The ECBA 2010 Autumn Conference was organized in Ljubljana. Alongside the river, Ljubljana offers many picturesque views and the city breathes hospitality, an ideal setting to discuss “Defence Rights in the early investigative stage of criminal proceedings”.

The conference started with the traditional Friday evening reception, which was held in the Faculty of Law of the Ljubljana University. The Faculty is located in a former printing factory.

The ECBA’s Chairman welcomed all attending law practitioners and both the Dean of the Faculty of Law (Prof. Dr. Peter Grilc) and the Vice-President of the Slovenian Bar Association (Rok Koren) spoke a warm welcome on behalf of the host city.

The participants were thus already immersed in an atmosphere of law, which set the tone for an excellent conference.

On Saturday, the main topic was the recent jurisprudence of the European Court of Human Rights (ECtHR) concerning the rights of a suspect to have access to an attorney in the earliest stages of the criminal investigation, starting of course with the Salduz against Turkey case of the ECtHR (November 27th, 2008).

The first lecture was given by Prof. Dr. Károly Bárd of the Central European University. Prof. Bárd gave an overview of the impact the Lisbon Treaty has or could have in the field of criminal procedural law in general and defendants’ rights in particular.

He focused on the harmonization of the rights of the defendant in a pre-trial stage – being a part of the Lisbon Treaty – and the necessity thereof. The speaker made very clear that he is eager to see a development towards a harmonization of the rights of the defendant within the EU in order to create a common safety net for every EU citizen who is a suspect in any criminal case.

Next, Mrs. Anna Berlee reported on the research she has done with Prof. Taru Spronken and Mrs. Liesbeth Baetens to draft a EU-wide Letter of Rights in criminal proceedings.

She commented on the project and the contacts that were developed with representatives in the Member States. Furthermore, a few examples were given of Member States’ Letters of Rights, which were evaluated.

Mrs. Berlee clearly explained the subtlety which is needed in order to draft a useful EU-wide Letter of Rights, because the utilized language, the details given, etc. do all matter to come to a clear and understandable document, helping EU citizens to know their rights and be able to refer to these rights in a confrontation with the police/investigators.

Thereafter, the team of Prof. Dr. Richard Soyer (Austria) presented the results of the Pre-Trial Emergency Defence project. This project was handled by the Austrian Criminal Bar Association in cooperation with the ECBA and the Universities of Graz, Ljubljana, Vienna and Zagreb.

An emergency lawyer service is needed to ensure the permanent availability of a defence practitioner to assist/advise any suspect who is being interrogated in the first stage of a criminal investigation.

Together with Prof. Dr. Soyer, the country rapporteurs gave a presentation on the emergency lawyer services in their respective countries.

Dr. Karin Bruckmüller (Austria), Dipl. Iur. Zoran Buric (Croatia), Dr. Primoz Gorkic (Slovenia) and Assessor Stefan Schumann (Germany) showed that EU Member States – even when they are neighbouring countries – have a very different approach as far as emergency lawyers are concerned.

All speakers agreed that an adequate emergency lawyer system should exist throughout the EU in order to assist every suspect at the very first moment of police interrogations. Implicitly, this is also what the Salduz doctrine is about.

After a moment of thought during lunch break about the topics that had already been discussed, a panel of defence practitioners discussed the project results as presented by Prof. Dr. Soyer and his team.

Mrs. Karla Nahtigal commented on the results of the research about emergency lawyer services for Slovenia and how she has experienced the theory as shown from the project in everyday practice.

Afterwards, Mr. Miroslav Krutina (Czech Republic), Mr. Branko Baica (Croatia), Mr. Roland Kier (Austria) and Mr. John Harding (United Kingdom) gave their impressions of the existing emergency lawyer systems in their respective countries and how these systems should be working.

Again, the quite large differences between Member States were very clear. The necessity of a broader harmonization of (defence) legislation as presented by Prof. Dr. Károly Bárd in the morning was shown once again.

The panel discussion was closed by a presentation by Mrs. Velislava Delcheva, who presented an interesting project which is actually being tried out in Bulgaria in the field of emergency lawyer services.

The project is an attempt to improve the access to legal assistance and representation during police interrogations. This goal is to be achieved by improving the coordination between the police and the Bar. The most important element of the project is the “police station duty solicitor scheme”, which guarantees the availability of a defence lawyer 24/7.

Apart from the organization of an efficient emergency lawyer system, the Member States will also face the problem of the legal aid that has to be granted to ensure the right to legal assistance to every EU citizen.

This topic was thus also discussed by the panel members. The difficulties to reconcile both the respect for the right to have access to a lawyer of choice and a mandatory emergency lawyer service with a limited list of practitioners was discussed.

The conference ended according to tradition, with reports on recent developments in different Member States by Mr. Alexis Anagnostakis (Greece), Bertil Dahl (Sweden), James MacGuill (Ireland), Neil Swift (UK) and Diederik Van Omme (the Netherlands).

The conference showed that a lot of work is still to be done in order to achieve a EU-wide regulation which respects the Salduz jurisprudence of the ECtHR and more specifically  to guarantee that:

- every defendant is aware of his rights from the first police interrogation;
- every defendant has the possibility to have legal assistance and to obtain legal advice prior to and during this first police interrogation;
- Member States provide sufficient means of legal aid to secure this assistance for suspects with insufficient incomes.

A common regulation of these rights throughout the EU – i.e. by means of harmonization – is absolutely mandatory to achieve an equal level of defence rights in the early investigative stage of criminal proceedings

Report by Hans Van de Wal (Belgium)