2011/0154(COD)
Judicial cooperation in criminal matters: right of access to a lawyer in criminal proceedings and right to communicate upon arrest
Judicial cooperation in criminal matters: right of access to a lawyer in criminal proceedings and right to communicate upon arrest 2011/0154(COD)
Next event: 2013/09/10 Indicative plenary sitting date, 1st reading/single reading
Lead committee dossier: LIBE/7/06267
Legal basis: TFEU TFEU 082-p2
Next event: 2013/09/10 Indicative plenary sitting date, 1st reading/single reading
| JURI | LIBE | |
| Lead Rapporteur | ANTONESCU Elena Oana (EPP) | |
| Opinion Rapporteur(s) | ALBRECHT Jan Philipp (Verts/ALE) |
Legal basis: TFEU TFEU 082-p2
Awaiting Parliament 1st reading / single reading / budget 1st stage
2011/0154(COD) Judicial cooperation in criminal matters: right of access to a lawyer in criminal proceedings and right to communicate upon arrest
Next event: Indicative plenary sitting date, 1st reading/single reading 2013/09/10
Lead committee dossier: LIBE/7/06267
Legal Basis TFEU TFEU 082-p2
Next event: Indicative plenary sitting date, 1st reading/single reading 2013/09/10
| Role | Committee | Rapporteur | Shadows |
|---|---|---|---|
| Opinion | JURI | ALBRECHT Jan Philipp (Verts/ALE) | |
| Lead | LIBE | ANTONESCU Elena Oana (EPP) | ROMERO LÓPEZ Carmen (S&D), LUDFORD Baroness Sarah (ALDE), ALBRECHT Jan Philipp (Verts/ALE), KIRKHOPE Timothy (ECR), DE JONG Cornelis (GUE/NGL) |
Legal Basis TFEU TFEU 082-p2
Activites
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2013/09/10
Indicative plenary sitting date, 1st reading/single reading
- #3195
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2012/10/25
Council Meeting
- #3172
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2012/06/08
Council Meeting
- 2012/03/21 Amendments tabled in committee
- 2012/02/07 Committee draft report
- 2011/07/05 Committee referral announced in Parliament, 1st reading/single reading
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2011/06/08
Legislative proposal
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COM(2011)0326
summary
PURPOSE: to set common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the EU to have access to a lawyer and to communicate upon arrest with a third person, such as a relative, employer or consular authority. PROPOSED ACT: Directive of the European Parliament and of the Council. BACKGROUND: the Charter of Fundamental Rights of the European Union stipulates the right to a fair trial. The right of access to a lawyer is enshrined in Article 6 of the European Court of Human Rights (ECHR) and in Article 14(2) of the ICCPR. The right to communicate with a third party is one of the important safeguards against ill treatment prohibited by Article 3 ECHR and the right to have one's consulate informed of detention builds upon the 1963 Vienna Convention on Consular Relations. The European Court of Human Rights has consistently held that the suspect or accused person should have access to a lawyer at the initial stages of police questioning, and in any event from the start of detention, to protect the right to a fair trial, and in particular the privilege against self-incrimination and to avoid ill treatment. Derogations from the right of access to a lawyer and the right to communicate upon arrest should be permitted only in exceptional circumstances. The Council recognised that to date, not enough had been done at European level to safeguard the fundamental rights of individuals in criminal proceedings. The proposal is the next step in the series of measures laid down in the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings, appended to the Stockholm Programme approved by the European Council of 10-11 December 2010. The Roadmap invites the Commission to put forward proposals on a 'step-by-step' basis. The proposal is the next step in the series of measures laid down in a Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings, appended to the Stockholm Programme approved by the European Council of 10-11 December 2010. The Roadmap invites the Commission to put forward proposals on a 'step-by-step' basis. This proposal should therefore be considered as part of a comprehensive package of legislation to be presented over the next few years, which will provide a minimum set of procedural rights in criminal proceedings in the European Union. The issue of legal aid, which was conflated with that of access to a lawyer in the Roadmap, warrants a separate proposal owing to the specificity and complexity of the subject. the first step is Directive 2010/64/EU on the right to interpretation and translation; the second step will be a Directive, currently under negotiation on the basis of a Commission proposal, on the right to information, which will set out minimum rules on the right to receive information on one's rights, and on the charges, as well as on the right of access to the case file. Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. IMPACT ASSESSMENT: no impact assessment was carried out. LEGAL BASIS: Article 82(2) of the Treaty on the Functioning of the European Union (TFEU). CONTENT: the objective of the Directive is to lay down rules governing the rights of suspected and accused persons and persons subject to an European Arrest warrant to have access to a lawyer in criminal proceedings against them, and rules governing the right of suspects and accused persons who are deprived of their liberty to communicate upon arrest with a third party, such as a relative, employer or consular authority. The Directive applies from the time that a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings (including any appeal). The main elements of this proposal are the following: The right of access to a lawyer in criminal proceedings: the proposal lays down the general principle that all suspected and accused persons in criminal proceedings should have access to a lawyer as soon as possible, in time and in a manner that allows them to exercise their defence rights. Access to a lawyer must be granted at the latest upon deprivation of liberty, as soon as possible in the light of the circumstances of each case. Irrespective of any deprivation of liberty, access to a lawyer must be granted upon questioning. Content of the right of access to a lawyer: the proposal sets out the activities that a lawyer representing an accused or suspected person must be entitled to carry out to ensure effective exercise of defence rights, including meeting with the suspect or accused person for an adequate duration and frequency to ensure the effective exercise of the rights of defence; attending any questioning or hearing. The right to communicate upon arrest: the proposal provides for the right of persons deprived of their liberty in criminal proceedings to communicate as soon as possible upon arrest with one person nominated by them, which is most likely to be a relative or employer, so as to inform him of the detention. Legal representatives of children deprived of their liberty should be notified as soon as possible of the child's custody and the reasons pertaining thereto, unless it is against the best interests of the child. Where it is not possible to communicate with or notify the person designated by the detained person despite best endeavours to do so, the detained person is to be informed of the fact that the notification did not occur. Any consequences are left to national law. The right to communicate with consular or diplomatic authorities: this provision confirms the right to communicate with consular authorities. It places a duty on Member States to ensure that all foreign detainees are able to have the consular authorities of their State of nationality informed of the detention if they so wish. Confidentiality: defence rights are protected by the obligation to ensure that all communications, in whatever form they take, between a suspected and accused person and his lawyer are entirely confidential, with no scope for derogations. Derogations: given the paramount importance of the rights enshrined in this Directive suggests that derogations for Member States should not be possible, in principle. Limited scope for derogations, however, is admitted by the ECtHR jurisprudence as concerns the initial stages of criminal proceedings. Member States may be allowed to derogate from the right of access to a lawyer only in exceptional circumstances, subject to necessity and to procedural safeguards. Any derogation must be justified by compelling reasons pertaining to the urgent need to avert danger for the life or physical integrity of one or more people. BUDGETARY IMPLICATIONS: this proposal has no implications for the Union budget.
- SEC(2011)0687
- DG {u'url': u'http://ec.europa.eu/justice/', u'title': u'Justice'}, REDING Viviane
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COM(2011)0326
summary
Documents
- Legislative proposal published: COM(2011)0326
- Document attached to the procedure: SEC(2011)0687
- Committee draft report: PE474.063
- Amendments tabled in committee: PE486.050
| Amendments | Dossier |
| 164 |
2011/0154(COD) Judicial cooperation in criminal matters: right of access to a lawyer in criminal proceedings and right to communicate upon arrest
2011/11/17
JURI
30 amendments...
Amendment 15 #
Proposal for a directive Title 1 Amendment 16 #
Proposal for a directive Title 1 Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate
Amendment 17 #
Proposal for a directive Recital 3 (3) Mutual recognition can only operate effectively where there is mutual trust, which requires detailed rules on the protection of procedural rights and guarantees stemming from the Charter, the ECHR and the ICCPR, and where there are common standards applicable throughout the Union. Common minimum rules should increase confidence in the criminal justice systems of all Member States, which in turn should lead to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights culture in the Union. They should also remove obstacles to the free movement of citizens. Such common minimum rules should apply to the right of access to a lawyer and the right to communicate upon arrest;
Amendment 18 #
Proposal for a directive Recital 15 (15) Derogations from the right of access to a lawyer and the right to communicate upon arrest should be permitted only in exceptional circumstances, in line with case law of the European Court of Human Rights, where there are compelling reasons relating to the urgent need to avert serious adverse consequences for the life or physical integrity of another person and where there are no other less restrictive means to achieve the same result, such as, in cases of a risk of collusion, replacement of the lawyer chosen by the suspect or accused person or nomination of a different third party to communicate with; all derogations should be subject to a case- by-case assessment by the competent judicial authority, which should give reasons for its decision;
Amendment 19 #
Proposal for a directive Recital 16 Amendment 20 #
Proposal for a directive Article 2 a (new) Article 2a Definition For the purpose of this Directive, "child" means a person below the age of 18 years. Where a suspect or accused person appears to be below the age of 18 years and there is no clear evidence of their age, they shall be treated as a child for the purposes of this Directive.
Amendment 21 #
Proposal for a directive Article 2 a (new) Article 2a Definitions For the purpose of this Directive: (a) "child" means a person below the age of 18 years; (b) "lawyer" means a person who is entitled under national legislation to assist in all stages of criminal proceedings.
Amendment 22 #
Proposal for a directive Article 2 – paragraph 1 1. This Directive applies
Amendment 23 #
Proposal for a directive Article 2 a (new) Article 2a Content of the right of access to a lawyer 1. The suspect or accused person shall have the right at all stages of the proceedings to request to meet with the lawyer representing him. 2. The lawyer shall have the right to be present at any questioning and hearing. He shall have the right to ask questions, request clarification and make statements, which shall be recorded in accordance with national law. 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the acquisition of evidence. 4. The lawyer shall have the right to check the conditions in which the suspect or accused person is detained and to this end shall have access to the place where the person is detained. 5. The duration and frequency of meetings between the suspect or accused person and his lawyer shall not be limited in any way that may prejudice the exercise of his rights of defence.
Amendment 24 #
Proposal for a directive Article 3 – paragraph 1 – introductory part 1.
Amendment 25 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of
Amendment 26 #
Proposal for a directive Article 3 – paragraph 1 – subparagraph 1 a (new) In cases involving minor offences, it may be appropriate to grant the suspect or accused person access to a lawyer via telephone.
Amendment 27 #
Proposal for a directive Article 4 Amendment 28 #
Proposal for a directive Article 4 – paragraph 2 2. The lawyer shall have the right to be present at any
Amendment 29 #
Proposal for a directive Article 4 – paragraph 2 2. The lawyer shall have the right to be present at any questioning and hearing. He shall have the right to ask questions, request clarification and make statements,
Amendment 30 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the expeditious acquisition of evidence and the efficiency of the proceedings.
Amendment 31 #
Proposal for a directive Article 4 – paragraph 4 4. The lawyer shall have the right to
Amendment 32 #
Proposal for a directive Article 4 – paragraph 4 4. The lawyer shall have the right to check the conditions in which the suspect or accused person is detained and to this end shall have access to the place where the person is detained; he shall also have the right to request that what he says be recorded in writing.
Amendment 33 #
Proposal for a directive Article 4 – paragraph 5 5.
Amendment 34 #
Proposal for a directive Article 5 – paragraph 2 a (new) 2a. Where appropriate, the rights of a child under paragraph 2, shall be extended to other vulnerable suspects or accused persons needing similar assistance, such as persons with physical or mental disabilities. If a police officer is told in good faith or suspects that the suspect or accused person has a physical or mental disability that would prevent him from being treated as an adult, the police officer shall treat that person in accordance with paragraph 2 in the absence of any clear evidence to the contrary.
Amendment 35 #
Proposal for a directive Article 6 a (new) Article 6a Information 1. Member States shall ensure that suspects and accused persons are informed, without delay and in an understandable form, about their right of access to a lawyer and the fact that the right continues to apply at all subsequent stages of the proceedings even if they did not exercise it at an earlier stage. Without prejudice to national law that requires the mandatory presence or assistance of a lawyer, any waiver of the right to a lawyer referred to in this Directive shall be subject to the following conditions: a) the suspect or accused person has received prior legal advice on the consequences of the waiver or has otherwise obtained full knowledge of these consequences; b) he has the necessary capacity to understand these consequences; and c) the waiver is given voluntarily and unequivocally. 2. A record shall be kept, in accordance with the law of the Member State concerned, of the suspect’s or accused person’s having been informed about the right of access to a lawyer. The waiver and the circumstances in which it was given shall be recorded in accordance with the law of the Member State concerned. 3. Member States shall ensure that a waiver can be subsequently revoked at any stage of the proceedings.
Amendment 36 #
Proposal for a directive Article 8 – paragraph 1 – introductory part Member States shall not derogate from any of the provisions of this Directive save, in exceptional circumstances, from Article 3, Article 4
Amendment 37 #
Proposal for a directive Article 8 – paragraph 1 – introductory part Member States shall not derogate from any of the provisions of this Directive save, in exceptional circumstances, from Article 3, Article 4 paragraphs 1 to 3
Amendment 38 #
Proposal for a directive Article 8 – paragraph 1 – point a a) shall be justified by
Amendment 39 #
Proposal for a directive Article 9 – paragraph 1 Amendment 40 #
Proposal for a directive Article 10 – paragraph 2 Amendment 41 #
Proposal for a directive Article 13 – paragraph 3 Amendment 42 #
Proposal for a directive Article 13 – paragraph 3 3. Member States shall ensure that statements made by the suspect or accused person
Amendment 43 #
Proposal for a directive Article 15 – paragraph 1 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [24 months after
Amendment 44 #
Proposal for a directive Article 16 – paragraph 1 This Directive shall enter into force
source: PE-475.965
2012/03/22
LIBE
134 amendments...
Amendment 44 #
Draft legislative resolution Paragraph 1 – point 1a (new) 1a. Approves its statement annexed to this resolution; For information, the text of the statement is: ‘Article 47 of the Charter of Fundamental Rights of the European Union provides that legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. The Roadmap on procedural rights underlines that the right to legal aid should ensure effective access to the right to legal advice. Having regard to these provisions, considering the need for all the persons to have an effective access to justice and emphasizing the importance of ensuring equal access to justice for all the citizens, The European Parliament calls on the Commission to come up with a proposal on legal aid at the earliest.’
Amendment 45 #
Proposal for a directive Title Amendment 46 #
Proposal for a directive Recital 6 a (new) (6a) The term ‘lawyer’ should be regarded as including any person who is qualified under the national law of the Member State concerned to provide legal advice and assistance to suspects and accused persons and to represent them in court.
Amendment 47 #
Proposal for a directive Recital 6 a (new) (6a) The term ‘lawyer’ should be regarded as including any person who is qualified under the national law of the Member State concerned to provide legal advice and assistance to suspects and accused persons.
Amendment 48 #
Proposal for a directive Recital 6 a (new) (6a) In the advancement of mutual trust of Member States in terms of criminal justice we must ensure that not only the rights of the offender are guaranteed, but also the rights of the victims. Mutual recognition of minimum standards across the EU will not only benefit the principle of a common area of openness and security, but will also increase the confidence of citizens in their national judicial systems.
Amendment 49 #
Proposal for a directive Recital 7 a (new) (7a) An official interview means the questioning by competent authorities of a suspect or accused person regarding his involvement in a criminal offence, irrespective of the place where it is conducted. This notion should not encompass questioning by the police or other law enforcement authorities whose sole purpose is the identification of the person concerned or the verification of the possession of weapons or other similar safety issues.
Amendment 50 #
Proposal for a directive Recital 7 a (new) (7a) Member States should ensure that suspects and accused persons have the right of access to a lawyer, promptly, before the person is interviewed by the law enforcement or judicial authorities, as from when the person is formally charged of having committed a criminal offence, as from the outset of deprivation of liberty, including detention and during any hearing. In any case, suspects and accused persons should be granted access to a lawyer during criminal proceedings before a court, if they wish to be assisted by a lawyer. This Directive focuses on the right of access to a lawyer, which may, but does not to have to be exercised by the suspect or accused person, depending on his will. Therefore the directive should not affect the national provisions concerning mandatory defence.
Amendment 51 #
Proposal for a directive Recital 8 (8) The European Court of Human Rights has consistently held that the suspect or accused person should have access to a lawyer
Amendment 52 #
Proposal for a directive Recital 8 (8) The European Court of Human Rights has consistently held that the suspect or accused person should have access to a lawyer at the initial stages of police questioning, and in any event from the start of detention, to protect the right to a fair trial, and in particular the privilege against self-incrimination and to avoid ill treatment; Nevertheless, with a view to respecting a balance between the rights of the defence and the requirements of the investigation, the right to be assisted by a lawyer at an interrogation or hearing should not significantly delay the start of the hearing or interrogation.
Amendment 53 #
Proposal for a directive Recital 8 a (new) (8a) In order for this Directive to be applicable in practice as regards the carrying out of regular police work the right of access to a lawyer does not apply when suspects are questioned in the streets without being arrested and deprived of their liberty, for example in the case of a regular on-the-spot police control.
Amendment 54 #
Proposal for a directive Recital 8 a (new) (8a) The suspect or accused person has a right to legal assistance during an official interview that takes place in a police station or in a comparable place. A place is comparable to a police station when that place is, like a police station, suitable and equipped for interviewing suspected or accused persons about their alleged engagement in a criminal offence.
Amendment 55 #
Proposal for a directive Recital 9 Amendment 56 #
Proposal for a directive Recital 9 Amendment 57 #
Proposal for a directive Recital 9 (9) A similar right to the presence of a lawyer should be granted every time that national law expressly allows or demands the presence of the suspected or accused person at a procedural step or evidence gathering such as a search, except in the case of purely technical and scientific acts such as fingerprinting, biological sampling or legal medical observations; in these cases, in fact, the presence of the lawyer can strengthen the rights of the defence without affecting the need to preserve the confidentiality of certain investigative acts, since the presence of the person excludes the confidential nature of the acts in question; this right should be without prejudice to the need to secure evidence which by its very nature is liable to be altered, removed or destroyed if the competent authority was to wait until the arrival of a lawyer;
Amendment 58 #
Proposal for a directive Recital 9 (9) A similar right to the presence of a lawyer should be granted every time that national law expressly allows or demands the presence of the suspected or accused person at a procedural step or evidence gathering such as a search; in these cases, in fact, the presence of the lawyer can strengthen the rights of the defence without affecting the need to preserve the confidentiality of certain investigative acts, since the presence of the person excludes the confidential nature of the acts in question;
Amendment 59 #
Proposal for a directive Recital 10 (10) To be effective, access to a lawyer should entail the possibility for the lawyer to carry out all the wide range of activities which pertain to legal counselling, as the European Court of Human Rights has held.
Amendment 60 #
Proposal for a directive Recital 10 (10) To be effective, access to a lawyer should entail the possibility for the lawyer to carry out all the wide range of activities which pertain to legal counselling, as the European Court of Human Rights has held. This should include
Amendment 61 #
Proposal for a directive Recital 10 (10) To be effective, access to a lawyer should entail the possibility for the lawyer to carry out all the wide range of activities which pertain to legal counselling, as the European Court of Human Rights has held. This should include
Amendment 62 #
Proposal for a directive Recital 10 (10) To be effective, access to a lawyer should entail the possibility for the lawyer to carry out all the wide range of activities which pertain to legal counselling, as the European Court of Human Rights has held. This should include active participation in any
Amendment 63 #
Proposal for a directive Recital 10 a (new) (10a) As poor detention conditions may be indirectly used as an instrument to pressure the detainee into unlawful cooperation, the lawyer should have the right to check the adequacy of the detention conditions and verify whether they respect the fundamental rights as set out by the European Court of Human Rights.
Amendment 64 #
Proposal for a directive Recital 11 (11) The duration and frequency of meetings between the suspect or accused person and their lawyer depend on the circumstances of every proceeding, notably on the complexity of the case and the procedural steps applicable.
Amendment 65 #
Proposal for a directive Recital 11 a (new) (11a) ) In order for the right to legal assistance to be practical and effective the suspect who has no lawyer should be provided with one when he is deprived of liberty. In proceedings before the court the suspect who has no lawyer should be provided with one when the interest of justice so require. There is no obligation to provide a lawyer when the suspect or accused person has waived his right to legal assistance in accordance with Article 9. Neither is it obligatory to provide a lawyer in the pre-trial stage when the suspected or accused person is not deprived of his liberty or in the trial stage when the interests of justice do not require that a lawyer is provided. In these cases the obligation of Member States to ensure the right to legal assistance is met when the lawyer is allowed to give legal assistance.
Amendment 66 #
Proposal for a directive Recital 14 (14) Since confidentiality of communication between a suspect or accused person and their lawyer is key to ensuring the effective exercise of the rights of the defence, Member States should be required to uphold and safeguard the confidentiality of meetings between the lawyer and the client and of any other form of communication permitted under national law.
Amendment 67 #
Proposal for a directive Recital 14 a (new) (14a) It should be permissible to monitor contacts between a suspect or an accused person and his lawyer only in exceptional circumstances and if both the suspect or accused person and the lawyer have been notified in advance, so that the monitoring is not carried out in secret.
Amendment 68 #
Proposal for a directive Recital 14 a (new) (14a) Since the purpose of any criminal proceedings must be to establish the truth, in exceptional, serious circumstances Member States should continue to enjoy the option of departing from the principle of confidentiality if there is a danger that a confidential conversation could give rise to interference with evidence.
Amendment 69 #
Proposal for a directive Recital 14 a (new) (14a) The lawyer should respect the secrecy of the investigation. This obligation is necessary for the proper conduct of the investigation;
Amendment 70 #
Proposal for a directive Recital 15 Amendment 71 #
Proposal for a directive Recital 17 a (new) (17a) Account should be taken of the urgent needs of the investigation and, in particular, of specific circumstances linked to the fight against terrorism and organised crime in relation to the application of the rights granted by this Directive;
Amendment 72 #
Proposal for a directive Recital 17 a (new) (17a) The right of the suspect or accused person to communicate with his lawyer should ordinarily include the opportunity of the person concerned to meet his lawyer. In respect of certain relatively minor cases however, the right to obtain legal assistance can be by telephone.
Amendment 73 #
Proposal for a directive Recital 18 (18) The suspect or accused person should be allowed to waive the right to a lawyer, as long as they are fully aware of the consequences of the waiver, notably because they have
Amendment 74 #
Proposal for a directive Recital 22 Amendment 75 #
Proposal for a directive Recital 23 Amendment 76 #
Proposal for a directive Recital 24 (24)
Amendment 77 #
Proposal for a directive Recital 24 (24) In the absence to-date of EU legislative instrument on legal aid, Member States should continue to apply their domestic provisions on legal aid, which should be in line with the Charter, the ECHR and the case-law of the European Court of Human Rights.
Amendment 78 #
Proposal for a directive Recital 26 Amendment 79 #
Proposal for a directive Recital 27 Amendment 80 #
Proposal for a directive Recital 27 (27) Since the European Court of Human Rights has established that irretrievable damage to the rights of the defence results from the use of an incriminating statement made by the suspect or accused person without access to a lawyer, Member States should
Amendment 81 #
Proposal for a directive Recital 29 a (new) (29a) The principle of free choice of a lawyer as enshrined in Article 6(3)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms should also be guaranteed. In cases of terrorism and organised crime, it should be possible to derogate from this right at the request of the judicial or competent authority, in particular where there is a risk of collusion;
Amendment 82 #
Proposal for a directive Recital 30 (30) This Directive promotes the rights of the child and takes into account the Guidelines of the Council of Europe on child friendly justice, in particular its provisions on information and advice. The Directive ensures that children cannot waive their rights under this Directive when they lack the capacity to understand the consequences of the waiver.
Amendment 83 #
Proposal for a directive Article 1 The Directive lays down rules concerning the right of suspects and accused persons in criminal proceedings and of persons subject to proceedings pursuant to Council Framework Decision 2002/584/JHA to
Amendment 84 #
Proposal for a directive Article 2 – paragraph 1 1. This Directive applies from the time a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence, and irrespective of whether he is arrested or not, until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspected or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.
Amendment 85 #
Proposal for a directive Article 2 – paragraph 1 1. This Directive applies from the time a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he or she is suspected or accused of having committed a criminal offence, or from the time he or she is deprived of their liberty, until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspected or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.
Amendment 86 #
Proposal for a directive Article 2 – paragraph 1 a (new) 1a. Within the meaning of this Directive, the term ‘lawyer’ shall include any person who is qualified under the national law of the Member State concerned to provide legal advice and assistance to suspects and accused persons.
Amendment 87 #
Proposal for a directive Article 2 – paragraph 1 a (new) 1a. This Directive does not cover preliminary questioning by the police or other law enforcement officers, immediately after the apprehension of a suspect, the purpose of which is to determine whether an investigation should be started or if there are any safety issues.
Amendment 88 #
Proposal for a directive Article 3 – paragraph 1 – introductory part 1. Member States shall ensure that suspects and accused persons are promptly granted access to a lawyer
Amendment 89 #
Proposal for a directive Article 3 – paragraph 1 – introductory part 1. Member States shall ensure that suspects and accused persons are granted access to a lawyer of his her own choosing or to legal aid according to national legislation as soon as possible and in any
Amendment 90 #
Proposal for a directive Article 3 – paragraph 1 – introductory part 1. Member States shall ensure that suspects and accused persons are granted the right of access to a lawyer in person as soon as possible and in any event:
Amendment 91 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of any questioning by the
Amendment 92 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of an
Amendment 93 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of an
Amendment 94 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of any questioning by the police or hearing by other law enforcement authorities;
Amendment 95 #
Proposal for a directive Article 3 – paragraph 1 – point a (a) before the start of an
Amendment 96 #
Proposal for a directive Article 3 – paragraph 1 – point b (b) upon the carrying out of any procedural or evidence-gathering act
Amendment 97 #
Proposal for a directive Article 3 – paragraph 1 – point b (b) upon carrying out any procedural or evidence-gathering act at which the person’s presence is required or permitted as a right in accordance with national law,
Amendment 98 #
Proposal for a directive Article 3 – paragraph 1 – point с (c) from the outset of deprivation of liberty
Amendment 99 #
Proposal for a directive Article 3 – paragraph 1 – point c (c) immediately from the outset of deprivation of liberty.
Amendment 100 #
Proposal for a directive Article 3 – paragraph 1 – point с а (new) (ca) during any questioning;
Amendment 101 #
Proposal for a directive Article 3 – paragraph 1 – point с b (new) (cb) from the moment the person is summoned to appear before a court having jurisdiction in criminal matters, in connection with the occurrence of the earliest of any of the events listed in this paragraph. Upon the occurrence of any of these events, the suspect or accused person shall be provided with written information on their rights. This shall be certified in accordance with the recording procedures laid down in the law of the Member State concerned.
Amendment 102 #
Proposal for a directive Article 3 – paragraph 1 a (new) 1a. Member States shall notify suspects and accused persons that they have a right of access to a lawyer in accordance with the Directive on the right to information in criminal proceedings. They shall also ensure that this right is communicated in an appropriate manner that can be understood by all persons, including children and vulnerable.
Amendment 103 #
Proposal for a directive Article 3 – paragraph 2 a (new) 2a. An official interview in the meaning of this Article is an interview of the suspect or accused person that takes place in a police station or another appropriate place.
Amendment 104 #
Proposal for a directive Article 3 – paragraph 2 a (new) 2a. An official interview in the meaning of this Article is an interview of the suspect or accused person that takes place in a police station or any other venue chosen to conduct the interview.
Amendment 105 #
Proposal for a directive Article 3 – paragraph 2 a (new) 2a. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, in all cases where the suspect or accused person is deprived of liberty, and in any event during the trial stage before a court having jurisdiction in criminal matters, Member States shall ensure that a suspect or accused person is effectively able to exercise his right of access to a lawyer, unless he has waived this right in accordance with Article 9. Before a case is before a court having jurisdiction in criminal matters, Member States may, but are not obliged to, assist a person who is not detained in exercising his right of access to a lawyer. They shall at least provide information on this right in accordance with the Directive on right to information in criminal proceedings 2010/0215(COD). In any event, Member States should not prevent a person from contacting or consulting with a lawyer on matters concerning his defence.
Amendment 106 #
Proposal for a directive Article 3 – paragraph 2 b (new) 2b. In cases involving minor offences, the access to a lawyer for the suspect or accused person may be via telephone.
Amendment 107 #
Proposal for a directive Article 4 – paragraph 1 1. The suspect or accused person shall have the right to meet privately with the lawyer representing him.
Amendment 108 #
Proposal for a directive Article 4 – paragraph 1 1. The suspect or accused person shall have the right at any stage of the proceedings to meet with the lawyer representing him.
Amendment 109 #
Proposal for a directive Article 4 – paragraph 1 1. The suspect or accused person shall have the right to be represented and meet with the lawyer of his her own choosing or with the one issued from the legal aid system according to national legislation and representing him.
Amendment 110 #
Proposal for a directive Article 4 – paragraph 2 2. The lawyer shall have the right to be present at any
Amendment 111 #
Proposal for a directive Article 4 – paragraph 2 2.
Amendment 112 #
Proposal for a directive Article 4 – paragraph 2 2. The lawyer shall have the right to be present at any questioning and hearing. He shall have the right
Amendment 113 #
Proposal for a directive Article 4 – paragraph 2 2. The lawyer shall have the right to be present at any questioning and hearing. He shall have the right to ask questions, request clarification and make statements, which shall be recorded in accordance with national law, and to have his comments annexed to the official record of the questioning or hearing.
Amendment 114 #
Proposal for a directive Article 4 – paragraph 2 2.
Amendment 115 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act
Amendment 116 #
Proposal for a directive Article 4 – paragraph 3 3.
Amendment 117 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right of access to the materials of the case and to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the acquisition of evidence. He shall have the right to request evidence-gathering himself.
Amendment 118 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the acquisition of evidence or delay that acquisition to a disproportionate degree.
Amendment 119 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the acquisition of evidence or the act concerned is a purely technical and scientific investigative or evidence- gathering act.
Amendment 120 #
Proposal for a directive Article 4 – paragraph 3 3. The lawyer shall have the right to be present at any other investigative or evidence-gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law,
Amendment 121 #
Proposal for a directive Article 4 – paragraph 3 3.
Amendment 122 #
Proposal for a directive Article 4 – paragraph 3 3.
Amendment 123 #
Proposal for a directive Article 4 – paragraph 3 3.
Amendment 124 #
Proposal for a directive Article 4 – paragraph 4 4.
Amendment 125 #
Proposal for a directive Article 4 – paragraph 4 4. The lawyer shall have
Amendment 126 #
Proposal for a directive Article 4 – paragraph 4 4. T
Amendment 127 #
Proposal for a directive Article 4 – paragraph 4 4. The lawyer shall have the right to check the conditions in which the suspect or accused person is detained and to this end shall have access to the place where the person is detained and to have his comments officially recorded.
Amendment 128 #
Proposal for a directive Article 4 – paragraph 5 a (new) 5a. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall ensure that in all cases where the suspect or accused person is deprived of liberty and, when the interests of justice so require, during the trial stage before a court having jurisdiction in criminal matters, a suspect or accused person who has no lawyer is provided with a lawyer, unless he has waived his right to legal assistance in accordance with Article 9.
Amendment 129 #
Proposal for a directive Article 4 – paragraph 5 a (new) 5a. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, in all cases where the suspect or accused person is deprived of liberty, and in any event during the trial stage before a court having jurisdiction in criminal matters, Member States shall ensure that a suspect or accused person is in a position to exercise his right of access to a lawyer, unless he has waived the right in accordance with Article 9. In cases in the pre-trial phase when a suspect or accused person is not deprived of liberty, Member States shall ensure that a suspect or accused person is permitted to contact or consult his own lawyer or to be assisted by him.
Amendment 130 #
Proposal for a directive Article 5 – paragraph 1 1. Member States shall ensure that a person to whom Article 2 refers and who is deprived of his liberty has the right to communicate immediately with at least one person named by him as soon as possible.
Amendment 131 #
Proposal for a directive Article 5 – paragraph 2 2. Where the person is a child or a vulnerable person, Member States shall ensure that the child’s legal representative or another adult, depending on the interest of the child or the vulnerable person, is informed as soon as possible of the deprivation of liberty and the reasons pertaining thereto, unless it would be contrary to the best interests of the child or the vulnerable person, in which case another appropriate adult or legal representative shall be informed.
Amendment 132 #
Proposal for a directive Article 5 – paragraph 2 2. Where the person is a
Amendment 133 #
Proposal for a directive Article 6 Member States shall ensure that persons to whom Article 2 refers, who are deprived of their liberty and who are non-nationals have the right to have consular or diplomatic authorities of their State of nationality informed of the detention as soon as possible and to communicate with and be visited by the consular or diplomatic authorities in private. Consular authorities may also arrange access to a lawyer for the suspect or accused person.
Amendment 134 #
Proposal for a directive Article 6 Member States shall ensure that persons to whom Article 2 refers, who are deprived of their liberty and who are non-nationals have the right to have consular or diplomatic authorities of their State of nationality informed
Amendment 135 #
Proposal for a directive Article 7 Member States shall ensure in all circumstances that the confidentiality of all meetings between
Amendment 136 #
Proposal for a directive Article 7 Member States shall ensure that the confidentiality of meetings between the suspect or accused person and his lawyer is guaranteed. They shall also ensure the confidentiality of correspondence, telephone conversations and other forms of communication permitted under national law between the suspect or accused person and his lawyer. Confidentiality shall not be subject to any exception; any infringement thereof shall be sanctioned in accordance with national law.
Amendment 137 #
Proposal for a directive Article 7 Member States shall ensure that the confidentiality of meetings between
Amendment 138 #
Proposal for a directive Article 7 Member States shall ensure that the confidentiality of meetings between the suspect or accused person and his lawyer is guaranteed. They shall also ensure the confidentiality of correspondence, telephone conversations and other forms of communication permitted under national law between the suspect or accused person and his lawyer. This confidentiality is absolute and non-derogable, given that it is the core of which fair trial rights consists.
Amendment 139 #
Proposal for a directive Article 7 Member States shall
Amendment 140 #
Proposal for a directive Article 7 – paragraph 1 a (new) In exceptional circumstances Member States may derogate from paragraph 1 on a case-by-case basis where this is regulated by national law, and a) when there is sufficient reason to believe that the privilege between lawyer and client is being abused or b) where there is reason to believe that the lawyer concerned has colluded in a criminal offence with the suspect or accused person, and the derogation is granted by a judicial authority.
Amendment 141 #
Proposal for a directive Article 8 – paragraph 1 – point a (a) shall be justified by compelling reasons in the light of the particular circumstances of the case pertaining to the urgent need to avert serious adverse consequences for the life or physical integrity of a person;
Amendment 142 #
Proposal for a directive Article 8 – paragraph 1 – point a (a) shall be justified by compelling reasons
Amendment 143 #
Proposal for a directive Article 8 – paragraph 1 – point a a (new) (aa) shall be justified as part of a procedure linked to an act of terrorism or of organised crime;
Amendment 144 #
Proposal for a directive Article 8 – paragraph 1 – point b Amendment 145 #
Proposal for a directive Article 8 – paragraph 1 – point c (c)
Amendment 146 #
Proposal for a directive Article 8 – paragraph 1 – point d (d)
Amendment 147 #
Proposal for a directive Article 8 – paragraph 1 – point e (e)
Amendment 148 #
Proposal for a directive Article 8 – paragraph 1 – point e (e) shall not prejudice the smooth running of the investigation or the fairness of the proceedings.
Amendment 149 #
Proposal for a directive Article 8 – paragraph 2 Derogations may only be authorised by a duly reasoned decision taken by an independent judicial authority on a case- by-case basis. The duly reasoned decision shall be recorded in writing.
Amendment 150 #
Proposal for a directive Article 8 – paragraph 2 a (new) The grounds and criteria for derogations listed above must be clearly set out in national law.
Amendment 151 #
Proposal for a directive Article 9 – paragraph 1 – point b (b) he has the necessary capacity to understand these consequences and has reached the age of majority
Amendment 152 #
Proposal for a directive Article 9 – paragraph 1 – point c (c) the waiver is given voluntarily and unequivocally in writing.
Amendment 153 #
Proposal for a directive Article 9 – paragraph 2 2. The waiver and the circumstances in which it was given shall be recorded in accordance with the law of the Member State concerned. Member States shall ensure that no waiver is given to the right to a lawyer where the suspect or accused person is a minor.
Amendment 154 #
Proposal for a directive Article 9 – paragraph 2 2. The waiver and the circumstances in which it was given shall be filed in writing and be recorded in accordance with the law of the Member State concerned.
Amendment 155 #
Proposal for a directive Article 9 – paragraph 3 3. Member States shall ensure that a waiver can be subsequently revoked at any stage of the proceedings and that the suspect or accused person is informed of this possibility.
Amendment 156 #
Proposal for a directive Article 9 – paragraph 3 a (new) 3a. The revocation of the right should not lead to the obligation to repeat the criminal proceedings or any part thereof. In case of revocation the directive should be applied from that moment in time onwards.
Amendment 157 #
Proposal for a directive Article 10 – paragraph 1 1. Member States shall ensure that any person other than a suspect or accused person who is heard by the police or other enforcement authority in the context of a criminal procedure is granted
Amendment 158 #
Proposal for a directive Article 10 – paragraph 1 1. Member States shall ensure that any person other than a suspect or accused person who is heard by the police or other enforcement authority in the context of a criminal procedure is granted access to a lawyer if, in the course of questioning, interrogation or hearing, he becomes suspected or accused of having committed a criminal offence. This person has to be informed promptly that he or she is a suspect and/or accused person. Any such questioning, interrogation or hearing shall be suspended immediately.
Amendment 159 #
Proposal for a directive Article 10 – paragraph 1 1. Member States shall ensure that any person other than a suspect or accused person who is heard by the police or other enforcement authority in the context of a criminal procedure is granted access to a lawyer if, in the course of questioning, interrogation or hearing, he becomes suspected or accused of having committed a criminal offence. Where a lawyer is requested by the suspect or accused person, the proceedings shall be postponed until the person has had the opportunity to have access to a lawyer.
Amendment 160 #
Proposal for a directive Article 10 – paragraph 1 a (new) 1a. Access to a lawyer shall be granted in such a time and manner as to allow the suspect or accused person to exercise his rights of defence effectively.
Amendment 161 #
Proposal for a directive Article 10 – paragraph 2 Amendment 162 #
Proposal for a directive Article 11 – paragraph 2 – subparagraph 1 – indent 3 – the right that his lawyer is present at any questioning and hearing, including the right to ask questions, request clarification and make statements, which shall be recorded in accordance with national law, and to have his comments annexed to the official record of the questioning or hearing;
Amendment 163 #
Proposal for a directive Article 11 – paragraph 2 – subparagraph 1 – indent 3 a (new) - the right that he and his lawyer have access to the materials of the case;
Amendment 164 #
Proposal for a directive Article 11 – paragraph 2 – subparagraph 1 – indent 4 – the right that his lawyer has access to the place where the person is detained
Amendment 165 #
Proposal for a directive Article 11 – paragraph 4 4. The lawyer of this person in the issuing Member State shall have the right to carry out activities
Amendment 166 #
Proposal for a directive Article 12 Amendment 167 #
Proposal for a directive Article 12 – paragraph 2 2. Member States shall
Amendment 168 #
Proposal for a directive Article 12 – paragraph 2 2. Member States shall
Amendment 169 #
Proposal for a directive Article 12 a (new) Article 12 a Definition of a lawyer 1. Member States shall take concrete measures to ensure that the lawyer has appropriate accreditation to effectively represent the suspect or accused person in accordance with this Directive. 2. In order to ensure that only accredited lawyers provide legal assistance, Member States shall endeavour to establish a register or registers of accredited lawyers who are appropriately qualified. Once established, such register or registers shall, where appropriate, be made available to relevant authorities.
Amendment 170 #
Proposal for a directive Article 13 – paragraph 1 1. Member States shall ensure that a person to whom Article 2 and article 10 refers has an effective remedy in instances where his right of access to a lawyer has been breached.
Amendment 171 #
Proposal for a directive Article 13 – paragraph 2 Amendment 172 #
Proposal for a directive Article 13 – paragraph 2 Amendment 173 #
Proposal for a directive Article 13 – paragraph 3 Amendment 174 #
Proposal for a directive Article 13 – paragraph 3 3. Member States shall ensure that the question of the value to be given to statements made by the suspect or accused person or evidence obtained in breach of his right to a lawyer or in cases where a derogation to this right was authorised in accordance with
Amendment 175 #
Proposal for a directive Article 13 – paragraph 3 3. Member States shall ensure that the question of which value to be given to statements made by the suspect or accused person or evidence obtained in breach of his right to a lawyer or in cases where a derogation to this right was authorised in accordance with
Amendment 176 #
Proposal for a directive Article 13 – paragraph 3 3. Member States shall ensure that statements made by the suspect or accused person or evidence obtained in breach of his right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 8, may not be used for his/her conviction at any stage of the procedure as evidence against him, unless the use of such evidence would not prejudice the rights of the defence.
Amendment 177 #
Proposal for a directive Article 13 – paragraph 3 3. Once a case has been referred to a court having jurisdiction in criminal matters, Member States sh
source: PE-486.050
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History
(these mark the time of scraping, not the official date of the change)
| activities/6/date | changed |
Old
2013-07-01New
2013-09-10 |