REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third person informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty
Date: 2019-09-26
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, European arrest warrant, arrest, charge, fundamental rights, imprisonment, lawyer, legal aid, right to justice, rights of the defence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 26.9.2019  COM(2019) 560 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third person informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty  
 
 
1.  INTRODUCTION 

1.1.  Background 

Directive  2013/48/EU  on  the  right  of  access  to  a  lawyer  in  criminal  proceedings  and  in 
European  arrest  warrant  proceedings,  and  on  the  right  to  have  a  third  party  informed  upon 
deprivation  of  liberty  and  to  communicate  with  third  persons  and  with  consular  authorities 
while deprived of liberty1 (‘the Directive’) is the third instrument adopted under the Roadmap 
for strengthening procedural rights of suspected or accused persons in criminal proceedings 
(‘the Roadmap’2). On 11 December 2009, the European Council welcomed the Roadmap and 
made it part of the Stockholm Programme, which seeks to ensure an open and secure Europe 
serving and protecting citizens3. 

The EU has adopted six directives in this field: this Directive, plus Directives on the right to 
interpretation and translation4; on the right to information5; on strengthening certain aspects 
of  the  presumption  of  innocence  and  the  right  to  be  present  at  the  trial 6;  on  procedural 
safeguards for children7 and on legal aid8. The European Commission has already produced 
implementation reports on the Directives on the right to interpretation and translation and on 
the right to information9. 

These  six  directives  aim  to  contribute  to  the  general  objective  of  increasing  mutual  trust 
between Member States by allowing better application of the principle of mutual recognition, 
which is the cornerstone of the EU area of freedom, security and justice. The Directives do 
this  by  providing  common  minimum  standards  for  procedural  rights  in  all  criminal 
proceedings, and by providing a more consistent implementation of the right to a fair trial, as 
set out in Article 47 of the Charter of Fundamental Rights of the European Union (TFEU10) 
and in Article 6 of the European Convention on Human Rights. 

1 OJ L 294, 6.11.2013, p. 1. 
2  Resolution  of  the  Council  of  30 November  2009  on  a  Roadmap  for  strengthening  procedural  rights  of 
suspected or accused persons in criminal proceedings, OJ C 295, 4.12.2009, p. 1. 
3 OJ C 115, 4.5.2010, p. 1. 
4  Directive  2010/64/EU  on  the  right  to  interpretation  and  translation  in  criminal  proceedings,  OJ  L  280, 
26.10.2010, p. 1. 
5 Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
6 Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the 
right to be present at the trial, OJ L 65, 11.3.2016, p. 1. 
7 Directive (EU) 2016/800 on procedural safeguards for children who are suspects and accused in criminal 
proceedings, OJ L 132, 21.5.2016, p. 1. 
8 Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for 
requested  persons  in  European  arrest  warrant  proceedings,  OJ  L  297,  4.11.2016,  p.  1;  corrigendum:  OJ  L91, 
5.4.2017, p. 40. 
9 COM(2018) 857 final and COM(2018) 858 final. 
10 OJ C 326, 26.10.2012, p. 392. 

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1.2.  Purpose and main elements of the Directive 

The Directive deals with suspects and accused persons’ rights to access a lawyer irrespective 
of  whether  they  are  deprived  of  liberty.  It  also  deals  with  their  right  to  communicate  with 
their  family,  relatives,  other  third  persons  and  with  consular  authorities  when  deprived  of 
their liberty.  It merges two measures, initially  put  forward as two separate proposals  in  the 
Roadmap: (i) the right to legal advice (part of Measure C of the Roadmap); and (ii) the right 
to  communicate  with  relatives,  employers  and  consular  authorities  (Measure  D  of  the 
Roadmap). 

The Directive sets out minimum standards for all suspects or accused persons within the EU 
regardless  of  their  legal  status,  citizenship  or  nationality.  It  is  designed  to  help  prevent 
miscarriages of justice and reduce the number of appeals. The rights granted in the Directive 
apply both in criminal proceedings and in European arrest warrant proceedings. 

Another  important  reason  for  having  common  minimum  rules  in  this  area  is  that  it  can 
increase Member States’ confidence in each other’s criminal justice systems. To that end, it 
builds on and seeks to promote the rights laid down in, for example, Articles 47 and 48 of the 
Charter of Fundamental Rights of the European Union. 

The Directive lays down the following rights:  

 
 

 

 

the right of access to a lawyer (Articles 3, 4, 8, 9 and 10);  
the  right  to  have  a  third  person  informed  of  the  deprivation  of  liberty  (Articles  5,  8 
and 10(3));  
the right to communicate, while deprived of liberty, with third persons (Article 6 and 
10(3));  
the right to communicate with consular authorities (Article 7 and 10(3)). 

As regards the right of access to a lawyer, following the European Court of Human Rights’ 
judgment  in  the  Salduz  case 11 ,  several  Member  States  already  started  adapting  their 
legislation before the entry into force of the Directive. The Directive takes into  account this 
jurisprudence  in  a  number  of  provisions.  Further  adjustments  of  the  legislation  in  some 
Member States were required due to the scope of the Directive, which covers explicitly also 
suspects and accused persons who are not deprived of liberty (Article 2(1) of the Directive); 
this applies notably to the provisions related to the right of access to a lawyer. 

1.3.  Scope of this implementation report 

The Directive’s implementation has been evaluated in accordance with its Article 16, which 
requires the European Commission to submit by 28 November 2019 a report to the European 
Parliament and to the Council, assessing how far the Member States have taken the necessary 
measures to comply with the Directive. 

11 ECtHR Salduz v. Turkey, application No 36391/02. 

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The description and analysis in this report are based primarily on the information provided by 
Member States, supplemented by publicly available studies carried out by:  (i) the European 
Union  Agency  for  Fundamental  Rights 12 ;  or  (ii)  by  external  stakeholders  assessing 
implementation  of  the  Procedural  Rights  Directives  using  justice  programme  grants 13 . 
Information collected from submissions by EU citizens to the Commission often confirmed 
this data. 

The  report  focuses  on  the  measures  Member  States  have  taken  so  far  to  implement  the 
Directive. It assesses whether Member States implemented the Directive within the specified 
timeframe,  and  whether  national  legislation  achieves  the  objectives  and  fulfils  the 
requirements of the Directive. 

2.  GENERAL ASSESSMENT 
Under Article 15 of the Directive, Member States had to transpose the Directive into national 
law  by  27 November  2016.  At  the  date  of  expiry  of  the  transposition  period,  nine  Member 
States had not communicated the necessary measures to the Commission: Bulgaria, Cyprus, 
Germany,  Greece,  France,  Croatia,  Luxembourg,  Slovenia  and  Slovakia.  The  Commission 
therefore  decided  in  January  2017  to  launch  infringement  proceedings  under  Article 258 
TFEU  against  these  nine  Member  States  for  failing  to  communicate  their  transposition 
measures.  Meanwhile  all  Member  States  have  notified  full  transposition.  Infringement 
proceedings are still ongoing as not all provisions of the Directive have been transposed. 

The  Commission’s  main  objective  has  been  to  ensure  that  all  Member  States  transpose  the 
requirements  of  the  Directive  into  their  national  law,  so  that  the  rights  it  contains  are 
protected throughout the European Union. The transposition of the Directive is a prerequisite 
for  properly  assessing  the  extent  to  which  the  Member  States  have  taken  the  necessary 
measures to comply with it. 

The  Directive’s  impact  is  limited  to  setting  minimum  rules,  so  it  leaves  the  possibility  for 
differences  between  national  criminal  procedural  laws.  Nevertheless,  it  imposes  clear 
obligations on Member States. 

12 Study by the European Union Agency for Fundamental Rights (FRA), ‘Rights in practice – Access to a 
lawyer and procedural rights in criminal and European Arrest Warrant proceedings’. 
13 Notably: 
TRAINAC Assessment, good practices and recommendations on the right to interpretation and translation, the 
right to information and the right of access to a lawyer in criminal proceedings, 2016, Study by the Council of 
Bars and Law Societies of Europe (CCBE) and the  European  Lawyers Foundation (ELF); report available at: 
http://europeanlawyersfoundation.eu/wp-content/uploads/2015/04/TRAINAC-study.pdf. 
Inside  Police  Custody,  2014,  project 
the  Maastricht  University; 
https://intersentia.be/nl/pdf/viewer/download/id/9781780681863_0/ 
Inside Police Custody 2, 2018, project  designed and implemented by the Irish Council for Civil Liberties (ICCL) 
in 
at: 
https://www.fairtrials.org/sites/default/files/publication_pdf/Inside-Police-Custody-2-JUSTICIA-Comparative-
Report.pdf 
Right to a lawyer and to legal aid in criminal proceedings in five jurisdictions, 2018, project led by the 
Bulgarian Helsinki Committee (BHC); report available at: https://www.helsinki.hu/wp-
content/uploads/Right_to_lawyer_and_legal_aid_COMPARATIVE_REPORT_2018.pdf 

report  available  at: 

the  Open  Society 

collaboration  with 

available 

Initiative 

led  by 

(OSJI); 

Justice 

report 

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The assessment of national implementing measures has raised certain issues of compliance in 
several Member States. The most prominent issues are:  

 

 
 
 

the  scope  of  the  rights  provided  for  by  the  Directive  —  in  some  jurisdictions  rights 
provided for by the Directive require a formal act in order to be triggered or might not 
apply to persons who are not deprived of liberty;  
the extent of possible derogations, in particular from the right of access to a lawyer;  
the waiver of the right of access to a lawyer; and  
the right of access to a lawyer in the Member State issuing a European arrest warrant.  

Unless remedied, such divergences may limit the effectiveness of the rights provided by the 
Directive.  The  Commission  will  take  every  appropriate  measure  to  ensure  conformity  with 
the  Directive  throughout  the  EU,  including,  where  necessary,  initiating  infringement 
proceedings under Article 258 TFEU. 

In accordance with Articles 1 and 2 of the Protocol (No 22), on the position of Denmark, the 
latter is not taking part in the adoption of the Directive and is not bound by it or subject to its 
application. In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the 
United  Kingdom  and  Ireland  in  respect  of  the  area  of  freedom,  security  and  justice,  the 
United Kingdom  and Ireland have notified that they are not taking part in the adoption and 
application  of  the  Directive.  Hence,  Denmark,  the  United  Kingdom  and  Ireland  are  not 
considered in the following assessment. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Subject matter (Article 1) 

Article 1 of the Directive specifies that the Directive lays down rules concerning the rights of 
suspects  and  accused  persons  in  criminal  proceedings  and  of  persons  subject  to  European 
arrest warrant proceedings to have access to a lawyer, to have a third party informed of the 
deprivation  of  liberty  and  to  communicate  with  third  persons  and  with  consular  authorities 
while deprived of liberty. 

Member  States  already  had  legislation  on  these  rights.  The  transposition  process  therefore 
involved  Member  States  mainly  amending  any  pre-existing  legislation  or  adopting  more 
specific  legislation.  A  new  component  consisted  of  provisions  on  the  right  to  appoint  a 
lawyer in  the Member State issuing  a European  arrest  warrant  (Article 10(4) and  (5) of the 
Directive). 

3.2.  Scope (Article 2) 

Article 2 of the Directive outlines the scope of application of the Directive. 

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3.2.1.  Scope of application — Article 2(1) and (2) 

Article 2(1) of the Directive states that the Directive applies to suspects or accused persons in 
criminal proceedings from the time when they are made aware by the competent authorities 
of a Member State, by official notification or otherwise, that they are suspected or accused of 
having committed a criminal offence, and irrespective of whether they are deprived of liberty. 
The Directive applies until the conclusion of the proceedings, which is understood to mean 
the final determination of the question whether the suspect or accused person has committed 
the  offence,  including,  where  applicable,  sentencing  and  the  resolution  of  any  appeal. 
According  to  Article 2(2)  of  the  Directive,  it  also  applies  to  persons  subject  to  European 
arrest warrant proceedings (‘requested persons’) from the time of their arrest in the executing 
Member State. 

In respect of Article 2(1) of the Directive, most Member States do not specifically address the 
moment at which a suspect or accused person is ‘made aware’ of the suspicion or accusation, 
nor do they specify that the rights provided for by the Directive apply throughout the criminal 
proceedings. However, a systematic analysis of the different stages of criminal proceedings in 
the  respective  national  legal  contexts  shows  that  conformity  can  be  inferred  for  a  large 
number of Member States. However, in four Member States, rights  under the Directive are 
made dependent on a formal act. This formal act is often also the condition for acquiring the 
status of suspect or accused. In a small number of Member States, the legislation lacks clarity 
on persons who are not deprived of liberty. 

As regards Article 2(2) of the Directive, the vast majority of Member States have applied the 
rights  provided  for  by  the  Directive  by  applying  the  general  criminal  procedural  rules  to 
European arrest warrant proceedings mutatis mutandis (i.e. an application with the necessary 
modifications).  However,  national  law  in  six  Member  States  does  not  ensure  that  all  rights 
ensured by the Directive are also applicable in European arrest warrant proceedings. This is 
indicative of problems of transposition. 

3.2.2.  Witnesses becoming suspects — Article 2(3) 

Article 2(3)  of  the  Directive  clarifies  that  it  also  applies,  under  the  same  conditions  as 
provided  for  in  Article  2(1)  of  the  Directive,  to  persons  other  than  suspects  or  accused 
persons  who,  in  the  course  of  questioning  by  the  police  or  by  another  law  enforcement 
authority, become suspects or accused persons. 

Almost  all  Member  States  complied  with  this  provision.  A  couple  of  Member  States 
transposed  the  Directive  almost  literally,  and  several  Member  States  explicitly  refer  to  the 
change of procedural status during questioning. In others, the transposition is less evident, but 
still  can  be  inferred  from  provisions  with  a  broad  scope,  granting  the  right  of  access  to  a 
lawyer to  all parties of the proceedings  and ensuring that witnesses are entitled to a lawyer 
during  questioning.  No  specific  rules  on  this  point  could  be  identified  in  the  legislation  of 
four Member States. 

5 

 
 
3.2.3.  Minor offences — Article 2(4) 

Article 2(4) of the Directive sets  out  that for minor offences, it only  applies to  proceedings 
before a court having jurisdiction in criminal matters:  

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

b.  where deprivation of liberty cannot be imposed as a sanction.  

This provision is without prejudice to the right to a fair trial. The provision goes on to state 
that in any event the Directive fully applies where the suspect or accused person is deprived 
of liberty, irrespective of the stage of the criminal proceedings. This provision is therefore of 
particular relevance with regard to the right of access to a lawyer. 

The provision is relevant for those Member States where administrative authorities, the police 
or courts having jurisdiction in  other than criminal  matters  are responsible for dealing with 
minor offences. Only in five Member States does legislation provide for an exception to the 
right  of  access  to  a  lawyer  in  respect  of  minor  offences.  In  several  Member  States,  the 
legislation does not provide for a specific system for minor offences. In other Member States, 
where such specific legislation exists, either it provides for a mutatis mutandis application of 
the general rules of criminal proceedings, or it reflects the rights provided for in the Directive 
in  the  legislation  on  minor  offences  itself.  However,  in  two  Member  States,  which  use  the 
latter technique, not all the safeguards provided for by the Directive are ensured in cases of 
minor offences. 

3.3.  Right of access to a lawyer in criminal proceedings (Article 3) 

Article 3(1) of the Directive states that suspects and accused persons have the right of access 
to  a  lawyer  at  such  time  and  in  such  a  manner  so  as  to  allow  the  persons  concerned  to 
exercise their rights of defence practically and effectively. 

3.3.1.  Timeframe — Article 3(2) 

In accordance with Article 3(2), and taking into account Recital 20 of the Directive, the right 
of access to a lawyer has to be granted without undue delay to suspects and accused persons. 
The Directive refers to a number of points in time from which the right of access to a lawyer 
has to be ensured, whichever occurs the earliest. 

While two Member States transposed the provision literally, the requirement to grant the right 
‘without  undue’  delay  could  be  inferred  from  three  sources:  (i)  provisions  stating  the 
immediate nature of the right or the information about it; (ii) the fact that the right is granted 
from the moment the status of suspect or accused is acquired; or (iii) through provisions of a 
broad scope, which ensure the right of access to a lawyer at any stage of the proceedings. 

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3.3.1.1.   Right of access to a lawyer before questioning by police or by another law 

enforcement or judicial authority — Article 3(2)(a) 

Article 3(2)(a)  of  the  Directive  was  transposed  accurately  by  a  number  of  Member  States. 
However, nine Member States transposed the provision only partially. The reasons which led 
some  of  these  Member  States  to  only  partially  transpose  Article 2(1)  of  the  Directive  also 
affected the transposition of Article 3(2)(a) (see  3.2.1.). Moreover, in  two of these Member 
States, the right of access to a lawyer is only clearly stated during questioning, not before. In 
a few other Member States, there are doubts concerning the right of access to a lawyer before 
questioning, at least for certain categories of persons. In one Member State, if the person has 
received a written invitation to questioning, it is presumed that a consultation with a lawyer 
took place before the questioning. 

3.3.1.2.   Right of access to a lawyer when an investigative or other evidence-gathering 
act is carried out in accordance with Article 3(3)(c) — Article 3(2)(b) 

A  substantial  majority  of  Member  States  complied  with  this  provision,  and  two  Member 
States transposed it literally. In others, correct transposition can be concluded because the law 
either:  (i)  refers  specifically  to  evidence-gathering  acts  referred  to  in  Article 3(3)(c)  of  the 
Directive; or (ii) ensures the right through provisions with a broad scope that ensure the right 
of  access  to  a  lawyer  from  the  start  or  at  any  stage  of  the  proceedings  or  which  make 
reference  to  any  investigative  act.  For  a  small  number  of  Member  States,  however,  the 
reasons  which  led  to  partial  transposition  of  Article 2(1)  of  the  Directive  also  affected  the 
transposition of Article 3(2)(b) of the Directive (see 3.2.1.). 

3.3.1.3.   Right of access to a lawyer without undue delay after deprivation of liberty — 

Article 3(2)(c) 

Almost all Member States transposed this provision either through legislation on deprivation 
of liberty or through a general principle ensuring the right of access to a lawyer throughout all 
stages of  criminal  proceedings. Complete transposition  is  only questionable concerning one 
Member  State  where  the  ‘without  undue  delay’  criterion  is  not  clearly  set  out  in  a  relevant 
legislative instrument. 

3.3.1.4.   Right of access to a lawyer where persons have been summoned to appear 

before a court having jurisdiction in criminal matters, in due time before they 
appear before that court — Article 3(2)(d) 

Even though the legislation in three Member States might lack clarity, especially concerning 
the  due  time  necessary  to  prepare  the  case,  no  particular  transposition  issues  arose  for  this 
provision. 

3.3.2.  Content of the right of access to a lawyer — Article 3(3) 

Article 3(3)  of  the  Directive  lays  down  the  elements  that  the  right  of  access  to  a  lawyer 
entails, in other words it describes the content of the right. 

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3.3.2.1.  Meeting in private and communicate with the lawyer, including prior to 

questioning — Article 3(3)(a) 

According  to  this  provision,  suspects  or  accused  persons  must  have  the  right  to  meet  in 
private  and  communicate  with  the  lawyer  representing  them,  including  prior  to  questioning 
by the police or by another law enforcement or judicial authority. 

While  three  Member  States  transposed  this  provision  literally,  the  legislation  in  other 
Member  States  refers  to  concepts  such  as  communication,  meetings,  contact  or  discussion. 
Issues of partial transposition, however, arose in 11 Member States. In most Member States, 
such  shortcomings  related  to  issues  also  identified  in  the  context  of  the  transposition  of 
Articles 2(1) and 3(2)(a) of the Directive (see 3.2.1. and 3.3.1.1.). In some of these Member 
States,  issues  related  to  the  transposition  of  Article 4  of  the  Directive  also  had  a  negative 
impact in the context of Article 3(3)(a) (see 3.4.). 

Conformity issues were identified in seven Member States. One Member State, for example, 
provides  for  the  presumption  that  a  person  who  has  received  a  written  invitation  for 
questioning  has  had  a  confidential  consultation  with  a  lawyer  before  that  questioning  (see 
3.3.1.1.).  A  couple  of  Member  States  allow  for  derogation  from  the  confidentiality  of 
communication with the lawyer (see 3.4.), and in a few Member States the communication is 
restricted to 30 minutes before the (first) questioning or to a phone contact with the lawyer of 
imprisoned persons once a week as a rule. 

3.3.2.2.  Presence and effective participation of the lawyer when questioned — 

Article 3(3)(b) 

Article 3(3)(b)  of  the  Directive  lays  down  the  right  of  suspects  or  accused  persons  to  have 
their lawyer present and participating effectively when questioned. While such participation 
needs  to  be  in  accordance  with  procedures  under  national  law,  such  procedures  must  not 
prejudice the effective exercise and essence of the right concerned. The concept of effective 
participation  is  further  explained  in  Recital  25  of  the  Directive  as  the  possibility  for  the 
lawyer to ask questions, request clarification and make statements, which should be recorded 
in accordance with national law. The fact that the lawyer participated has to be recorded. 

In all Member States, the lawyer may be present during questioning, and this circumstance is 
also recorded. Rules on the lawyer’s participation could be identified for a significant number 
of  the  Member  States.  In  six  Member  States,  however,  not  all  suspects  and  accused  are 
entitled  to  this  right.  These  shortcomings  are  largely  related  to  issues  also  identified  in  the 
context of the transposition of Article 2(1) (see 3.2.1). 

However, in 16 Member States, the effectiveness of the participation is questionable. Many 
of  them  allow  a  lawyer  to  participate  only  at  the  end  of  the  questioning.  This  might  raise 
problems,  especially  in  more  complex  cases  where  questioning  can  be  extensive.  Lawyers 
might not be in a position to put their questions directly to the person being questioned, being 
restricted instead only to putting them through the authority leading the questioning. Lawyers 
might  also  be  restricted  to  submitting  requests,  observations  and  reservations  to  the  public 
prosecutor.  In  some  Member  States,  legislation  combines  such  restrictions.  In  one  Member 

8 

 
 
State, the legislation is even silent about the lawyer’s participation except in relation to court 
sessions,  where  the  lawyer  is  allowed  to  ask  questions  after  the  prosecutor  and  the  expert 
witness. 

3.3.2.3.  Presence of the lawyer during investigative or evidence-gathering acts — 

Article 3(3)(c) 

This  provision  regulates  the  right  of  access  to  a  lawyer  during  evidence-gathering  acts.  It 
outlines  three  evidence-gathering  acts  as  a  minimum,  during  which  suspects  and  accused 
persons are entitled to  have their lawyer attend.  These are:  identity parades, confrontations, 
and reconstructions of the scene of a crime. This applies only where such acts are provided 
for under national law and if under national law the suspect or accused person is required or 
permitted  to  attend  the  act  concerned.  Therefore,  whenever  such  an  evidence-gathering  act 
does not exist under national law, the Directive does not require the respective Member State 
to create it. At the same time, the three acts are set out as a minimum list, and Member States 
may  provide  for  further  evidence-gathering  acts,  during  which  the  lawyer  has  the  right  to 
attend. 

Transposition issues arose in relation to nine Member States. The failure of a small number of 
Member States to fully transpose Article 3(2)(b) resulted in their incomplete transposition of 
Article 3(3)(c) (see 3.3.1.2). In a few other Member States, no right of access to a lawyer is 
granted  as  regards  relevant  investigative  acts,  even  though  these  investigative  acts  actually 
exist  in  those  countries’  national  law  or  practice.  In  the  legislation  of  a  couple  of  other 
Member  States,  some  evidence-gathering  acts  are  not  provided  for,  which  means  that  non-
transposition in this respect has no effect on completeness. 

3.3.3.  Information and arrangements to facilitate the access to a lawyer — Article 3(4) 

This  provision  contains  rules  on  the  level  of  obligation  on  Member  States  to  facilitate  the 
access of suspects and accused persons to a lawyer. While the Directive applies irrespective 
of whether these persons are deprived of liberty (Article 2(1), first sentence, of the Directive), 
Article 3(4) differentiates between the situation of those who are deprived of liberty and those 
who are not. For those who are free to leave, Member States must endeavour to make general 
information available to them so as to facilitate the obtaining of a lawyer; for those who are 
deprived  of  liberty,  the  level  of  obligation  on  Member  States  is  greater.  In  the  latter  case, 
Member  States  must  make  the  necessary  arrangements  to  ensure  that  suspects  or  accused 
persons  who  are  deprived  of  liberty  are  in  a  position  to  exercise  effectively  their  right  of 
access to a lawyer. 

Member States underpinned the transposition of this provision by national measures such as 
the following: 

the provision of information;  

 
  clarifications on rights and on how to benefit from them;  

9 

 
 
 

the provision of means for direct contact with the lawyer, such as a helpline, systems 
of on-call duty lawyers, lists of lawyers, dedicated websites, search engines, leaflets 
and — in the case of one Member State — a chat service.  

In particular for those deprived of liberty, some Member States have put in place emergency 
services to facilitate the appointment of a lawyer. In a number of Member States, deprivation 
of liberty is a reason for mandatory defence, and a lawyer might be appointed ex officio. 

However, in a small number of Member States, arrangements to facilitate access to a lawyer 
may  not  be  available  to  those  at  the  early  stages  of  the  proceedings,  e.g.  before  being 
formally  charged  under  national  law,  or  those  falling  under  specific  acts  of  sectoral 
legislation.  In  one  of  these  Member  States,  for  example,  contact  with  a  lawyer  is  also 
dependent on the ‘means available’, which appears to be too vague a formulation. 

3.3.4.  Derogations — Article 3(5) and 3(6) 

3.3.4.1.  Temporary derogations based on geographical remoteness — Article 3(5) 

This  provision  allows  for  temporary  derogations  due  to  the  geographical  remoteness  of  a 
suspect or accused person. It only allows the Member State to derogate from Article 3(2)(c) 
of  the  Directive  if  it  is  impossible  to  ensure  the  right  of  access  to  a  lawyer  without  undue 
delay  after  deprivation  of  liberty.  In  such  circumstances,  no  questioning  of  the  suspect  or 
accused person or evidence gathering in the sense of Article 3(3)(c) of the Directive may take 
place during the application of the temporary derogation (see also Recital 30). 

Only  five  Member  States  made  use  of  this  option.  Two  of  them  transcribed  the  text  of  the 
Directive verbatim in their law. In three other Member States, the legislation allows for the 
questioning  of  the  person,  which  is  not  in  conformity  with  the  Directive.  Certain  other 
elements also raise concerns. Firstly, the possibility to derogate might not be restricted to the 
pre-trial  stage  as  provided  for  by  the  Directive.  Secondly,  the  exceptional  and  temporary 
nature of derogations might be doubtful, and thirdly, some of the relevant laws allow persons 
who are not lawyers under national law to assist the suspect or accused person. 

3.3.4.2.  Temporary derogations based on risks for persons or investigation needs — 

Article 3(6) 

Article 3(6) of the  Directive allows for temporary  derogations from the right  of  access  to  a 
lawyer. It enables the questioning of the suspect or accused person or evidence gathering in 
the sense of Article 3(3)(c) of the Directive to be carried out in exceptional circumstances and 
only  at  the  pre-trial  stage.  On  this  basis,  Member  States  may  provide  for  temporary 
derogations to the extent justified in the light of the particular circumstances of the case, for 
one of the following compelling reasons: 

a.  where  there  is  an  urgent  need  to  avert  serious  adverse  consequences  for  the  life, 

liberty or physical integrity of a person; 

b.  where  immediate  action  by  the  investigating  authorities  is  imperative  to  prevent 

substantial jeopardy to criminal proceedings. 

10 

 
 
Only  five  Member  States  chose  not  to  make  use  of  any  of  these  possibilities  to  derogate. 
Derogations were identified in 20 other Member States, justified by risks to individuals or for 
investigation  needs.  However,  the  correctness  of  the  Directive’s  transposition  is  beyond 
doubt  in  only  a  small  number  of  those  Member  States,  meaning  that  potential  conformity 
issues were identified in a number of them. Looking at the Member States with conformity 
issues, it can be seen that some of the derogations they lay down in are line with the Directive, 
while  other  raise  concerns.  For  example,  national  legislation  reflecting  the  situations 
described  in  Article 3(6)  might  not  clearly  state  that  all  the  derogations  should  be  applied 
only  in  exceptional  circumstances  and  to  the  extent  justified  in  the  light  of  the  particular 
circumstances of the case.  

Another concern is that  the possibility to derogate may go beyond the pre-trial stage of the 
proceedings.  In  the  rules  of  a  couple  of  Member  States,  the  criteria  of  ‘urgency’  and/or 
‘serious  adverse  consequences’  are  doubtful  (Article 3(6)(a)  of  the  Directive).  Derogations 
provided  for  in  several  Member  States  can  be  considered  as  aiming  to  prevent  criminal 
proceedings  from  being  jeopardised  (Article 3(6)(b)),  but  their  scope  is  not  limited  to  the 
conditions mentioned in the Directive and does thus not meet the requirements of immediate 
action being imperative or the need to prevent substantial jeopardy. Such rules allowing for 
derogations  refer,  for  example,  to  general  risks  of  ‘impairing  the  evidence’,  ‘making  the 
investigation more difficult’ or ‘hampering the interest and success of the investigation’. 

In 15 Member States, the possibilities to derogate lack a link to the requirements laid down in 
points (a) and (b) of Article 3(6) of the Directive and do not fit within the scenarios provided 
for  by  the  Directive.  This  creates  a  risk  that  suspects  and  accused  persons  might  be  left  in 
limbo, with no guarantee that questioning or evidence gathering in the sense of Article 3(3)(c) 
of the Directive would take place in the absence of a lawyer only, if the person has waived 
that  right  under  the  conditions  set  out  in  Article 9  of  the  Directive  (see  3.9).  We  find 
references in national legislation to, for example, an ‘unreasonable extension of the detention 
period’,  to  cases  of  ‘force  majeure’,  to  it  being  ‘unsafe’  to  delay  investigative  acts,  to  the 
presence of a lawyer during questioning ‘which may have already begun’, and to rather vague 
conditions such as ‘justified grounds’. Laws in different Member States state that the absence 
of  the  lawyer  during  investigation  does  not  impede  the  performance  of  procedural  acts  if 
there  is  proof  that  the  lawyer  was  informed  about  the  date  and  hour  of  that  act.  Other 
examples include provisions that a lawyer might not be able to be present during investigative 
acts where the ‘act cannot be postponed’ and ‘notification thereof cannot be provided’. 

Lastly,  some  Member  States  have  fixed  time  limits  for  the  lawyer  to  appear,  with  the 
legislation  in  those  countries  enabling  questioning  or  evidence  gathering  in  the  sense  of 
Article 3(3)(c) of the Directive to take place without the lawyer or without the presence of a 
clear waiver. In a few legislations, such time limits are as short as 2 hours, or even 1 hour in 
the case of one Member State. This leaves substantial leeway to proceed with questioning or 
evidence gathering in the absence of a lawyer or of a clear waiver, thus resulting in a broad 
derogation not set out by the Directive. This affects conformity. 

11 

 
 
3.4.  Confidentiality (Article 4) 

Article 4 of the Directive contains a strong statement of principle concerning the respect of 
the confidentiality of communication between suspects or accused persons and their lawyer in 
the  exercise  of  the  right  of  access.  This  includes  meetings,  correspondence,  telephone 
conversations and other forms of communication permitted under national law. The provision 
does  not  set  out  circumstances  where  Member  States  could  derogate  from  this  right  to 
confidentiality.  This  is  underpinned  by  Recital  33,  which  explains  that  confidentiality  of 
communication between suspects or accused persons and their lawyer is key to ensuring the 
effective exercise of the rights of the defence and is an essential part of the right to a fair trial. 

More than half of the Member States transposed this provision correctly. However, issues of 
partial transposition were identified for some Member States. Such shortcomings are linked 
to the lack of coverage of certain groups of persons at particular stages of proceedings, or to 
the  legislation  not  reflecting  certain  communication  methods  such  as  meetings,  telephone 
communication, mail and other consignments. In four Member States, the legislation allows 
for derogations from the confidentiality requirement, affecting conformity with the Directive. 

3.5.  The right to have a third person informed of the deprivation of liberty 

(Article 5) 

3.5.1.  General principle — Article 5(1) 

Article 5(1)  of  the  Directive  provides  for  the  right  of  suspects  or  accused  persons  who  are 
deprived  of  liberty  to  have  at  least  one  person,  such  as  a  relative  or  an  employer,  to  be 
informed of their deprivation of liberty without undue delay if they so wish. 

Issues of partial transposition were found for 11 Member States.  In many of these Member 
States, it is not clear whether the third person is informed without undue delay. In a number 
of Member States, the right to have a third person informed is restricted to certain situations 
of  deprivation  of  liberty  or  to  certain  categories  of  suspects  or  accused  persons.  In  a  few 
Member States, limitations of the personal scope identified in the context of Article 2(1) of 
the  Directive  also  affected  the  transposition  of  Article 5(1).  Another  concern  was  that 
requirements of the Directive are only reflected in provisions concerning the information to 
be provided to the suspect or accused person. 

The correctness of transposition is doubtful in several other Member States. This is because 
there  are  limits  on  who  may  be  informed  about  the  deprivation  of  liberty,  or  because  third 
persons are informed independently of the wish of the person deprived of liberty. 

3.5.2.  Temporary derogations — Article 5(3) 

Article 5(3)  of  the  Directive  allows  temporary  derogations  from  the  right  to  have  a  third 
person informed (including in cases involving children, see 3.5.3. below), where justified in 
the  light  of  the  particular  circumstances  of  the  case,  for  one  of  the  following  compelling 
reasons:  

12 

 
 
a.  an urgent need to avert serious adverse consequences for the life, liberty or physical 

integrity of a person;  

b.  an  urgent  need  to  prevent  a  situation  where  criminal  proceedings  could  be 

substantially jeopardised. 

Such possibilities to derogate exist in the legislation of 18 Member States. The assessment of 
national  implementing  measures  shows  that  Article 5(3)  is  one  of  the  provisions  with  the 
highest level of disparities between Member States. 

Several Member States allow refusals corresponding to the grounds set out in the Directive. 
Some other Member States, however, provide for derogations subject to conditions similar to 
those laid down by the Directive, but less restrictive. Other Member States have even more 
lenient conditions under which the right to inform a third person can be set aside, referring, 
for example, to the need to ‘ascertain the truth in criminal proceedings’, to situations where 
the  notification  ‘would  prejudice  criminal  proceedings’,  to  a  ‘significant  impediment  to  the 
investigation’ or to the ‘clarification and investigation of the case’. Justification for a refusal 
might  also  stem from  the need to  ‘ensure fulfilment  of the purpose of  an important  act’, to 
‘prevent  a  criminal  offence’,  or  to  avoid  ‘undermining  the  purpose  of  custody’.  Other 
grounds  cited  in  national  legislation  include  ‘unreasonable  difficulties’,  ‘insurmountable 
circumstances’ or vague ‘justified reasons’ or ‘any other reasons’. 

3.5.3.  Particularities concerning children — Article 5(2) and (4) 

Articles 5(2) and (4) of the Directive lay down specific rules concerning children (defined as 
persons below the age of 18 years). Under Article 5(2) of the Directive, the holder of parental 
responsibility  for  the  child  must  be  informed  as  soon  as  possible  of  the  deprivation  of  that 
child’s  liberty  and  of  the  reasons  for  it,  unless  this  would  be  contrary  to  the  child’s  best 
interests,  in  which  case  another  appropriate  adult  needs  to  be  informed.  In  cases  where 
temporary derogations  are applied,  an authority  responsible for the protection or welfare of 
children needs to be informed without undue delay of the deprivation of liberty of the child 
(Article 5(4)  of  the  Directive).  The  purpose  of  that  provision  is  to  avoid  instances  of 
incommunicado detention of children. 

Specific  rules  containing  specific  safeguards  for  children  exist  in  all  Member  States. 
Legislation  in  10  Member  States  allows  for  another  appropriate  adult  to  be  informed  if 
informing  the  holder  of  parental  responsibility  would  be  against  the  child’s  best  interest. 
Examples  of  such  persons  might  be  another  appropriate  adult  person  possibly  indicated  by 
the  child,  an  authority  for  the  protection  of  minors  or  a  guardian  ad  litem  (i.e.  the  child's 
court-appointed  guardian).  In  a  number  of  other  Member  States,  the  legislation  does  not 
determine  a  clear  mechanism  for  taking  into  account  the  child’s  best  interest.  In  three 
Member  States,  the  legislation  does  not  make  it clear  that  the  act  of  informing  should  take 
place  as  soon  as  possible.  Also  as  regards  children,  in  a  small  number  of  Member  States 
limitations  of  the  scope  resulted  in  incomplete  transposition  by  taking  into  account  only 
children formally charged under national law or charged or questioned. In one Member State, 

13 

 
 
minors between 16 and 18 are included in the general regime applicable to adults and do not 
benefit from the special treatment provided for in Article 5(2) of the Directive. 

In several Member States, an exception to informing the holder of parental responsibility is 
possible  if  the  child  expresses  the  wish  that  this  not  take  place.  Such  an  exception  is  not 
provided for by the Directive. The law of one Member State provides for an exception from 
the notification obligation, allowing for the notification requirement to be set aside not only if 
it is contrary to the child’s best interests, but also ‘where there are any other reasons for it’. 

Half of the Member States do not allow for a derogation from the right to have the holder of 
parental responsibility or another appropriate adult informed of the deprivation of liberty of a 
child  as  set  out  in  Article 5(2)  of  the  Directive,  whereas  the  other  half  allow  for  such  a 
derogation. Most of the laws in this latter group of Member States provide for the safeguards 
laid down in Article 5(4), while two Member States did not transpose these requirements at 
all. In another Member State, the law does not clearly require the authority responsible for the 
protection or welfare of children to be informed without undue delay. 

One Member State allows a derogation from the obligation to notify an authority responsible 
for the protection or welfare of children when this would ‘put at risk fulfilment of the purpose 
of an important act’ or where such notification would entail ‘unreasonable difficulties’.  

3.6.  The right to communicate, while deprived of liberty, with third 

persons (Article 6) 

Article 6 of the Directive lays down the obligation to ensure that suspects or accused persons 
who are deprived of liberty have the right to communicate without undue delay with at least 
one  third  person,  such  as  a  relative,  nominated  by  them  (Article 6(1)).  The  exercise  of  this 
right  may,  however,  be  limited  or  deferred  in  view  of  imperative  requirements  or 
proportionate operational requirements (Article 6(2)). 

Legislation in all Member States provides for a right to communicate while being deprived of 
liberty. Such rules might state a general principle or lay down detailed rules referring to the 
time  and  frequency  of  the  communication  or  specific  means  of  communication  such  as  the 
use  of  a  telephone,  visits  or  written  communication.  Relevant  legislation  is  often  not  only 
contained in laws on criminal proceedings, but also in rules concerning the administration of 
penitentiary facilities. 

However, there are concerns that many Member States: (i) are not ensuring that the right to 
communicate  with  third  persons  can  be  exercised  without  undue  delay,  including  during 
deprivation  of  liberty  by  the  police;  and  (ii)  have  in  place  restrictions  on  the  scope  of  the 
provision that are not provided for in the Directive. Although the possibilities to limit or defer 
the  right  provides  for  a  rather  large  margin  of  discretion  for  Member  States,  legislation  in 
several  of  them  may  raise  concerns,  for  example  because  rules  provide  for  excessive 
limitation of the number or duration of contacts with third persons or even for a complete ban 
without clear conditions. 

14 

 
 
3.7.  The right to communicate with consular authorities (Article 7) 

Article 7 of the Directive gives non-national suspects or accused persons the right to have the 
consular  authorities  of  their  State  of  nationality  informed  of  their  deprivation  of  liberty 
without undue delay and to communicate with those authorities if they so wish. Article 7 also 
ensures that such suspects and accused persons have the right to be visited by their consular 
authorities,  the  right  to  converse  and  correspond  with  them  and  the  right  to  have  legal 
representation arranged by their consular authorities. 

The transposition of Article 7 of the Directive is  largely complete in nearly all the Member 
States. Certain potential gaps are mostly bridged by direct applicability of the 1963 Vienna 
Convention on Consular Relations14, including its Article 36. This would, for example, make 
up  for  the  lack  of  explicit  references  to  the  situation  of  persons  who  have  two  or  more 
nationalities or the possibility to have legal representation arranged. 

However,  there  are  doubts  about  the  conformity  of  the  legislation  in  about  half  of  the 
Member States. In several Member States, this is due to potential derogations from the right 
or, in the case of one Member State, to a rather vague reference to communication by ‘means 
available’. Such laws or procedures may not result in full effect being given to the purposes 
for which the rights under Article 7 of the Directive are intended (see Article 7(3)). In some 
other Member States, consular authorities are notified regardless of the consent of the person 
concerned. This is not in line with Article 7(1), as it makes informing the relevant consular 
authority dependent on the wish of the person. 

3.8.  General conditions for applying temporary derogations (Article 8) 

Article 8 of the Directive lays down additional conditions for applying temporary derogations 
set out in Articles 3(5) and (6) and 5(3) of the Directive. Article 8(1) of the Directive requires 
derogations  to:  (i)  be  proportionate  and  not  go  beyond  what  is  necessary;  (ii)  be  strictly 
limited  in  time;  (iii)  not  be  based  exclusively  on  the  type  or  the  seriousness  of  the  alleged 
offence; and (iv) not prejudice the overall fairness of the proceedings. Decisions of all such 
derogations  need  to  be  taken  on  a  case-by  case  basis,  either  by  a  judicial  authority  or  by 
another  competent  authority,  on  condition  that  the  decision  can  be  submitted  to  judicial 
review. The derogations laid down in Article 3(5) and (6) of the Directive must be authorised 
through a duly reasoned decision, which must also be recorded. 

Article 8(2)  of  the  Directive  concerns  possible  derogations  from  the  right  of  access  to  a 
lawyer. In most of the Member States who provide for such derogations and who transposed 
Article 8(2) of the Directive, the decision on derogations may be taken by an authority that is 
not  a  judicial  authority;  only  a  few  of  these  Member  States  require  the  intervention  of  a 
judicial authority. Both the requirement to have a reasoned decision and the requirement to 
record that decision, if not literally transposed, can often be inferred from general procedural 
rules.  Conformity  issues  arise  in  several  Member  States,  where  often  only  part  of  the 
provisions allowing for derogations set out the required guarantees. This is mainly due to the 

14 http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf . 

15 

 
 
                                                           
absence of clear rules on the recording of decisions, but also to the absence of rules providing 
for a judicial review if decisions are taken by bodies that are not judicial authorities and, to a 
lesser extent, to a lack of provisions on the reasoned nature of the decision. 

Article 8(3)  of  the  Directive  concerns  potential  derogations  from  the  right  to  have  a  third 
person informed about a deprivation of liberty. In many of the Member States who provide 
for  such  derogations  and  who  transposed  Article 8(3)  of  the  Directive,  the  decision  on 
derogations  may  be  taken  by  an  authority  that  is  not  a  judicial  authority;  only  a  smaller 
number of these Member States require the intervention of a judicial authority. Transposition 
issues only arose in a few Member States — these were due to the absence of rules providing 
for a judicial review if decisions are taken by bodies that are not judicial authorities, or even 
due to complete non-transposition of the requirements of Article 8(3) of the Directive. 

3.9.  Waiver (Article 9) 

This provision sets out safeguards if suspects and accused persons, irrespective of deprivation 
of liberty, waive their rights under Articles 3 and 10. The Directive states that in such cases 
the suspect or accused person needs to be provided with clear and sufficient information in 
simple and understandable language about the content of the right concerned and the possible 
consequences  of  waiving  it.  This  information  can  be  provided  orally  or  in  writing.  Any 
waiver has to be given voluntarily and unequivocally. Article 9 also requires the waiver and 
the circumstances under which it was given to be recorded, and stipulates that suspects and 
accused  persons  may  revoke  the  waiver  subsequently  at  any  point  during  the  criminal 
proceedings. Suspects and accused persons must be informed about the possibility to revoke 
the waiver. Such a revocation has effect from the moment it is made. 

A significant number of Member States have legislation in place governing the possibility to 
waive the right of access to a lawyer. No such legislation exists in five Member States. One 
Member State offers no  possibility to  waive the  right  of access  to a lawyer, and defence is 
thus always mandatory. 

While three Member States transposed the Directive almost literally, many shortcomings in 
the transposition of Article 9 were identified. Transposition of the requirements of Article 9(1) 
and (2) is adequate in only some of the Member States, while in a number of others there are 
serious  transposition  issues.  This  is  often  due  to  the  circumstance  that  the  information 
provided to suspects or accused persons does not go beyond what is required by the relevant 
provisions  of  Directive  2012/13/EU  on  the  right  to  information,  for  example  it  lacks 
information  on  the  consequences  of  a  waiver.  As  for  Article 9(3),  transposition  can  be 
assessed as satisfactory only in a few Member States. 

In three Member States, only adults can waive the right of access to a lawyer. One of these 
Member States also differentiates between a waiver from the right to legal representation and 
the right to consultation with a lawyer prior to questioning. In two Member States, legislation 
on  waivers  is  provided  for  only  in  the  context  of  rules  about  what  is  considered  in  these 
Member States as ‘mandatory defence’, thus rendering the defence no longer mandatory. 

16 

 
 
3.10. The right of access to a lawyer in European arrest warrant 

proceedings (Article 10) 

3.10.1. The right of access to a lawyer in the executing Member State — Article 10(1) 

and (2) 

Articles 10 (1) and (2) of the Directive state that persons subject to European arrest warrant  
(‘requested persons’) have the right of access to a lawyer in the executing Member State upon 
arrest pursuant to the warrant. In the executing Member State, requested persons must have 
the right to a lawyer without undue delay from when they are deprived of liberty, the right to 
meet and communicate with the lawyer representing them and the right for their lawyer to be 
present and participate effectively in the procedural acts. Where a lawyer participates during 
the hearing, this is to be noted using the recording procedure in accordance with the law of 
the Member State concerned. 

In  most  Member  States,  legislation  provides  for  application  of  some  or  all  the  rules 
concerning  criminal  proceedings  mutatis  mutandis.  This  means  that  the  substance  of  the 
rights  granted  in  European  arrest  warrant  cases  corresponds  to  the  right  that  suspects  and 
accused  persons  enjoy  during  national  criminal  proceedings.  In  five  Member  States,  the 
transposition  of  the  right  of  access  to  a  lawyer  is  based  exclusively  on  specific  rules 
regulating European arrest warrant proceedings and addressing the rights of the Directive in 
that context. 

In 21 Member States, the right of access to a lawyer in European arrest warrant proceedings 
is  clearly  ensured  upon  arrest  (Article 10(1)  of  the  Directive).  In  four  Member  States,  the 
safeguard of this time aspect is less obvious. Many of the Member States correctly transposed 
the right for a requested person’s lawyer to participate during the hearing (Article 10(2) (c) of 
the Directive). 

Certain issues related to the correct transposition of Article 10(2) of the Directive arose due 
to  the  mutatis  mutandis  application  of  rules  governing  criminal  proceedings.  Such  issues 
include  a  rather  vague  reference  to  the  possibility  to  contact  a  lawyer  ‘by  any  means 
available’,  and  the  restriction  of  the  communication  between  the  requested  person  and  the 
lawyer to half an hour (see 3.3.2.1. and 3.3.3.). Because of the rules on criminal proceedings 
were applied mutatis mutandis, derogations from the right of access to a lawyer in criminal 
proceedings may also apply in European arrest warrant proceedings in several Member States, 
something that is not provided for by Article 10(1) and (2) of the Directive. 

3.10.2. The right of access to a lawyer in the issuing Member State — Article 10(4) and 

(5) 

According to Article 10(4) of the Directive, the requested person has also the right to appoint 
a  lawyer  in  the  issuing  Member  State.  That  lawyer’s  role  is  to  assist  the  lawyer  in  the 
executing  Member  State  by  providing  the  latter  with  information  and  advice  to  ensure  the 
effective  exercise  of  the  rights  of  requested  persons  in  the  European  arrest  warrant 
proceedings.  The  competent  authority  in  the  executing  Member  State  needs  to  inform 

17 

 
 
requested  persons  about  this  right  without  undue  delay  after  they  have  been  deprived  of 
liberty. Article 10(5) of the Directive states that where requested persons wish to exercise the 
right to appoint a lawyer in the issuing Member State and do not already have such a lawyer, 
the  competent  authority  in  the  executing  Member  State  is  required  to  promptly  inform  the 
competent  authority  in  the  issuing  Member  State.  The  competent  authority  of  that  Member 
State must provide without undue delay the requested persons with information to help them 
appoint a lawyer there. 

The legislation in four Member States does not at all reflect the right of requested persons to 
appoint a lawyer in the issuing Member State. Some five Member States do not clearly ensure 
that requested persons receive information about this right without undue delay (Article 10(4) 
of the Directive). 

Moreover,  the  cooperation  mechanism  set  out  in  Article 10(5)  of  the  Directive  is  often  not 
subject  to  specific  rules.  In seven Member States, the legislation lacks the requirement that 
the  competent  authority  in  the  executing  Member  State  promptly  informs  the  competent 
authority in the issuing Member State in cases where requested persons who do not already 
have a lawyer in the issuing Member State wish to appoint one. Furthermore, the legislation 
in  10 Member States  does not  transpose the requirement for the  competent  authority of the 
issuing Member State to provide without undue delay the requested persons with information 
to help them appoint a lawyer there. 

3.10.3. Mutatis mutandis application of other rights provided for by the Directive — 

Article 10(3) 

According to Article 10(3) of the Directive, the rights laid down in Articles 4, 5, 6, 7 and 9 of 
the  Directive  apply  mutatis  mutandis  to  European  arrest  warrant  proceedings.  If  an  Article 
5(3)  derogation  is  applied,  Article 8  of  the  Directive  also  applies  in  the  same  way  to 
European  arrest warrant proceedings. 

Most  Member  States  also  cross-refer  in  their  legislation  on  European  arrest  warrant 
proceedings  to  rules  on  criminal  proceedings  governing  the  rights  of  suspects  and  accused 
persons. However, in  a small  number of Member States, such  mutatis  mutandis application 
does not clearly cover all or some of the requirements laid down in the relevant provisions of 
the  Directive.  Examples  of  this  include  the  rights  to  have  a  third  person  and  consular 
authorities  informed  of  deprivation  of  liberty,  the  right  to  communicate  with  third  persons 
and consular authorities, and rules on the waiver of the right of access to a lawyer. 

Another  consequence  of  the  mutatis  mutandis  application  of  rules  governing  criminal 
proceedings  is  that  issues  concerning  the  complete  and  correct  transposition  of  the  articles 
referred to  in  Article 10(3) of the Directive may  in  turn affect  the rights  in  European arrest 
warrant proceedings. 

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3.11.  Legal aid (Article 11) 

Article 11 of the Directive states that it is without prejudice to national law in relation to legal 
aid,  which  applies  in  accordance  with  the  Charter  of  Fundamental  Rights  of  the  European 
Union  and  the  European  Convention  on  Human  Rights.  This  area  is  now  covered  by  EU 
legislation:  Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in 
criminal  proceedings  and  for  requested  persons  in  European  arrest  warrant  proceedings 15. 
Article 12 of that Directive stipulates that Member States have to bring into force the laws, 
regulations and administrative provisions necessary to comply with it by 5 May 2019. 

3.12. Remedies (Article 12) 

Article 12(1)  of  the  Directive  lays  down  the  obligation  to  ensure  that  suspects  or  accused 
persons in criminal proceedings have an effective remedy under national law in the event of a 
breach of the rights under the Directive. This also applies to requested persons in European 
arrest warrant proceedings. 

Member States largely transposed this provision accurately. Remedies often refer to a right to 
appeal or complain either to a court or to a competent authority of a higher instance, or else 
provide for the invalidity or nullity of procedural acts that constitute a substantial breach of 
the procedural rules and a violation of the relevant rights. In addition, Member States may lay 
down rules on civil, disciplinary or criminal liability, compensation or the intervention of a 
public monitoring body, such as an Ombudsperson. 

More specifically in respect to the right of access to a lawyer, Article 12(1) requires Member 
States to ensure that the rights of the defence and the fairness of the proceedings are respected 
in criminal proceedings, in the assessment of statements made by suspects or accused persons 
or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to 
this right was authorised in accordance with Article 3(6). This is without prejudice to national 
rules and systems on the admissibility of evidence. This provision of the Directive takes into 
account  related  European  Court  of  Human  Rights  case-law  that  puts  the  emphasis  on 
ensuring the fairness of proceedings by balancing the rights of the defence with the needs of 
the  investigation.  This  balancing  exercise  is  further  detailed  in  Recital  50  of  the  Directive, 
using wording from the Salduz judgement by the European Court of Human Rights16. 

Remedies  in  cases  of  violations  of  defence  rights  are  available  in  all  Member  States. 
Legislation in a number of Member States contains explicit rules on the exclusion of evidence 
or on the nullity of acts. In more than half of the Member States, rules on remedies refer to 
the lack of intervention by a lawyer. In a couple of Member States, cases where a derogation 
to this right of access to a lawyer was authorised are clearly covered by such rules. 

15  
16  

OJ L 297, 4.11.2016, p. 1; corrigendum: OJ L91, 5.4.2017, p. 40. 
ECtHR Salduz v. Turkey, application No 36391/02, in particular pt. 55. 

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3.13. Vulnerable persons (Article 13) 

According  to  Article 13  of  the  Directive,  the  particular  needs  of  vulnerable  suspects  and 
vulnerable accused persons need to be taken into account in the application of this Directive. 

Member  States  have  varying  approaches  to  transposing  Article 13  of  the  Directive.  All 
Member States have specific rules concerning disabled persons and children. Some of these 
provisions  provide  for  mandatory  assistance  by  a  lawyer  in  all  cases  or  under  certain 
additional  conditions.  Other  national  provisions  refer  to  the  obligation  of  authorities  to 
explain  the  rights  to  suspects  and  accused  persons  or  to  check  whether  they  have  actually 
understood these rights. 

4.  CONCLUSIONS 
The Directive was adopted to ensure that the right of suspects or accused persons to access a 
lawyer  and  to  communicate  upon  arrest  is  applied  both  in  criminal  proceedings  and  in 
European arrest warrant proceedings. By establishing common European minimum standards, 
the  Directive  has  a  significant  impact  on  the  protection  of  suspects  or  accused  persons  in 
Member States. It achieves this by providing a more consistent implementation of the rights 
and  guarantees  set  out  in  Articles  47  and  48  of  the  Charter  of  Fundamental  Rights  and 
Article 6  of  the  European  Convention  on  Human  Rights.  In  this  way,  the  Directive 
contributes to improving mutual trust among Member States, as set out in the Roadmap for 
strengthening the procedural rights of suspected or accused persons in criminal proceedings. 

Overall, the Directive has provided EU added value by improving the protection of citizens 
involved in criminal proceedings, especially in some Member States where the right of access 
to a lawyer was not granted to all suspects and accused persons, especially at the early stages 
of proceedings. Also, a right of access to a lawyer in the issuing Member State of a European 
arrest warrant is now clearly established. 

The  extent  of  the  Directive’s  impact  on  Member  States  varies  according  to  the  national 
criminal  justice  systems  in  place.  This  implementation  report  highlights  that  there  are  still 
difficulties regarding key provisions of the Directive in a number of Member States. This is 
particularly the case as regards:  

 
 
 
 

the scope of the rights provided for by the Directive;  
the extent of possible derogations, in particular from the right of access to a lawyer;  
the waiver of the right of access to a lawyer; and  
the  right  of  access  to  a  lawyer  in  the  issuing  Member  State  of  a  European  arrest 
warrant.  

These  shortcomings  risk  to  affect  the  correct  implementation  of  the  other  procedural  rights 
directives, in particular Directive (EU) 2016/1919 on legal aid in criminal proceedings, which 

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builds  upon  this  Directive  (see  Article 2(1)  of  Directive  (EU)  2016/1919).  Directive  (EU) 
2016/1919 had to be transposed by Member States by 5 May 201917. 

The  evaluation  also  shows  that  while  there  is  currently  no  need  to  revise  the  Directive,  its 
transposition  into  national  law  and  practical  application  need  to  be  further  improved.  The 
Commission will continue to assess Member States’ compliance with the Directive and take 
every appropriate measure to ensure conformity with its provisions throughout the European 
Union.  

17 See corrigendum: OJ L91, 5.4.2017, p. 40. 

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