Access to a lawyer

PRESS RELEASE
Brussels, 20 June 2012
Access to a lawyer: European Parliament urged to oppose
Council’s erosion of citizens’ right to confidentiality
The Council of Bars and Law Societies of Europe (CCBE) is the representative organisation of around 1 million European
lawyers through its member bars and law societies from 31 full member countries, and 11 further associate and observer
countries.
The CCBE is alarmed by the recent EU Council’s position of 8 June regarding the proposed Directive on the right of
access to a lawyer in criminal proceedings and on the right to communicate upon arrest. In stark contrast to the original
proposal from the Commission, the Council's text of 8 June falls dramatically below the standards set by the
jurisprudence of the European Court of Human Rights, including internationally accepted standards in relation to the right
of access to a lawyer and legal assistance, thus turning the proposed measure into the very opposite of its intended
purpose.
Of utmost concern is a provision in the Council’s text that would justify states derogating from the confidentiality of
communication between a suspect or accused person and his/her lawyer. The CCBE believes that this is a wholly
erroneous approach which undermines the rule of law and fundamental rights of citizens, and would result in a breach of
principles of fair trial and of the right to privacy under Article 8 of the European Convention on Human Rights (ECHR).
The Member States have used a proposal for a Directive purportedly designed to improve the rights of accused persons
as an opportunity to erode fundamental rights of citizens.
“The unrestricted confidentiality of communication with a lawyer is a fundamental right of any European citizen when
consulting a lawyer. It is of fundamental concern that this principle be maintained, and in particular in an EU Directive that
aims to protect the rights of citizens”, said CCBE President, Marcella Prunbauer-Glaser. The importance of confidentiality
of communications between a suspect and his/her lawyer as enshrined in the ECHR has been highlighted as belonging to
the right to a fair trial in a series of rulings by the European Court of Human Rights. For example, in Sakhnovskiy v
Russia (§ 97 judgment of 2.11.2010), the Court re-stated its position that “an accused’s right to communicate with his
lawyer without the risk of being overheard by a third party is one of the basic requirements of a fair trial in a democratic
society and follows from Article 6 § (3) of the Convention (see Castravet v. Moldova § 49, 13 March 2007). If a lawyer
were unable to confer with his client and receive confidential instructions from him without such surveillance his
assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical
and effective”. Other similar rulings can be found in Brennan v UK (judgment of 16 October 2001 § 58), S. v Switzerland
dated 28.11.1991 and Campbell v UK (dated 25.3.1992 par.46.)
Furthermore, Principles 8 and 22 of the UN Basic Principles on the Role of Lawyers state that “all arrested, detained or
imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate
with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight,
but not within the hearing of law enforcement officials”.
The CCBE reminds Member States that, if it is to have any value, the Directive will need, as a minimum, to conform to
fundamental rights as defined in the ECHR and the relevant case-law. The CCBE strongly calls on the European
Parliament and the Member States to stop attempts at eroding the fundamental right of citizens to confidentiality and
equally calls on the Commission to uphold its earlier proposal. “The CCBE hopes that MEPs are aware of these threats
and will be given a strong mandate to uphold the fundamental rights of citizens in the forthcoming negotiations with the
Council, in accordance with the initial intention of the Commission”, said Marcella Prunbauer-Glaser.
Other CCBE main concerns with the Council’s text can be found here.
Conseil des barreaux européens – Council of Bars and Law Societies of Europe
association internationale sans but lucratif
Avenue de la Joyeuse Entrée 1-5 – B 1040 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – Fax.+32 (0)2 234 65 11/12 – E-mail [email protected]– www.ccbe.eu
Background notes to the editor:
The EU Council adopted on 30 November 2009 a “Roadmap‟ mandating the Commission to present proposals/measures
over the following five years on: (A) the right to translation and interpretation; (B) information on rights and information
about the charges; (C) legal advice and legal aid; (D) communication with relatives, employers and consular authorities;
and (E) special safeguards for suspected or accused persons who are vulnerable. Measure A was adopted in 2010 and
Measure B in 2012. In June 2011 the Commission presented a combined proposal that covers Measures C (excluding
legal aid) and D. This Commission “proposal for a Directive on the right of access to a lawyer in criminal proceedings and
on the right to communicate upon arrest” was welcomed by the CCBE. The Council has been examining the Commission
proposal since its publication. Regrettably, the Council text of 8 June 2012 differs significantly from the original text
proposed by the Commission. The CCBE is critical of the Council text. Of most concern to the CCBE is the Council
provision on confidentiality (Article 4) where it is provided that:
1. Member States shall guarantee the confidentiality of communication between a suspect or accused person and
his lawyer, including meetings, correspondence, telephone conversations and any other forms of communication
permitted under national law.
2. In exceptional circumstances only Member States may temporarily derogate from paragraph 1 when, in the light
of the particular circumstances, this is justified by one of the following compelling
(a)
there is an urgent need to prevent serious crime; or
(b)
there is sufficient reason to believe that the lawyer concerned is involved in a criminal offence with the
suspect or accused person
With regard to this provision, the CCBE is of the firm opinion that there should be no exception to the principle of
confidentiality based on the reasoning that “there is an urgent need to prevent serious crime” or that “there is sufficient
reason to believe that the lawyer concerned is involved in a criminal offence with the suspect or accused person.” These
are wholly erroneous justifications and are not related in any way to the principle of confidentiality. The phrase “there is
an urgent need to prevent serious crime” is vague and open to abuse. The CCBE asks whether there are non-serious
crimes and if so, what crimes? Why do States bother to investigate and prosecute non-serious crimes? There is no
justification whatsoever for a derogation like this. Furthermore, with regard to the second exception, if a lawyer is
suspected of committing a serious crime or of colluding with the suspect then the lawyer should simply be denied access
to the client and a new lawyer appointed. The principle of confidentiality should remain intact as it is a fundamental
principle that exists regarding communications between a client and his/her lawyer.
For further information,
please contact Antoine Fobe
Tel:
+32.(0)2.234.65.10
Fax:
+32.(0)2.234.65.11/12
E-mail: [email protected]
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Conseil des barreaux européens – Council of Bars and Law Societies of Europe
association internationale sans but lucratif
Avenue de la Joyeuse Entrée 1-5 – B 1040 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – Fax.+32 (0)2 234 65 11/12 – E-mail [email protected]– www.ccbe.eu