Access to lawyers in police custody is an important issue at the national level1x For an overview of national policy debates and legislative measures to implement Salduz v. Turkey in the different Member States, see, for example, C. Brants, `The Reluctant Dutch Response to Salduz`, 15 Edinburgh Law Review 298 (2011), D. Giannouloupoulos, “North of the Border and across the Channel`: Custodial Legal Assistance Reforms in Scotland and in France`, 5 Criminal Law Review 369 (2013); E. Myjer, “One Salduz a year is enough. 20 Réflexions associatives sur le juge Rozakis, l`activisme judiciaire et l`arrêt Salduz”, in D. Spielmann, M. Tsirli & P. Voyatzis (Eds.), La Convention européenne des droits de l`homme, un instrument vivant. Essays in honor of Christos L. Rozakis (2011) 419. and the European debates on criminal policy following a well-known decision of the European Court of Human Rights (`the ECtHR`) in the case of Salduz v.
Turkey.2x Salduz v. Turkey, Grand Chamber ECHR (2008), no. 36391/02. In the Salduz case, the European Court of Human Rights held that, in principle, any suspect arrested by the police must have access to a lawyer before the first hearing, unless there are compelling reasons to restrict this right.3x Ibid., 54. The legal norm established in Salduz has been confirmed and extended4x4x. Thus, the “Salvuz case-law” has clarified that the right of access to legal counsel exists during an interrogation of the suspect (see more recently Navone and Others v. Monaco, ECHR (2014), nos. 62880/11, 62892/11 and 62899/11) and has developed the conditions for waiving legal assistance in police custody (see section 2.2.2 below). in more than a hundred judgments, commonly known as the Salduzer case-law. This allowed the European Union to include strict provisions on the right of access to a lawyer in police custody in the recently adopted EU Directive on the right of access to third parties and the right of communication with third parties (hereinafter the “Directive”).5x 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 Community The procedure relating to the arrest warrant and the right to inform a third party of his deprivation of liberty and to communicate with third parties and the authorities when deprived of liberty, OJ No. 2013, L 294/1. In particular, the Directive provides that the competent public authorities have a positive obligation to ensure effective access to a lawyer for all suspects detained immediately after their deprivation of liberty.6x See Article 3(1) and (2) and recital 28 of the Directive on the right of access to a lawyer, point 5 above.
It also establishes the right of every suspect or accused person to have a lawyer present and to participate effectively in the interrogation of criminal justice authorities, including the police.7x art. 3(3)(b) and recital 25, ibid. The adoption of the Directive is an important step towards safeguarding suspects` right to legal advice in the EU. However, as previous research has shown,8x E. Cape, Z. Namoradze, R. Smith & T. Spronken, Effective Criminal Defence in Europe (2010), E. Cape and Z. Namoradze, Effective Criminal Defence in Eastern Europe (2012), S. Schumann, K. Bruckmuller & R.
Soyer (ed.), Pre-Trial Emergency Defence (2012). This is unlikely to be sufficient to ensure effective protection of suspects` procedural rights. In addition to the relevant legislation, Member States should have in place procedures and institutional mechanisms9x, such as procedures for verifying the validity of the waiver of procedural rights by suspects and accused persons or organised services of professional interpreters capable of interpreting at short notice (as an example of an institutional mechanism needed to strengthen the right of suspects and accused persons to respecting interpretation and translation services in criminal proceedings). implement the different provisions of EU law in practice. In addition, appropriate professional cultures are needed to facilitate the implementation of suspects` procedural rights10x. For example, an active professional culture of criminal defense. See Cape et al. (2010), supra no.
8, p. 574. This article provides an analysis of some of the practical factors mentioned above, namely existing procedures, institutional mechanisms and professional cultures, which may influence the implementation of the Directive. The analysis is largely based on the results of an empirical study conducted by us (with others) recently published in J. Blackstock et al., Inside police custody: an empirical account of suspects` rights in four jurisdictions(hereinafter Inside Police Custody).11x J. Blackstock, E. Cape, J. Hodgson, A. Ogorodova & T. Spronken, Inside Police Custody: An Empirical Account of Suspects` Rights in Four Jurisdictions, 2014.
This 2-year project was a collaboration between Maastricht University, University of the West of England, JUSTICE and the University of Warwick and was funded by the European Commission. In this study, we conducted empirical research, observed daily practice in police stations and accompanied lawyers who provided legal advice in four EU jurisdictions – England and Wales, France, the Netherlands and Scotland – during the period 2011-2013.12x Further details on the research methodology of the study are available in section 4 below. We chose France, the Netherlands and Scotland because they had recently undergone changes in their systems that allowed access to lawyers before the first police interrogation after the Salduz judgment of the European Court of Human Rights in 2008. England and Wales have been included among the jurisdictions that may provide examples of good practice, as legal advice has been provided since the Police and Criminal Evidence Act 1984 (PACE) came into force in 1986. Based on the results of this research, we were able to make suggestions on how to improve the protection of the rights of suspects in police custody in practice. This article consists of three parts. Section 1 provides a brief overview of European standards on the right of access to a lawyer in police custody, in particular the following elements: conditions for waiving this right, right of prompt access to a lawyer and right of access to a lawyer of one`s choice, right to the presence of a lawyer during the hearing of suspicions and right to effective assistance of a lawyer in the following cases: Interrogation of suspects. In section 2, the article describes the results of police custody with regard to the above-mentioned elements of the right to legal assistance in detention. The aim is to identify possible (transnational) factors which, in addition to the existence of relevant legislation, may influence the implementation of the Directive.