules governing the right of access to a lawyer and notification 
of custody across the EU.  

Problems 

The  general  problems  identified  in  the  IA  are  that  (1)  there  is  insufficient  mutual  trust 
between judicial authorities of Member States; (2) there is insufficient level of protection of 
fundamental  rights  in  criminal  proceedings  in  the  EU.  The  specific  problem  is  that  there  is 
insufficient  access  to  a  lawyer  and  notification  of  custody  in  many  Member  States.  This 
presents  in  various  ways.  In  several  Member  States  there  is  currently  no  entitlement  for  a 
suspect  to  see  a  lawyer  before  any  police  questioning  and/or  no  entitlement  to  have  the 
assistance of a  lawyer  during the police questioning. The European  Court of  Human  Rights 
has held that suspects are entitled both to see a lawyer as from the first police questioning and 
to  have  a  lawyer  play  an  active  role  in  their  defence  during  police  questioning  (Salduz  v 
Turkey,  Brusco  v  France).  There  are  discrepancies  between  Member  States  about  the 
possibility  of  waiving  one's  right  to  a  lawyer.  Evidence  obtained  without  a  lawyer  being 
present has a different status from one Member State to another. Finally, in European Arrest 
Warrant proceedings, there are no EU rules governing legal advice for the person sought in 
both the issuing State and the executing State, which undermines trust further. All this is well 
illustrated using a number of case studies in the IA. In relation to notification of custody, the 
Committee for the Prevention of Torture (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  is  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. 

Subsidiarity: It is considered that there is a need for EU action based on inter alia the cross-
border  dimension  of  the  problem  given  a  mobile  citizenship,  including  criminals;  the 
shortcomings of ECHR and CPT enforcement mechanisms and the access to the full panoply 
of EU enforcement mechanisms that would come with EU action  

Objectives 

Any  measure(s)  taken  at  EU  level  on  the  access  to  a  lawyer  should  achieve  the  following 
general and specific objectives,  

General: 

•  To improve judicial cooperation in the EU  

•  To ensure an adequate level of protection of fundamental rights in criminal 

proceedings for all individuals  

Specific: 

•  To reduce costs of delays, refusals, appeals in the execution of request for 

judicial cooperation between Member States. 

•  To  ensure  that  suspected  or  accused  persons  have  adequate  access  to  a 

lawyer throughout criminal proceedings 

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•  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,  

Options 
The policy options set out in the Impact Assessment are: 
•  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 to notification of custody  

•  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. 

•  This option would cover five specific aspects of the rights of access to a lawyer 
and  notification  of  custody,  and  in  particular  would  ensure  prompt  access  to  a 
lawyer,  wouidl  specify  the  content  of  the  access  and  right  to  feedback  on 
notification  of  custody,  provide  for  a  waiver  and  remedies  and  apply  to  EAW 
proceedings in the executing and issuing states. 

•  Policy option 4: Directive applying CPT recommendation on notification of custody and 
setting further rules going beyond the ECtHR acquis on access to a lawyer and reinforcing 
the application of mutual recognition instruments. 

•  This  option  would,  in  addition  to  what  is  described  under  Option  3  (while 
providing the same right of notification of custody), ensure that access to a lawyer 
is  granted  ahead  of  (instead  of  upon)  any  policy  questioning;  it  would  impose 
mandatory defence across the board, and lay down a prohibition to use evidentiary 
material obtained in breach of the right to a lawyer.  

IMPACTS 

Effectiveness in meeting objectives: 

•  Policy option 1: As the ECHR and the ECtHR jurisprudence and CPT recommendations 
are  not  uniformly  implemented  by  Member  States,  the  level  of  protection  of  suspects 
remains inadequate at present. 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. 
•  Policy  option  2:  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. and CPT recommendations. 

•  Policy  option  3:  This  option  would  have  all  the  strengths  of  the  legislative  instrument 
(binding nature, high enforceability). In particular: compliance with the ECtHR acquis and 
CPT recommendations and judicial cooperation will be enhanced by the following specific 
measures  

1. 

Temporal  scope:  providing  access  to  a  lawyer  from  the  first  police 
interrogation and notification of custody from deprivation of liberty  

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2.  Material scope: specific regulation of the activity a counsel can carry out and 
the right to notification reinforced by the obligation to provide feedback  

3.  Waiving the right to a lawyer:  

4.  Consequences  of  violations:  stipulatating  that  Member  States  must  set  up 

legal remedies in case of violations of the right to a lawyer  

5. 

EAW cases: The person subject to the warrant is assisted by a lawyer in both 
the issuing and the executing Member States.  

•  Policy option 4: Under this option, the Directive would, in addition to what is described 
under  Option  3  (while  providing  the  same  right  of  notification  of  custody),  ensure  that 
access to a lawyer is granted ahead of (instead of upon) any policy questioning; it would 
impose  mandatory  defence  across  the  board;  it  would  lay  down  a  prohibition  to  use 
evidentiary  material  obtained  in  breach  of  the  right  to  a  lawyer.  Therefore,  these  three 
additional elements (aspects 1, 3 and 4 respectively) would enhance judicial cooperation as 
follows: 

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.  

2.  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. 

3.  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  

Impact on fundamental rights 

•  Policy option 1: 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. 
•  Policy option 2: 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  the  protection  against  ill-treatment 
would depend on how Member States would implement EU recommendation.  

•  Policy option 3: The right to liberty and security (article 6 EU Charter; article 5 ECHR). 
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 all be enhanced. 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  prohibition  of  ill-treatment  (article  4  Charter  and 
article  3  ECHR).  The  right  to  notification  of  custody  promotes  the  right  to  respect  for 
private and family life (article 7 Charter and article 8 ECHR) 

•  Policy option 4: The right to liberty and security (article 6 EU Charter; article 5 ECHR), 
Right to an effective remedy and to a fair trial (article 47 EU Charter; articles 6 and 13 
ECHR) and the presumption of innocence and right of defence (article 48 EU Charter; 
article 6 ECHR) would all be enhanced. The right to an effective remedy would be further 
safeguarded by the introduction of the prohibition to use evidentiary material obtained in 
violation of the right to legal advice at trial.  

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•  Financial and economic impact 

•  Policy option 1: Although there are no immediate new financial burdens associated with 
this option, it 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/delayed prosecutions linked to insufficient access to a lawyer.  

•  Policy option 2: depends on the level of Member States' implementation of all or some of 

the provisions contained in the Recommendation. 

•  Policy option 3: The financial burden for the average Member State will be in the region 
of about € 300,000 for a large Member State  and between € 4,100 and € 70,950 for a 
small Member State. There will also be an economic and financial impact on individuals. 
This is quantified (roughly) in the IA at about 1,500 €  per person subject to an EAW. 

•  Policy option 4: The financial impact of this option on Member States can be estimated as 
high  as  €  179  million   for  a  large  Member  State  and  about  €  110  million   for  a  medium-
sized  Member  State.  As  regards  the  financial  costs  for  individuals,  they  are  estimated 
  per  suspect/accused  person  per  case  (individuals  subject  to 
between  4,170  €   and  5,200  €
criminal proceedings) and about 1,500 €  per person per case (individuals subject to EAW). 

Impact on domestic justice systems 

•  Policy option 1: The need to implement certain ECtHR rulings and CPT recommendations 
may  even  augment  the  existing  divergence,  in  particular  as  there  are  indications  that 
Member States interpret ECtHR pronouncements in different ways. 

•  Policy option 2: It is unlikely that this effect would be any more significant than the effect 

of ECtHR rulings and CPT recommendations alone.  

•  Policy  option  3:  This  option  would  ensure  that  domestic  justice  systems  are  broadly 
brought  in  line  with  the  precepts  of  the  ECHR  and  the  ECtHR  jurisprudence  and  CPT 
recommendations, for which some legislative reforms will be needed. 

•  Policy option 4: Significant legislative reforms will need to be carried out to comply with 
the requirements of the Directive. Some Member States may have problems to accept some 
of these requirements posited by this option. 

•  Comparison of options: 

Policy option 3 demonstrates the best combination of costs and effectiveness in meeting the 
objectives. It is therefore the preferred option:  

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Objectives/costs 

Policy option 1 

Policy option 2:  

Policy option 3: 

Policy option 4: 

Savings due to 
better judicial 
cooperation  

Impact on 
fundamental 
rights 

0 

Low 

√ 

√√ 

√√[√] 

Low  

Medium to high 

High 

Financial and 
Economic impact 
(see tables in 
Annexes V and 
VI for full 
explanation)  

01 

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 
as €
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 

1 

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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in Annex VI) 

For individuals: 

1. Individuals subject to 
criminal proceedings: 
 and 5,200 
about 4,170 €

 per suspect/accused 
person per case.  

2. Individuals subject to 
 per 
EAW: about 1,500 €

person subject to an 
EAW. 

For 
individuals: 
none 

For individuals: 
none 

For individuals: 
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 the most effective in achieving all the general and specific objectives; 
nonetheless  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 Euros per individual per criminal case. 

EU ADDED VALUE AND PROPORTIONALITY OF THE PREFERRED OPTION  

The preferred option will 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 Directive will create obligations on Member States which, on 
implementation, will be enforceable in Member States' courts. The European Court of Justice 
will provide a remedy for non-compliance, and this, together with the Commission's power to 
launch  infringement  proceedings  against  Member  States,  will  create  strong  incentives  for 
Member States to comply with their obligations under the Directive.  

The right to access to a lawyer and to notification of custody should be explicitly in the legal 
order of the EU given that articles 4, 7, 47 and 48 of the Charter of the EU provide for the 
protection  against  ill-treatment,  the  right  to  privacy  and  family  life,  right  to  an  effective 
remedy and a fair trial, as well as rights of defence and the presumption of innocence. Article 
82(2) of TFEU provides a clear legal basis for the establishment of minimum EU-wide rules 
in respect of the rights of individuals in criminal matters. 

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€
 
In  addition,  the  preferred  option  is  expected  to  lead  to  savings  owing  to  a  reduction  in  the 
number  of  appeals,  condemnations  by  the  ECtHR  or  delay  in  judicial  cooperation 
proceedings. Such savings can be estimated for all Member States for the next ten years in the 
region of € 3.73 million  to € 11.19 million  EUR.  

MONITORING AND EVALUATION 

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, 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.  

In  addition  to  an  Implementation  Plan  accompanying  the  proposal  for  the  Directive,  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.  The 
Commission  envisages  carrying  out  a  specific  empirical  study  with  emphasis  on  data 
collection three to five years into the implementation of the proposal.  

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