17-06-2011
European Commission directs access to an attorney for every suspect within the EU

The European Commission recently proposed that all suspects, regardless of which EU country they are in, should have the right to discuss with an attorney from the moment they are held in police custody until their case is closed. Suspects should also be able to communicate with a family member or their employer to inform them about their arrest. If suspects are not in their own country, they should have the right to contact their consulate.

The right to defend oneself is generally acknowledged as one of the basic parts of a fair trial. The preconditions for suspects to consult an attorney, however, differ from member state to member state. For example, a person accused of a criminal offence  possibly may not have access to an attorney during  questioning by the police. The value of evidence obtained without the presence of an attorney differs per member state. It is also feasible that persons arrested under a European arrest warrant, do not have access to an attorney in the country where the warrant is issued until they are handed over to that country.

Similarly there are differences that affect the right of suspects to inform relatives or employers about their arrest. It is possible that suspects may not systematically have this right, or may be given this right only at a very late stage in the proceedings, or perhaps may not be told by the police that their family has already been informed.

The proposals made by the European Commission should serve to ensure that in practice all of the above mentioned rights are guaranteed, in particular by:

• providing access to an attorney from the first stages of examination by the police until the case is closed;
• offering the suspect sufficient possibility to discuss his case privately with his attorney, so that he can effectively exercise his right to defend himself;
• making it possible for the attorney to play an active role during the examinations, and to be able to inspect the conditions of detention;
• ensuring that the suspect has the possibility to communicate with at least one relative or his employer to inform them about his arrest and custody;
• offering  suspects in foreign custody the possibility to contact their embassy or consulate, and to allow them visitors;
• giving persons against whom a European arrest warrant is issued the opportunity to obtain legal advice, both in the country where the warrant is executed and in the country where it is issued.

For more information, please contact Mieke Eversteijn at +31 20 301 66 33 or through mail: mieke.eversteijn@vmwtaxand.nl