The Roadmap on procedural rights:

history, results achieved and current work

Steven Cras

Administrator, General Secretariat

DG D 2B – Judicial Cooperation in Criminal Matters

Council of the European Union

Vilnius, November 2012

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History

Approximation of criminal procedural law of the Member States was for long time not a priority

This became different

- because it was felt that the balance should be corrected between measures facilitating prosecution and procedural rights of suspects and accused persons

- because instruments based on the principle of mutual recognition require mutual trust, and having the same procedural standards can enhance that trust

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Need for approximation despite ECHR

ECHR (1950): general rules, for a wide variety of 47 Contracting States (including all 27 EU MS)

Interpretation in case-law ECtHR very casuistic, replies to particular situation at hand: hence difficulties of interpretation for extracting general rules applicable to all

Procedure of complaints can lead to damages (‘just satisfaction’) being awarded, but there is no formal obligation for Contracting States to modify their deficient laws (no enforcement mechanism)

→ ECHR useful guidance, but not a good alternative for approximation of EU law

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Legal basis and work under

Amsterdam

No explicit legal basis in Amsterdam Treaty (1999) [but

Article 31(1) TEU (old)]

2004 Proposal of the Commission for a Council Framework

Decision on certain procedural rights in criminal proceedings

throughout the European Union (COM/2004/0328 final)

Comprehensive set of procedural rights

No results achieved (opposition of 6 Member States,

unanimity requirement)

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5

Roadmap on procedural rights (1)

Work re-launched in 2009 under Swedish Presidency: one area

at a time � focused attention, no trade-offs

Resolution of the Council of 30 November 2009 on a

Roadmap for strengthening procedural rights of suspected or

accused persons in criminal proceedings (OJ C 295, 4.12.2009,

p. 1).

Action should be taken at EU level to strengthen the rights of

suspects and accused persons: legislation and other measures.

The Council endorsed the Roadmap, and the European Council

has made it part of the Stockholm Programme.

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Roadmap on procedural rights (2)

Measures of the Roadmap:

a) Interpretation and translationb) Information on rights and Information about the

chargesc) Legal advice and legal aidd) Communication with relatives, employers and

consular authorities upon arreste) Special safeguards for vulnerable persons f) Green paper on pre-trial detention

Not exhaustive, other measures can be added (e.g. presumption of innocence); order is indicative. Commission is invited to present proposals (but …).

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Roll out of the Roadmap, legal basis

Legal basis under Lisbon is Article 82(2) TFEU: “To the extent necessary to facilitate mutual recognition (…) the European Parliament and the Council may, by means of directives (…), establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.”

One of the areas concerned (explicit legal basis): b) the rights of individuals in criminal procedure.

Qualified majority voting, co-decision with European Parliament.

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Results achieved, current work

Adopted:

Measure A: Right to interpretation and translation

Measure B: Right to information

Current work:

Measure C1 + D: Right of access to a lawyer, right to communicate upon arrest with relatives, employers and consular authorities

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Measure A: Interpretation and Translation

8 July 2009: Proposal Commission

23 October 2009: General approach Council

Lisbon → December 2009: Initiative MS

May/June 2010: negotiations with European Parliament, agreement

20 October 2010: adoption Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1).

To be implemented by 27 October 2013.

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Measure A: Subject matter and scope

(1.1) The Directive applies to criminal proceedings as well as to proceedings for the execution of a European arrest warrant (EAW).

(1.2.) Rights apply when persons are made aware that they are suspected or accused of having committed a criminal offence until conclusion of the proceedings

(1.3) Exclusion for sanctions regarding minor offences imposed by an authority other than a court having jurisdiction in criminal matters, when appeal to such a court possible (see recital 16)

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Measure A: Right to interpretation

(2.1) Member States shall ensure that suspects or accused persons

- who do not speak or understand the language of the criminal proceedings concerned (verification mechanism, Art. 2.4 and rec. 21)

- are provided, without delay (but no infringement if delay is reasonable in the circumstances, rec. 18)

- with interpretation (in native language, or another language which the person speaks/understands, rec. 22)

- during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings.

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Measure A: Interpretation of

communication with lawyer

(2.2) Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available for communication between suspected or accused persons and their legal counsel in direct connection with any questioning or hearing during the proceedings or with the lodging of an appeal or other procedural applications.

Recital 19: Suspects or accused persons should be able to explain, inter alia, their version of the events, point out any statements with which they disagree, and make the counsel aware of facts that should be put forward in their defence

Recital 20: example of other procedural application : bail.

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Measure A: Practical operation

(2.5) Right to challenge a decision that there is no need for

interpretation, or challenge that the quality of interpretation is

not sufficient to safeguard the fairness of the proceedings

(2.6) Where appropriate, videoconferencing and other

communication technology can be used, unless the physical

presence of the interpreter is necessary

(2.8) Quality should be sufficient to safeguard fairness of the

proceedings, in particular by ensuring that the person has

knowledge of the case against him and is able to exercise his

rights of defence; if insufficient quality, replacement (rec. 26)

Rec: 27: special care towards vulnerable persons

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Measure A: Right to translation (I)

(3.1) Member States shall ensure that suspected or accused

persons who do not understand the language of the criminal

proceedings concerned are, within a reasonable period of time,

provided with a written translation of all documents which are

essential to ensure that they are able to exercise their right of

defence and to safeguard the fairness of the proceedings.

(3.2) Essential documents shall include any decision depriving

a person of his liberty, any charge or indictment, and any

judgment.

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Measure A: Right to translation (II)

(3.4) No requirement to translate passages of essential

documents which are not relevant for the person concerned to

have knowledge of the case against him

(3.5) Right to challenge a decision finding that there is no need

for the translation of documents or passages thereof and

regarding quality.

(3.7) As an exception to the general rules, an oral translation or

oral summary of essential documents may be provided instead

of a written translation on condition that it does not prejudice

the fairness of the proceedings.

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Measure A: General practicalities

(4) Member States shall meet the costs

(5) Member States should endeavour to establish a register of

independent interpreters and translators who are appropriately

qualified

(6) Training of judges, prosecutors and judicial staff to pay

special attention to the particularities of communicating with

the assistance of an interpreter so as to ensure efficient and

effective communication

(7) Non-regression clause

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Measure B: Information on rights and

Information on charges

July 2010: Commission Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings (COM(2010) 392 final)

December 2010: General approach Council (17503/10)

April 2011 – November 2011: Negotiations with the European Parliament

Directive 2012/13/EU of 22 May 2013 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1)

To be implemented by 2 June 2014.

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Measure B: Information on rights

(3.1) Member States shall ensure that suspects or accused

persons are provided promptly [orally or in writing] with

information concerning at least the following procedural rights

as they apply under their national law, in order to allow for

those rights to be exercised effectively:

- the right of access to a lawyer;

- any entitlement to free legal advice and the conditions for

obtaining such advice;

- the right to be informed about the accusation;

- the right to interpretation and translation;

- the right to remain silent.

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Measure B: Letter of rights

(4.1) Member States shall ensure that suspects or accused persons who are arrested or detained are provided promptly with a written Letter of Rights (read, possess)

(4.2) Information set out in Article 3 + following rights as they apply under national law:

(a) the right of access to the materials of the case;

(b) the right to have consular authorities and one person informed;

(c) the right of access to urgent medical assistance; and

(d) the maximum number of hours or days suspects or accused persons may be deprived of liberty before being brought before a judicial authority.

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2020

Measure B: Information about accusation

(6.1) Member States shall ensure that suspects or accused persons are

provided with information about the criminal act they are suspected or

accused of having committed. (sufficiently detailed)

(6.2) Member States shall ensure that suspects or accused persons who are

arrested or detained are informed of the reasons for their arrest or detention,

including the criminal act they are suspected or accused of having

committed.

(6.3) Member States shall ensure that, at the latest on submission of the

merits of the accusation to a court, detailed information is provided on the

accusation, including the nature and legal classification of the criminal

offence, as well as the nature of participation by the accused person.

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Measure B: Right to access to the materials of

the case

(7.1) Where a person is arrested and detained, Member States

shall ensure that documents related to the specific case in the

possession of the competent authorities which are essential to

challenging effectively the lawfulness of the arrest or

detention, are made available to arrested persons or to their

lawyers.

(7.2) Member States shall ensure that access is granted at least to

all material evidence in the possession of the competent

authorities, whether for or against suspects or accused persons,

to those persons or their lawyers in order to safeguard the

fairness of the proceedings and to prepare the defence.

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Measure (C1+D): Access to a lawyer + right of

communication

June 2011: Commission Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest(COM(2011) 326 final)No legal aid (too difficult): will be for measure C2. UK and Ireland have not opted in Council General approach on 8 June 2012 (10908/12)LIBE orientation vote: 10 July Currently: negotiations, trilogues. Aim/hope: agreement by the end of this year. Adoption by Spring 2013 ?

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Measure (C1+D): Right of access to a lawyer,

temporal scope

Suspects or accused persons shall have access to a lawyer as from the following moments in time, whichever is the earliest:

(a) before questioning by the police or other law enforcement or judicial authorities;

(b) upon the carrying out of certain investigative or other evidence-gathering acts (identity parade, confrontation, reconstruction of the scene of crime);

(c) without undue delay from the deprivation of liberty;

(d) in due time before the suspect or accused person appears before a court. 23

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Measure (C1+D):

Content of right of access to a lawyer

A suspect or accused person has the right to

communicate and meet in private with the lawyer

representing him, including prior to questioning by the

police or other law enforcement or judicial authorities.

A suspect or accused person has the right for his lawyer

to be present and, in accordance with procedures in

national law, participate when he is questioned. When a

lawyer participates during questioning this shall be

recorded in accordance with national law.

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Measure (C1+D): Right to communicate

Suspects or accused persons who are deprived of their

liberty have the right to have at least one person, such

as a relative or employer, named by them, informed of

the deprivation of liberty, without undue delay, if they

so wish.

[As soon as possible, at least after 48 hours?] Suspects

or accused persons who have been deprived of liberty

shall also have the right to communicate with at least

one person, such as a relative or employer, named by

them. 25

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Measure (C1+D): Right to have consular

authorities informed and to communicate

Member States shall ensure that suspects or accused

persons who are deprived of their liberty and who are

non-nationals have the right to have consular

authorities of their State of nationality informed of the

deprivation of liberty without undue delay and to

communicate with those authorities, if the suspects or

accused persons so wish.

Right to visit.

In line with Vienna Convention, but here rights for

suspects of accused persons (LaGrand judgment)26

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Measure (C1+D): outstanding issues

Exclusion for minor offences ?

Which derogations, if any, are allowed to the right of

access to a lawyer and to communicate with third

persons ?

Which derogations, if any, are allowed to the principle

of confidentiality ?

European arrest warrant: should there be a right of

access to a lawyer in the issuing State ?

Remedies: what to do with statements / evidence

obtained in breach of the right of access to a lawyer ?

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Outlook: other measures

Measure C2 on legal aid:

Member States called in June 2012 for legislative

instrument on this issue ‘at the earliest’.

Commission promised to present a proposal for a legal

instrument in the course of 2013 (10908/12).

Currently study being carried out.

Measure E: vulnerable persons (?)

Measure F/G: presumption of innocence (?)28

☺

Steven Cras

Administrator, General Secretariat

DG H – Judicial Cooperation in Criminal Matters

Council of the European Union

November 2012

steven.cras@consilium.europa.eu