The EU funded “Pre-trial Emergency Defence” project: Assessing pre-trial access to defence rights in four European countries

A) Gaining knowledge on access to pre-trial defence

The European Court of Human Rights in Pishchalnikov v. Russia from 24/09/2009 (appl. no. 7025/04) underlined the essential character of pre-trial access to legal advice: “Having been denied legal assistance, the applicant was unable to make the correct assessment of the consequences his decision to confess would have on the outcome of the criminal case … . In the absence of assistance by counsel who could have provided legal advice and technical skills, the applicant could not make full and knowledgeable use of his rights afforded by the criminal-procedural law.” (§ 85).
Providing information on suspects’ rights including the right to legal advice to the suspect in criminal proceedings is a precondition to enable him to make use of his/her rights. Hence the information on suspects’ rights and the actual access to legal advice has been taken at centre stage of the “Pre-trial Emergency Defence”(PED) project. The ECtHR had already pointed out thirty years ago in Artico v Italy (appl. no. 6694/74) that “the Convention is intended to guarantee not rights that are illusory but rights that are practical and effective.” (§ 33) So the present research evaluated pre-trial access to defence rights not just in law but also in practice, focusing especially on the effectiveness of emergency lawyer schemes as a practical tool to facilitate access to effective legal advice.
The EU funded international research project covered the situation in Austria, Croatia, Germany and Slovenia. The research was done by a team of partners from the Austrian Criminal Bar Association, the Universities of Graz, Ljubljana, Vienna and Zagreb and the European Criminal Bar Association (see ECBA Newsletter 18 / November 2009).

B) Underlining the importance of pre-trial stage

The research focus is based on the presumption that pre-trial proceedings predetermine the outcome of the whole proceedings. A significant number of cases are settled before the trial stage; whether investigations prove the suspect not to be guilty, whether the case is solved by diversion or even an order of summary punishment is issued. This appraisal could be demonstrated by two examples: (a) In Germany in 2006 only 14% of all pre-trial proceedings did public prosecutors decide to issue an indictment leading to public and oral main proceedings at the Court. In the same percentage of cases the public prosecutors requested a written summary sanction without those public and oral main proceedings. In another 6 % of cases the public prosecutors dropped the case due for opportunistic reasons but obligations were imposed on the suspect (see Statistisches Bundesamt; Justiz auf einen Blick, 2008, p.13) And (b) In Austria in 2008 a variety of new and enhanced possibilities for diversion were implemented. Coincidently the figures of conviction after trial proceedings, roughly speaking, decreased by about 1/3 (source: Statistik Austria). One can assume the latter two facts being interrelated. Even in those cases reaching the trial stage the information and proofs collected during the pre-trial stage predetermine the trial stage – there is a de facto continuum from investigation to trial.
The European Court of Human Rights held in the Salduz v. Turkey (appl. no. 36391/02) case that “[i]n order for the right to a fair trial to remain practical and effective … article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.” In Dayanan v. Turkey (appl. no. 7377/03) the Court pointed out that “[a]s emerges from the generally recognized international norms, which the Court accepts and which complements its case-law, a suspect must be afforded assistance by a lawyer as soon as he has been deprived of his liberty, whether or not he is to undergo interrogations.”

C) An insight into the project findings

Accordingly the project focused on those situations when the suspect is confronted with law enforcement officers for the first time face to face. This applies in the situation of first interrogations as well as of arrest, pre-trial detention or other measures of deprivation of liberty. Furthermore the research included informal questioning too, taking into account the different meanings of such questioning in the domestic laws of the countries assessed.
To give some examples of the findings and of the needs for improvement discovered by the research:-
PED project results demonstrate that whether or how information on suspects’ rights is provided in practice will predetermine the actual decision whether a suspect uses his right to access to legal advice. The (mis)use of judicial language, for example, does not help the suspect’s understanding of these rights. Furthermore some of the study participants reported that the information given in accordance with the law sometimes will be downplayed afterwards. Inversely it became obvious that some suspects presume that making use of their rights might be misinterpreted as an indication of guilt. In the meantime one has to recognize that a suspect’s decision whether to make use of his rights or to waive them is also a matter of costs. Finally, suspects often seem to underestimate the effect of pre-trial proceedings predetermining the whole proceedings.
There are several crucial points regarding when and how access to legal advice is ensured in pre-trial proceedings. All the assessed laws provide for access to legal advice before the first formal (police) interrogation as well as during arrest or detention. Yet, when going into detail, domestic provisions on how access to legal advice shall be provided might be questioned. So in Austria the revised CCP simply allows for the mere presence of a lawyer during the interrogation, but denies any suspect’s request to a lawyer or any other form of participation by a lawyer. It is only the latter who is entitled to ask questions after the interrogation. Although research shows that the application of this provision differs in practice and real participation might be provided on a case by case basis, one might ask whether or not the law should be reviewed. Another crucial point is the distinction between formal interrogations and informal questionings. In Croatia for instance the suspect in a broad variety of cases might opt for informal questionings without any warnings and without access to legal advice; those statements must not be used as evidence in court proceedings. Nevertheless one can assume that those statements will influence the outcome of the investigation. Finally research shows that, if the law allows for supervision of suspects’ consultation, this consultation often won’t be confidential because it is supervised.
The role of emergency lawyer schemes, as practical measures to ensure access to legal advice, has also been evaluated. In Austria there is an emergency defence lawyer service established as a pilot project since 2008. Yet this service is used only 40-60 times a month mainly via telephone calls. In Germany more than 50 local emergency lawyer schemes are organized. No such scheme is to be found in Slovenia. In Croatia a list of lawyers willing to do emergency work is provided to law enforcement agencies. PED research shows that the availability of emergency defence lawyer schemes will contribute in assuring access to legal advice in pre-trial proceedings, as long as certain preconditions are fulfilled.

D) Conclusions and recommendations

In the oncoming publication of the study, conclusions and recommendations will be given:
Information on the right to access to legal advice shall be provided immediately when a suspect is faced with investigative measures of law enforcement agencies. That information shall be in a clear and understandable language adopted to the respective suspect and accessible and lasting by a letter of rights. It shall include information on the emergency defence lawyer service as well as whether any of such service may be free of charge.
Access to a lawyer shall be facilitated at every stage of pre-trial proceedings, especially before first interrogation or any other form of questioning. It shall be effective and in principle confidential, supported by appropriate legal aid and emergency defence lawyer schemes. The latter shall be provided best round the clock and shall be accessible by phone immediately and in person in reasonable time.

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