‘Rights in practice: access to a lawyer and procedural rights in criminal and European Arrest Warrant proceedings’ | FRA Report
The University of Nicosia acts as the main contractor for FRA in Cyprus for the FRANET project. The European Union Agency for Fundamental Rights (FRA) is one of the EU’s decentralised agencies, acting as a centre of fundamental rights expertise.
“Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need certain powers to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards. Such safeguards take on various forms, and include the right to certain information and to a lawyer”, says FRA Director Michael O’Flaherty.
This report looks at how these key criminal procedural rights are applied in practice. It is based on interviews with over 250 respondents in eight Member States, including judges, prosecutors, police officers, lawyers, staff of bodies that monitor prisons, as well as defendants. In highlighting diverse challenges, the report aims to spur efforts to ensure that criminal procedural rights are applied both effectively and consistently throughout the EU.
Some of the key findings include:
- The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
- Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
- Receiving legal assistance promptly and directly does not also always occur, particularly for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
- Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.
The report also looks at European Arrest Warrants. As well as the issues above, defendants also face rights issues arising from having two countries involved.
- Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
- Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.
