On 12 November, the European Parliament’s Committee on Development and the Subcommittee on Human Rights debated a report on the implementation of the EU Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings and on the rights to contact third persons on deprivation of liberty (Directive 2013/48/EU), which was presented to them by the European Commission. The establishment of minimum standards in the Directive was intended to have a significant impact on the protection of rights of suspects or accused persons.

The report was delivered in accordance with Article 16 of the Directive, which requires the European Commission to submit by 28 November 2019 a report to the European Parliament and Council, assessing whether Member States have taken the necessary measures to comply with the Directive.

The report recognises that under Article 15 of the Directive, Member States had to transpose the Directive into national law by 27 November 2016. At the date of the expiry of this period, nine Member States had not communicated the necessary measures to the Commission. To that end the Commission decided in January 2017 to launch infringement proceedings against these Member States.

The report acknowledges that the Directive sets minimum standards and so there is the possibility for differences between national criminal procedural laws. However, clear obligations are also imposed and the report highlights that the most prominent implementation issues identified by the Commission, including:

  • the scope of the rights provided by the Directive- for example, in some jurisdictions the Directive requires a formal act to be triggered and in others might not apply to persons who are not deprived of liberty;
  • the extent of possible derogations, in particular, from the right of access to a lawyer;
  • the waiver of the right of access to a lawyer; and
  • the right of access to a lawyer in the Member State issuing a European Arrest Warrant.

The Commission is concerned that unless these divergences are remedied the effectiveness of the rights provided by the Directive will be limited. The Commission concluded the report by stating that it will continue to assess Member States’ compliance with the Directive and take appropriate measures to ensure that there is conformity in the implementation of the Directive throughout the EU.

To see the report submitted by the Commission to the Parliament for debate, please click here.