Access to lawyer – is Poland effectively implementing EU law?

The Helsinki Foundation of Human Rights has prepared two publications that provide comprehensive coverage of access to a defence lawyer in Poland from the perspectives of international standards and practical application of those standards.

Does Polish law comply with EU legislation?

As far as the EU law is concerned, access to a defence lawyer is regulated by a 2013 directive. The directive establishes several requirements, e.g. that contacts with a defence lawyer should be confidential, and that access to a defence lawyer should be provided as soon as first procedural steps are taken (also already before the first formal interview). The directive should have been implemented before 27 November 2016, but the Ministry of Justice informed the HFHR that there was no need to do that because the Polish law already satisfied the above requirements. However, in March 2016 the Ministry of Justice entered a draft of the law designed to implement the directive in the official roster of legislative works, only to cancel the proposal in February 2017.

Problems with immediate post-arrest access to defence lawyer

Despite what the Ministry says, the Helsinki Foundation’s studies reveal that it is necessary to implement the directive to the Polish legal system. Both the Bar and international bodies have been long signalling problems with effective access to a defence lawyer immediately upon arrest. The Commissioner for Human Rights has also been calling for the implementation of EU legislation.

HFHR training manual for lawyers and justice system professionals

The effective national implementation of the Directive very much depends on the professional training and education of judges, prosecutors, police officers and attorneys. In an attempt to contribute to these educational efforts, the HFHR has published a manual with a summary of the European guarantees of the right to a defence lawyer.

This publication is composed of two parts. The first part, compiled by Krassimir Kanev of the Bulgarian Helsinki Committee, presents an analysis of international norms and standards related to the right to a defence in criminal proceedings. The other part focuses on Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings. The manual reviews the relevant Polish laws from the perspective of their compliance with Directive’s requirements and presents key recommendations on the national transposition of the Directive.

The manual and the study report were developed as part of the project Strengthening procedural rights in criminal proceedings: effective implementation of the right to lawyer/legal aid under the Stockholm Programme, which was financed by the European Commission. Since June 2016, the project has been implemented by the Helsinki Foundation for Human Rights, working together with the Bulgarian and Hungarian Helsinki Committees, Mirovni Institute (Slovenia) and Human Rights Monitoring Institute (Lithuania).

In the framework of the project the HFHR, Bulgarian Helsinki Committee, Human Rights Monitoring Institute, Hungarian Helsinki Committee and the Peace Institute published also a comparative report Right to a lawyer and to legal aid in criminal proceedings in five European jurisdictions.