{"id":8923,"date":"2026-04-07T09:39:30","date_gmt":"2026-04-07T09:39:30","guid":{"rendered":"https:\/\/www.proefschriftmaken.nl\/portfolio\/marelle-attinger\/"},"modified":"2026-04-07T09:39:37","modified_gmt":"2026-04-07T09:39:37","slug":"marelle-attinger","status":"publish","type":"us_portfolio","link":"https:\/\/www.proefschriftmaken.nl\/en\/portfolio\/marelle-attinger\/","title":{"rendered":"Marelle Attinger"},"content":{"rendered":"","protected":false},"excerpt":{"rendered":"","protected":false},"author":8,"featured_media":8926,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"footnotes":""},"us_portfolio_category":[45],"class_list":["post-8923","us_portfolio","type-us_portfolio","status-publish","has-post-thumbnail","hentry","us_portfolio_category-new-template"],"acf":{"naam_van_het_proefschift":"Rules of Conduct for Criminal Defence Lawyers in the EU","samenvatting":"Er is geen Nederlandse samenvatting beschikbaar. De Engelse samenvatting vind je <a href=\"https:\/\/www.proefschriftmaken.nl\/en\/portfolio\/marelle-attinger\/\">hier<\/a>.","summary":"Cross-border crime is ever increasing, so that more intensive cooperation between police and judicial authorities of the EU Member States is necessary in order to effectively combat such crime. This also means that criminal defence lawyers will be more and more involved in cross-border defences. Consequently, it is to be expected that criminal defence lawyers will also increasingly cooperate with their peers in other EU Member States. In that regard it is important for criminal defence lawyers to be knowledgeable not only about the criminal procedural regulations of other Member States, but also about the deontological regulations that govern their peers in other Member States. The CCBE Code of Conduct for European Lawyers also refers to these duties by stating in Article 2.4: \u201cWhen practising cross-border, a lawyer from another Member State may be bound to comply with the professional rules of the Host Member State. Lawyers have a duty to inform themselves as to the rules which will affect them in the performance of any particular activity.\u201d\n\nChapter 1 introduces the context and aim of the research. This research aims to provide an overview of the deontological regulations relevant for the conduct of criminal defence lawyers across the EU and to determine whether these relevant regulations contribute to an effective defence. To this end, an EU-wide inventory has been made of all rules of conduct that are relevant to criminal defence lawyers who assist suspects in criminal proceedings. Subsequently, it was researched whether and to what extent these rules contribute to an effective defence by comparing these rules with a normative framework of minimum procedural and deontological safeguards for an effective defence. The following research question is central to this research:\n\n\u201cWhat should be the essential components for an EU system of regulations governing the conduct of criminal defence lawyers who provide legal assistance to suspects and accused persons in criminal proceedings, taking into account the normative framework of Articles 6, 8 and 10 ECHR, relevant EU law, and the core principles of criminal defence lawyers in order to provide an effective defence?\u201d\n\nThis central research question has been divided in three sub-research questions, which are elaborated in Chapters 2 through 4:\n\n1. What is the normative framework on a European and an EU level for the regulation of criminal defence lawyers\u2019 conduct in providing an effective defence to suspects and accused persons in criminal cases?\n2. What deontological regulations, particularly applicable to criminal defence lawyers, can be identified in the EU Member States?\n3. What are the differences and similarities between the regulations as identified across the EU? What can be concluded about the compatibility of these regulations with the normative framework?\n\nThe normative framework is introduced in Chapter 2. This framework consists of two elements: a procedural and a deontological element. The procedural element entails the minimum safeguards which underlie an effective defence on an European and EU level. Taking into account the deontological perspective of this research, a selection of relevant minimum safeguards has been made, namely the right to legal assistance, the right to confidential lawyer-client communication, and the right to freedom of defence. These rights are laid down in Articles 6, 8 and 10 ECHR respectively and in Articles 47, 7 and 11 EU Charter respectively. Lastly, a number of EU Directives are also relevant to the procedural element of the normative framework, namely Directive 2013\/48 on the right to the assistance of a lawyer in criminal proceedings, Directive 2010\/64 on the right to interpretation and translation, Directive 2016\/1919 on the right to legal aid, and Directive 2012\/13 on the right to information. These regulations are further elaborated in case law of the ECtHR and the CJEU; relevant case law is incorporated in the procedural element of the normative framework.\n\nThe deontological element of the normative framework is formed by five professional core principles: partiality, independence, confidentiality, professionalism and integrity. These core principles can be found in several European and international documents, such as the IBA Principles, the Havana Principles, the European Code of Conduct for Lawyers, and the European Charter for the Legal Profession of the CCBE. Since the normative framework concerns core principles, also the national codes of conducts for lawyers in the EU Member States all refer to these principles.\n\nBoth elements are necessary to create the normative framework. Indeed, the criminal defence lawyer need not only be knowledgeable in the minimum procedural safeguards that constitute an effective defence, he also must take into consideration the core principles when making decisions with regard to the defence of his clients. The combination of these two elements led to a division of the criminal defence lawyer\u2019s job description into four roles, namely the role of legal representative, the role of strategic adviser, the role of trusted counsellor, and the role of spokesperson. These roles are the red line in this manuscript.\n\nThe relevant rules of conduct for criminal defence lawyers are mapped out in Chapter 3. These rules were identified in specific sets of deontological regulations for criminal defence lawyers and in general codes of conduct for the legal profession in the EU Member States. The selection of relevant rules of conduct has been made using the roles mentioned above as a starting point. In order to properly analyse the rules of conduct, the roles have been further divided into several aspects. The role of legal representative has been broken down into the acceptance of and withdrawal from a case, the issue of dominus litis, defending co-accused, quality assurance, and legal representation on the basis of legal aid. The role of strategic adviser includes the right to information and (defence) disclosure, advising on right to silence and (out-of-court) settlement, contacting witnesses, the use of an interpreter, and keeping the client informed. The role of trusted counsellor has been broken down into three aspects, namely the duty of confidentiality, legal professional privilege, and sharing information with third parties. Lastly, the role of spokesperson includes the freedom of defence and conduct in court and in the media.\n\nIn 4 EU Member States specific sets of deontological regulations for criminal defence lawyers have been identified: Austria, Germany, the Netherlands and the United Kingdom (more specifically in England and Wales and Scotland). These sets of regulations are specifically written for lawyers who practise criminal defence and should be read in conjunction with the general codes of conduct. The German regulations are the most elaborate, consisting of 76 statements, each of which includes elaborate guidance. The Austrian and Scottish regulations are less extensive with 13 and 14 principles and guidance respectively. The English regulations are laid down in several separate documents providing specific practice-based guidance to solicitors and barristers who provide legal assistance to suspects and accused persons in criminal proceedings. The Dutch regulations not only contain rules of conduct, but also pay specific attention to procedural safeguards and guarantees which have to be offered by the Government to ensure that criminal defence lawyers are able to provide an effective defence to their clients.\n\nIn addition to the specific sets of regulations mentioned above, protocols governing the conduct of lawyers assisting suspects in police stations particularly prior to and during police interrogation were identified in 4 EU Member States (the Salduz protocols). These protocols were found in Belgium, France, the Netherlands and in the United Kingdom (more specifically in England and Wales). The role and position of the criminal defence lawyer in the first phase of criminal proceedings is becoming increasingly important and the Salduz protocols provide the lawyer with guidance in order to effectively fulfil his role in this crucial phase of the proceedings to ensure that defence rights are properly safeguarded.\n\nLastly, relevant rules of conduct were identified in the general codes of conduct in at least 13 EU Member States, namely Belgium (Flanders and Wallonia), Croatia, Cyprus, Estonia, France, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Slovenia, Sweden, and the United Kingdom (more specifically England and Wales (barristers), Ireland (solicitors and barristers), and Scotland (solicitors). These relevant rules have all been detailed in Chapter 3.\n\nThe research results from Chapter 3 were analysed and tested against the normative framework to determine whether the existing relevant rules of conduct contributed to an effective defence. This analysis and synthesis is presented in Chapter 4. The regulations were compared to determine differences and commonalities. Interestingly, despite the fact that criminal justice systems differ across the EU, the rules of conduct identified show several commonalities. Regarding the criminal defence lawyer\u2019s role and position prior to and during police interrogation, for example, all regulations identified provide that the suspect has the right to confer with his lawyer in confidence prior to the interrogation. Moreover, all regulations prescribe that the lawyer has to adopt an active and flexible attitude during the interrogation.\n\nThe codes of conduct of all EU Member States provide regulations prescribing that the lawyer should only accept a case if he is sufficiently qualified to conduct the case and if he is able on a practical level to give his full attention to the case. This also means that all lawyers are obliged to keep their knowledge and skills up to date. The regulations which specifically apply to criminal defence lawyers, moreover, prescribe that a criminal defence lawyer is never allowed to refuse a case due to public opinion, his own belief, the suspect\u2019s character, the nature of the offence, a plea of guilty, or the strength of the prosecution\u2019s case.\n\nAdditionally, the relevant regulations show many commonalities when it concerns withdrawal from a case. All the rules identified prescribe that the lawyer always needs to prioritise the interests of his client. Moreover, assisting co-accused is allowed by the regulations identified, as long as there are no conflicting interests. The regulations regarding legal assistance on the basis of legal aid also show many similarities. All regulations oblige the lawyer to inform his client about the possibility of legal aid, but at the same time the regulations do not oblige the lawyer to apply for legal aid on his own initiative. Another similarity was found regarding the regulations on informing the client about the progress of the case. All regulations prescribe that the lawyer is obliged to keep the client informed about the progress of the case, even if the client himself does not request to be informed.\n\nConcerning advising on the right to silence, interestingly none of the regulations provide any guidance, despite this being an important part of the criminal defence lawyer\u2019s work, particularly in his role as strategic adviser. Furthermore, the duty of confidentiality is mentioned in all codes of conduct by obliging lawyers to keep confidential any information that is shared with him in the context of the case that he is handling. This duty of confidentiality has to be upheld, also after the lawyer-client relationship has ended and also after the client has died. Moreover, if the lawyer has employees, they will also be bound by a derived duty of confidentiality. The duty of confidentiality is, however, not absolute and therefore almost all regulations also allow for exceptions to this duty. Lastly, there were also some similarities in the regulations governing the criminal defence lawyer\u2019s role as spokesperson. All regulations prohibit the lawyer from providing the court with information which he knows is misleading or false. Moreover, all regulations use the starting point that a lawyer should avoid \u2018trials by media\u2019. The proceedings have to take place in court, not in the media.\n\nObviously, also several differences were established between the relevant regulations. For example, in some EU Member States the regulations make a difference between chosen and appointed lawyers concerning the regulation regarding withdrawal from a case. Furthermore, the regulations regarding the issue of dominus litis show some differences. On the one hand there are regulations which emphasise that the client is dominus litis, while other regulations prescribe that the lawyer has the last say in determining the defence strategy. Moreover, there are regulations which make a distinction between the factual and the legal elements of the case. According to these regulations, the client is in charge of the factual side of the case, while the lawyer is in charge of the legal aspects. For a detailed overview of all relevant deontological regulations for criminal defence lawyers, reference is made to Chapter 3.\n\nLastly, there were also two regulations identified in this research which are arguably not compatible with the normative framework. It could be argued therefore that these regulations do not contribute to an effective defence. In the Netherlands a regulation was identified which prohibits any contact between the lawyer and his client for a certain period of time during criminal proceedings. According to these regulations a substitute lawyer is appointed, but in practice this substitute lawyer is unable to provide an effective defence. The second regulation was identified in Belgium (Wallonia) and in Luxembourg. This regulation explicitly prohibits lawyers from contacting witnesses pre-trial. Only in very exceptional circumstances is the lawyer allowed to contact a witness, but only in writing.\n\nIn the end, 15 essential components for an EU system of regulations for criminal defence lawyers could be distilled from the synthesis and analysis of the relevant deontological regulations as presented in Chapter 4. Together these 15 essential components form the basis for a system of deontological regulations for criminal defence lawyers at EU level. These components actually clarify the contours of the four roles that the criminal defence lawyer fulfils when assisting suspects and accused persons in criminal proceedings:\n\nThe Criminal Defence Lawyer as Legal Representative\n1. The criminal defence lawyer is obliged to:\na. only accept a case if he\ni. is sufficiently qualified and knowledgeable in the specific legal aspects of that case; and\nii. has sufficient time to actually conduct the case.\nb. never refuse a case solely based on the character of the accused, the nature of the defence or the strength of the prosecution\u2019s case.\n2. The authorities have to ensure sufficient remuneration for legal aid providers and the legal profession needs to provide adequate monitoring mechanisms to ensure good quality in legal aid providers.\n3. Defending more than one accused person in the same case is allowed, provided that:\na. the criminal defence lawyer is able to confidentially confer with each individual accused;\nb. the criminal defence lawyer is granted access to each detained accused at the earliest stages of proceedings;\nc. the criminal defence lawyer fully informs all accused of the risks of joint representation and of the consequences should a conflict of interests arise; and\nd. each accused provides explicit, voluntary and unequivocal consent to the joint representation.\n4. The criminal defence lawyer\u2019s role when assisting a suspect at the police station, particularly prior to and during police interrogation, is to protect and advance the suspect\u2019s legal rights. Therefore, the legal advice provided by the criminal defence lawyer may not always be in the best interests of the criminal investigation. Depending on the specific organisation of pre-trial proceedings, criminal defence lawyers should be provided with guidance on how to fulfil this role. Such guidance could include, for example:\na. full and timely access to case materials;\nb. checking custody conditions;\nc. checking whether the suspect needs any practical assistance or medical attention;\nd. ensuring that the suspect\u2019s right to silence and his privilege against self-incrimination are protected during police interrogation; and\ne. adopting an active attitude during interrogation, for example by requesting clarification of questions posed and making remarks when it is clear to the lawyer that the suspect is unable to continue with the interrogation.\n\nThe Criminal Defence Lawyer as Strategic Adviser\n5. The criminal defence lawyer and his client are granted timely and complete access to case materials in the possession of the prosecution to the extent that these materials are relevant for the preparation of the defence case.\n6. When advising the accused person on exercising his right to silence, the criminal defence lawyer needs to be aware that:\na. his legal advice is dependent on the level of disclosure of case material;\nb. the authorities may draw inferences from the accused person\u2019s silence; and\nc. his duty of confidentiality and his professional privilege dictate the extent to which reasons for legal advice are shared with the authorities.\n7. The criminal defence lawyer is allowed to examine witnesses not only during trial, but also pre-trial in order to collect valuable evidence for his client\u2019s case.\n8. The criminal defence lawyer ensures that he is properly trained and sufficiently skilled in taking statements from witnesses which can be used in evidence.\n9. When examining witnesses pre-trial, the criminal defence lawyer avoids any appearance of influencing these witnesses.\n10. If necessary, criminal defence lawyers and their clients are assisted by a qualified interpreter during their consultations. This interpreter has a duty of confidentiality regarding the contents of these consultations.\n\nThe Criminal Defence Lawyer as Trusted Counsellor\n11. The criminal defence lawyer has to keep confidential any information that is shared with him in the context of the case. The criminal defence lawyer always has an independent responsibility to decide whether disclosing confidential information is in the client\u2019s best interests. Exceptions to this duty of confidentiality can only be made:\na. with the client\u2019s explicit and voluntary consent;\nb. when this is in the client\u2019s best interests; or\nc. to prevent serious harm to others.\n12. When the criminal defence lawyer\u2019s (professional or private) premises are searched, an independent and knowledgeable representative of the Bar should be present to advise the investigating authorities on the privileged character of any material seized.\n13. At all times the criminal defence lawyer preserves his professional independence and upholds his duty of confidentiality when accepting instructions and\/or payments from third parties. At least he has to ensure that he receives the client\u2019s voluntary and explicit consent beforehand.\n\nThe Criminal Defence Lawyer as Spokesperson\n14. The criminal defence lawyer is granted considerable freedom to comment on the administration of justice in a specific case and to criticise the conduct of other actors in the proceedings. The criminal defence lawyer should, however, never knowingly mislead or deceive the court by providing false or untrue information.\n15. The criminal defence lawyer has a duty to refrain from conducting the case in the media and should always consider whether commenting in the media is in his client\u2019s best interests.\n\nGiven the relentless urge of Governments throughout the EU to create safe societies, the role of criminal lawyers as watchdogs of the rule of law has become increasingly urgent. This research provides sufficient material for reflection on the role and position of criminal lawyers within the EU. The essential components as defined in this research can serve as a catalyst for future debate, by challenging criminal lawyers, academics and (both national and European) legislators to reconsider the existing role and position of the actors in criminal procedure. There is much additional research to be done in this regard, such as more in-depth research into the correlation between the role and position of the criminal lawyer and the criminal justice system in which he works; the practical implications of the rules of conduct as they are identified in this research and quality assurance of criminal defence lawyers and of legal aid providers in particular. Additional research would serve not only to ensure that criminal defence lawyers are reminded of their crucial contribution to the rule of law, but also of their duties to the fair administration of criminal justice in general and to their clients in particular.","auteur":"Marelle Attinger","auteur_slug":"marelle-attinger","publicatiedatum":"16 oktober 2020","taal":"EN","url_flipbook":"https:\/\/ebook.proefschriftmaken.nl\/ebook\/marelleattinger?iframe=true","url_download_pdf":"","url_epub":"","ordernummer":"FTP-202604070935","isbn":"","doi_nummer":"","naam_universiteit":"Open Universiteit","afbeeldingen":8927,"naam_student:":"","binnenwerk":"","universiteit":"Open Universiteit","cover":"","afwerking":"","cover_afwerking":"","design":""},"_links":{"self":[{"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/us_portfolio\/8923","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/us_portfolio"}],"about":[{"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/types\/us_portfolio"}],"author":[{"embeddable":true,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/comments?post=8923"}],"version-history":[{"count":1,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/us_portfolio\/8923\/revisions"}],"predecessor-version":[{"id":8924,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/us_portfolio\/8923\/revisions\/8924"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/media\/8926"}],"wp:attachment":[{"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/media?parent=8923"}],"wp:term":[{"taxonomy":"us_portfolio_category","embeddable":true,"href":"https:\/\/www.proefschriftmaken.nl\/en\/wp-json\/wp\/v2\/us_portfolio_category?post=8923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}