Measure C Access to a Lawyer and the Right to Communicate Upon Arrest Anna Hodgson Legislative Officer European Commission Special position of UK and IE

Origins of Access to a Lawyer - ECHR Article 6 Fair Trial Rights - Developing Caselaw including Salduz - Important instruments to bolster the rights of the defence to ensure that mutual recognition is effective Article 6 stipulates that (3) Everyone charged with a criminal offence has the following minimum rights: To have adequate timeand facilities for the preparation of this defence To defend himself in person or through legal assistance of his own choosing Salduz v turkey 2008, Dayanan v Turkey 2010, Panovits v Cyprus 2008, Brusco v France 2010 Salduz – allegation of participation in an illegal PKK demonstration. Confessed without a lawyer then retracted citing coercion. "statements in the absence of a lawyer irretrievably proejudice defence rights…access should be given unless in the particular circumstances of the case, there are compelling reasons why should not have access to a lawyer…

Key Aspects of Access to a Lawyer - When does a person have access to a lawyer? - What does access mean? - What should the lawyer do? - What happens if a person does not have access to a lawyer?

Communication - Right to communicate upon arrest - Right to communicate with Consular Authorities

Commission Proposal When? - made aware by official notification or otherwise - before the start of any questioning - evidence gathering acts - onset of deprivation of liberty - if a person becomes a suspect in the course of questioning - EAW cases

What? - Right to meet your lawyer - Right for your lawyer to be present at questioning and hearing – ask questions, clarifications, make statements - check conditions of detention - Discussions are held confidentially

What it was not - No mandatory legal aid - Obligatory lawyer suspect can waive his right are exceptional derogations (but not in relation to minor cases)

Remedies - Access to an effective remedy - remedy shall place the person in the save position in which he would have found himself if the breach had not occurred - statements in breach of access to a lawyer should not be used in evidence

Important issues in the negotiations - Minor offences - Meaning of right – level of proactivity - evidence gathering - Derogations - Confidentiality - Waiver

Key concerns of the Parliament - When? (before questioning/without undue delay) - Confidentiality of communications - Narrow ability to waive

Final text - 59 recitals! - Some limitation in scope in relation to minor offences - Effective participation - Some facilitation required - Some derogations allowed (life and limb and serious jeopardy) - Confidentiality - Strict language on waiver - Help in accessing a lawyer in the issuing state Important recitals: recital 20: not about identity questioning or "safety interview" Recital 27 "MS shall endeavour to make general information available" but onus is on individual to arrange his lawyer. Recital 28 "should make the necessary arrangements to ensure that persons are in a position to exercise effectively the right o access to a lawyer, including by arranging for the assistance of a lawyer where the person concerned does not have one…" Recital 25 on role of the lawyer Aricle 33 on confidentiality

Where now? Legal aid currently being negotiated Transposition of the Directive due by 27 November 2016 Commission to report to Parliament and Council by 28 November 2019