European Commission report on the implementation of the Directive on access to a lawyer in criminal proceedings

The European Commission has published its report on the application of Directive 2013/48/EU, on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to inform a third party at the time of deprivation of liberty and to communicate with third parties and with the police or consular authorities while deprived of liberty.

The Directive was adopted to ensure that the right of suspects or accused persons to access legal counsel and to communicate in the event of arrest applies in both criminal proceedings and proceedings under the European Arrest Warrant. By establishing common European minimum standards, the Directive has a significant impact on the protection of suspects or accused persons in Member States. It does so by providing for a more consistent application of the rights and guarantees set out in Articles 47 and 48 of the Charter of Fundamental Rights and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this way, the Directive contributes to improving mutual trust between Member States, as set out in the roadmap for strengthening the procedural rights of suspects or accused persons in criminal proceedings.

Overall, the Commission believes that the Directive has brought added value to the EU by improving the protection of citizens involved in criminal proceedings, particularly in some Member States where the right of access to a lawyer was not granted to all suspects and defendants, especially in the early stages of proceedings. Furthermore, the right of access to a lawyer in the Member State issuing a European Arrest Warrant has been clearly established.

The scope of the Directive's impact on Member States varies depending on their existing national criminal justice systems. The implementation report highlights that difficulties persist in some Member States regarding key provisions of the Directive. This is particularly the case with regard to the scope of the rights provided for in the Directive; the scope of possible exceptions, especially to the right of access to a lawyer; the waiver of the right of access to a lawyer; and the right of access to a lawyer in the Member State issuing a European arrest warrant.

These shortcomings may affect the proper application of other directives on procedural rights, in particular Directive (EU) 2016/1919 on legal aid in criminal proceedings, which is based on this Directive (see Article 2(1) of Directive (EU) 2016/1919). Member States were required to transpose Directive (EU) 2016/1919 by 5 May 201917.

The assessment also shows that, while a revision of the Directive is not currently necessary, its transposition into national law and its practical application must be further improved. The Commission will continue to assess Member States' compliance with the Directive and will take all necessary measures to ensure conformity with its provisions throughout the European Union.

Source: https://ec.europa.eu/info/sites/info/files/implementation_report_on_the_eu_directive_on_access_to_a_lawyer.pdf