Subsidiarity: Right of Access to an Attorney

Virtually all Europeans imagine their right to an attorney to be more or less the way they see it in American cop shows on TV. In reality, however, the law in most European countries is not quite so generous. Even under the 2008 ECtHR ruling of Salduz v. Turkey, the right to have an attorney present during questioning by the police is not guaranteed in all circumstances, nor do European countries necessarily think that is a bad thing. More than their American counterparts, European authorities tend to balance the right to an attorney against the interest of the state in discovering what happened.

My intention here is not to discuss the Salduz case and its implications. Plenty of people have done that already. Instead, I want to look at the Commission's proposal for a Directive harmonising this area of the law, which is currently making its way through the EU legislature. (Cf. also this Dutch-language blog post about the attempt by the Netherlands to restrict the right to serious felonies only.) Given my oft-expressed concerns about subsidiarity, it is no surprise that I wonder why it is necessary to harmonise an area of the law that is already harmonised through ECtHR case law. After all, all EU Member States are parties to the European Convention on Human Rights, so what is the added value of this directive? 

The Commission's answer is brief enough that I can quote it here in full:

34. The objective of the proposal cannot be sufficiently achieved by Member States alone, since there is still significant variation in the precise method and timing of the right of access to a lawyer in criminal proceedings across the European Union. As the aim of the proposal is to promote mutual trust, only action taken by the European Union will establish consistent common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States’ procedural rules regarding the time and manner of access to a lawyer for suspects and accused persons and for persons subject to an EAW, the aim being to enhance mutual trust. The proposal therefore complies with the subsidiarity principle.

I have to say, this is actually pretty convincing. During my weekly surveys of ECJ case law I frequently come across cases where the referring judge is trying to push against the limits of the grounds for non-execution of the warrant of art. 3 and 4 of the Framework Decision, on the grounds that they were informed of some circumstance of the procedure in the requesting state that they do not like, for example that the warrant was issued by a prosecutor instead of by a judge, that there might be a ne bis in idem issue, or that the original trial was in absentia. Another recent example of the referring court going for broke is the Romanian case of Rusa, where the applicant really did not want to be sent back to Germany.

So if we agree - as I do - that the European Arrest Warrant is justified under the principle of subsidiarity, it is plausible that the level of trust necessary to sustain that legislation cannot be achieved through Strasbourg alone. That is particularly true to the extent that the Member States of the European Union decide that they want to offer a level of protection that significantly exceeds the level required by the ECtHR. That, as it turns out, is what they are currently trying to figure out. However, while a lower level of protection would undermine the case for this Directive, it is in any event true that its enactment would add one hell of a set of teeth to the enforcement mechanism on offer under the ECHR. That alone makes it a law worth contemplating.