Free Access to a lawyer in the EU Dissertation Example
Access to a Lawyer in the EU
One of the most famous human rights policies in the EU is the Directive 2013/48/EU, and this was the directive that was passed across by the European Parliament and the European Council. This directive was passed in the year 2013 and mainly talks of the right of the persons accused, the main right for the accused is the allowance to access the lawyer in spite of the condition that they are in. Despite the crimes that they have committed, the accused person or the custodians have to be given their rights just like the other members of the public. This directive also applies to all the other arrest warrants that take place in Europe. It also addresses the fundamental right of the third party to get the information on the liberty deprivation. There is also the consultation with the consular authorities while treating the accused individual. For the countries that fall within the European Union, this is a privilege that all the accused persons must be given. Failure to allow the custodian to access a lawyer means an infringement of their rights. This is contrary to EU freedom and rights implementations. The union also addresses the ability to maintain the development of the freedom in the area and the security of justice. This paper looks at the overall right to access a lawyer and the related cases within the EU.
Keywords: European Union Lawyer, custodian right, custodian right, custodial legal assistance, EU procedural right Directives, Salduz, criminal defense practice
The European union procedural right directive is most concerning rights to the nations across Europe. It involves the various ways of interpretation form the local and national authorities. The rights of a custodian have been the main focus for the various fundamental organizations. One of the fundamental rights that is covered in the directive is the right to access a right lawyer by the accused. Any other legal assistance that the custodian many need is also covered in the directive there has been several case laws that have touched on the rights in the past that talks about the need to have the procedures in handling the rights of the people. Several other provisions are in the directive that is not clear to even the lawyers. As a result, some of the approaches that are made by the ECtHR in making judgments are so inconsistent that there is then need to understand the underlying principles before attempting to interpret them. The EU parliament has been concerned about the rights of individuals. One issue that has to be addressed when looking at the custodians is to consider the past actions of the EU countries. The best expels of these is the cases that have taken place in the UK. An example is the case of Ibrahim who had been accused of causing bombast of a bus station killing more than fifty people. The public and the media were hungry eighth the actions of the terrorist who was within the EU. In such a case, the directive and the other laws of the EU have to be observed so that there is justice without prejudice.
The following research questions have been addressed in this paper.
RQ 1.2: what is the role of the legal rights of the custodians and what are some of the cases where the right of the custodian is infringed?
RQ 1: how do the interpretations of the CJEU on how to access a lawyer by a custodian consider the EU laws requirements and the Etch jurisprudences?
One of the key roles of the justice system is to serve as the focal point of the human rights. Human rights also go along with the equal treatment of the people no matter the situation that they are in through observing the laws on an equal basis, no matter the circumstance of the perpetrator. Usually, the people that are under custody have several rights infringed on them. As a result, they rarely get their justice served as they would want. Rarely are they allowed accessing a lawyer who can look into their cases to investigate a fault in their cases or not. Therefore, justice access is one element of the laws that are important in ensuring that everyone is treated equally. The rule of law ensures that the people of the states are protected from any form of infringements and that they have their rights. In most cases, many people face several civil wrongs, and they are unaware of it be held accountable to get justice during the criminal proceedings.
According to the international and human rights laws, the access to justice is supposed to be guaranteed to every person throughout the court. In other circumstances, the people have to have access to the relevant information or any idea that can help them attain justice. The alternatives that are used to solve the different disputes. There is the time that the rights of an individual get violated. In such circumstances, there is the law that covers them and their rights have to be enforced. Justice access involves numerous cases and situations of human rights. One of them is the right hathe accused have to get the fair trial. This is stipulated in the article six of the ECHR and also in the also in article forty-seven of the human rights charter. Therefore, everyone has to the bets and the farthest trial. At the same time, the access to the rights of justice that is stipulated in the European union charted
The access to the lawyer and justice rights that are contained in the European Union charter is a fundamental right that directly corresponds to ECHR contents. Therefore, several case laws are used to interpret the rights. Even though there are styles that govern the enforcement of the laws, they all emphasis on the effective ways that one can access the best and the most favorable trials.
Justice access and availability allows the people to get the basic human rights. These include the protection from the basic infringements that can come from the wrongdoers. Thee accused should have the right to remedy all the wrongdoings in the civil right sense. There are times that the members of the public fail to get the justice after the infringement as they can not defend themselves in the criminal court.
For the countries that re ruled by the law, human rights form the significant part of the law. In the European Union, most of the laws major around the human rights. Human rights come from different areas. Ione of the most critical issues that have been part of the human rights is the right to access the lawyer. This means that the right for the fair trial is a basic right for any human. There are times that the perpetrators or the people accused are not given the right to hold a fair trial. In such situations, they do not get the judgments that are right when there are the relations to the law. Therefore, as a basic human right, everyone can have the trial that is fair and just. Achieving justice is not easy; there is the need for both sides of the trial to have the necessary ground for the interpretation of the law. This is where the need to have the trial assistance in the form of a lawyer comes in. Also, fair trial and get advice from legal assistance is an important element of the human rights.
Numerous statistics show the cases where people have been denied the rights to fair trial and their rights have been violated. In such situations, the accused persons are not given the time to look for the lawyers that can help them make the fair judgments or help them arrive at the conclusions more openly. Without the lawyers, the accuser has high chances of pleading to be guilty. The Etch highlights the role that is played by the decision makers and their impact on justice. It had been the primary guideline that helps in the decision making while issuing the directive about the right of the accuser, the EU responded to the divergent national standards by the Directive 2013/48/EU. Instead, they concluded that everyone should have the direct access to the fair trial. However, due to the lack of CJEU case-law interpreting provisions of the Directive, addressing these problems sometimes become complicated. Only one case, Case C-612/15 Konev case, has been discussed in this paper. Hence, this masters thesis elaborates the viable options for the CJEU on their understanding and its limits. Based on the developing legislative framework, different national standards and Etch case law are usually a challenge.
II. EU LAW ON RIGHT TO CUSTODIAL LEGAL ASSISTANCE: THE FORMATION UNDER IMPACT OF THE ‘SALDUZ DOCTRINE’
2.1. Meanings of the Right to the Custodian Legal Assistance
The European Union advocates for the custodian to have the right for the legal assistant. The right to custodian legal assistance refer to the right that the accused or the defendant person have contact with the council such as a lawyer despite being in custody. The contact with the legal advisor should also be on the side of the custodian. The defendant’s legal expense is supposed to be catered for by the people that are holding the defendant in custody. In the European Union, this right is regarded to be the major part of the fair trials in the criminal proceedings. After the constant disposition of human rights in various nations, the European Union have to assess their interpretations of the procedures in human rights. One of the most concerning issues in this cases is access to custodian legal assistant. Because of the rise in cases of misinterpretation, it becomes difficult to become consistent with interpreting the law. It is also difficult to find the identities of the principles that are behind the human rights bases. The conclusion states that the right to custodian legal assistance has to be received based on the rational and the alternative views that serve to protect the privileges against the issues of self-incrimination.
2.1.1. Legal sources
The set standards are mainly meant to build the mutual recognition that takes happens within the EU countries. They also affect the judgments and the ruled policies. This is a principle that is dated in article eighty-two of the functionality of the European Union.
It is the principle that is enshrined in Article 82(2) of the (TFEU) treaty. This also refers to the Europe Union Functionality. The main directive about the right if accessing a legitimate lawyer was mainly adopted in the year 2013. It is a directive that has to be implemented, and Sweden was the key to all these changes in the rights of a custodian that had been transposed into the legal laws by the year 2016. The law was a procedure that allowed the accused people to have their rights through the accusation process.
The Swedish roadmap was meant to show the people the rights that the custodians had. It also wanted to show that to achieve equality; those that have been convicted also have to be treated equally to everyone else. There are maniacs that the countries within the EU that not observe such initiatives. This is well handled in the criminal procedures. The roadmap of the procedures is at the Stockholm programs that are in the year 2014. It also sets the priorities of the European Union through the freedom and the security orientations.
In all the nations across Europe, various guidelines support the rights of individuals and those that infringe on them as well. Apart from this, there are various changes to the criminal controls and the policies on the social welfare. This means that there is the simultaneous increase in the needs that are unmet. The shift in the government priorities has led to many cases of injustice as there is little focus on the legalities that relates to access.
Along the minimum standards and requirements, some necessities are built around the mutual recognition in the member states that tend to clog the judgments of the other member states. The request can be made to the judicial authorities or any other member of the authorities of the state. In the Lisbon treaty of 2008, there is the coverage in the principal of the mutual recognition within the European Union. The EU and the EU parliaments are all given the power to give the directives that establish the minimum rules on accused. There is also the right of the victims of crime that allows the victims of the crime also to raise their issue that they feel are not handled in a proper and more justice manner. The rights to victims of crime have generated some of the most controversial in the recent times. The main issue is the ability to speak to a lawyer that falls under the third measure of the legal advice that had been adopted in Sweden. All the states members of the EU will be participating in the adoption of the same directive. However, in the initial stages, some countries were not able to adopt these directives. Such countries include Ireland, the United Kingdom, and Denmark. The above countries raised the issue of not following the directives that were preplanned to give the member countries more rights to access more relevant laws. Therefore, these countries are not bound by this rule.
No EU-wide standards till 2013, but Charter of the Fundamental Rights.
2.1.2. The element of the rights:
The right of accessing a lawyer is an issue that is debated through the many Media across the EU. It is a whole process and is also a goal of the countries. It is also part of the whole procedure that benefits the other people that are looking for the other rights. At the international level especially in the European union member countries, the issues that deal with the rights of individuals have been the focus of many laws. Therefore, safeguarding the public laws and policies is the is crucial for the procedural and the different substantial rights. The united nation asl have what is known as the human rights scoreboards. In the scoreboard, the rights and justice system are assessed on their applications and their basic principles. Also, the notion of the access to justice is in the sixteenth and the thirteenth articles in large European human rights conventions. The EU charter takes care of all the other issues that are related to the fair trial and the justice system. In the European Union, the main principle of the mutual recognition systems demands that the court that is based on the member states realize and recognize the decisions of the judiciary that are meant to enforce the requests for the different assistance reasons of the member’s states. Some include – The freedom to choose a counselor; Right to information on custodial assistance and when the rights to custodian legal assistance shall be granted.
In the article seven of the European convention of the human rights, there is an outlay to interpret that is covered in the court of justice. Also, the level of protections that are geared towards the persons accused or convicted should never fell below the recommended level. There are the levels and the rights that are stated in the EU Charter as well as the ECHR. There are numerous case laws that show the established one of the different standards in regards to the law of accessing the lawyer. The ability to allow the people to access the lawyer without infringement is an idea that is not appreciated by many countries. This is also in the countries that are outside the European Union. According to the statement that is in the second article of the EIU human rights, there is the directive that applied s to this same idea. This rule states that the persons accused that are following the criminal proceedings from the time that have been arrested or made aware of their crime should not be deprived of any form of liberty. This liberty can include many things. Traditional laws advocated for the best ways that could be used to get the information from the custodians. Seen of the most common methods included torture and psychological tricks. Such tricks were displayed by the interrogators who were trained on the ways of extracting people. As a result, torture had been part of the justice system.
These rights are set when there is the time for the final determination when the person accused is undergoing the final charge or the final proceedings. There are times when the people who are undergoing the final stages are denied the rights to access the people who can help interpret the law. There are times that the people who decide the last and final decisions do them in a hurry such that the accused can not get the chance to even appeal for the better judgments, the appeal could sometimes come by the access of the lawyers. This right can sometimes involve the application of appeal for the capital crimes that have been sentenced. There are differences when handling the major offenses. There are minor offenses such as the traffic offense, the failure to adhere to most of the local rule as well as the other public offenses that are common. Such type of offenses does not have the complications.
In many cases, the directives about the right to have the full access a law practitioner are quite different. In such situations, the laws are broken by the perpetrators in the different circumstances. As assume, the rules that are applied are those that are set by the mase municipalities. If this is the case, the best methods that can solve the local problems. At the municipal levels, the protection directives are unlikely to be preserved due to many complications. Therefore, traffic offenses can sometimes be solved without the lawyers and the people affected will pass it n without feeling that their rights have been infringed. In most cases, the minor crimes are solved through the impositions of the well-laid sanctions by the local government. In such situations, there are ways that appeals can be held. If someone feels that sanctions are oo much, they can sometimes appeal for them. Apart from these cases, the Directive of the access to justice applies when the sanctions that have been imposed is based on the sanctions that have been imposed. This also applies to the issue that relates to the application of the sanctions. There are timeses that the sanctions are infringing on the rights of the individuals.
The protective rational that the accused have based on the custodian legal assistance is mostly for the known self-incrimination. Failure to get the custodian right is the original infringement of the accused. The other is the protection against the protection against the right to liberty of the suspect. The early aces to the lawyers sometimes make the suspects avoid their detentions from the time that it starts. Avoiding the possible confusion that takes place when someone has been falsely accused is one solution. Also, there are cases if general breaches of procedures in the court systems. Also, many people also suffer from the contract breaches in the court. The procedures of conducting the generation procedures by the police are sometimes against the lawful right. This can be set up, or someone viewed as a threat. Police misconduct is rampant within the legal systems. After making arrests, police rarely have concrete evidence against the accused except for what they present in the court.
The other crucial issue is the right to silence that everyone has. This right prevents the accused from undergoing intense interrogation or torture in case they decide to hold onto their information. There are also several cases of ill treatment s within the justice system. When the suspect is not willing to give any information, it is within their rights to fell free and become silence. Their rights to remain silent are what they are reminded of when there is an arrest. Therefore, if they decide against giving any information, it is a decision that has to be respected at all costs. There are times that the lawyers are denied speaking to their clients.
The protective rationales are based on the rights that one has after having undergone through the unlawful arrest of an infringement by the police. There are those that re torchieres or ill-treated in custody. Hence, they have to be given the best conditions so that they can make informed judgments or give responses that re-informed. The Protection of the Right to Liberty is mostly the right that challenges the deprivation of liberty that is given the directive. But the idea is embedded within the implicit provisions in the directive. Article seven (7(1)) of the right that one had on the access to information. It is the national authorities, and the national lawyers have to give all the evidence and relevant information to challenge the proceedings and cases effectively. The rights of the accused to access all the necessary information before the proceedings take place is important. Therefore, hiding information that will be used later in the judgment is an infringement on the rights of an individual. All the information should be availed to them.
The other is the lawfulness of the arrests and the detention that faces the suspects and their lawyers. This similar provision is taken with the directive on article three of the same directive, Article 3 (2) (c) of human rights directive states that the lawyers of the accused have to be given the full information of the cases that are held against them.
The Pascrell to Saluda case shows how the standards and rationales custodian right in legal assistance were developed through the time. The national legislatures have always felt being relaxed about the rights and the participatory rights that the custodian have and at the same time transposing the Salduz. As a result, the Etch deemed it inappropriate and decided to change the direction of the procedures. They therefore effectively failed to endorse the other broader roles that a lawyer has apart from the ability to safeguard all the privileges of the accused and the custodian.
2.2. The ‘Salduz Doctrine’:
This is a doctrine that focuses on the right of the custodian against any form of torture. It is meant to protect them against Torture and any other inhuman treatment. Therefore, the doctrine disregards the Treatment or Punishment act that had allowed the torture of the custodian to give information. The doctrine has been instrumental in implementing justice and human rights. Therefore, the doctrine shows how the detainee can rightfully access a free legal advisor if safeguards against the ill-treatment. Other forms of “improper compulsions are also addressed in the doctrine. The improper treatment that the custodian goes through should be avoided ion the basis of their privileges. The use of deception tricks while trying to get the information from the custodian. These ticks can gauge the info from the accused without their consent. The use of fake promises and threats are some of the tricks that had been commonly used by the interrogators.
The Court`s understanding of the essence these rights (protective v. participatory rationales) is also crucial in understanding this right. The impulsion or putting the custodian under some pressure is what the courts saw to be the effective way of extracting information from them. It was, therefore, a subject to a massive debate on the rationalization of the custodian rights that are safeguarding them against the different forms of torture. The limited custodial legal assistance is used to safeguard against torture or illegal coercion.
2.2.2. Justifiable restrictions:
The restriction deprives them of their right to communicate with at least a third and should not be delayed in any way. Such a case has happened in many other countries. The person who the accused should speak to have to be nominated by them, in most cases this is a relative. The evidence is mostly left to the person in charge. The restrictions sometimes take place when the accused does not have the relatives or is not allowed to communicate with the relatives. In this case, the accused have to be assured of security and the duration that the restriction will take place.
There are circumstances that there is the restriction to the access of the lawyer. Article three of the directive provides for these restrictions. This is through the temporary derogation that takes place in the circumstances that are permitted by the law. As such, there is geographical remoteness of having the accused person making it possible for liberty depreciation. Liberty can also be interpreted in different ways. However, it is also true that these kinds of derogations are only permissible during the pre-trial stages and is not allowed when there is the application when the suspect is being questioned. About the lawyer access, there is the makeup of the temporary derogation that is allowed in several other circumstances.
2.2.3. The evidence:
THE USE OF EVIDENCE IS ONE OF THE BASIC ELEMENTS OF JUSTICE. The person who is prosecuted has to be allowed to access all the pieces of evidence that are against him or her. Furthermore, the personal lawyer of the person has to be given the access to the evidence that is against him or her. There are times that the cases are decided on the evidence that is from the outside sources. In such cases, these types of evidence should not be used against the person. They have to be allowed to access these evidence and consult their lawyers with them. Also, the pieces of evidence have to be availed before the trial. During the trial, many pieces of evidence are presented in the court. Also, the lawyer must be consulted in advance. If there are those that the lawyer has not had access to, they must never be used. There are ways in which it addresses the issue about availing the evidence at the trial.
In accordance to the Salduz v Turkey, the use of evidence is stated as the denial. It states that when there are those pieces of evidence of the accused is being denied access to a lawyer, then the case of prejudice the right of the accused person. There are times that the accused is not given access to the evidence that is against them. On such occasions, the evidence should not be due to prejudice against the person.
2.3. EU Directive 2013/48/EU Implementing the ‘Salduz doctrine’:
The EU directive about the implementation of the Salduz doctrine states that the member countries have to implement the access to a lawyer directive. On the implementation, it states that where the person is deprived of their rights, the competent people have to be informed about the role of the accused lawyer. The lawyer acts as the person in charge of the case. The states have to give the whole information about the doctrine and its implementation. They have to be given the data that shows the effective exercise on accused. This directive is a perfect guideline to the country about the criminal procedures and the restrictions that the accused persons have to face. This directive is a direct implementation of the Salduz doctrine.
For a long time, the countries have had a massive issue on the topic of custodial rights. There have been numerous legal activities in Europe that starts from the sawdust vs. turkey. The European directive has massively covered what is understood to be the main ideas of the custodial rights. Some countries flurry of legislation is even more strict the Valdez document. Whether he plays the protective or the participatory role is also open to debate. The custodian assistance sometimes breaches the rights. In such situations, they are depriving the accused of their rights.
2.4. An Overview of National Implementation
III. THE RECAPITULATION OF THE ‘SALDUZ DOCTRINE’: IBRAHIM V. UK
There have been several cases where the nations are trying to implement the directive of the access to a lawyer. In such circumstances, the suspect it is given the priorities to give the information to the lawyer who will take charge of his or her proceedings. there are times that the legal officers are meant to restrict the custodian right. The Salduz doctrine is a law that applies in many cases. One of the reasons is when the information given to the lawyer can be used by the other suspects to gain access to the valid information. As such, the national implementation is complicated in most cases. This case has also been interpreted differently. One of the most commonly cited cases for the national implementation id the Ibrahim v UK case. This case is as follows.
For the year 2005, there were a total of four deadly bombs that exploded in central London. The explosion happened on the three underground trains as well as a passenger bus. The accident killed tota;l of forty-two casualties and more others were injured in the process. After two weeks, there were three applicants, Mr. Ibrahime, Mr. Mohamed and Mr. Ommar, as well as the fourth person Mr. Hussaine Osmann. These people were responsible for the donation of the four bombs that had rucksacks at the different points in London. This was within the London public system. Later on, in July, there was another bomb that was discovered and was the fifth conspirator. The case raised awareness of the consequence of these laws.
Even though the four bomb blasts were marked as detonated, all of them had their liquid hydrogen peroxide that massively failed to explode as expected. These bombs were later identified to have had the lower concentration of the substance that could make them explode. As a result, the bomb failed to explode.. The people, or the applicants as well as Mr. Osman all fled and left the scenes after the attempted explosion failed. There were CCTV cameras that revealed the identities of the suspects. The suspects were on the run for quite a long time with Mr. Omar later on running to Rome. The police killed someone mistakenly as a result of the mistaken identity. The police saw the young man who was said to be identical to one of the suspects. Mr. Abdurahman was also an applicant after having offered his home to one of the suspects, Mr. Omar as a murderer. Mr. Abdurahman gave Mr. Osman stayed in his home while he was on the run. Therefore, no disclosure of the information about the suspect on the arrest of Mr. Abrahman, several procedures took place. According to the directive, Mr. Abdirahman had to have the complete access of a legal advisor and was having the right to consult anyone.
3.1. The Watering-down of ‘Salduz doctrine’:
The ‘Salduz doctrine’ is the basic principles that guard against injustice and is one that has to be held by the countries in the EU. However, there are times that there are no reasons for the breach of the directive ad article six of the doctrine. The ECHR fairness proceedings and that there has to be a consideration for each situation where the suspect is in the trial. Implementing this doctrine has been a procedural process.
An Interpretation by the Etch of Directives 2013/48/EU:
3.1.1. The two-tier test for justification of restrictions
There are times that the restrictions for the access for a legal advisor are restricted. In such cases, the limit can be justified, or it can be a consequence of the situation that the suspect is in. An example of the justifiable restriction is the case of Ibrahim vs. the UK. In such a case, there is a justifiable restriction, and the accused or the custodian cannot access the lawyer. However, it is mainly complicated for the lawyers who are also aware that the restrictions are mostly illegal. One of the most common ways of denying the access is showing the different treatment for the custodian. When a lawyer comes to access the client, he may be told that the client is not there or c not be obtained. In such situations, the police take the interest of the other people into consideration. These are the RE consideration for the restrictions. The primary role of the law is to protect the people and to guarantee the interest of everyone. However, if one condition in putting the lives of the other people at risk, it forces the people to provide the different outcomes and increase the chances of restrictions. The lawyer is mostly is available to those that are outside. Hene, giving them the access to the client sometimes affects the role of justice as it may prevent the police from capturing the other perpetrators. Getting the information is the other issue in the doctrine. There are times that the police are forced to use the other means to get the information from the clients against their demands. The other issue is the weight of the other public considerations. If this is the case, then it becomes difficult to adhere to the demands of the law. The weight of the public safety is sometimes one that has to be applied as required. There are those lawyers that are accessible to more than one client. Abdirahman vs. the UK was one example where there was the legitimate option that the lawyer was denied the access to see the clients. Some people were still not captured, and they had to be limited the amount of information that was available to them. Also, the overall fairness of the procedure requires that there is the application of the restrictions.
3.1.2. Evidence use:
The evidence is a crucial component of the law court. Without them, the accused have the right to claim release and harassments. The lawyer has to access the pieces of evidence that are held against the custodian. However, there is time there is evidence that has been obtained in a more unprofessional way. This can be through the police through the investigation. This evidence is mostly recorded during the interviews. The police can sometimes hold the evidence up to the last day of the trial. However, according to the directive, this is a practice that is deemed illegal and is not allowed. In such a scenario, the law allows the court to use this evidence against the custodian. An example of such a case is the Omar vs. the UK case. After he was arrested in Rome, Omar was taken to the cell, where he would then be questioned by the police. It was this information that was used to arrest the person who was hosting Omar. Ee through Abdirahman insisted that he did not know the terrorist involvement of Omar, it was clear that the evidence that was admissible was not part of the ones that were legally obtained.
3.2. An Interpretation by the ECtHR of the Directive 2013/48/EU:
According to the ECtHR interpretation of the Directive 2013/48/EU, everyone has to be treated equally regardless of what they have done. There should be t prejudice at all on any human being no matter the offenses that they have committed. According to this interpretation, everyone has equal rights, whether they have committed mass murder or they have committed the smaller crimes. As such, they had to be allowed to protect themselves no matter the circumstances. This protection can be done through the initiation of protective rights. In custody, the accused must be rightfully handled. He or she must be allowed to access the lawyers whom they deem right to protect them. As such, they should be allowed to go through all the initiative that is possible to enable them to go through the protective procedures. Through the analysis of her cases, they also have access to the national lawyer. Therefore, the people holding them hostage are privileged to provide them with the state lawyer. This is an assurance of the directive where everyone has equal rights.
The public interest in the high-profile crimes and the media’s coverage of the criminal court proceedings and judgments have significantly increased within the past decades. The rights of children are also part of the procedures that make people overreact on the accused person. Those children who are involved in the proceedings receive sufficient legal protection from media attention. Hence, the children receive adequate legal protection from media attention. However, this attention affects the fairness of high-profile criminal cases and court proceedings as they attempt to protect the high-profile defendant. There have been some instances where the media have intervened in the court proceedings that involved a child, and the press had to speak.
The terrorism cases have been the highlight in many European nations. The news always brakes the crime immediately have been done. They are also part of the media as they received word of the crime. There was an immediate broadcast at a local radio station that warned of an armed sniper in the area. The impact of the media was massive as the child had to be sent to a correctional facility.
The next case was in Birmingham law court where a minor was accused of armed robbery. A crime that demands a heavy punishment by the law according to the public. The issue became a challenge to the court about the international standards. By the international standards, a child is any person that is under 18 years of age. This is what is used in all the court judgments within the UK. The principle is true unless there is the difference in applicable law. On the other hand, a Juvenile is considered to be someone who has not fully matured or have not fully developed. Some cases such as juvenile may mean that the people concerned do not want to give the defendant time o access the lawyer. At a minimum, a juvenile is a child who re 18 years and other cases the age of 21. They may sometimes be referred to as a ‘Young adults’ when they have reached the legal age of majority of the people, mostly 18 to 21 years of age, but are seen not be fully matured in one respect or the other. There have been cases of full mental and emotional capacity that is often not attainable until the child is at the age of 25 years. The Justice for children is a concept that is looked and mostly covered by the media to child protection in the criminal proceedings. This happens when children conflict with the laws or the children who are alleged to be accused of or recognized to have infringed the penal law. The children who are victims or are part of witnesses of crimes may be needed to make contact with the justice system. There are cases that can lead to a child being in custody, or those that demand protection or inheritance. These may demand that here are the child parties that are responsible for the justice process. In the EU countries, the media sees this as an overarching concept that works and benefit the children. These laws have been made in the best interests of all children who come into contact with justice and related systems. The laws include aspects such as prevention, rehabilitation, diversion, assistance services in the proceedings. The concept of justice for children has been subject to different debates as lawyers and media professionals have different views of how the children can be handled in the court system. The same differences can be noted in the term ‘juvenile justice’ and that it does not only cover children who are conflicted with the law but to all children who are undergoing the various judicial processes.
Also, the application of these principles can always be seen in all the chapters of international treaties act on children’s rights. Because of this, in all the actions that are supposed to be taken, there has to be a thought on how the actions will have an impact on the child, groups of children or any person considered to be immature to ensure that all of their best interests are successfully met.
The protection principle is meant to protect the well-being of the child and the development forms that are entwined with those of their best interest. The protection principle reiterates the need and the requirements that are needed for additional measures and protections due to various vulnerabilities that the child has to face. Also, the state should provide this form of protection for them. When trying to protect the well-being of the child, it does not just encompass protection that they have from the physical harm. For example, while inspecting the facilities where the children are held or by using the legislation that is against the use of corporal punishment against the children. The role of the media also takes a more active and proactive approach to the implementation of the actions that will enable the healthy development of the child. It could also mean the provision of other necessities such as vocational and educational training when the child is in the d detention centers, and help put the safeguards on the child and restrict anything that may hinder his or her development.
It is also some of the views that are taken into considerations every time with the due weight that is given to their ages and ways of maturity. Children have to be allowed to express their views and opinions as well as the issues that concern them. This way, they are actively participating throughout the judicial process that is set according to their best interests and through a representation where they are deemed necessary. To maintain the right of the child, they have to be given the best and adequate information about the process and court procedures. There were various choices the children have and the possible consequences that hey face when they make these choices. One of the most challenging situations arises for different professionals while they are working with the children is the assessment of the age and the level of maturity. Hence, the weight the child must be assessed and is the basis of case-by-case.
The principle of Non-discrimination is the other one that helps the children against any form of discrimination that they may face from the court proceedings. This principle of non-discrimination applies that there is no distinction, restriction, exclusion or preferential treatment that is given to the child based on their races, colors, sex, language, religion, political or opinion.
Nevertheless, these principles do not mean that the children never receive the necessary affirmative actions that they deserve. Those who go against the law have to face the law the way it is supposed to do. For example, countries can have different treatment of some children, or groups of children, when they are trying to eliminate the conditions that can be used to cause or maintain any form of discrimination. The States are supposed to guarantee all children of discrimination against a useful measure. All the children have to be given the necessary opportunities. It is also relevant when dealing with girls and the other children who are vulnerable, including children with special needs.
Children who break the law do not necessarily break them at their will. It is these opportunities that cause the children to get involved in criminal acts. They ensure that the children do not miss the opportunities. The opportunities that the children have also become even more and more restricted when the children enter the criminal justice systems. The cases of Juvenile from risk groups such as children that mostly get into conflict with the law are mostly victims of abuses and neglect from their families. Reports from many media outlets have been revealing the impact of child neglect, economic difficulties and poor on the juvenile. Even though Juvenile delinquency has not even a success story, there has been evidence of different societies that have failed to ensure that the children are provided with the protective environment. Labeling the children who have been charged with crimes only results in exclusion from society and they are rarely assisted in rehabilitation. The media have to see both sides of the story. The establishment of the mutual recognition and the other decisions that are based on the judicial cooperation when it comes to the criminal matters that are in the Union that strengthens and creates harmony among the member states.
3.3. The Legal Effect of Ibrahim Case:
There are several effects of the Ibrahim case. The case of Abraham shows why having the power can do to someone. Even after being involved in an explosion added more the fifty people are dying, there are still many implications of the rights that have to be considered. Ibrahim had the right to perform all the other cases or conduct any issue that he wanted to attend. He could choose a lawyer. One of the implications is that all the issues are well informed before they are practically done. However, there are times that the rights are no longer safeguarded. This takes place if there is the pressure from the public and if the lives of the other people are at risk. In such circumstances, it is no more safeguarded. It is avoided at all costs there are also ties that the procedural guarantees are watered-down. This implies that all the assurances that the custodian has through their rights and the writings of the directive can sometimes be avoided. In such situations, there are complex legal implications. According to the instruction, there should never be any form of prejudice. But through such circumstance, it may be water-drawn.
As a consequence of the various justifications, the Ibrahim case reminded the people of the times that the law could not be applied. There are justifications that the laws have to be compromised under certain states. This is the main legal implications of the Abraham case. As a consequence, there is the limit to which the custodian can interact with the lawyers or the assistance that they have. For the lawyer access, the case of Ibrahim is the highlight of many challenges the EU are facing when they have to adhere to the cases. Along with this, Portugal and Iceland had the option to adhere to the directive at their will. Hence, in such countries, the procedural involvements are all watered down to different demands.
3.4. Interim Conclusion
IV. OUTLOOK: AN ANTICIPATED CJEU APPROACHES TO THE RIGHT TO CUSTODIAL LEGAL ASSISTANCE
The CJEU interpret the laws for the various countries within the EU to apply in a similar measure in all the nations. As such, it is expected that the laws that have been made by the EU parliament is interpreted well and it can be assessed in a better way by the countries involved. If the laws have been interpreted by the CJEU the way they are supposed to be, there is the less likelihood of having any form of legal disputes or misunderstandings. Sometimes that law is interpreted in the different ways through various countries. However, CJEU has the role of interpreting most of them. The rights that individuals have about the European interpretation of the lawyer is one that is quite complex. Hence, the CJEU has to interpret and ensure theatre is the legal ground there are countries where there is ineffective access to the lawyers. Through enforcing these laws, the CJEU ensures that the laws are interpreted in an even way. For example, it is the logical foundations are not violated. If the EU can prove within the treaty, the court may be asked to annul it through the EU. There are those rights to the communication with the legal advisors that are overruled by the courts within the European Union. In such cases, they have to take the necessary action. Such actions are known as the failure to fail on the action of the law. They are crucial In some decisions that can be referred to s the mistaken cases.
4.2. Implications of the ECtHR Case-Law for the CJEU interpretation of the Directive:
Ther have been several implications of the ECtHR case laws and their impacts on the European interpretation. They implement laws by the ECtHR are balanced in EU. Also, the case that was jurisprudence under the ECtHR including those that were done under the legislation of the council. Therefore, such cases can be followed to ensure that they are implemented uniformly. There are those provisions that allow for the more lenient approach by the interpreters of the law. In such cases, the people who are implementing them can take a better approach as compared to the others. All these are the operations of the CJEU. An example of the case where there was the more lenient approach was the case for the consideration of Ibrahim. The case was more complicated than others thought. As such, it has been provided by the CJEU. They adopted the directive differently. Ibrahim was not directly allowed to access the lawyer like the other people of the same mistakes at the same caliber of offense. As a consequence of higher risk, some techniques were used by the police to get the more information from him. This is a dangerous case and is not allowed under the other normal instances. Hence, the adaptation of the Directive 2013/48 was different in its implementation. In other cases, the Directive CJEU can decide to act on the adoption of a more protective approach that is quite different from the others. An example is the case of Omar. After having been discovered and arrested, he was to face some charges as he could not access the lawyer. However, there was even a more protective approach that allowed the police to do their full investigation before he could face the lawyer. It happened several times in the case this way; the CJEU take the different approach in public.
4.1. Emerging CJEU Jurisprudence: Kolev Case:
There have been different issues and emerging imprudences in applying the EU directive by different countries. The roles that are played by the different lawyers and judges who are at national lees are entirely different. There are also the roles, that are acting within the anti-discriminatory directives. This is the relationship that takes place between the preliminary ruling procedures and the other ruling procedures. Therefore, there are times that the cases are open to the interpretation of the local lawyers. The directive is also open to the other interpretations. While making the interpretations, the primary interest of the law has to be put first.
In conclusion, according to the directive of the EU, everybody has to be treated equally. There should be no prejudice against the treatment of the custodians no matter the circumstance. There are different interpretations of these laws. Cases where the public must be considered before implementing the law. One is cited in this manner is the Ibrahim case is proof and was denied by the police as the investigations are made.
This work can be used by the law practitioners and the law students and the options that need the right to a custodian.
Implications of the further study:This research can act as an opener for the further research on the law applicable in the various EU countries. The implications of various laws are the basis of basic political developments. Therefore, one of the research questions that can be developed is as follows:
What are the implications of different implementation strategies of the EU laws?
Are there challenges the EU countries face while adopting the rights of lawyer access by the custodians?
Anagnostou DE Psychogiopoulou, The European Court Of Human Rights And The Rights Of Marginalised Individuals And Minorities In National Context (Martinus Nijhoff Publishers 2010)
Arnold Lorenz N, The Legal Culture Of The European Court Of Human Rights(Martinus Nijhoff Publishers 2007)
Baka A, ‘The European Court Of Human Rights And The Central And Eastern European States’ (2018) 1 East European Yearbook on Human Rights
Bardarova S, ‘Comparison Between The European Court Of Justice And European Court Of Human Rights’  SSRN Electronic Journal
Barnes K, ‘Adjudicating Equality: Antidiscrimination Education Jurisprudence In The European Court Of Human Rights’  SSRN Electronic Journal
Beqiraj (Mihani) P, ‘The Right To Be Heard In The European Union – Case Law Of The Court Of Justice Of The European Union’ (2016) 1 European Journal of Multidisciplinary Studies
Berger V, Case Law Of The European Court Of Human Rights (Round Hall Press 1991)
Besson S, ‘Concurrent Responsibilities Under The European Convention On Human Rights: The Concurrence Of Human Rights Jurisdictions, Duties And Responsibilities’  SSRN Electronic Journal
Bovis CT Reeves, ‘Nice – The Charter Of Fundamental Rights Of The European Union’ (2012) 2001 Amicus Curiae
Brautigam T, ‘European Union Law’ (2007) 18 European Journal of International Law
Ciuca A, ‘Human Rights: Between The European Court Of Human Rights And The Court Of Justice Of The European Communities’  SSRN Electronic Journal.
Creţ D, ‘Certain Considerations On The Right To Legal Assistance In Civil Trials’ (2017) 20 Journal of Legal Studies
Croquet N, ‘The International Criminal Court And The Treatment Of Defence Rights: A Mirror Of The European Court Of Human Rights’ Jurisprudence?’ (2011) 11 Human Rights Law Review
Cullen AS Wheatley, ‘The Human Rights Of Individuals In De Facto Regimes Under The European Convention On Human Rights’ (2013) 13 Human Rights Law Review
Custodial Legal Assistance (2018) <https://www.researchgate.net/publication/257552568_Custodial_Legal_Assistance_and_Notification_of_the_Right_to_Silence_in_France_Legal_Cosmopolitanism_and_Local_Resistance> accessed 27 August 2018
Dawson M, ‘How Does The European Court Of Justice Reason? A Review Essay On The Legal Reasoning Of The European Court Of Justice’ (2014) 20 European Law Journal
De Hert P, ‘European Human Rights Law And The Regulation Of European Criminal Law. Lessons Learned From The Salduz Saga’ (2010) 1 New Journal of European Criminal Law
Djeffal C, ‘Law Of The European Convention On Human Rights Cases And Materials On The European Convention On Human Rights The European Convention On Human Rights’ (2012) 50 Archiv des Völkerrechts
Doğan Y, ‘The Fundamental Rights Jurisprudence Of The European Court Of Justice Protection For Human Rights Within The European Union Legal Order’  Ankara Law Review
D’Sa R, ‘The European Union Charter Of Fundamental Rights: A Contribution To Regional
Dute J, ‘Selected Legislation And Jurisprudence European Court Of Human Rights’ (2011) 18 European Journal of Health Law
Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015.
(Echr.coe.int, 2018) <https://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 25 August 2018
Edwards V, ‘Case-Law Of The European Court Of Justice On Freedom Of Establishment After Centros’ (2000) 1 European Business Organization Law Review
Emmert FC Carney, ‘The European Union Charter Of Fundamental Rights Vs. The Council Of Europe Convention On Human Rights And Fundamental Freedoms – A Comparison’  SSRN Electronic Journal
European Commission, ‘EU Law – European Union – European Commission’ (European Union, 2018) <https://europa.eu/european-union/law_en> accessed 27 August 2018
‘European Convention On Human Rights’ (TheFreeDictionary.com, 2018) <https://legal-dictionary.thefreedictionary.com/European+Convention+on+Human+Rights> accessed 25 August 2018
Falcón J, ‘A Comparative Study Of Jurisprudence, Between The Inter-American Court Of Human Rights And European Court Of Human Rights, Regarding Political Representation In Multicultural Contexts’ (2015) 1 Ballot
Falcón J, ‘A Comparative Study Of Jurisprudence, Between The Inter-American Court Of Human Rights And European Court Of Human Rights, Regarding Political Representation In Multicultural Contexts’ (2015) 1 Ballot
Fawcett J, ‘The European Convention On Human Rights And International Concern With Human Rights’ (1976) 52 International Affairs
Fenyves AW Berka, Tort Law In The Jurisprudence Of The European Court Of Human Rights (De Gruyter 2011)
Fontanelli FA Arena, ‘The Harmonization Potential Of The Charter Of Fundamental Rights Of The European Union’ (2018) 20 European Journal of Law Reform
Garrett G, R KelemenH Schulz, ‘The European Court Of Justice, National Governments, And Legal Integration In The European Union’ (1998) 52 International Organization
Giannoulopoulos D, ‘Strasbourg Jurisprudence, Law Reform And Comparative Law: A Tale Of The Right To Custodial Legal Assistance In Five Countries’ (2016) 16 Human Rights Law Review
Gilbert G, ‘The Burgeoning Minority Rights Jurisprudence Of The European Court Of Human Rights’ (2002) 24 Human Rights Quarterly
Gomien D, Short Guide To The European Convention On Human Rights (Council of Europe Pub 2005)
Harris D and others, Law Of The European Convention On Human Rights (Oxford University Press 2014)
Hartley T, ‘International Law And The Law Of The European Union–A Reassessment’ (2002) 72 British Yearbook of International Law
<https://www.eda.admin.ch/eda/en/home/foreign-policy/international-organizations/council-europe/european-convention-human-rights.html> accessed 25 August 2018
Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016
Isobel M, ‘Early Access To Legal Assistance’ (2012) 3 New Journal of European Criminal Law
Jacobs F and others, The European Convention On Human Rights (Oxford University Press 2014)
Jetzlsperger C, Legitimacy Through Jurisprudence? (European University Institute 2003)
Kapuy K, ‘Mel Cousins, The European Convention On Human Rights And Social Security Law’ (2009) 10 Human Rights Law Review
Khayrov v. Ukraine App. No 19157/06 (Judgment of 15 November 2012)
Kramer D, ‘Earning Social Citizenship In The European Union: Free Movement And Access To Social Assistance Benefits Reconstructed’ (2016) 18 Cambridge Yearbook of European Legal Studies
Kristoferitsch G, ‘The Charter Of Fundamental Rights Of The European Union To Be Treated Like Constitutional Law’ (2013) 7 ICL Journal
Leverick F, ‘The Right To Legal Assistance During Detention’ (2011) 15 Edinburgh Law Review
Lonati S, ‘Anonymous Witness Evidence Before The European Court Of Human Rights: Is It Still Possible To Speak Of “Fair Trial”?’ (2018) 8 European Criminal Law Review
Mancano L, ‘The Right To Liberty In European Union Law And Mutual Recognition In Criminal Matters’ (2016) 18 Cambridge Yearbook of European Legal Studies
Marten G, ‘Belated Evidence Of Proof Of Use: Court Of Justice Of The European Union Case Law Reviewed’ (2014) 9 Journal of Intellectual Property Law & Practice
Martin v. Estonia, no. 35985/09, 30 May 2013.
McCrudden C, ‘Using Comparative Reasoning In Human Rights Adjudication: The Court Of Justice Of The European Union And The European Court Of Human Rights Compared’ (2013) 15 Cambridge Yearbook of European Legal Studies
Merrills JA Robertson, Human Rights In Europe (Manchester Univ Press 2004)
Mokhtar A, ‘Human Rights Obligations V. Derogations: Article 15 Of The European Convention On Human Rights’ (2004) 8 The International Journal of Human Rights
Mowbray A, ‘A Study Of The Principle Of Fair Balance In The Jurisprudence Of The European Court Of Human Rights’ (2010) 10 Human Rights Law Review
Muller W, ‘Constitutional Law: Criminal Law And Procedure: Right To Effective Assistance Of Counsel’ (1941) 39 Michigan Law Review
Neshataeva T, ‘The EAEU Court: From Legal View To Law In Force’ (2017) 9 Russian JUSTICE
Odermatt J, ‘The Use Of International Treaty Law By The Court Of Justice Of The European Union’ (2015) 17 Cambridge Yearbook of European Legal Studies
(Opensocietyfoundations.org, 2018) <https://www.opensocietyfoundations.org/sites/default/files/digests-arrest%20rights-european-court-human-rights-20130419.pdf> accessed 27 August 2018
Orakhelashvili A, ‘Restrictive Interpretation Of Human Rights Treaties In The Recent Jurisprudence Of The European Court Of Human Rights’ (2003) 14 European Journal of International Law
Peers S, ‘Human Rights Case Law Of The European Court Of Justice April 2001 To December 2001’ (2002) 2 Human Rights Law Review
Pivaty A, ‘The Right To Custodial Legal Assistance In Europe: In Search For The Rationales’ (2018) 26 European Journal of Crime, Criminal Law, and Criminal Justice
Pivaty A, ‘The Right To Custodial Legal Assistance In Europe: In Search For The Rationales’ (2018) 26 European Journal of Crime, Criminal Law, and Criminal Justice
Safjan M, ‘Areas Of Application Of The Charter Of Fundamental Rights Of The European Union: Fields Of Conflict?’  SSRN Electronic Journal
Salduz v. Turkey [GC], no. 36391/02, ECHR 2008
Sandland R, ‘Developing A Jurisprudence Of Difference: The Protection Of The Human Rights Of Travelling Peoples By The European Court Of Human Rights’ (2008) 8 Human Rights Law Review
Simeonovi v. Bulgaria [GC], no. 21980/04, ECHR 2017
Squintani L, ‘Case Law Of The Court Of Justice Of The European Union And The General Court’ (2016) 13 Journal for European Environmental & Planning Law
Teichmann C, ‘Corporate Groups Within The Legal Framework Of The European Union: The Group-Related Aspects Of The SUP Proposal And The EU Freedom Of Establishment’ (2015) 12 European Company and Financial Law Review
‘The European Convention On Human Rights’ (RightsInfo, 2018) <https://rightsinfo.org/the-rights-in-the-european-convention/> accessed 25 August 2018
Tochilovsky V, Jurisprudence Of The International Criminal Courts And The European Court Of Human Rights (Martinus Nijhoff Publishers 2008)
Toggenburg G, ‘Fundamental Rights And The European Union: How Does And How Should The EU Agency For Fundamental Rights Relate To The EU Charter Of Fundamental Rights?’  SSRN Electronic Journal
Trotter S, ‘The Child In European Human Rights Law’ (2018) 81 The Modern Law Review
Verhoeven W, ‘Perspectives On Changes In The Right To Legal Assistance Prior To And During Police Interrogation’  Erasmus Law Review
Wägenbaur B, Court Of Justice Of The European Union (Beck 2013)
Ward I, ‘Tempted By Rights: The European Union And Its New Charter Of Fundamental Rights’ (2011) 11 Constitutional Forum / Forum constitutionnel
Wilson R, ‘The Right To Legal Assistance In Civil And Criminal Cases In International Human Rights Law’  SSRN Electronic Journal
Zatschler C, ‘European Union Litigationhead Of Cabinet To Judge Vajda, Court Of Justice Of The European Union. This Contribution Expresses Exclusively The Personal Opinion Of Its Author And Does Not In Any Way Bind The Court Of Justice Of The European Union.’ (2012) 8 European Review of Contract Law
Do you need an original paper?
Approach our writing company and get top-quality work written from scratch strictly on time!