European Commission takes Slovakia to court for failing to transpose the Directive on the rights of persons deprived of their liberty
The European Commission has initiated legal proceedings against the Slovak Republic and referred it to the Court of Justice of the European Union for incorrect implementation of Directive (EU) 2013/48 of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings and on the right to have a third person informed and to communicate with third persons and with consular authorities after deprivation of liberty.
Directive (EU) 2013/48, adopted on 22 May 2013, sets out minimum standards for ensuring legal representation from the moment of arrest, including the right to have a lawyer present during questioning, as well as the right to contact a third person (e.g. family or employer) about the arrest and to communicate with consular authorities in the case of foreigners. Member States had to implement the directive by 27 October 2016.
The European Commission launched infringement procedures against several countries, including Slovakia, in 2013 for insufficient transposition. Slovakia has adopted some amendments to the Criminal Code, but the European Commission points to shortcomings, in particular in the area of effective participation of a lawyer in interrogations and in ensuring communication with foreign consular offices. After a letter of formal notice in November 2023 and a subsequent reasoned opinion, Slovakia did not provide a satisfactory response, which led to an action being brought before the Court of Justice of the EU.
Directive 2013/48/EU follows on from previous EU legal acts, such as Directive 2010/64/EU on the rights to interpretation and translation and Directive 2012/13/EU on the right to information in criminal proceedings. Key requirements include:
The right to legal representation from the moment of detention, including the presence of a lawyer during questioning or other investigative measures such as confrontation.
The detained person has the right to inform a close person or a consular office of their detention without delay.
Restrictions on rights are only possible in exceptional situations (e.g. in the event of a threat to security), but must be strictly justified.
Although Slovakia has amended the Criminal Code to reflect these requirements, the European Commission has identified shortcomings in practical application, such as limited participation of a lawyer in investigative measures and insufficient mechanisms for communication with consular authorities.
Should the Court of Justice of the EU rule in favour of the European Commission, Slovakia faces the risk of financial sanctions, which may include a one-off fine and daily penalties (in the past they have amounted to millions of euros in environmental disputes). In addition, the Criminal Code will need to be amended, which will affect the work of the police, courts and lawyers. For the accused, this may mean the invalidity of evidence obtained without the presence of a lawyer, which could lead to the dismissal of proceedings or claims for compensation
