Defence rights during the pretrial criminal proces

The ECBA has been involved in several projects and commented on proposals that impact on the rights of the defence in pre-trial criminal proceedings.

The latest project is as a partner in a EU funded project entitled “Defence rights during the pre-trial criminal proceedings” which is headed by the Austrian Criminal Bar Association, in cooperation with the ECBA, and the Universities of Graz, Ljubljana,  Vienna and Zagreb.

The findings of the report have been presented at the ECBA’s conference in Ljubljana in October 2010 and you will find a summary below.

The ECBA has also been involved in the discussion on the EU’s proposal on mutual recognition of non-custodial pre-trial supervision measures.

Click here for the report on the experts meeting on pre-trail detention 9 February 2009.
Click here for a summary of comments from other jurisdictions.

Towards Pre-trial Detention as Ultima Ratio – Research and Action (2016/17)

 In the 47 Member States of the Council of Europe more than 325.000 prisoners are held in pre-trial detention, more than 100.000 of them in the 28 Member States of the European Union. Pre-trial detention serves above all procedural purposes: to prevent a suspect from absconding, or from tampering with evidence. The justice systems must have a way of ensuring that those accused stand trial. Furthermore, detention may be a measure necessary because of a high risk that a suspect carries out (further) offences of a severe nature. Often, however, detention seems just the easiest way of achieving this end. This is contrary to the principle that, with respect to the fundamental right to liberty and the presumption of innocence, deprivation of liberty must only be applied when less severe mechanisms are insufficient to exercise control over the suspect and to guarantee his or her presence at trial (as ultima ratio). Generally, the principle of subsidiarity must be applied in a way that the suspect or accused may await the trial process in conditions of unrestricted liberty or, where justified, under specified restrictions. In prisons, remand detainees often suffer from worse conditions than sentenced prisoners - the European Committee for the Prevention of Torture (CPT) has called this a pan-European problem. Another common problem is an often-observed excessive length of pre-trial detention.

To uphold the fundamental right to freedom as well the presumption of innocence for the suspect by avoiding pre-trial detention also means to avoid harm for indirectly affected people like children or spouses and to avoid costs to affected persons and to society as a whole. The European Convention of Human Rights and initiatives by the EU show that member states share common values in this regard at least to a certain degree. This is further expressed in recommendations by the Council of Europe in this field, for example on prisoners’ rights. But even if there is a common set of values, differences in legal systems as well as the variance in pre-trial detention rates in the member states indicate that there are considerable discrepancies in how the ultima ratio principle is put into practice. These cannot be explained by differences with respect to the crime structure or to social conditions.

Without questioning the sovereignty of the member states in criminal matters, the increasing need for transnational cooperation and the increasing number of cross border cases ask for mutual understanding. Mutual understanding and trust, however, are built up best on the basis of knowledge about the systems, procedures and practice in other countries as well as on the basis of common standards. The DETOUR-project aimed at both: The project was about exploring and analyzing pre-trial detention practice and especially ways of reducing the use of pre-trial detention in seven European jurisdictions (Austria, Germany, Romania, Belgium, Lithuania, Ireland and the Netherlands).

After thorough desktop research on the legal preconditions and on the overall context of pre-trial detention in the participating countries, the first step of the empirical work consisted of collecting and analyzing qualitative data by conducting observations and file analyses. This data provided the basis for in-depth interviews with a strong focus on the stance of prosecutors and judges and how they assess the decision-making process in the pre-trial phase. We consider that the views, perceptions and experiences of the judiciary are crucial to avoid pre-trial detention. Therefore, we put special emphasis on their assessment of the legal provisions, of the availability of alternatives, as well as of problems and obstacles relevant for the avoidance of pre-trial detention. To broaden the picture, we however also included the perceptions and views of attorneys, as well as of representatives of organizations offering their services to avoid pre-trial detention. Of particular interest were also the high numbers of foreigners in pre-trial detention in many countries and the increasing number of cross-border cases that need to be solved within the EU. After the empirical work first results were presented to and discussed with practitioners at three international workshops. The final outcomes were presented at the international conference “Confronting dilemmas of pre-trial detention” in November 2017, in Vienna.

The outcomes of the project suggest that there are many threats to the ultima ratio principle, that there is much need to strengthen it, to pay attention to it und to over and over again remind of its importance. Find the comparative report, the recommendations and the national reports of the project partners at the projects website

 The project was funded by the Justice Programme of the European Commission

 Project Coordination – Institute for the Sociology of Law and Criminology: Dr. Walter Hammerschick, Veronika Reidinger (Austria)

Scientific Co-coordinator - Ernst-Moritz-Arndt Universität Greifswald/Freie Universität Berlin: Prof. Dr. Christine Morgenstern, Eva Tanz (Germany)


  • Nationaal Instituut voor Criminalistiek en Criminologie / Institut National de Criminalistique et de Criminologie (NICC/INCC): Dr. Eric Maes, Dr. Alexia Jonckheere, Magali Deblock (Belgium)
  • Utrecht University: Prof. Dr. Miranda Boone, Dr. Pauline Jacobs, Dr. J.M.W. Lindeman (The Netherlands)
  • Association of Schools of Social Work in Romania/ University of Bucharest, Faculty of Sociology and Social Work: Prof. Dr. Ioan Durnescu, Gabriel Oancea (Romania)
  • Law Institute of Lithuania: Dr. Skirmantas Bikelis, Virgilijus Pajaujis (Lithuania)
  • Trinity College Dublin: Prof. Mary Rogan, David Perry (Ireland)


The ECBA was an Associate Partner in the SUPRALAT project which has now been concluded.

Please click here to read the end report by Anna Pivaty.  

The SUPRALAT-project specifically aimed to:

  •  Develop a practice-oriented training programme for lawyers, that focuses on proceedings in the police detention stage, and pilot it in four EU Member States. The selected Member States are Belgium, Hungary, Ireland and the Netherlands.
  •  Advocate for practice-oriented training on facilitating suspects’ rights in pre-trial proceedings to become part of professional training curricula for criminal lawyers in EU Member States.
  •  Contribute to the exchange of best practices on facilitating the rights envisaged in the Directives among lawyers across the EU.
  •  As a result of SUPRALAT-project, to which the ECBA is partner, we will organise a workshop in which we will test/simulate a part of the innovative training program, intended to equip lawyers with the necessary skills to effectuate the rights of suspects at the early stages of the criminal proceedings in practice.

The project contributed to the implementation of newly-adopted EU Directives on suspects’ procedural rights – and especially the Directive on the right of access to a lawyer – in EU Member States.

To learn more about the project, please visit the website:

Workshop at the ECBA Spring Conference 2017 

SUPRALAT project team delivered a workshop at the 2017 ECBA Spring Conference. The workshop focused on the lawyer's role during suspect interrogation - in European law, national law, and in practice (which becomes of relevance after the transposition date of the Directive on the Right of Access to a Lawyer on 27 November 2016).

As the European Commission, Council and Parliament have recognised, ‘excessively long periods of pre-trial detention are detrimental to the individual, can prejudice cooperation between the Member States, and do not represent the values for which the European Union stands’.

This letter is to follow-up on the European Union’s work to tackle this problem and to urge the Commission to continue its work in this area beyond the current legislative programme, including developing a timeframe for tabling a legislative proposal setting common minimum standards for the use of pre-trial detention in the EU. Please click here for the letter.

Access to legal advice pre-trial is an essential element of the fair trial principle.

On 12 July 2011 the European Commission adopted the proposal for a Directive on the right to access to a lawyer in criminal proceedings (see below) and on the right to communicate upon arrest, which is currently being discussed by the Council of the European Union, and the European Parliament. Based on a two years research programme, "Pre-trial Emergency Defence", confirms that such a measure is vital to ensure an individual’s rights are respected and upheld in criminal proceedings.

Please read more in the Press Release (click here) the ECBA has published (12 April 2012) in relation to this measure and the new released book on "Pre-trial Emergency Defence", edited by Stefan Schumann, Karin Bruckmüller and Richard Soyer, providing conclusions and recommendations on how to improve pre-trial access to legal advice – by taking both legal and practical measures.

The EU funded “Pre-trial Emergency Defence” project: Assessing pre-trial access to defence rights in four European countries


A) Gaining knowledge on access to pre-trial defence

The European Court of Human Rights in Pishchalnikov v. Russia from 24/09/2009 (appl. no. 7025/04) underlined the essential character of pre-trial access to legal advice: “Having been denied legal assistance, the applicant was unable to make the correct assessment of the consequences his decision to confess would have on the outcome of the criminal case … . In the absence of assistance by counsel who could have provided legal advice and technical skills, the applicant could not make full and knowledgeable use of his rights afforded by the criminal-procedural law.” (§ 85).
Providing information on suspects’ rights including the right to legal advice to the suspect in criminal proceedings is a precondition to enable him to make use of his/her rights. Hence the information on suspects’ rights and the actual access to legal advice has been taken at centre stage of the “Pre-trial Emergency Defence”(PED) project. The ECtHR had already pointed out thirty years ago in Artico v Italy (appl. no. 6694/74) that “the Convention is intended to guarantee not rights that are illusory but rights that are practical and effective.” (§ 33) So the present research evaluated pre-trial access to defence rights not just in law but also in practice, focusing especially on the effectiveness of emergency lawyer schemes as a practical tool to facilitate access to effective legal advice.
The EU funded international research project covered the situation in Austria, Croatia, Germany and Slovenia. The research was done by a team of partners from the Austrian Criminal Bar Association, the Universities of Graz, Ljubljana, Vienna and Zagreb and the European Criminal Bar Association (see ECBA Newsletter 18 / November 2009).


B) Underlining the importance of pre-trial stage

The research focus is based on the presumption that pre-trial proceedings predetermine the outcome of the whole proceedings. A significant number of cases are settled before the trial stage; whether investigations prove the suspect not to be guilty, whether the case is solved by diversion or even an order of summary punishment is issued. This appraisal could be demonstrated by two examples: (a) In Germany in 2006 only 14% of all pre-trial proceedings did public prosecutors decide to issue an indictment leading to public and oral main proceedings at the Court. In the same percentage of cases the public prosecutors requested a written summary sanction without those public and oral main proceedings. In another 6 % of cases the public prosecutors dropped the case due for opportunistic reasons but obligations were imposed on the suspect (see Statistisches Bundesamt; Justiz auf einen Blick, 2008, p.13) And (b) In Austria in 2008 a variety of new and enhanced possibilities for diversion were implemented. Coincidently the figures of conviction after trial proceedings, roughly speaking, decreased by about 1/3 (source: Statistik Austria). One can assume the latter two facts being interrelated. Even in those cases reaching the trial stage the information and proofs collected during the pre-trial stage predetermine the trial stage – there is a de facto continuum from investigation to trial.
The European Court of Human Rights held in the Salduz v. Turkey (appl. no. 36391/02) case that “[i]n order for the right to a fair trial to remain practical and effective … article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.” In Dayanan v. Turkey (appl. no. 7377/03) the Court pointed out that “[a]s emerges from the generally recognized international norms, which the Court accepts and which complements its case-law, a suspect must be afforded assistance by a lawyer as soon as he has been deprived of his liberty, whether or not he is to undergo interrogations.”


C) An insight into the project findings

Accordingly the project focused on those situations when the suspect is confronted with law enforcement officers for the first time face to face. This applies in the situation of first interrogations as well as of arrest, pre-trial detention or other measures of deprivation of liberty. Furthermore the research included informal questioning too, taking into account the different meanings of such questioning in the domestic laws of the countries assessed.
To give some examples of the findings and of the needs for improvement discovered by the research:-
PED project results demonstrate that whether or how information on suspects’ rights is provided in practice will predetermine the actual decision whether a suspect uses his right to access to legal advice. The (mis)use of judicial language, for example, does not help the suspect’s understanding of these rights. Furthermore some of the study participants reported that the information given in accordance with the law sometimes will be downplayed afterwards. Inversely it became obvious that some suspects presume that making use of their rights might be misinterpreted as an indication of guilt. In the meantime one has to recognize that a suspect’s decision whether to make use of his rights or to waive them is also a matter of costs. Finally, suspects often seem to underestimate the effect of pre-trial proceedings predetermining the whole proceedings.
There are several crucial points regarding when and how access to legal advice is ensured in pre-trial proceedings. All the assessed laws provide for access to legal advice before the first formal (police) interrogation as well as during arrest or detention. Yet, when going into detail, domestic provisions on how access to legal advice shall be provided might be questioned. So in Austria the revised CCP simply allows for the mere presence of a lawyer during the interrogation, but denies any suspect’s request to a lawyer or any other form of participation by a lawyer. It is only the latter who is entitled to ask questions after the interrogation. Although research shows that the application of this provision differs in practice and real participation might be provided on a case by case basis, one might ask whether or not the law should be reviewed. Another crucial point is the distinction between formal interrogations and informal questionings. In Croatia for instance the suspect in a broad variety of cases might opt for informal questionings without any warnings and without access to legal advice; those statements must not be used as evidence in court proceedings. Nevertheless one can assume that those statements will influence the outcome of the investigation. Finally research shows that, if the law allows for supervision of suspects’ consultation, this consultation often won’t be confidential because it is supervised.
The role of emergency lawyer schemes, as practical measures to ensure access to legal advice, has also been evaluated. In Austria there is an emergency defence lawyer service established as a pilot project since 2008. Yet this service is used only 40-60 times a month mainly via telephone calls. In Germany more than 50 local emergency lawyer schemes are organized. No such scheme is to be found in Slovenia. In Croatia a list of lawyers willing to do emergency work is provided to law enforcement agencies. PED research shows that the availability of emergency defence lawyer schemes will contribute in assuring access to legal advice in pre-trial proceedings, as long as certain preconditions are fulfilled.


D) Conclusions and recommendations

In the oncoming publication of the study, conclusions and recommendations will be given:
Information on the right to access to legal advice shall be provided immediately when a suspect is faced with investigative measures of law enforcement agencies. That information shall be in a clear and understandable language adopted to the respective suspect and accessible and lasting by a letter of rights. It shall include information on the emergency defence lawyer service as well as whether any of such service may be free of charge.
Access to a lawyer shall be facilitated at every stage of pre-trial proceedings, especially before first interrogation or any other form of questioning. It shall be effective and in principle confidential, supported by appropriate legal aid and emergency defence lawyer schemes. The latter shall be provided best round the clock and shall be accessible by phone immediately and in person in reasonable time.


For more information:   
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With the European Arrest Warrant (EAW) encouraging faster surrender proceedings with fewer grounds to refuse surrender of the individual, it is essential for there to be counter measures to ensure that individuals are not held in pre-trial detention unnecessarily.

The ECBA and CCBE provided a joint opinion commending the attempt to address these issues and noting that the motivation behind the proposal is well-intentioned and aims to address shortcomings in the current system of remand for EU nationals. However, there are concerns that there are too many deficits with the proposal which could result in creating new grounds for arrest. The ECBA are keen to work with the Commission and EU institutions to find a workable solution to these problems.

Please find information regarding the GREEN PAPER on mutual recognition of non-custodial pre-trial supervision measures below:

Click here for the joint ECBA/CCBE position paper.

Experts' Meeting on Minimum Standards in pre-trial detention, Monday 9 February 2009

Please click here for the report of the meeting.

An introductory Summary of the study: 'An analysis of minimum standards in pre-trial detention and the grounds for regular review in the Member States of the EU' (JLS/D3/2007/01).
This is a preliminary report, the Research Group of the University of Tilburg declines any responsibility for the content of the reports as presented on our website. The definite report will be published on the website of the European Commission in July.

Please click here for the summary.

By clicking on a 'county name' you will find a list with an analysis per country and more relevant documents. The documents are available in pdf.