On the procedural safeguards for suspects and defendants


Opening Remarks

A special welcome was given to Caroline Morgan, the director of unit B3 “Judicial Cooperation in criminal matters” of the Commission.  The ECBA are looking for communication and cooperation to achieve common goals in respect of (minimum) standards of criminal proceedings in EU member states.
Last year at the ECBA Spring Conference, held in Dublin, we had the opportunity to welcome Ms Vernimmen and discuss the Green Paper of the Commission on those issues. You may remember Holger Matt’s critical remarks given in his lecture in Dublin. Now we want to reopen the dialogue and the ECBA, together with our friends and colleagues of the CCBE Criminal Law Committee,  hope to be involved in defining the general standards of criminal proceedings but especially in defining the essential concrete defence rights to achieve an “effective” defence in practise, and not only theoretical or illusory safeguards. The right to legal assistance is only one of the procedural safeguards for suspects and defendants, but is one that is of special interest of our profession as criminal defence lawyers. Firstly, we would like to make some general remarks on our position in this regard.


Towards a European Charter for Criminal Defence Lawyers?

Until now, the Consultative Committee of the Bars and Law Societies of the European Community  (CCBE), and a number of Bars and professional organisations of criminal defence lawyers have responded ad hoc to EU initiatives, but have not analysed these comprehensively from the perspective of the defence. Isn’t it now time for European criminal defence lawyers to reflect on common positions with regard to the conditions for an effective defence, their perception of their role and duties with regard to such defence, and whether this should not lead to something like a European Charter for Criminal Defence Lawyers? In our view, this question cannot but be answered in the affirmative. Developments at EU level, whether towards harmonisation or federalisation, are virtually unstoppable and aimed at the repressive side of criminal law. Procedural safeguards are rendered subservient to this aim. As a result, Safeguards in the area of legal assistance, including professional privilege, which until recently were regarded as obvious are now under threat. This has far-reaching consequences for legal protection and legal assistance.

It is duty of the community and national authorities to create the procedural preconditions for legal assistance for suspects and accused. Providing substance to legal assistance, on the other hand, is the responsibility of the European Bars and the organisations of criminal defence lawyers themselves. [1] In view of European (as well as global) [2] developments, it is imperative that the profession, whose duty it is to defend the fundamental rights of suspects,  accused and convicted persons, shows where it stands, how it sees its role and what facilities and guarantees it requires to practice their profession. Such considerations could be expressed in a Charter to contribute both at European and domestic level towards taking a stand against the erosion of legal protection.

Of course there is  then the question of the contents of such a Charter. The answer to this question is more difficult and will require research and debate. We would like to provide an impetus to these discussions.


The relation between the Right to Legal Assistance and Other Procedural Safeguards

The right to legal assistance distinguishes itself from other procedural safeguards, such as the right to be informed of the charge against him, the right to silence, the privilege not to incriminate oneself, the right to examine witnesses and other procedural safeguards laid down in international treaties and national criminal procedures.  The right to legal assistance is a precondition enabling the alleged offender to defend himself effectively and make use of the other safeguards afforded him. In its Green Paper on Procedural Safeguards, the Commission views the right to legal assistance as ‘the foundation of all other rights’. [3]  We prefer to use another phrase, because all rights granted to the alleged offender, with the inclusion of the right to legal assistance, are founded on the principle that the alleged offender must be given a fair opportunity to defend himself. The right to defend oneself is one of the essential principles underlying the concept of a ‘fair trial’.  This is underscored by the fact that Article 6 ECHR, which contains the right to defend oneself in criminal cases (in contradistinction to such other treaty provisions as Articles 5, 8 and 10 ECHR), does not provide for exceptions, such as measures necessary in a democratic society or in the interest of public security. The concept of  a ‘fair trial’ which includes the right to an effective defence, serves the interests of a democratic society. Although certain defence rights can be restricted, the right to defend oneself is absolute. In consequence, legal assistance is not the legal foundation of defence rights, but a prerequisite for the effective exercise of these rights.


The draft Council Framework Decision on certain procedural rights in criminal proceeding throughout the European Union

In the draft Council Framework Decision on certain procedural rights in criminal proceeding throughout the European Union that was published on 28 April 2004 the right to legal advice is set out in the articles 2-5 and includes: Access to legal advice as soon as possible and before answering questions in relation to the charge .
The obligation to provide legal assistance.
The obligation to ensure effectiveness of legal advice including an obligation to replace a lawyer when legal advice given is found not to be effective.
The right to free legal advice for indigant defendants.


Of course these provisions for legal assistance are very important

We are relieved that in the draft Framework Decision the right to legal advice should not only be provided as soon as possible (a concept normally interpreted very differently by the prosecuting authorities and the defence) but that it should be provided before the first questioning by the police. We very much regret, however, that it is not clear from the text that the right to legal assistance during police interrogation is guaranteed, as it was initially in the Green Paper. If it is meant, as we have understood from Caroline Morgan at her presentation in Strasbourg on the first of April, that access during police interrogation is not included, this is unacceptable and must be corrected. In view of the suspects right to silence, which is recognised in all member states  (except for the risk of adverse inferences from silence in the UK) there seems to be no reason why the interests of the investigation could be a legitimate argument to deprive the suspect of legal assistance during police interrogation.  It is precisely at this stage that the defendant needs information, advice and support. Access to a lawyer must be guaranteed in all stages of criminal proceedings. Another interesting provision in the framework decision is the obligation for the state to ensure the effectiveness of legal advice and that the onus is on the state to establish a system for checking this.  We are of the opinion that it is the responsibility of the independent bars of the EU to establish such a system, because good professional practice may be at odds with effective prosecution.  Especially in these times, where the interest of justice is equalled to the interests of combating crime, the independence of the criminal defence lawyer may be threatened when the definition of the effectiveness of the defence is in the hands of the state.

Elaboration of defence rights

Criminal procedure must contain a certain number of safeguards if the defence is to be “effective”. Principally, the right to legal assistance must be defined and incorporated into the rules of criminal procedure. There are five important points that have to be addressed in this regard:

  1. Guarantees for access by a suitably qualified lawyer to a defendant or accused person.
  2. A system of legal assistance when an alleged offender is not able to pay for such assistance and sufficient remuneration for qualified lawyers to participate in the system (“ When you pay peanuts you get monkeys”).
  3. Effective procedural powers for the defence such as the right to information and disclosure, access to the case file, the guaranteed right to be present at examinations and court-hearings, the right to examine witnesses and to make or have made enquiries into the existence of exculpatory evidence, adequate time and facilities for preparation of defence and the right to initiate investigations without the possibility of  the prosecution and/or the court to reject or obstruct such investigations.
  4. The right to confidential communications (verbal, electronic,written, etc.),  prohibition of confiscation of defence papers,  data-files etc. and procedures to  exclude evidence which has been obtained under violation of these principles. 
  5. Independence and freedom of defence.


[1] See in this connection Recommendation Rec (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer adopted on 25 October 2000, where in ‘Principle III- Role and duty of lawyers’ is included: ‘Bar associations or other lawyers’ professional associations should draw up professional standards and codes of conduct and should ensure that, in defending the legitimate rights and interests or their clients, lawyers have a duty to act independently, diligently and fairly’; Conclusions Council of Europe, The role and the responsibilities of the lawyer in a society in transition, 9-11 December 1997, Budapest (97) Concl., and the CCBE Declaration of Perugia on the Principles of Professional Conduct of the Bars and Law Societies of the European Community of 16 September 1977.

[2] See the Agreement on extradition between the European Union and the United States of America, OJ 2003 L 181/27, the Agreement on mutual legal assistance between the European Union and the United States of America, OJ 2003 L 181/34 and Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters, OJ 2003 L 181/25.

[3] Green Paper Procedural Safeguards, § 2.5.