8 Amendments of Arkadiusz Tomasz BRATKOWSKI related to 2011/0154(COD)
Amendment 50 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) Member States should ensure that suspects and accused persons have the right of access to a lawyer, promptly, before the person is interviewed by the law enforcement or judicial authorities, as from when the person is formally charged of having committed a criminal offence, as from the outset of deprivation of liberty, including detention and during any hearing. In any case, suspects and accused persons should be granted access to a lawyer during criminal proceedings before a court, if they wish to be assisted by a lawyer. This Directive focuses on the right of access to a lawyer, which may, but does not to have to be exercised by the suspect or accused person, depending on his will. Therefore the directive should not affect the national provisions concerning mandatory defence.
Amendment 62 #
Proposal for a directive
Recital 10
Recital 10
(10) To be effective, access to a lawyer should entail the possibility for the lawyer to carry out all the wide range of activities which pertain to legal counselling, as the European Court of Human Rights has held. This should include active participation in any interrogation or hearinghearing or any interview conducted by law enforcement or judicial authority, meetings with the client to discuss the case and prepare the defence, the search for exculpatory evidence, and support to a distressed client and control of detention conditions;. Moreover, whenever the directive refers to the effective rights Member States should take all the necessary and reasonable efforts to facilitate the exercise of the rights conferred upon the suspect or accused person. This could be done through practical arrangements such as provision of a list of lawyers or a telephone in order to enable the person to contact a lawyer.
Amendment 73 #
Proposal for a directive
Recital 18
Recital 18
(18) The suspect or accused person should be allowed to waive the right to a lawyer, as long as they are fully aware of the consequences of the waiver, notably because they have met with a lawyer before making this decisionbeen provided, orally or in writing, with sufficient and clear information about these consequences and have the necessary capacity to understand these consequences and provided that the waiver is given freely and unequivocally. The suspect or accused person should be able to revoke the waiver at any time in the course of the proceedings;. The revocation of the waiver should not lead to the obligation to repeat the criminal proceedings or any part thereof. In case of revocation the directive should be applied from that moment in time onwards.
Amendment 76 #
Proposal for a directive
Recital 24
Recital 24
(24) IThis directive does not provide for the rules on legal aid. However, in the absence to-date of EU legislative instrument on legal aid, Member States should continue to apply their domestic provisions on legal aid, which should be in line with the Charter, the ECHR and the case-law of the European Court of Human Rights. Whenever new domestic provisions, enacted to implement this Directive, grant a broader right of access to a lawyer than was previously available under national law, the rules currently in place on legal aid should apply with no distinction between the two situations;
Amendment 82 #
Proposal for a directive
Recital 30
Recital 30
(30) This Directive promotes the rights of the child and takes into account the Guidelines of the Council of Europe on child friendly justice, in particular its provisions on information and advice. The Directive ensures that children cannot waive their rights under this Directive when they lack the capacity to understand the consequences of the waiver. LThe legal representatives of a suspected or accused child should be always notified as soon as possiblepromptly of his custody and be informed about the reasons for the custody, unless it is against the best interests of the child;. If providing such information to the child’s legal representative is contrary to the best interests of the child, another suitable adult, such as a guardian or a relative should be informed instead. In accordance with the provisions of national law, Member States may ensure that specified authorities with competence for the protection of children should also be informed that a child has been deprived of his or her liberty.
Amendment 123 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. TWhenever a lawyer shall have the right to be present at any others already been appointed, he may ask to be notified of any investigative or evidence- gathering act at which the suspect or accused person’s presence is required or permitted as a right, in accordance with national law, unless this would prejudice the acquisition of evidence. . The suspect or accused person shall have the right for his lawyer to be present at any such investigative or evidence gathering act, unless this would prejudice the acquisition of evidence. Whenever the lawyer has been notified, this shall be recorded using the recording procedure of the law of the Member State concerned. If once notified he does not attend, this should not prevent the carrying out of the investigative measure. The lawyer’s presence shall be recorded in accordance with the recording procedure of the law of the Member State concerned.
Amendment 156 #
Proposal for a directive
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. The revocation of the right should not lead to the obligation to repeat the criminal proceedings or any part thereof. In case of revocation the directive should be applied from that moment in time onwards.
Amendment 177 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Once a case has been referred to a court having jurisdiction in criminal matters, Member States shallould ensure that statements made by thethe question of which value to be given to statements obtained from a suspect or accused person or evidence obtained in breach of his right of access to a lawyer, or in cases where a temporary postponement or derogation tof this right was authorised in accordance with Article 8, may not be used at any stage of the procedure as evidence against him, unlthis Directive, should be determined by that court being responsible for ensuring the overall fairness of the use of such evidence would not prejudice the rights of the defenceproceedings, in accordance with national legal procedures.