Article 12 of the Directive 2013/48/EU: A Starting Point for Discussion on a Common Understanding of the Criteria for Effective Remedies of Violation of the Right to Counsel

This article analyses the content of Article 12 para. 1 of Directive 2013/48/EU on remedies for violations of the right to access to a lawyer, and argues that the current formulation is very vague. The article predicts that due to inherent and cultural differences, and ‘remedial deterrence’, there is unlikely to be common practice on remedies for violation of the right to counsel among Member States unless the European Court of Justice gives further guidelines. As the exercise of a right depends on remedies, this will potentially lead to substantial divergence in how the right to counsel is employed in the daily practice of the Member States. Therefore, it is argued that in order to enhance the right to counsel the Member States should start discussions on a common understanding of the criteria for effective remedies for violation of this right in advance of further guidance from the Court.