Proposals for remedying the diminishing trend of access to justice during police stops and custody in the EU
This post focuses on the issue of regular encounters with law enforcement authorities that lead to police stops, arrests and police custody, during which the fundamental human rights of the detainees are increasingly being violated. It highlights that specific categories of population are especially more frequently exposed to coercive treatment. Although there is a global trend of human rights being increasingly disrespected or outright violated by law-enforcement authorities when they impose coercive measures upon individuals they stop, arrest or place in custody, this post focuses on the legal context within which this is happening in the EU.
In the previous post, Just Access drew attention to the concerning current growing trend, worldwide and in Europe, of increasingly expanding legal and practical prerogatives of the police, without the corresponding additional protection of the fundamental rights of those they stop or keep in custody.1 It maintained that access to justice during police stops and custody has especially been diminishing during the prolonged COVID-19 pandemic. It laid out the legal context in which this is happening and openly called on all relevant institutions and bodies, as well as other concerned governmental or nongovernmental human rights experts and activists, to engage their respective capacities and come up with concrete proposals and specific solutions to this problem.
In this post, Just Access intends to take the first step and propose some initial concrete solutions for the individuals who suffer violations of their basic right to access justice. Just Access does not aim at reinventing the wheel. It however observes that the long-standing issue of the lack of genuine understanding by individuals about what their fundamental rights are when they face police or law-enforcement authorities’ coercive powers are even more pervasive during our current challenging times. The following article will first deal with some of the fundamental rights that persons who are victims of police and law-enforcement authorities’ coercive powers have and what they can do when such violations occur (A.) before they are deprived of liberty and (B.) after they are deprived of liberty.
A) Reaching out to non-judicial bodies that provide legal aid, advice and representation when individuals aren’t being deprived of their liberty
One specific form of protection that individuals can seek due to having been mishandled by law-enforcement authorities is free legal aid, advice, and representation. There are various forms of support that individuals living in the EU can seek. In general, it is important that those forms of protection are sufficiently qualified to appropriately respond to the needs of the individuals seeking redress:
“Legal aid refers to the service provided at no cost for those without sufficient means or when the interests of justice so require. Legal assistance must meet certain requirements: among other things, it must be prompt and confidential. It should also be free of charge when the person does not have sufficient means to pay for it.”2
These forms of legal assistance and support contribute to ensuring that individuals can seek for accountability from the police forces and law-enforcement authorities, when they violate their fundamental rights.3 Actually, EU law obliges EU member States to provide for non-judicial bodies for enabling individuals to claim their rights that are protected under EU law, including in cases of discrimination by law-enforcement authorities.
A broader view of access to justice as protected under international and European human rights law, encompasses non-judicial bodies as well as courts. This may include equality bodies, administrative and non-judicial institutions that deal with cases of discrimination, national human rights institutions, ombudsperson institutions, data protection authorities, labour inspectorates and specialised tribunals.4 EU Member States have to establish some of these bodies pursuant to specific EU legislative requirements – for example, equality bodies on racial or ethnic and gender equality were set up under the Racial Equality Directive, and national data protection authorities under the Data Protection directive. Quasi-judicial procedures brought before non-judicial bodies may provide faster, less formalistic and cheaper alternatives for claimants. However, the majority of non-judicial bodies do not have the power to issue binding decisions (exceptions include, for example, data protection authorities and some equality bodies), and their powers for compensation are generally limited.5 Administrative, non-judicial bodies may also advance access to justice by allowing collective redress or complaints. This permits complainants to join forces so that many individual claims relating to the same case can be combined into a single court action. This may allow organisations, such as NGOs, to file complaints on behalf of individuals.6
Consequently, all member States of the EU must under Union law designate a national equality body responsible for promoting equal treatment, including before national law-enforcement authorities, that have at least the obligations to “provide independent assistance to the victims of discrimination,” “conduct survey and studies” and “publish independent reports and recommendations.”7 For instance, besides addressing national courts, individuals living in Germany can reach out to the German Institute for Human Rights, the Federal Anti-Discrimination Agency or to the Federal Commissioner for Data Protection and Freedom of Information.8 Similarly, individuals living in France can address complaints or requests to the National Consultative Commission on Human Rights, the Defender of Rights (the national ombudsperson), the Data protection supervisory authority, the Controller-General of Places of Detention or to local legal access points, legal advice centres and justice outreach units.9 Individuals living in Greece can contact the Ombudsperson, the Ombudsperson for rights of the child, the Equality Body, the Data protection authority or EPANODOS (a non-profit public service organisation governed by private law, under the supervision of the Ministry of Justice, Transparency and Human Rights).10 In Italy, the equality body dealing with discrimination on grounds of race or ethnic origin – the National Office Against Racial Discrimination – established anti-discrimination offices and focal points in some locations in cooperation with local authorities and NGOs.
In addition, equality counsellors, who address discrimination on the ground of sex, exist at national and regional levels; they are mandated to receive complaints, provide counselling, and offer mediation services. They cooperate with labour inspectors who have investigative powers to establish the facts in discrimination cases. They also have legal standing in court in cases of collective impact when no individual victim can be identified. More generally, individuals living in the EU (or in countries applying to join the Union) can seek redress before national11 or regional12 ombudsmen.
B) Improving the right to information when law-enforcement authorities deprive individuals of their freedom and violate their fundamental rights
With respect to arrestation and placement in police custody by law-enforcement authorities, one of the most important obligations of States under international human rights law concerns the right to non-discrimination ensured for any person who finds her-/himself under criminal charges in this context:
“The State has an obligation to ensure, without discrimination, that all individuals detained, criminally charged or otherwise subjected to the criminal and disciplinary mechanisms of the state are provided with legal assistance, including in the form of free, publicly funded legal assistance where needed. Whatever its source, the state must ensure legal assistance is of a high quality, prompt, and confidential. Where individuals’ rights have been violated, legal assistance should be oriented not only towards criminal defence and release from detention, but also towards remedies for those violations.”13
This protection must not only be afforded to citizens and nationals of EU Member States. According to the Special Rapporteur on the rights to freedom of assembly and association, the principle of equality must be respected for ensuring access to justice, including for non-citizens:
“States have reaffirmed the right of equal access to justice for all, including groups in vulnerable situations, and have committed to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all. The right to equality in accessing justice is not limited to citizens. It must be available to all individuals, regardless of nationality or statelessness, to asylum seekers, refugees, migrant workers, unaccompanied children, or any other persons in vulnerable situations. This right also ensures equality of arms, which in exceptional cases might also require that the free assistance of an interpreter be provided.”14
Under EU law and the European Convention on Human Rights (ECHR), the right to access to a court (arising from the right to a fair hearing) should be effective for all individuals, regardless of their financial means. This requires states to take steps to ensure equal access to proceedings; for example, by setting up appropriate legal aid systems. Legal aid can also facilitate the administration of justice because unrepresented litigants are frequently unaware of procedural rules and require considerable assistance from courts, which can cause delays.15 With respect to violations of fundamental rights that occur in the context of police and law-enforcement prerogatives, there are specific forms of obligations for States in the European context to provide legal aids to victims.
Under the law of the Council of Europe, an explicit right to legal aid in criminal proceedings is set out in ECHR Art. 6(3)(c). This article provides that everyone charged with a criminal offence has a right to free legal aid if they do not have ‘sufficient means’ to pay for legal assistance (the financial or means test), or where the ‘interests of justice’ so require (the interests of justice test). The right of access to a lawyer in criminal proceedings applies throughout the entire proceedings, from the police questioning to the appeal.16 Art. 6(3)© of the ECHR also sets out the right to be defended by a lawyer of one’s own choosing, which can be subjected to limitations if the interests of justice so require.17
Under EU law, in addition to the rights protected under Art. 47, the EU Charter of Fundamental Rights (the Charter), Art. 48(2), guarantees respect of the right to defence for anyone who has been charged. The Explanations to the Charter confirm that Art. 48(2) has the same meaning as that of ECHR Art. 6(3). Thus, the European Court on Human Rights’ (ECtHR) case law outlined below is relevant for the purposes of Article 48. In terms of EU secondary legislation, the European Council has agreed to strengthen by legislation the procedural rights of suspects or accused persons in criminal proceedings.18
To this effect, the European Parliament and the Council have adopted several directives, including the Directive 2012/13/EU on the right to information in criminal proceedings.19 Under this Directive, persons suspected or accused of having committed a criminal offence until the conclusion of the proceedings20 must be promptly provided with information concerning at least the following procedural rights, as they apply under the national laws of EU Member States, in order to allow for those rights to be exercised effectively:
– the right to access to a lawyer;
– any entitlement to free legal advice and the conditions for obtaining such advice;
– the right to be informed of the accusation;
– the right to interpretation and translation; and
– the right to remain silent.21
All of those information shall be given to concerned persons orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable suspects or vulnerable accused persons.22 The same Directive obliges Member States to promptly provide suspected or accused persons with a written Letter of Rights outlining their rights, when they are arrested or detained.23 In addition, this Letter of Rights shall contain information about the following rights as they apply under national law:
(a) the right to access to the materials of the case;
(b) the right to have consular authorities or one person informed;
(c) the right of access to urgent medical assistance; and
(d) the maximum number of hours or days suspects or accused persons may be deprived of liberty before being brought before a judicial authority.24
Finally, the Letter of Rights shall contain basic information about any possibility, under national law, of challenging the lawfulness of arrest; obtaining a review of the detention; or making a request for a provisional release.25 In case suspected or accused persons cannot be provided with such a Letter of Rights in the appropriate language, they shall be orally informed in a language they understand and subsequently be given a Letter of Rights in that same language without undue delays.26
The right to information in criminal proceedings aims to ensure that defendants receive the necessary information concerning the accusation and reasons for their arrest, so that they are able to effectively exercise their rights and defend themselves effectively. The right to information in criminal proceedings originates from Articles 5 and 6 of the ECHR, which are reflected in Articles 6, 47 and 48 of the Charter. Article 6 (3) (a) of the ECHR specifically lists the right to information about the accusation as a minimum safeguard in criminal proceedings, while Article 5 (2) provides for the right of arrested persons to be informed of the reasons for their arrest and any charges against them. Although the ECHR does not specifically set out the right to information about procedural rights, the ECtHR ruled that authorities must ensure that the accused has sufficient knowledge of their right to legal assistance and legal aid, and of their right to remain silent and not incriminate themselves.27
Directive 2012/13/EU on the right to information obliges relevant authorities to inform persons deprived of liberty about the reasons for their arrest or detention, including information on the criminal act that they are suspected or accused of having committed. According to the case law of the ECtHR, this information is necessary to enable defendants to challenge their arrest before the court. Therefore, defendants should, as soon as possible, receive the information in a way that ensures they understand why they are being arrested.
While detailed information on the criminal act that they are accused of must be conveyed ‘promptly’, this information need not be provided in its entirety by the arresting officer at the actual moment of arrest. Whether or not the content and promptness of the information provided are sufficient is assessed on a case-by-case basis. In general, the ECtHR has interpreted ‘promptly’ to mean that several hours is within the appropriate range and in compliance with Article 5 (2), 38 but several days is too long.28
While all those basic rights relating to information about the fundamental charges are crucial in the context of deprivation of liberty or coercive measures that are imposed upon individuals by law-enforcement authorities, they are in practice oftentimes not respected by EU Member States’ law-enforcement authorities. Individuals who find themselves arrested by police forces within the EU can rely on protective measures as organised under EU law, the law of the ECHR and international human rights law for contesting any treatment imposed upon them by law-enforcement authorities when they disrespect them. One particularly important case is the oftentimes neglected individuals’ right to be informed of their right to remain silent while being questioned by law-enforcement authorities. For instance, a French judge explained that in France “the defendant is not really informed of their rights until they arrive at the police or gendarmerie station. This causes big problems because some spontaneous remarks are often written down in the procedures before the notification of rights took place. There is a vacuum which can be interpreted as a ‘right to pursue’ (droit de suite) in favour of the investigators.”29 In Greece, only one defendant out of the six interviewed claims to have been informed about the right to remain silent and not incriminate themselves, and only after the questioning.30
Furthermore, the European Parliament and the Council have adopted the Directive 2013/48/EU which imposes the right to access to a lawyer in criminal proceedings and in European arrest warrant proceedings, in order to strengthen fundamental rights due to individuals under the national laws of EU member States in those contexts.31 This Directive applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.32
Similarly, it also applies to persons other than suspects or accused persons who in the course of the questioning by the police, or by another law enforcement authority, become suspects or accused persons. This Directive only applies to the proceedings before a court having jurisdiction in criminal matters, and in any event, it fully applies where the suspect or accused person is deprived of liberty, irrespective of the stage of criminal proceedings.33 This means that the rights that this Directive 2013/48/EU confers to individuals apply in the situations where persons are arrested or placed into police custody by law-enforcement authorities.
Art. 3 of this Directive obliges EU Member States to ensure that suspects and accused persons have the right to access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. This means that suspects or accused persons shall have access to a lawyer without undue delay. In any event, they shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that Court. Concretely, individuals who are fulfilling those conditions in the EU have:
the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;
the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;
the right, as a minimum, for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of crime.
Directive 2013/48/3U Art. 3 also requires from EU Member States to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. This means that Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in the position to effectively exercise their right to access to a lawyer.
Restrictions to the afore-mentioned right of the individual to have their lawyers attending investigative or evidence-gathering acts, can be temporarily derogated by EU Member States under exceptional circumstances and only at the pre-trial stage, if either (a) there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; or (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings. In addition, the case-law of the ECtHR has also contributed to regulate the imposition of restrictions by EU Member States to suspects or accused persons’ fundamental rights. In 2008, the ECtHR established the principles (a two-stage test) to consider when a restriction on the right to access to a lawyer is compatible with the right to a fair trial. First, the test takes into account whether there are any compelling reasons for restricting the right for a defendant to have access to a lawyer; second, it considers whether or not such a restriction irretrievably prejudices the overall fairness of the criminal proceedings.
Drawing from its case law, the ECtHR set out a non-exhaustive list of factors for assessing the impact of procedural failure at the pre-trial stage on overall fairness, including the vulnerability of the applicant (age and mental capacity) and the possibility of challenging the authenticity or the quality of the evidence.34 However, in practice, while those temporary derogations by EU Member States to individuals’ rights protected under EU law must be exceptional, they are actually commonly employed by EU law-enforcement authorities in everyday life to excessively restrict the right to legal assistance and access to justice for individuals that find themselves under coercive measures imposed by law-enforcement authorities.
Other fundamental rights are also protected under this EU Directive 2013/48/EU, including the right to confidentiality of communication between suspects or accused persons and their lawyers in the exercise of the right to access to a lawyer whether in meetings, correspondence, telephone conversations and other forms of communications permitted under national law (Art. 4); the right to have a third person informed of the deprivation of liberty (Art. 5); the right to communicate, while deprived of liberty, with third persons (Art. 6) and the right to communicate with consular authorities (Art. 7). In addition, Directive 2013/48/EU Art. 13 requires EU Member States to take the particular needs of vulnerable suspects and accused persons into account.
The European Parliament and the Council have also adopted the Directive 2016/1919 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, that deepen the protection of fundamental rights of those persons, as they are protected under EU law by the afore-mentioned Directive 2013/48/EU.35 This Directive applies to suspects and accused persons in criminal proceedings who have a right to access to a lawyer pursuant to Directive 2013/48/EU and who are deprived of liberty, required to be assisted by a lawyer or required/permitted to attend an investigative or evidence-gathering act, as well as “to persons who were not initially suspects or accused but become suspects or accused in the course of the questioning by the police or by another law-enforcement authority.36 The European Committee for the Prevention of Torture and Inhumane or Degrading Treatment (CPT) recognised the right of access to a lawyer as one of the three most important rights in protecting against the risk of ill-treatment in cases of deprivation of liberty:
“As part of its preventive mandate, the CPT has consistently highlighted the importance of three procedural safeguards, namely: the right of access to a lawyer, the right of access to a doctor and the right to have the fact of one’s detention notified to a relative or another third party of one’s choice. This presupposes that persons deprived of their liberty are duly informed of these rights, both orally upon apprehension and, as soon as possible, in writing (e.g. through a “letter of rights” or other document setting out the rights of persons in police custody) in a language they understand. This “trinity of rights” should apply as from the very outset of deprivation of liberty by the police – that is, when the person concerned is obliged to remain with the police. The main reason for this has repeatedly emerged from the CPT’s findings: it is during the first hours of deprivation of liberty by the police that the risk of ill-treatment is at its highest.”37
The right of access to a lawyer plays a significant role in facilitating other procedural rights, such as the right of the accused not to incriminate themselves, the right to competent and effective legal advice and the right to have adequate facilities for the preparation of a defence. The ECtHR has repeatedly considered that the right of access to a lawyer is a fundamental procedural safeguard of the right of an accused person not to self-incriminate. The ECtHR, by referring to the recommendations of the CPT, also highlighted the importance of the right to access to a lawyer as “a fundamental safeguard against ill-treatment.”38 Art. 4 of that Directive 2016/1919 set forth legal aid obligations for EU Member States, and it is specified under Art. 4(1) that they “shall ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require.”39 Art. 4(5) imposes strict time conditions for EU Member States to ensure the effective respect of the right to legal aid:
“Member States shall ensure that legal aid is granted without undue delay, and at the latest before questioning by the police, by another law enforcement authority or by a judicial authority, or before the investigative or evidence-gathering acts”.40
Importantly, Directive 2016/1919 Art. 8 on Remedies provides that: “Member States shall ensure that suspects, accused persons and requested persons have an effective remedy under national law in the event of a breach of their rights under this Directive.”41 In addition, Art. 9 stresses the obligations for EU Member States to “ensure that the particular needs of vulnerable suspects, accused persons and requested persons are taken into account in the implementation of this Directive.”42
Despite those clear EU procedural legal requirements for ensuring that individuals’ fundamental rights are protected, there are many shortcomings in the practice of many EU Member States. That is why defendants may not be fully aware of their procedural rights owing to several factors. These include relevant authorities treating the defendants other than as a suspect at the initial stage of the criminal proceedings; a lack of practices to improve the accessibility of information, taking the defendants’ vulnerabilities into account; and a lack of practices for verifying defendants’ understanding of the information provided by the relevant authorities. Furthermore, individuals are sometimes questioned as a witness or are ‘informally’ asked questions by law enforcement authorities, when in fact there are plausible reasons to suspect the person’s involvement in a crime. Hence, they should be provided with comprehensive information about their rights – in particular, the right to remain silent, as required by the legislation. In addition, law enforcement authorities sometimes establish informal practices so that defendants make self-incriminatory statements, which they generate as witnesses, that can be later used against them legally in the course of the proceedings. For example, they question former witnesses again, this time as defendants, and ask them if they stand by their previous statements.43
Moreover, the police sometimes discourages defendants from exercising their right to a lawyer. For instance, they tell them that the case is simple and that there is no need for the presence of a lawyer; or that proceedings are just beginning, and lawyers are not needed at the initial stage. Secondly, defendants deprived of liberty particularly face practical difficulties in accessing lawyers directly. Sometimes law enforcement authorities or defendants’ relatives contact lawyers on their behalf. This can mean the call is significantly delayed, depriving defendants of the opportunity to obtain legal advice – such as to remain silent – at an early stage. In addition, the indirect nature of the contact deprives lawyers of the opportunity to ask questions that may help them to prepare an effective defence. Thirdly, defendants deprived of liberty are not always allowed to talk to their lawyers in private before their first questioning. Instead, conversations – when they happen at all – are short and/or take place in public corridors in the presence of police officers.44
All these elements show that the right to access to justice in the European legal context requires further steps to ensure that everyone living in Europe can have a clearer understanding of what their fundamental rights specifically are when they find themselves under police forces’ and law-enforcement authorities’ coercive powers. This is a huge task but one worth pushing forward. One concrete solution that Just Access is seeking to achieve with other partnered European NGOs is the development of an innovative approach to foster a better understanding for the broader public as to what their protected fundamental rights vis-à-vis the police are in Europe. This innovative approach can contribute to tackling important structural dimensions of the disregard of individuals’ fundamental rights in practice when they face the coercive powers of law-enforcement authorities.
Since many issues negatively affecting access to justice for contesting arrestation by the police and placement in police custody are structural, one possible solution is to anchor rights related to access to justice in this context that enable individuals to raise claims for bringing structural reforms of national laws applicable to the police. This is one of the recommendations made by the Special Rapporteur for the rights to freedom of assembly and manifestation, who suggested in the June 2021 report that individuals must have the ability to advance claims oriented toward systemic reform where law or policy violates human rights obligations.”45 To this effect, it is a fundamental preliminary step to do more on the issue of better educating individuals about what their rights are. Just Access will continue to work on bringing about further concrete solutions to this issue and keep the public posted.