Every year, millions of people across Europe ? innocent and guilty ? are arrested and detained by the police.
For some, their cases go no further than the police station, but many others eventually appear before a court. Many will spend time in custody both before and following trial.
Initial attempts by the European Union (EU) to establish minimum procedural rights for suspects and defendants failed in 2007 in the face of opposition by a number of member states who argued that the ECHR rendered EU regulation unnecessary.
In this context the aim of the research project was to explore and compare access to effective defence in criminal proceedings across nine European jurisdictions. The project team also set out to contribute to implementation of the right of suspects and defendants to a real and effective defence, especially for those who lack the means to pay for legal assistance themselves. The jurisdictions examined were Belgium, England & Wales, Finland, France, Germany, Hungary, Italy, Poland and Turkey. The reason for choosing these jurisdictions was that they constitute examples of the three major legal traditions in Europe ? inquisitorial, adversarial and post-state socialist.
The European Convention on Human Rights (ECHR) protects defence rights principally through article 5 (right to liberty) and article 6 (the right to a fair trial). In addition to the general fair trial rights, such as the presumption of innocence, the right to silence, equality of arms, and the (conditional) right to release pending trial, the rights protected include: the right to information; the right of an arrested person to defend themselves in person or through a lawyer of their choice, to be paid for by the state if they cannot afford to pay for legal assistance where this is in the interests of justice; and a number of procedural rights such as the right to adequate time and facilities to prepare a defence, participation rights, the right to free interpretation and translation, and the right to reasoned decisions and to appeal.
The study includes an analysis of the baseline requirements that, according to European Court of Human Rights (ECtHR) case law, have an impact on the position of the accused and also an analysis of how the rights inter-relate.
The project examines not only how the rights are framed in domestic legislation, and whether standards set by the ECHR are met, but also how these rights are implemented in practice and whether or not structures and systems exist to enable individuals to effectively exercise these rights. For instance, domestic legislation may provide for the right to a lawyer immediately on arrest but if there is no system by which a lawyer can be contacted on a 24 hour basis then the arrested person may not be in position to exercise their right to counsel effectively. In addition, the project explores legal and professional cultures since they also have an impact on effective criminal defence. For instance, the law may provide for a right to cross-examine witnesses or to call evidence, but without lawyers who actively use these rights on behalf of defendants, they will not be available in practice.
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Italy
Whilst Italian law generally guarantees those rights essential to a fair trial, there remain obstacles that prevent defendants and suspects from exercising their right to an effective defence.
There are insufficient procedural safeguards in place to ensure that the accused can exercise their defence rights. Although suspects are given a letter of rights that includes the legal definition of the crime alleged, there is no requirement that suspects be informed of any modification to the crime charged in the indictment. The right to counsel following arrest can be delayed for up to 48 hours on the authority of a prosecutor and five days on the authority of a judge. This denies suspects the opportunity to consult with counsel prior to their interrogation.
Additionally, prosecutors can deny suspects access to the case file during the investigative stage.
Suspects and defendants who do not understand Italian face additional challenges, since those who have even limited knowledge of Italian are often denied an interpreter, or are provided with an interpreter who do not speak their native language.
Systemic deficiencies in Italy?s legal aid system result in a high proportion of poor defendants being denied competent legal services. Whilst all accused persons must be represented by counsel, the low threshold for legal aid eligibility requires many poor defendants to go into debt to pay for their lawyer. Those who do qualify for legal aid are often unaware that they can apply. In 2006, only just over six per cent of defendants ? not including juveniles ? received legal aid. The lack of adequate funding for legal aid services results in remuneration that is so low that many lawyers refuse appointment. Often, those who do accept appointment provide the accused with inadequate representation as they lack the funds to conduct even the most basic investigation of the case.
Finally, the overuse of pre-trial detention, and the unreasonable length of proceedings, limit the accused?s access to a fair trial. Whilst the law provides that pre-trial detention should be a measure of last resort, more than half of Italy?s prison population is in pre-trial detention or awaiting final sentence. The average length of a criminal case is over four years.
Recommendation
1. To promote access to legal assistance, raise the eligibility threshold to allow more suspects and defendants access to legal aid, and ensure that remuneration is sufficient to encourage and facilitate competent legal assistance.
2. Ensure that pre-trial detention is, in practice, used as a measure of last resort by establishing practical alternatives to pre-trial detention, and introduce measures to speed up the criminal process.
3. Introduce measures to ensure that all suspects and defendants who do not have a sufficient understanding of the Italian language have access to competent interpretation and translation.
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This executive summary provides an overview of the results of the research project entitled ?Effective defence rights in the EU and access to justice: investigating and pro- moting best practice?, which was conducted over a three year period commencing in September 2007. The project partners are Maastricht University, JUSTICE, the University of the West of England and the Open Society Justice Initiative. The project was funded by the European Community and the Open Society Institute.
The complete results of the research project and a full account of the analysis and conclusions are published in a book, E. Cape, Z. Namoradze, R. Smith and T. Spronken, "Effective Criminal Defence in Europe", Antwerp-Oxford-Portland, Intersentia, 2010 (see the executive summary)