Pre-trial Emergency Defence

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1 Schriftenreihe der Vereinigung Osterreichischer Strafverteidigerlnnen Band 16 Pre-trial Emergency Defence Assessing pre-trial access to legal advice edited by Assessor iuris Stefan Schumann Dr. Karin Bruckmuller Univ.-Prof. Dr. Richard Soyer intersentia REC HT Wien-Graz2012

2 Preface and Acknowledgements 7 Stefan Schumann / Karin Bruckmuller / Richard Soyer A. Research background and methodology Basic presumption: the need for access to legal advice pre-trial Research background: law in transition Recent developments in the research countries Recent ECtHR judgments on access to legal advice pre-trial EU Roadmap for strengthening suspects' rights Research scope and methodology Factual and geographical scope of research Geographical scope: Austria, Croatia, Germany, and Slovenia Factual scope: access to legal advice, other suspects' rights pre-trial, and emergency defence lawyer schemes Research methodology: legal research, empirical research and legal comparison Research team, partners and supporters 29 Bibliography 30 Karin Bruckmuller / Zlata Durdevic / Stefan Schumann / Primoz Gorkic B. Legal Report 33 Karin Bruckmuller I. Austria Introduction - the reform of the Criminal Procedure Code An outline of Austrian criminal procedure Stages of criminal procedure Pre-trial proceedings Pre-trial proceedings in numbers Practical importance of pre-trial proceedings Status of suspects and form of questioning No suspect/ enquiry - informal questioning Suspect according to law/ interrogation - formal interrogation Challenges in practice Access to legal assistance Right to defence Right to information Issues of Information 41 9

3 Time of information Exception Provision of information in practice Right to information supported by the right to access to the case file Consultation with a defence lawyer Pre-trial First interrogation Arrest Translation Informing a confidant Notifying a consular agent Support by Police Legal Aid pre-trial Emergency defence lawyer service Sound recording or filming of the first interrogation Enforcement of suspect's and defence rights Exclusion of evidence Remedies Pre-trial After the trial Conclusions 55 Bibliography 56 Zlata Durdevic II. Croatia Introduction: an overview of the standing and rights of suspects Origins and recent changes of the Croatian CPA The structure of Croatian criminal procedure Distinguishing suspects and defendants Suspects' rights: an overview Pre-trial procedure: statistics Access to legal assistance The right to consult a defence lawyer Pre-investigatory stage During the investigation stage Access to a defence lawyer in practice Notices, translation and interpretation Availability of a defence lawyer emergency service Participative rights of defence lawyers In the pre-investigatory stage Investigation Sound recording or filming of interviews Legal aid 70 10

4 7. Enforcement of suspects rights Exclusion of evidence obtained in violation of these rights Legal remedies 71 Bibliography 71 Stefan Schumann III. Germany Introduction: an overview on the standing of the suspect and defence rights in German criminal procedure Legal and institutional background of German Criminal Procedure The applicable laws Statutory and constitutional law ECHRand EU law Administrative instructions for public prosecutors and police Structure and approach of German criminal proceedings The standing of suspects in criminal proceedings The pre-trial stage The police, the public prosecutor and the judge pre-trial Practical importance of pre-trial stage Pre-trial stage as final stage of proceedings Pre-trial stage determining the outcome of the whole proceedings Information on suspects' rights and access to legal advice in pre-trial proceedings Informal questioning before criminal proceedings Formal interrogation Information on suspects' rights Right to be informed of suspects' rights Timing Right to remain silent Access to legal advice and participative rights of the defence lawyer Access to legal advice Presence and participative rights of the defence lawyer Audio or video recording of interviews Arrest/pre-trial detention and suspects' rights Information on suspects' rights Information on the reason for arrest and on the charge The right to be informed of suspects' rights Mode and timing of information Access to legal advice Access to legal advice in practice Mandatory defence as a legal aid substitute? 95 11

5 Applicability of mandatory defence Choice, timing and costs Emergency defence lawyer services Enforcement of suspect's and defence rights Conclusions 99 Bibliography 100 Primoz Gorkic IV. Slovenia Introduction: an overview on the standing and rights of suspects An outline of the Slovenian criminal procedure and issue of terminology The origins: CPA of The suspect in the CPA of Pre-trial (police) procedure: statistics Access to legal assistance Right to consult a defence lawyer (arrest and first interview) Arrest First interview Informal questioning (Art. 148/VI CPA) Formal interview of the suspect (Art. 148a CPA) Access to a defence lawyer in practice Language Postponement of further investigation Notification of immediate family Contacting the consulate Police assistance Emergency defence services? Participative rights of defence lawyers First interview/questioning Consultations with the defence lawyer Questions and advice to the suspect Sound recording or filming of informal questioning or interviews: rules, practice and admissibility as evidence Informal questioning Formal interviews Recordings as evidence Legal aid: access to legal aid in pre-trial police procedure Enforcement of a suspect's defence rights Exclusion of evidence under Slovenian law: a brief overview Exclusion of evidence obtained in violation of suspects' defence rights pre-trial

6 Statements obtained prior to the granting of procedural rights Statements obtained by informal questioning under article 148/VI CPA Statements obtained by formal interview under article 148a CPA Remedies for the violation of rights in criminal procedure Remedies prior to judgement Remedies after the judgement Concluding remarks 127 Bibliography 128 Bernhard Klob / Jacques Huberty / Carlotta Pirnat / Christian Graft C. Quantitative Report 131 I. Descriptive Statistics Sample description and population demographics Austria Point in time "inquiry/ informal questioning" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "immediately before the first official interrogation" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "detention" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Emergency defence lawyer service Establishment Usage Costs Access to legal advice Before interrogation During interrogation Audio and video recordings during interrogations Legal remedies Legal Aid Germany Point in time "inquiry/informal questioning" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer

3.2. Point in time "immediately before the first official interrogation" 161 3.2.1. Information about the suspicion of a criminal act 161 3.2.2. Information about suspects' rights 162 3.2.3. Contact with the criminal defence lawyer 163 3.

7 3.2. Point in time "immediately before the first official interrogation" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "detention" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Emergency defence lawyer service Establishment Usage Costs Access to legal advice During interrogation Audio and video recordings during interrogations Legal remedies Legal Aid Croatia Point in time "inquiry/ informal questioning" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "immediately before the first official interrogation" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "detention" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Emergency defence lawyer service Establishment Usage Costs Access to legal advice Before interrogation During interrogation Audio and video recordings during interrogations Legal remedies Legal Aid Slovenia Point in time "inquiry/ informal questioning" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Point in time "immediately before the first official interrogation" Information about the suspicion of a criminal act Information about suspects' rights

8 Contact with the criminal defence lawyer Point in time "detention" Information about the suspicion of a criminal act Information about suspects' rights Contact with the criminal defence lawyer Emergency defence lawyer service Establishment Usage Costs Access to legal advice Before interrogation During interrogation Audio and video recordings during interrogations Legal remedies Legal Aid 211 II. Hypotheses testing Comparisons of stages, countries and occupational groups Model building Stages of the pre-trial proceedings Countries Occupational Groups Methods Data analysis Sample Scales of measurement and variables Results Information about the offence Model analysis Summary Information about the facts of the case Model analysis Summary Access to file Model analysis Summary Information on the right to remain silent Model analysis Summary Information about the nght to remain silent in mother tongue Model analysis Summary Information on the right to remain silent in comprehensible language Model analysis Summary Information about the nght to contact a lawyer

9 Model analysis Summary Information about the right to contact a lawyer in mother tongue Model analysis Summary Information about right to contact a lawyer in comprehensible language Model analysis Summary Consultation of defence lawyers Model analysis Summary Phone consultation before waiver Model analysis Summary Personal consultation before waiver Model analysis Summary Influential factors on the consultation of defence lawyers at the different stages Model building Methods Data analysis Sample Scales of measurement and variables Results Inquiry/informal questioning Model validation Results Summary Before Interrogation Model validation Results Summary Detention Model validation Results Summary 280 Karin Bruckmuller / Zoran Buric/Katrin Forstner / Lukas Gamlich/ Primoz Gorkic I Stefan Schumann D. Qualitative Report 281 Karin Bruckmuller / Stefan Schumann / Katrin Forstner / Lukas Gamlich I. Austria

10 1. Contact and consultation of a legal representative pre-trial - advantages for all persons involved Advantages for the suspect Advantages for police, prosecutors and judges Infrequent participation of a defence lawyer pre trial - reasons Underestimating the situation Expense factor Category of offence Suspects' experiences of the police Situation with the police and public prosecutor Lack of or inadequate information No proper information No possibility of contacting a lawyer Information is not understandable Suspects unsure whether a lawyer would be able to help Potential police influence? Improvements of access to legal advice (and the emergency service) Stationary lawyers? Reduction of costs Information provided by the lawyer Clear information and letter of rights Prohibition on the use of evidence Improvements to the emergency defence service Better and direct remuneration for lawyers Publicity Better supply in rural areas Comprehensible information Ensuring the quality of legal advice Highly qualified and specialised defence lawyers High quality of mandatory defence and legal aid High quality of interpreters Audiovisual recording Conclusion 297 Zoran Buric II. Croatia Introduction Presence of a defence lawyer during police interview - why is it not used in practice? Emergency lawyer schemes - do they exist in Croatia? At the police station Before the investigating judge

11 4. Concluding remarks 304 Stefan Schumann I Katrin Forstner III. Germany Introduction Sample description Interview focus Findings Consultation of defence lawyers pre-trial Nature or severity of crime Suspects' status and awareness Police behaviour and conduct Costs of a defence lawyer The practical importance of emergency defence lawyer services Recommendations on how to improve emergency defence lawyer services Recommendations on how to improve legal representation pre-trial Other important issues Conclusions 318 Bibliography 318 Primoz Gorkic IV. Slovenia Introducing the problem: the decision (not) to obtain a defence lawyer Benefits of a "Miranda warning" Rate of representation Factors affecting access to legal advice: previous studies Research in Slovenia Research abroad Summing up: factors determining suspect's decision to seek legal advice The method: interviews Interview reports Interview report no. 1 (assistant to public prosecutor) Interview report no. 2 (currently defence lawyer, former judge and prosecutor) Interview report no. 3 (defence lawyer) Interview report no. 4 (currently police investigator, former assistant to prosecutor) Interview report no. 5 (public prosecutor) Interview report no. 6 (professor of law)

12 4.7. Interview report no. 7 (currently judge, former police investigator) Interview report no. 8 (police investigator) Interview report no. 9 (currently defence lawyer, former public prosecutor) Interview report no. 10 (currently assistant to public prosecutor, former police investigator) Interview report no. 11 (police investigator) Interview report no. 12 (defence lawyer) Interview report no. 13 (judge) Interview report no. 14 (defence lawyer, former public prosecutor) Interview report no. 15 (defence lawyer) Interview report no. 16 (defence lawyer) Factors determining the rate of representation by a defence lawyer Overview of factors, reported by the interviewees Analysis, interpretation Institutional factors Police conduct: improper influence Police conduct: intensifying the investigation Police conduct: insufficient information on facts and nature of the offence Police conduct: taping of interviews Suspects Money Type of offence "I did nothing wrong" "Who should I contact?" Bottom line: relaxed pre-trial procedure, relaxed (first-time) suspects? Establishing an emergency defence service: Slovenian perspective 349 Bibliography 350 Stefan Schumann / Karin Bruckmuller / Richard Soyer E. General report, conclusions and recommendations Basic facts on pre-trial stage Practical importance of pre-trial proceedings Pre-trial stage as final stage of proceedings Pre-trial stage determining the outcome of the whole proceedings Police dominating (ordinary) pre-trial proceedings Standing of suspects and access to suspects' rights pre-trial Conclusions

13 2. Access to legal advice pre-trial The legal situation: the right to access legal advice and the right to information Distinguishing informal questioning and formal police interrogation Before and during police interrogation Arrest / pre-trial detention The information on the right to access legal advice in practice The "Whether" of the instruction The "How" of the instruction Supporting access to legal advice - Emergency defence lawyer services Access to legal advice pre-trial in practice Factors influential on access to legal advice How we identified influencing factors Legislative decisions The information on the right to access to legal advice The correlation between the information and the actual access to legal advice Three questions on the information arrangement: What? How? When? The existence of an emergency defence lawyer service Suspects underestimating pre-trial proceedings Costs of involvement Type and severity of the accusation and investigative measures and social and professional status of the suspect Previous experiences with the law enforcement agencies Conclusions Summary conclusions Recommendations The information on the right to access legal advice has to provided as follows Timing Manner Benchmark Access to a lawyer should be facilitated as follows Timing Manner Benchmark Emergency defence lawyer services have to be provided as follows 373 Benchmark A waiver of the right to access to legal advice in order to be effective has to meet the following standards 374 Bibliography 374 Authors and Contributors

PRIMOŽ GORKIČ Associate Professor. University of Ljubljana, Faculty of Law Poljanski nasip Ljubljana, Slovenia

PRIMOŽ GORKIČ Associate Professor Poljanski nasip 2 1000 Ljubljana, Slovenia T: 01 4203 214 E: primoz.gorkic@pf.uni-lj.si EDUCATION November 2009 April 2005 September 2002 Doctorate National Bar Exam B.A.