Anyone suspected or accused of a criminal offence in the EU should have the right to talk to a lawyer as soon as possible, and before police questioning starts, says the civil liberties committee in amendments to a draft directive adopted on Tuesday. This should include people not under arrest, say MEPs, adding that all communication with the lawyer must always be confidential.
The new rules should apply as soon as a person is declared a suspect or charged, whether or not he or she is under arrest, says the committee in amendments that strengthen the Commission's initial proposal. The aim is to provide the same rights to a defence and a fair trial under member states' laws across the EU.
MEPs want EU countries to ensure that all suspects or accused persons are given access to a lawyer as soon as possible, and at the latest before questioning by the police or a judge begins. They say the lawyer should play an active role during the questioning (by making statements or requesting clarifications) and should be able to check the conditions of detention. He or she should also be able to present any evidence linked to the charges or request the police to gather it, the civil liberties committee adds.
"This directive will ensure that suspects and accused persons have adequate access to a lawyer throughout criminal proceedings, so as to exercise their defence rights effectively, and will improve judicial cooperation in the EU by enhancing mutual trust between EU countries and ensuring a high level of protection of fundamental rights. Despite the existence of common principles and minimum standards stemming both from the European Court of Human Rights and the EU Charter, provisions governing access to a lawyer still vary significantly from one Member State another", said rapporteur Elena Oana Antonescu (EPP, RO) after the vote.
Member states should ensure that suspects or accused persons have at their disposal effective remedies when their right to talk to a lawyer has been breached, say MEPs. Also, any statement made by the suspect or accused person, or evidence obtained in breach of this right, could only be used as evidence against them if this did not prejudice the rights of the defence or the fairness of the proceedings.
Confidentiality in all instances
EU countries should ensure, in all circumstances, the confidentiality of meetings between the suspect or accused person and his or her lawyer. They should also guarantee the confidentiality of all other communications, such as correspondence or phone conversations. "Confidentiality is absolute and should not be subject to any exception", MEPs stress.
Right to communicate upon arrest
Under the Commission proposal, suspects and accused persons under arrest would have the right to inform someone of their choice, such as a relative or an employer, of their arrest. They could also contact their consulates if they were outside their country, says the draft text. The civil liberties committee agrees with this and says that suspects and accused persons should also have the right to meet privately with the persons they choose to call and with the consular or diplomatic authorities.
European Arrest Warrant
Persons detained under a European Arrest Warrant (EAW) would be able to contact a lawyer both in the country where the arrest is carried out and in the one where the warrant is issued. Currently, people sought under an EAW may not have access to a lawyer in the state where the warrant is issued until they are surrendered to that country.
There are over eight million criminal proceedings in the EU every year. The directive on access to a lawyer and communication upon arrest is the third step in a series of measures to set common EU standards on procedural rights. The first law, adopted by Parliament in June 2010, gave EU citizens facing criminal trials the right to translation and interpretation. The second measure, approved by the EP in December 2012, introduced a "letter of rights" to ensure fair trials across the EU.
The UK, Ireland and Denmark will opt out of this directive.
Tuesday's vote in the civil liberties committee gives Ms Antonescu a mandate to start negotiations with the Council with a view to a first-reading agreement.
The draft directive was backed, as amended by the committee, by 51 votes to 2, with 4 abstentions.
In the chair: Juan Fernando López Aguilar (S&D, ES)
Procedure: codecision (orientation vote)