The Implementation of the Right of Access to a Lawyer Directive in German law

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1 The Implementation of the Right of Access to a Lawyer Directive in German law By Björn Weißenberger, student at the Johannes Gutenberg University of Mainz, Germany I. Introduction / Legislative procedure In its session of one of the last ones prior to the general election in Germany in September 2017 the German parliament (Bundestag 1 ) passed the Act on Strengthening procedural rights of the accused in criminal proceedings (Gesetz zur Stärkung der Verfahrensrechte von Beschuldigten im Strafverfahren). 2 The Act aims at implementing the EU Directive on the Right of Access to a Lawyer (Directive 2013/48/EU). This Directive had already been passed on and should have been implemented until The German Government initiated the legislative procedure quite late, presenting a Bill to the German Federal Council (Bundesrat 4 ) on and to the German parliament on Subsequently, the parliament forwarded the Bill to the responsible Committee on Legal Affairs and Consumer Protection, which debated the issue on and heard experts on Afterwards, however, for unknown reason no further decision was made. In consequence, per formal notice of , the European Commission initiated proceedings under Article 258 of the Treaty on the Functioning of the European Union (TFEU) against the Federal Republic of Germany concerning the failed implementation of Directive 2013/48/EU. No official reaction hereto is known, but on the Committee on Legal Affairs and Consumer Production finally decided to change the Bill (only) in minor points, mostly for clarification of the legislative intention. 9 After the acceptance of the Bill by the Parliament one day later, the Bill was again forwarded to the Federal Council, which supported the Bill in its session from The Bill was published in the Federal Law Gazette 11 on and came into effect on the following day. 13 II. Modalities of implementation The Directive as transposed by the new legislative Act deals with three major topics: right to access to a Lawyer, right to notification of a third person and right to communication with a third party. According to the legislator, most of the rights stipulated under the Directive are already guaranteed under the current German law. 1 Comparable to the lower house of parliament in in the United States or Great Britain. 2 Cf. transcript of the 240 th session of the German Parliament from (BT-Prot. 18/240), p (D) f. 3 Art. 15 I of Directive 2013/48/EU. 4 Representation of the Federal States of Germany, (comparable to the upper house of parliament in the United States or Great Britain). 5 Bundesrat document (BR-Drs.) 419/16. 6 Bundestag document (BT-Drs.) 18/ The Basic Law for the Federal Republic of Germany ( Grundgesetz ) does not explicitly define a lower and upper house of parliament. However Art. 76 (2) of the Basic Law states that Bills, initiated by the government, have to be submitted to the Bundesrat (= representation of the Federal States of Germany) first, which gives its opinion on the issue. Afterwards the draft law together with the opinion of the Bundesrat and the government s comment thereto is referred to the Bundestag (= representation of the citizens of Germany) for further debate and decision. 8 Cf. the course of the debate as reflected in Bundestag document 18/12830, p Cf. Bundestag document 18/12830, p. 2 and 5f. 10 Cf. Bundesrat document 513/ Art. 82 (1) of the Basic Law. 12 Federal Law Gazette I 2017, p Art. 9 of the Bill as published.

2 1. Rights already guaranteed under German law The general right of access to a lawyer (Art. 3 (1), (2) Directive 2013/48/EU): section (s.) 137 I 1 (StPO). 14 The right to meet in private and communicate with the lawyer prior to any questioning freely (Art. 3 (3) (a) Directive 2013/48/EU): s. 148 (1) StPO; however, in case of terrorism suspicion, the written correspondence can be controlled, when the suspect is already detained and a judge instructs such controls (s. 148(2)). Insofar, the German legal situation is not in line with the standards set out by Directive 2013/48/EU, because the possibility to restrict the contact to a lawyer under s. 148(2) StPO is wider than the limitations foreseen in Art. 3(5) and (6) and Art. 8 of the Directive. Confidentiality (Art. 4 Directive 2013/48/EU): s. 148 (1) StPO. The right to have a third person informed in case of detention (Art. 5 (1) Directive 2013/48/EU): s. 114c (2) StPO. The right to communicate with third persons while deprived of liberty (Art. 6 Directive 2013/48/EU): s. 114c (1) StPO (limitable by certain post and communication controls as stipulated under s. 119 (1) StPO and s. 31 EGGVG). The right to communicate with consular authorities (Art. 7 Directive 2013/48/EU): Art. 36 (3) WÜK 15, which is considered self-executing by the German Constitutional Court. 16 It s further defined in s. 114b (2) sentence 4 StPO (= instruction on the possibility of communicating with consular authorities). Waiver (Art. 9 Directive 2013/48/EU): The German law does not provide for the possibility of waivers. Quite the contrary, s. 137 StPO states that consultation by a lawyer is possible at all stages of a criminal procedure. The right of access to a lawyer in European arrest warrant proceedings (Art. 10 Directive 2013/48/EU): The IRG 17 guarantees most of the rights stipulated in Art. 10 Directive 2013/48/EU directly (s. 40 (1) IRG) or by referring to the StPO (ss. 78 (1), 77 (1) IRG). Remedies (Art. 12 (1) Directive 2013/48/EU): A breach of the rights guaranteed by the German statutory law as outlined above by law enforcement agencies can be claimed in the court proceedings and, insofar as they are violated, enables the defendant to lodge an appeal on points of law (s. 337 StPO). Measures imposed in pretrial custody or by a judge can be challenged under special requirements (ss. 119 (5); 119a (1); 304 StPO). Objections against the enforcement of a European Arrest Warrant are possible under s. 23 IRG. 14 StPO (= Strafprozessordnung ) refers to the Code of Criminal Procedure in Germany. 15 WÜK = Wiener Übereinkommen über konsularische Beziehungen (= Vienna Agreement on Consular Relations ) 16 Decision of the German Constitutional Court (Bundesverfassungsgericht (BVerfG)) of BvR 2115/01 (u.a.) = NJW 2007, 499, 501 Rn IRG = Gesetz über die internationale Rechtshilfe in Strafsachen IRG (= Act on International Cooperation in Criminal Matters )

3 Respect to the fairness of the proceedings (Art. 12 (2) Directive 2013/48/EU): Under German law the judge is generally independent in his consideration of evidence (s. 261 StPO). However there are certain categories of inadmissibility of evidence ( Beweisverwertungsverbote ) created by (extensive) case law. Within this case law it can be considered well established that evidence gained under violation of the right on access to a lawyer can not be used in trial 18 as this would constitute a violation of the right to fair trial (Art. 6 (3), ECHR), guaranteed in German law under Art. 1 (1), read in conjunction with Art. 2 (1) and 20 (3) of the German Constitution (Basic Law). 19 Particular needs of vulnerable persons (Art. 13 Directive 2013/48/EU): s. 140 II StPO; Nr. 21 RiStBV Rights newly guaranteed under the draft law However, some changes/amendments are made in transposition of the Directive. Presence of the lawyer during police questioning (Art. 3 (3) b) Directive 2013/48/EU): Under current German law the presence of a lawyer is only (expressly) guaranteed when the suspect is questioned by a prosecutor (s. 163a (3) StPO) or a judge (s. 168c StPO). When questioned by the police, the presence of a lawyer is not required by the law, 21 but based on the principle of a fair trial the suspect shall have the right to remain silent, as well as the right to speak to a lawyer prior to such questioning if he wishes so. He must be notified of these rights prior to questioning (ss. 163a (4), 136 (1) StPO). 22 After the suspect has expressed such wish, any interrogation shall not be continued until the consultation of a lawyer has been allowed. 23 The amendment of the StPO will equate questionings by the police (s. 163a (4) StPO) with those by prosecutors and judges, so that a lawyer shall always have the right to be present and participate. Presence of the lawyer during investigative or evidence-gathering acts (Art. 3 (3) (c) Directive 2013/48/EU): As far as identity parades and confrontations are concerned, the relevant s. 58 StPO will be amended so that a lawyer s presence is allowed, but the measure will not be delayed if the lawyer cannot be present (e.g. due to other appointments). Reconstructions of the scene of a crime are not explicitly regulated in the StPO but can be legitimated under the sweeping clauses of ss. 161, 163 StPO. The German legislator will not provide a new regulation for this measure under the influence of the Directive 2013/48/EU. According to the legislator, such a reconstruction of the scene of a crime in presence of the suspect is in fact a questioning so that the (new) rules of the presence of a lawyer hereto apply. Its perception is based on recital 26 of Directive 18 Cf. Judgement of the German Federal Court (Bundesgerichtshof (BGH)) of StR 756/94 = BGHSt 42, 15 = BGH NJW 1996, 1547, 1548f. 19 Cf. Decisions of the German Constitutional Court of BvR 747/73 = NJW 1975, 103, 103 and of BvR 275/83 = NJW 1984, 2403, RiStBV = Richtlinien für das Strafverfahren und das Bußgeldverfahren (= Directives for criminal proceedings and summary proceedings ); administrative provisions published by the German Federal Ministry of Justice and Consumer Protection and used by prosecutors. 21 This provision was ruled constitutional by BVerfG decision of BvR 1317/05 = NJW 2007, Cf. BGH decision of StR 341/05 = NJW 2006, 1008, 1009f.; Judgment of the European Court of Human Rights of /02 (Salduz/Turkey) = NJW 2009, 3707, Cf. BGH judgement of StR 126/92 = NJW 1993, 338, 339.

4 2013/48/EU, which says that such measures will be used to ask specific questions to the suspect or accused person. (Only) under this premise, the non-implementation seems acceptable. In reverse conclusion a suspect that becomes part of a reconstruction of a scene of crime without being asked questions (which will rarely happen) should be notified of its right to access to a lawyer prior to giving any (voluntary) information. General information on the access to a lawyer (Art. 3 (4) Directive 2013/48/EU): The German legislator adopts this provision nearly literally. It specifies the general duty to inform suspects about their right of access to a lawyer (s. 136 (1) StPO) and explicitly obliges the authorities to inform the suspect about emergency services which can provide legal advice in urgent cases or if the suspect doesn t know/find a lawyer. 24 Derogation from certain rights (Art. 3 (6) Directive 2013/48/EU): German s. 31 EGGVG 25 allows the interruption of the communication of a detained suspect with its lawyer under strict requirements 26 during remand detention. This so called Kontaktsperre (= incommunicado detention; literally contact block ) 27 was introduced to German law in 1977 as a reaction to major crimes committed by the Rote Armee Fraktion (RAF) (= Red Army Faction ; a far-left militant group). Its members in prison were allegedly supported by their lawyers in that they facilitated the communication with other members in freedom and therefore enabled them to support the group s abduction and murder of German top-official Dr. Hans Martin Schleyer. 28 This Law on incommunicado detention has often been criticized 29 ; and it has only been applied once in practice in the named abduction of Schleyer. 30 In the current legislative procedure, its abolition was discussed. 31 However, the legislator only amended the current law as Directive 2013/48/EU does not apply after a suspect has been finally convicted 32 and Art. 3 (6) of Directive 2013/48/EU allows a derogation of its provisions at the pre-trial stage. The legislator saw no necessity to restrict s. 31 EGGVG further than it was forced to do by the Directive. So in line with the requirements of Directive 2013/48/EU, which allows for derogations from the general rule of free contact to a lawyer only under exceptional 24 This hint by the authorities was not necessary before as ruled by BGH decision of StR 200/05 = NStZ 2006, 114, 115. However the Landgericht (= regional court; a lower level of jurisdiction) Schweinfurt had a different opinion and in a similar case decided, that the police was obliged to support the suspect s search for a lawyer by providing such information (Decision of KS 11 JS 10919/2011 = StraFo 2013, 207). 25 EGGVG = Einführungsgesetz zum Gerichtsverfassungsgesetz (= Introductory Law of the Judicature Act ). 26 For example the suspect has to be (suspect to being) a member of a criminal or terroristic consortium ( 129; 129a StGB). 27 For detailed information on this measure, its (legislative) background (the bill was passed within less than two weeks) and ist application by courts cf. Oehmichen in German Law Journal 2008, (in English). 28 He was then-president of the Confederation of German Employers Association (Bundesvereinigung der Deutschen Arbeitgeberverbände) and the Federation of German Industries (Bundesverband der Deutschen Industrie). 29 Cf. the essays by Hannover DuR 1979, 184 and Krekeler NJW 1986, 417. Nevertheless the German Constitutional Court declared it constitutional in BVerfG Decision of BvR 1013/77 = NJW 1978, Cf. the information on the website of the German Parliament 6 (in German; last accessed at ). 31 Cf. the description in Bundestag document 18/12830, p Cf. Art. 2 (1) Directive 2013/48/EU.

5 circumstances during the pre-trial phase, contact to a lawyer can now (solely) be restricted prior to the formal indictment - or after final conviction, cf. para. 2 of s. 31, EGGVG. The additional requirement of an urgent need to avert serious adverse consequences [ ] 33 is already a part of the existing s. 31 EGGVG. The derogation of rights based on substantially jeopardizing the criminal proceedings (Art. 3 (6) (b) Directive 2013/48/EU) is not possible under s. 31 EGGVG and will not be amended. Information of holder of parental responsibility (Art. 5 (2) Directive 2013/48/EU): This provision is almost literally transferred into German law through a new s. 67a JGG 34. However, the prosecution authorities can refrain from informing the legal representative if otherwise the purpose of the investigation would be severely endangered as is possible under Art. 5 (3) (b) Directive 2013/48/EU. In such case the Jugendgerichtshilfe (comparable to a guardian ad item) has to be informed (Art. 5 (4) Directive 2013/48/EU). The decision of not informing the legal representatives should only be made when the additional requirements of Art. 8 Directive 2013/48/EU are fulfilled, even if they are not literally transposed into law. 35 Information about the consultation of a lawyer in the state issuing a European Arrest Warrant (EAW) (Art. 10 (4) Directive 2013/48/EU): The right to be informed by German authorities, executing an EAW, about the possibility to appoint a lawyer in the issuing state is to be added in a new s. 83c (2) IRG. Concerning the right to appoint a lawyer in Germany in EAW proceedings, the existing s. 137 StPO already guarantees this generally. Provision of information about appointment of a lawyer in the issuing state (Art. 10 (5) Directive 2013/48/EU): This Article states that the authorities executing an EAW have to inform the authorities of the issuing state if the defendant wants to appoint a lawyer there. The issuing state will then have to provide information on how to find a lawyer. Unfortunately, this provision will not be implemented into law but only into non-binding internal guidelines (the so-called RiVaSt 36 ) with the disadvantage that a defendant cannot claim a violation thereof. 37 III. Conclusion In general, the implementation of Directive 2013/48/EU does not lead to major changes or amendments of German law. Nevertheless, with respect to legal certainty it should be welcomed that previous case law now becomes written law and it cannot be denied that the new rules in fact strengthen the rights of accused persons. In practice, the most important change will be the right of presence of a lawyer during a questioning by the police, which is nearly overdue, and during identity parades and confrontations. Criticism seems appropriate as far as the Kontaktsperre is concerned. This measure is outdated as it is (fortunately!) never used in practice and could have been 33 Art. 3 (VI) (a) Directive 2013/48/EU. 34 JGG = Jugendgerichtsgesetz (= Youth Courts Law ) 35 The legislator explicitly states that the new sections are meant to fulfill the requirements of Article 8 Directive 2013/48/EU (cf. Bundestag document 18/9534, p. 16 and 29). 36 RiVaSt = Richtlinien für den Verkehr mit dem Ausland in strafrechtlichen Angelegenheiten (= Guidelines for dealings with foreign countries in criminal proceedings); like RiStBV these are administrative provisions published by the German Federal Ministry of Justice and Consumer Protection and used by prosecutors. 37 Cf. BGH decision of StR 438/00 = BeckRS 2001,

6 abolished even though the Directive 2013/48/EU does not require to do so. 38 In addition, the provision of information about appointment of a lawyer in European Arrest Warrant proceedings should have been implemented into law (preferably following the new s. 83c (2) IRG) and not only into the non-binding RiVaSt. The implementation into RiVaSt is not adequate because compliance hereto can not be enforced by a suspect (particularly with regard to the fact that an updated version of the RiVaSt is not yet publicly available!). In case of a violation a direct applicability of the Directive 2013/48/EU should be considered. Such direct applicability seems justified with regards to Art. 3(3)(a) of the Directive, as restrictions to the free contact to the lawyer in terrorist cases based on s. 148(2) StPO are not conform with EU law unless these restrictions are justified to avert serious adverse consequences for life, liberty or physical integrity of a person or to prevent substantial jeopardy to criminal proceedings (cf. Art. 3(6), Directive 2013/48/EU). The direct applicability of Article 8 Directive 2013/48/EU seems also justified, when refraining from informing relatives of arrested suspects (s. 114c (1) StPO; s. 67a (3) JGG). 38 Affirmative: Esser in KriPoZ 3/2017, 167, 176.

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