Towards Guaranteeing the Right to Effective Assistance of Defence Counsel in Member States in Trans-border Criminal Cases

Periodic Reporting for period 1 - ToEfDeCo (Towards Guaranteeing the Right to Effective Assistance of Defence Counsel in Member States in Trans-border Criminal Cases)

Periodo di rendicontazione: 2016-01-01 al 2017-12-31

This project determined how the MSs of the EU are progressing in implementing the Directive 2013/48/EU in the area of the right to counsel with a specific focus on obligation to provide remedies stipulated in Article 12 of the Directive. The research gains particular importance given the imminent transposition date of 27 November 2016. As the Directive not only guarantees right to counsel, but its Article 12 requires that in case of breach of the right the MSs have to ensure effective remedies, the specific goal of the project was to propose remedies for criminal cases that could be common to all MSs, which has a potential to improve the rights of suspects and accused in every MS.

The first part of the research was empirical; representatives of Ministries of Justices of all MSs were interviewed about how the MSs have implemented or are planning to implement the Directive, including any difficulties they are encountering. The representatives were specifically asked about the remedies provided currently or prospectively. Answers were then distributed among local defence counsels for checking and commenting. If needed local scholars were included as reviewers.

The second part was normative; information received from MSs was compared to legislation of the EU, the case law of the ECtHR, the ECJ, international tribunals, the ICC and the Supreme Court of the US as well as the theoretical materials. As a result, common remedies for the violation of the right to counsel in the EU were proposed in the final report.

The main deliverables determined in the proposal of the project were: (at least) two articles to the highly-ranked peer-reviewed law journals and two presentations at international conferences. As a final result of the project an open-access report with answers to the set research questions were proposed to be composed.

"Main research activities:
1. ECBA spring conference in Vilnius, 22-23 April 2016, presentation 'Remedies in national legal systems when implementing the Directive 2013/48/EU (right of access to a lawyer)'
2. 4 October 2016 - final deadline for the Ministries of Justices to send their answers to the questionnaire. 22 out of 28 Member States sent their answers, so 22 filled questionnaires received.
3. In November 2016 - answers received from the lawyers sent out to scholars for further verification. The final checks received by the end of January 2017.
4. The article ""It is not enough to provide ..."" published in November 2016.
5. The article ""Potential Remedies for Violation ..."" published in December 2016.
6. The article "" Article 12 of the Directive 2013/48/EU: A..."" published January 2017.
7. ECBA spring conference in Vilnius, 21-22 April 2017, presentation 'Remedies for Violation of the Right to Counsel in National Legal Systems'.
8. In May 2017 an article ""How are the Member States progressing ..."" published.
9. In October 2017 article ""Divergence of European Union ..."" published.
10. In February 2018 the article ""(Effective) Remedies for a Violation of the Right to Counsel during Criminal Proceedings in the European Union: An Empirical Study"" published in Utrecht Law Rewiew . It is an Open Access report on results of the project.

Courses taken (examples, not full list):
1. European criminal law
2. Methods of human rights research
3. Qualitative legal research methods
4. Presentation skills
5. Problem based learning
6. Psychology and law

Further outreach activities. On 12th of November the fellow met representatives of European Parliament to introduce her project and discuss distribution of her research results. On 27th of November the fellow wrote with A. Pivaty a newsletter to SUPRALAT web-page: ""Transposition of Directive on Access to a Lawyer Unsatisfactory in Many Member States"" (available at:
www.salduzlawyer.eu/news/transposition-directive-on-access-to-a-lawyer-unsatisfactory-many-member-states/). In June 2017 the video was launced at the Youtube where the fellow gives comments about the Ibrahim case with A. Pivaty (https://www.youtube.com/watch?v=3v1-nYmIE_U&feature=youtu.be).In December 2017 NGO Fair Trials published an overview of fellow's project on its website: titled 'Violations of access to a lawyer: no common remedies among EU member states.'."

The project turned out to be very successful. All scientific goals were reached with an extra input: the goal was to publish 3 scientific articles, but in fact 6 was published; the goal was to make 2 presentations at international conferences, and in fact 2 were made with one presentation extra at the international workshop. Data on remedies for violation of the right to counsel in criminal proceedings were gathered from all Member States of the EU, which shows that the project activities were very successful and the project has potential to affect legislation both on the level of the EU and on national levels. The fellow has sent her research results to the European Commission, an institution that monitors implementation of Directive 2013/48/EU. As her research results show that not all Member States have implemented the Directive in a correct manner, these results have potential to affect European Commission's actions (including infringement proceedings). Also, her research results show that wording of Directive 2013/48/EU is very problematic when it comes to remedies for violation of the right to counsel, which have a potential to affect actions of EU legislator. Her research results have been published in international high-ranked peer-reviewed articles, 3 of 6 of them in Open Access form, and can be easily found both by scholars and institutions. In the course of research activities she notified interested people and institutions (fellow scientists, European Commission, Fair Trials, ECLAN, ECBA etc.) about publication of her articles, which means that all these contacts have been aware about progress of her research and research results. Presentations at international conferences and at the workshop were successful: many questions were asked and lots of contacts were established. The fellow also addressed her research results to the general public: she made a Youtube video (widely used for instance by students of the Maastricht University) and published couple of non-scientific articles on the websites of SUPRALAT and Fair Trials. The goals related to her personal development were also achieved: she took many courses at her host institution, observed teaching activities and as a result of the research activities (including supervision by Prof. Taru Spronken) acquired new research skills and new knowledge on her research field.

In sum it can be concluded that as her research was on innovative subject (as also explained in her research proposal, research so far has focused on rights not on remedies), her research will open up a new level of discussion how to protect suspects' right to counsel. All contacts in her network have acknowledged innovative nature of her research and the fact that it will be an important foundation for future discussions.

Artcile to ECLR December 2016, Vol 6

Speech materials to the ECBA conference held in Vilnius spring 2016

Article to ECCL January 2017, Vol 25

Article to Strafblad 2016, Vol 14

The first PP slide to the ECBA Spring conference

Article to ECCL October 2017, Vol 25

Extract from the questionnaire sent out to the Ministries of Justices

Article to NJECL 2017, Vol 8

Article to ULR February 2018, Vol 14

Expert meeting on 27 January 2017

Periodic Reporting for period 1 - ToEfDeCo (Towards Guaranteeing the Right to Effective Assistance of Defence Counsel in Member States in Trans-border Criminal Cases)

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