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New EU Directives on Procedural Rights in Criminal Proceedings

In the last three years, the European Union has introduced three new Directives which aim at strengthening procedural rights of suspects and accused persons in criminal proceedings. The new Directives regulate, among others, the right to information and the right of access to a lawyer. “The law usually ends where the problem begins. So is the case here,” said advocate Mikołaj Pietrzak during a training session on the application of these Directives, organised by the Fair Trials International for lawyers from EU member states.

According to the EU Directive on the right to information in criminal proceedings, the police and prosecution are obliged to inform the suspects about their rights. “It is, however, often the case that information is presented in such a way that it is hard to understand for the suspect, or the suspect is not given enough time to acquaint oneself with it,” said advocate Mikołaj Pietrzak. “Whereas adequate provision of information to the suspect on his or her rights, including the right to obtain advice from a lawyer, has crucial importance in safeguarding the right to defence,” adds advocate Mikołaj Pietrzak.

The second Directive regulates matters connected to the right of access to a lawyer, including confidentiality of communication between the suspect or accused and the lawyer. Member states have time until 2016 to align national regulations with the requirements of this Directive. “We need a coherent system which would regulate access to legal aid, especially in cases where the European Arrest Warrant was issued,” says advocate Mikołaj Pietrzak.

The practical application of the European Arrest Warrant (EAW) itself raises numerous controversies (see also: An Advocate’s Perspective on the European Arrest Warrant). Not only does the application of EAW entail technical problems, such as the lack of fast information flow between institutions applying EAW, but it also strengthens a dangerous practice of overusing pre-trial detention.

It is possible that the Court of Justice of the European Union will provide answers to at least some of the questions raised in Polish cases while applying the Directives and the Framework decision on EAW. Since 1st December 2014, Polish courts can refer questions for a preliminary ruling in criminal proceedings concerning the application of provisions of the Framework Decision on EAW.