EU to reinforce suspects’ rights

Brussels yesterday made fresh legal proposals aimed at reinforcing the rights of criminal suspects across the EU. All suspects, whether EU citizens or not, will be assured of the right to see a lawyer and have him present during police questioning.

In Malta, suspects have the right to consult a lawyer before interrogation but not to have one present during questioning.

The right to consult a lawyer has been on the statue books since 2002 but was only activated through a legal notice last February following pressure by Nationalist backbencher and lawyer Franco Debono.

The police were resisting its introduction as they deemed it could jeopardise their investigations.

Access to a lawyer is already considered a fundamental human right by the European Court of Human Rights. Asked if this right was already enforceable in EU member states, an EU official said the situation varied between one member state and another.

“Sometimes, although suspects have a right to see a lawyer, they are not even informed about this possibility or interrogators make it difficult for suspects to exercise this right,” the official said.

“Through this new legislation we want to make sure that these rights are afforded and guaranteed to everyone, even to people arrested when they are away from their country.”

Presenting the new legislation in Brussels, Justice Commissioner Viviane Reding said that following an arrest, citizens must be guaranteed that they can see a lawyer no matter where they are in the European Union.

“If they are in custody outside their home country, they should have support from their consulate or embassy. These measures will strengthen mutual trust between our justice systems by ensuring that suspects are treated with the same, minimum fair standards across the European Union.”

This latest proposal on access to a lawyer and notification of custody is the third step in a series of measures taken by the Commission to set common EU standards in criminal cases.

EU Justice Ministers had approved the first measure last year, giving suspects the right to translation and interpretation, while a second proposal, granting a letter of rights to suspects, is being negotiated with the European Parliament who must give its final approval before it becomes law.

‘You have the right to...’

• Under the proposals, the suspect or accused person must be given access to a lawyer as early as possible in the proceedings, and in any event before the start of any questioning or interrogation and from the beginning of the deprivation of liberty;

• The lawyer can carry out a wide range of activities designed to make the right of defence effective, such as ask questions and make statements during interrogations and hearings, participate in the acquisition of evidence and check detention conditions;

• The suspect or accused person can meet and communicate with his lawyer in a manner that guarantees the confidentiality of communication;

• The person will be able to waive his right to a lawyer subject to stringent requirements, notably only after he has received prior legal advice, is fully aware of the consequences of this waiver and is able to revoke the waiver at any stage of the proceedings;

• Other people involved in criminal proceedings, such as witnesses, receive adequate protection in case they become a suspect or accused person at a later stage;

• Individuals subject to a European Arrest Warrant have the right of access to a lawyer both in the executing and in the issuing Member State, so as to improve the functioning of the European Arrest Warrant procedure. The lawyers in the two countries will provide assistance and information to each other, strengthening the rights of the defence;

• The evidence obtained in breach of the right of access to a lawyer will not – as a rule – be used as evidence against the person whose right has been violated;

• Suspects who are deprived of liberty, as well as people arrested on the basis of a European Arrest Warrant, have the right to communicate with a person of their choice and, if they are not nationals of the country where they have been deprived of liberty, with their consular authorities.