In May, the deadline for the implementation of the Directive on legal assistance ex officio for suspects and accused persons in criminal proceedings and for persons concerned by the European Arrest Warrant proceedings expired.
In line with the well-established case law of the Court of Justice of the European Union in the event of non-implementation of the Directive, a citizen has the right to invoke and demand the application of those provisions, which are clear, unconditional and suitable for direct application between him and the State. It is also important that if a citizen suffers damage due to failure to implement or fails to implement the Directive, the State may sue for damages.
Despite the lack of implementation of the directive, it is only a matter of time before the courts, wishing not to, will start applying it. Apart from the fact that such an obligation derives directly from the Constitution, the directive will simply become popular for the benefit of the citizen
So far, lawyers, and even more so themselves, have not often referred directly to the provisions of EU legislation. Moreover, courts do not simply know them and do not take them into account. However, in accordance with this Directive, Member States have undertaken to implement the laws, regulations and administrative provisions necessary to comply with it by 25 May 2019, and to inform the Commission immediately.
The legislator considered that Polish legislation sufficiently guarantees the protection of the rights of participants in criminal proceedings and thus the implementation of the Directive. However, such a position cannot be supported without reservations... We mentioned the problem in the article The right to an attorney granted too late. A year ago, the topic went further in the media, but still remains unresolved.
Accused Without Defence
According to point 19 Preambles should be provided by the competent authorities of their own motion without undue delay and at the latest before the person concerned is interviewed by the police, by another law enforcement authority or by a judicial authority, or before carrying out the specific investigative or evidence activities referred to in this Directive.
If the competent authorities are unable to do so, they should at least provide ad hoc or temporary legal assistance ex officio before such a hearing or before carrying out investigations and evidence.
Article 245 The Code of Criminal Procedure requires that the detainee, upon his or her request, be able to make contact with, without delay, an attorney or legal adviser and to have a direct conversation with him or her.
The content of these provisions is definitely not the same. What is different is the right of a person to make a request and, in other words, to provide appropriate assistance to him at the initiative of the authority itself.
In practice, it happens that the suspect signs a statement that he has been instructed about his rights, but de facto nothing results from it.
It is difficult to expect every citizen to be prepared for such a situation as detention and having a telephone number to the lawyer, or even knowing the person with the rights of the defender to whom he can apply. Moreover, in the current state of the law, contact with a purely technical lawyer or lawyer is also greatly hampered.
Public defender not for everyone
Another important aspect is the difference between formal and real legal assistance. In accordance with the article third This Directive, for its purposes, ‘ex officio legal assistance’, means the financing by a Member State of the assistance of a lawyer enabling the right of access to a lawyer to be exercised.
Not everyone has the means to pay for legal services, and under EU law that State should bear this burden, at least at the preliminary stage of the procedure, before it may be considered that such assistance should not be made public at all.
What is the practical importance of the difference between EU and national rules? The suspect or accused person may challenge the legality of the actions taken by the law enforcement authorities in the course of criminal proceedings, their evidentiary value. Any refusal to give any testimony or to participate actively in the preparatory proceedings will also not make it easier to establish the truth. All of this affects the entire process and undermines the rights of defence under EU law.
It seems that, despite the lack of implementation of the directive, it is only a matter of time before the courts, wishing not to apply it, begin to apply it. Apart from the fact that such an obligation derives directly from the constitution, the directive will simply become popular because of the benefits it brings to the citizen.
In addition, consistent non-compliance with EU law can lead to an avalanche of complaints to the Court of Justice of the European Union and consequently painful financial sanctions for the state budget.
Author:
Rafał Czepik, legal advisor, graduate of the Faculty of Law at the University of Warsaw, specialist in economic and civil law