The right to legal advice and other rights during detention : in light of recent amendments and court judgments

Abstract

The right to a lawyer and to legal assistance while under the custody of the authorities, and the right of the suspect to have consultations with his lawyer and eventually instruct such lawyer, has been held to be 'one of the most important and fundamental rights of a citizen'. This dissertation, as the title thereof suggests, will discuss the right to legal advice and other connected rights during detention. However, it must be made clear from the outset that special emphasis would, of course, be made on the former, i.e. the right to legal advice during detention, especially also prior to and during interrogations conducted by law enforcement. However, the other connected rights to such right to legal advice will, of course, be also discussed later on. Under our jurisdiction, fears connected to the lack of legal assistance, especially during detention and the investigative stage of the proceedings (including interrogations), has been generally subsided by our legislator by introducing the rights granted to suspects and detainees under our local system, foremost of which that of granting the right to legal advice to suspects who are deprived of liberty and being held under the custody of the Police. Moreover, as we shall also see, nowadays we also have the right to have legal counsel present and to 'participate effectively' during questioning. However, the author asks: is this right for one's lawyer to participate effectively granted without restrictions? Is it as far-reaching as the law seemingly intends it to be? The author commends the huge improvements brought about in our system when compared to previous decades, mainly through the transposition of Directive 2013/48/EU into our law. Nonetheless, as shall be demonstrated later on, the author has, unfortunately, huge reservations as to how our law is drafted in certain occasions.