the procedural rights directives of the eu:...

THE JUSTICIA EUROPEAN RIGHTS NETWORK IS COORDINATED BY THE IRISH COUNCIL FOR CIVIL LIBERTIES WWW.ICCL.IE

THE PROCEDURAL RIGHTS DIRECTIVES OF THE EU: AN EXPLANATORY GUIDEPIA JANNING

JUSTICIA – EUROPEAN RIGHTS NETWORK

The Procedural Rights Directives of the EU: An Explanatory Guide

ABOUT THE JUSTICIA EUROPEAN RIGHTS NETWORK:

The JUSTICIA European Rights Network, of which the Irish Council for Civil Liberties (ICCL) is Consortium Leader, was formally established in 2012.

JUSTICIA, a pan European Network, currently consists of 19 Network Member organisations based in 18 European Union States: Associazione Antigone Onlus (Italy), Association for the Defence of Human Rights in Romania – the Helsinki Committee, Bulgarian Helsinki Committee, Civil Rights Defenders (Sweden), Croatian Legal Centre, Estonian Human Rights Centre, Greek Helsinki Monitor, Helsinki Foundation for Human Rights (Poland), Human Rights Monitoring Institute (Lithuania), Hungarian Civil Liberties Union, Irish Council for Civil Liberties, KISA -‐ Action for Equality, Support, Antiracism (Cyprus), Latvian Centre for Human Rights, League of Human Rights (Czech Republic), Ludwig Boltzmann Institute of Human Rights (Austria), Open Society Justice Initiative (Hungary), Rights International Spain, Statewatch (UK), and The Peace Institute (Slovenia).

The Network’s thematic focus is on EU criminal justice, including procedural rights, and the human rights of victims. JUSTICIA member organisations jointly advocate for human rights to be fully mainstreamed into emerging European Union law and for the full implementation of relevant EU legal standards in their own jurisdictions.

Since 2012, the Irish Council for Civil Liberties has received core funding from the Criminal Justice Programme of the European Union to coordinate the JUSTICIA network.

IRISH COUNCIL FOR CIVIL LIBERTIES LIMITED 9–13 BLACKHALL PLACE DUBLIN 7 IRELAND – T 01-‐7994505 F 01-‐7994501 E [email protected]


The Procedural Rights Directives of the EU: An Explanatory Guide

About the author:

Pia Janning is the Project Officer (Justice) at the ICCL where she works on a number of ongoing priorities for the ICCL including the pan-‐European Network Justicia Project and the Flagship Legacy Project. Pia holds a degree in Law from University College Cork and an LLM in International Human Rights Law from the University of Essex. She has previously worked as the Legal Officer in the Economic, Social and Cultural Rights Team at Amnesty International Ireland and as Human Rights Officer in the Department of Foreign Affairs and Trade.

This publication has been produced with the financial support of the Criminal Justice Programme of the European Union. The content of this

publication are the sole responsibility of the JUSTICIA European Rights Network, the implementing beneficiary, and can in no way be taken to

reflect the views of the European Commission.


The Procedural Rights Directives of the EU: An Explanatory Guide 5

TABLE OF CONTENTS

INTRODUCTION 7

1. MEASURE A-‐THE RIGHT TO INTERPRETATION AND TRANSLATION

1.1 Background 10

1.2 When the rights set out in the Directive apply 11

1.3 The procedural rights guaranteed by the Directive 11

1.3a The right to interpretation 11

1.3b The right to translation of essential documents 14

1.4 The cost of interpretation and translation 16

1.5 The quality of interpetation and translation 17

1.6 Waiver 17

1.7 Remedies 17

1.8 Training 18

1.9 Record-‐Keeping 18

2. MEASURE B-‐THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS

2.1 Background 19



2.3a The right to information about rights 20

2.3b Letter of Rights on arrest 21

2.3c Letter of Rights in European arrest warrant proceedings 23

2.3d The right to information about the accusation 23

2.3e The right of access to the materials of the case file 24

2.4 Remedies 26

2.5 Training 26


6 The Procedural Rights Directives of the EU: An Explanatory Guide

3. MEASURE C-‐ THE RIGHT OF ACCESS TO A LAWYER AND TO COMMUNICATE UPON ARREST

3.1 Background 27



3.3a Access to a lawyer from the first stage of police questioning and throughout criminal proceedings 29

3.3b Meeting in private and confidentiality of communication with lawyer 31

3.3c Allowing lawyers to play an actve role during questioning 32

3.3d Informing a third person of deprivation of liberty 33

3.3e Communicating with third persons while deprived of liberty 34

3.3f Communicating with consular authorities 34

3.3g European arrest warrants 35

3.4 Waiver 36

3.5 Remedies 37

4. IMPLEMENTING AND ENFORCING THE DIRECTIVES 38



INTRODUCTION

All suspected and accused persons must be guaranteed certain rights in criminal proceedings. In the European Union, the procedural rights of suspected and accused persons are based on the European Convention on Human Rights (ECHR).1 The EU Charter of Fundamental Rights also affords protection to these rights.2 However, in practice, the extent to which these rights are safeguarded at a national level differs across EU Member States. Article 82(2) of Treaty on the Functioning of the European Union (TFEU)3 provides for the establishment of minimum rules to facilitate mutual recognition of judgments, judicial decisions and police and judicial cooperation in criminal matters having a cross-‐border dimension. The principle of mutual recognition requires a court in one Member State to recognise and enforce criminal convictions from other Member States. Also, as has been noted, “[i]t provides for police cooperation involving all police and specialised law enforcement agencies, including in respect of the collection, storage, processing and analysis and exchange of relevant information.”4 Under the Treaty of Lisbon which entered into force in 2009 -‐ and reinforces the principle of mutual recognition -‐ the European Parliament and the Council are given the power to issue Directives establishing minimum rules on the rights of suspected and accused persons in criminal proceedings, and the rights of victims of crime. The Swedish Roadmap on procedural rights of suspected and accused persons was adopted in 2009. Building on the provisions of the ECHR and the case law of the European Court of Human Rights (ECtHR), the Roadmap calls for the adoption of a series of measures to safeguard procedural rights in all EU Member States, by setting out minimum standards for the protection of rights of suspected and accused

____________________ 1 The right to liberty and security of person (Article 5); the right to fair trial (Article 6). 2 The right to liberty and security (Article 6); the right to an effective remedy and to a fair trial (Article 47); the presumption of innocence

and respect for the rights of the defence (Article 48). 3 Treaty of Rome 1957 (renamed Treaty on the Functioning of the European Union 2009).The principle of mutual recognition was reiterated

in a number of EU treaties and other measures. See the Maastricht Treaty 1992, Amsterdam Treaty 1997 and the Conclusions of the Council of Ministers meeting in Tampere, Finland 1999. (Tampere Conclusions). See also proposals by the European Commission 2003 on procedural safeguards and draft framework decision by the Commission 2004.

4 Cape, E., and Namoradze, Z., Effective Criminal Defence in Eastern Europe (Moldova: Soros Foundation, 2012), p. 19.



persons in criminal proceedings. The Swedish Roadmap forms the action plan, in the area of procedural rights, of the Stockholm Programme 2010-‐2014,5 which sets out the EU’s priorities in the area of justice, freedom and security. The Swedish Roadmap contains a range of measures which aim to foster protection of suspected and accused persons in criminal proceedings.6 These measures consist of: Measure A: Translation and Interpretation Measure B: Information on Rights and Information about Charges Measure C1: Legal Advice Measure C2: Legal Aid Reform Measure D: Communication with Relatives, Employers and Consular Authorities Measure E: Special Safeguards for Vulnerable Persons Measure F: A Green Paper on the Right to Review of the Grounds for Detention On foot of the Swedish Roadmap, the European Parliament and Council of the European Union have adopted three procedural rights Directives: the right to interpretation and translation (Measure A)7; the right to information (Measure B);8 and the right of access to a ____________________ 5 The Stockholm Programme follows on from the Tampere and Hague programmes. 6 The text of the Swedish Roadmap is available at: <http://www.eujusticia.net/images/uploads/pdf/Swedish_Roadmap_July_09.pdf> (date

accessed: 1 December 2014). 7 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in

criminal proceedings <http://eur-‐lex.europa.eu/legal-‐content/EN/TXT/PDF/?uri=CELEX:32010L0064&from=EN> (date accessed: 1December 2014).



lawyer and to communicate upon arrest (Measure C1).9 Other measures will follow. This publication is designed to be an explanatory guide for legal practitioners on the procedural rights of suspects and accused persons, and the obligations of Member States, arising from these three Directives.

____________________ 8 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2013 on the right to information in criminal proceedings

<http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:142:0001:0010:en:PDF> (date accessed: 1 December 2014). 9 Directive 2013/48/EU of the European Parliament and of the Council 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 party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty <http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:294:0001:0012:EN:PDF> (date accessed: 1 December 2014).



1. MEASURE A- THE RIGHT TO INTERPRETATION AND TRANSLATION

1.1 Background The Directive on the right to interpretation and translation in criminal proceedings was adopted on 20 October 2010 with a transposition date of 27 October 2013. By this date, Member States must have implemented at least the minimum standards in the Directive. Some discretion is afforded to Member States when interpreting and implementing certain provisions of a Directive. They are also free to extend the rights beyond the minimum standards that are provided for by the Directive. The Directive is the first to be adopted under the Swedish Roadmap and the first legally binding instrument that attempts to codify procedural rights guarantees.10 It outlines the minimum rules governing the right to interpretation and translation in criminal proceedings and the proceedings for the execution of a European arrest warrant.11 The Directive builds on rights protected in the EU Charter of Fundamental Rights (made binding by the Treaty of Lisbon)12 and the ECHR,13 as interpreted by the Court of Justice of the European Union (CJ EU) and the ECtHR. The aim of the Directive is to ensure the right to a fair trial as protected in Article 6 of the ECHR. All Member States must participate in the adoption and application of this Directive except Denmark which is not taking part in the adoption and is therefore at present not bound by it.14 ____________________ 10 Blackstock, J., Inside Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions (Cambridge: Instersentia, 2014), p. 145. 11 As noted in Recital 32, the Directive sets out minimum rules and Member States should be able to extend the rights set out in the Directive

to provide a higher level of protection also in situations which are not explicitly dealt with in the Directive. 12 The right to an effective remedy and to a fair trial (Article 47); respect for the rights of the defence (Article 48(2)). 13 The right to a fair trial (Article 6). 14 Recital 36 of the Directive.



1.2 When the rights set out in the Directive apply According to Article 1(2), the rights set out in the Directive apply to persons “from the time that they are made aware by the competent authorities of the Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings”.15 The conclusion of the proceedings is stated to be the point at which a final determination is made on the question of whether the suspected or accused person committed the offence. This includes, where applicable, the sentencing of the person and the resolution of any appeal.16 In cases of minor offences, for example traffic offences committed on a large scale,17 where sanction may be imposed by an authority other than a court and such a sanction may be appealed, the Directive will only apply to the proceedings before the court following the appeal.18 The Directive does not impact upon national law regarding the presence of legal counsel during any stage of the criminal proceedings or on the right of access of a suspected or accused person to documents in criminal proceedings.19 1.3 The procedural rights guaranteed by the Directive 1.3a The right to interpretation

Under the Directive, Member States must ensure that a suspected or accused person who does not speak or understand the language of the criminal proceedings concerned, is provided with interpretation.20

____________________ 15 Article 1(2) of the Directive. 16 Article 1(2) of the Directive. 17 Recital 16 of the Directive. 18 Recital 16 and Article 1(3) of the Directive. 19 Article 1(4) of the Directive. 20 Recital 31 of the Directive states that where a national database of legal interpreters and translators exists, States should facilitate access

to such a database.



Any interpretation should be provided in the native language of the suspected or accused person or in another language that the person speaks or understands to allow them to fully exercise their right of defence and to safeguard the fairness of the proceedings.21 Interpretation must be provided without delay and must be made available during criminal proceedings before investigative and judicial authorities. This includes:22

• During police questioning; • During all court hearings; and • During any necessary interim hearings.

Regarding the “undue delay” provision outlined above, if a certain period of time elapses before interpretation is provided to the suspected or accused person, this does not constitute an infringement of the provisions of the Directive, as long as the period of time is reasonable in the circumstances.23 Member States are also under an obligation to ensure that, where necessary in order to safeguard the fairness of the criminal proceedings, “interpretation is made available for communication between suspected or accused person 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”.24 This includes an application for bail.25 Any communication between a suspected or accused person and their legal counsel should also be interpreted in accordance with the Directive. According to Recital 19, “[s]uspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and ____________________ 21 Recital 22 of the Directive. 22 Article 2(1) of the Directive. 23 Recital 18 of the Directive. 24 Article 2(2) of the Directive. 25 Recital 20 of the Directive.



make their legal counsel aware of any facts that should be put forward in their defence.”26

Who the right to interpretation applies to The right to interpretation does not only apply to suspected or accused persons who do not understand the language of the criminal proceedings but also to persons with hearing or speech impediments.27 Particular regard must also be had to suspected or accused persons who are in a potentially weak position, particularly due to physical impairments which affect their ability to communicate effectively. The prosecution, law enforcement and judicial authorities should ensure that such persons are able to effectively exercise their rights in the Directive. This includes taking into account potential vulnerabilities and taking the appropriate steps to ensure that their rights are guaranteed.28 The right to interpretation under the Directive also applies in proceedings for the execution of European arrest warrant. The executing Member State must ensure that the competent authorities provide persons subject to European arrest warrant proceedings, who do not speak or understand the language of the proceedings, with interpretation. Determining the need for interpretation The case law of the ECtHR has established that judicial authorities must take an active approach to determining whether a person is in need of interpretation and translation.29 As has been noted, “[t]his is taken a step further by the Directive, which not only requires Member States to ensure that interpretation or translation is made available where necessary but, at least in relation to interpretation, requires states to ensure that a procedure or mechanism is in place to ____________________ 26 Recital 19 of the Directive. 27 Article 2(3) of the Directive. 28 Recital 27 of the Directive. 29 ECtHR 24 September 2002, Cuscani v. UK, No. 32771, paras. 38 and 39.



ascertain whether a suspected or accused person speaks and understands the language of the proceedings, and whether they need the assistance of an interpreter.”30 This requirement is set out in Article 2(4) of the Directive. The means used for interpretation The Directive provides that where appropriate, video conference, telephone or the Internet may be used for interpretation, unless the fairness of the proceedings can only be safeguarded by the physical presence of the interpreter.31 1.3b The right to translation of essential documents

Who the right to translation applies to Under the Directive, Member States must ensure that a suspected or accused person who does not speak or understand the language of the criminal proceedings concerned, is provided with written translation of all documents which are essential to ensure that the person is able to exercise their right of defence and to safeguard the fairness of the proceedings. Translation must be provided within a reasonable period of time.32 Any translation should be provided in the native language of the suspected or accused person or in another language that the person speaks or understands to allow them to fully exercise their right of defence and to safeguard the fairness of the proceedings.33 Particular regard must also be had to suspected or accused persons who are in a potentially weak position, particularly due to physical impairments which affect their ability to communicate effectively. The prosecution, law enforcement and judicial authorities should ____________________ 30 Supra note 10 at 25. 31 Article 2(6) of the Directive. Recital 28 of the Directive states that where videoconferencing is being used for the purposes of remote

interpretation, the competent authorities should be able to rely on tools developed in the context of European e-‐Justice, such as information on courts with videoconference equipment or manuals.

32 Article 3(1) of the Directive. 33 Recital 22 of the Directive.



ensure that such persons are able to effectively exercise their rights in the Directive. This includes taking into account potential vulnerabilities and taking the appropriate steps to ensure that their rights are guaranteed.34 The right to translation under the Directive also applies in proceedings for the execution of European arrest warrants. The executing Member State must ensure that the competent authorities provide persons subject to European arrest warrant proceedings, who do not understand the language in which the European arrest warrant is drawn up, with a written translation of the document.35 What constitutes an essential document According to the Directive, essential documents include:36

• Any decision depriving a person of his/her liberty; • Any charge or indictment; and • Any judgment.

In any given case, the competent authorities shall decide whether any other document is considered to be essential. A suspected or accused person or their legal counsel may also submit a request for a document to be deemed essential.37 The Directive states that there is “no requirement to translate passages of essential documents which are not relevant for the purposes of enabling suspected or accused persons to have knowledge of the case against them”.38 Exceptions to the requirement for written translation As an exception to the general obligations outlined above, oral translation or an oral summary of essential documents may be ____________________ 34 Recital 27 of the Directive. 35 Article 3(6) of the Directive. 36 Article 3(2) and Recital 30 of the Directive. 37 Article 3(3) and Recital 30 of the Directive. 38 Article 3(4) of the Directive.



permissible, where this does not prejudice the fairness of the proceedings.39 1.4 The cost of interpretation and translation Interpretation and translation services must be provided free of charge. Article 6(3)(e) of the ECHR protects the right to free assistance of an interpreter where the person does not speak or understand the language used in court. The right to free interpretation applies not only to oral statements made during the trial but also includes documentary material and the pre-‐trial proceedings. As has been noted, “[f]ree assistance means complete exemption or exoneration for the costs of interpretation or translation; thus it is not acceptable to order the accused to pay for the interpretation after the trial has ended.”40 With regard to European arrest warrants, the costs of translation should be provided and borne by the executing Member State.41 1.5 The quality of interpretation and translation Interpretation and translation must be of a quality that is sufficient to safeguard the fairness of the proceedings, particularly by ensuring that suspected or accused persons have knowledge of the case against them and are in a position to exercise their right of defence.42 In that regard, it has been observed that both police officer and lawyers “hold an important quality control assessment function” in that the manner in which interpreters are sourced and briefed can have important implications for the outcome of the criminal proceedings.43 ____________________ 39 Article 3(7) of the Directive. This reflects ECtHR 9 March 2010, Pethuvocs v. Germany, No. 60705/08. 40 Open Society Justice Initiative, Case Digests, European Standards on Criminal Defence Rights: ECtHR Jurisprudence (April 2013), p. 51.

<http://www.opensocietyfoundations.org/sites/default/files/digests-‐arrest%20rights-‐european-‐court-‐human-‐rights-‐20130419.pdf> (date accessed: 3 February 2015).

See also ECtHR 28 November 1978, Luedicke, Belkacem and Koc V Germany, Nos 6210/73; 6877/75; 7132/75, para. 40. 41 Recital 15 of the Directive. 42 Article 2(8) and Article 3(9) of the Directive. 43 Supra note 10 at 146.



As has been noted, the obligation to ensure quality interpretation and translation “is bolstered by a requirement that states endeavor to establish a register of appropriately qualified interpreters and translators (Art. 5(2)), and ensure that there is a procedure by which a suspected or accused person can complain about the quality of interpretation or translation provided (Arts. 2(5) and 3(5))”.44 This obligation is outlined further below. Moreover, Member States must ensure that interpreters and translators are required to observe confidentiality with regard to interpretation and translation that is provided under the Directive.45 1.6 Waiver If a person wishes to waive their right to translation under the Directive, they must have received prior legal advice or have otherwise obtained full knowledge of the consequences of waiving their right. The waiver must be unequivocal and given voluntarily.46 No waiver of the right to interpretation is provided for by the Directive. 1.7 Remedies Under the Directive, Member States are obliged to ensure that suspected or accused persons have the right to challenge a decision finding that there is no requirement for interpretation47 or a decision finding that there is no need for the translation of documents or passages thereof.48 Moreover, where interpretation or translation has been provided, a person must have the right to complain if he/she believes the quality ____________________ 44 Supra note 4 at 85. 45 Article 5(3) of the Directive. 46 Article 3(8) of the Directive. 47 According to Recital 26 of the Directive, where it is found that the quality of interpretation is insufficient to ensure the right to a fair trial,

the competent authorities should be in a position to replace the interpreter. 48 Articles 2(5) and 3(5) of the Directive.



of the interpretation is insufficient to safeguard the fairness of the proceedings.49 1.8 Training The Directive creates an obligation on Member States to request that those who are responsible for “the training of judges, prosecutors and judicial staff involved in criminal proceedings pay special attention to the particularities of communicating with the assistance of an interpreter so as to ensure efficient and effective communication”.50 1.9 Record-‐ Keeping Member States must ensure that a record is kept when:51

• A suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter;

• When an oral translation or summary of essential documents has been provided ; or

• When the suspected or accused person has waived their right to translation.

Further relevant information can be found in the JUSTICIA guide A new European instrument for interpretation and translation: Guidance for interpreters in criminal proceedings.52

____________________ 49 Article 2(5) of the Directive. 50 Article 6 of the Directive. 51 Article 7 of the Directive. 52 JUSTICIA, A new European instrument for interpretation and translation: Guidance for interpreters in criminal proceedings (December

2012) <http://www.eujusticia.net/images/uploads/pdf/Guidelines_for_Interpreters_December_2012.pdf> (date accessed: 5 December 2014).



2. MEASURE B- THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS

2.1 Background The Directive on the right to information in criminal proceedings was adopted on 22 May 2012, with a transposition date of 2 June 2014. By this date, Member States must have implemented at least the minimum standards in the Directive. Some discretion is afforded to Member States when interpreting and implementing certain provisions of a Directive. They are also free to extend the rights beyond the minimum standards that are provided for by the Directive. The Directive builds on rights protected in the EU Charter of Fundamental Rights (made binding by the Treaty of Lisbon)53 and the ECHR54, as interpreted by the CJ EU and the ECtHR. All Member States must participate in the adoption and application of this Directive except Denmark which is not taking part in the adoption and is therefore at present not bound by it.55 The Directive lays down minimum rights relating to the information to be received by suspected or accused persons in criminal proceedings and in proceedings for the execution of a European arrest warrant. 2.2 When the rights set out in the Directive apply According to Article 2, the rights set out in the Directive apply “from the time persons are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings”.56 The conclusion of the proceedings is stated to be the point at which a final determination is made on the question of whether the suspected or accused person committed the offence. This ____________________ 53 The right to liberty and security (Article 6); the right to an effective remedy and to a fair trial (Article 47); the presumption of innocence

and respect for the rights of the defence (Article 48). 54 The right to liberty and security of person (Article 5); the right to a fair trial (Article 6). 55 Recital 44-‐45 of the Directive. 56 Article 2 of the Directive.



includes, where applicable, the sentencing of the person and the resolution of any appeal.57 The Directive should apply to all suspected and accused persons irrespective of their legal status, citizenship or nationality.58 In cases of minor offences, for example traffic offences committed on a large scale,59 where sanction may be imposed by an authority other than a court and such a sanction may be appealed, the Directive will only apply to the proceedings before the court following the appeal.60 2.3 The procedural rights guaranteed by the Directive 2.3a The right to information about rights As has been noted, “[i]t cannot be presumed that suspects know their rights at the moment they are confronted with a criminal investigation …. When suspects are not informed of their rights at an early stage in police custody, the protective value of those rights will be ineffective in practice”.61 The Directive guarantees the rights of suspected and accused persons by establishing that information on the following procedural rights should be provided: 62

• 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 of the accusation; • The right to interpretation and translation; and

____________________ 57 Article 2 of the Directive. 58 Recital 16 of the Directive. 59 Recital 17 of the Directive. 60 Article 2(2) of the Directive. 61 Supra note 10 at 211. 62 Article 3 of the Directive.



• The right to remain silent.

Information on these rights is to be provided promptly and at the latest before the first official interview of the suspected or accused person by the police or other competent authority.63 Therefore, the rights set out in the Directive can become active before a suspected or accused person is deprived of their liberty.64 Information must be given orally or in writing and must be provided in accessible and simple language. The authorities must pay particular attention to the needs of vulnerable suspected or accused persons.65 2.3b Letter of Rights on arrest The Directive provides that when a person is arrested or detained, they must be provided promptly with a written Letter of Rights,66 drafted in a manner that is easily comprehensible.67 The person must be given a chance to read the Letter of Rights and must be allowed to keep it in their possession throughout the time that they are deprived of their liberty. Member States must ensure that the Letter of Rights is written in a language that the suspected or accused person understands. When this is not possible, the suspected or accused person must be informed of their rights orally in a language that they understand, and a Letter of Rights in a language they understand must be provided without undue delay.68 In order to promote consistency among Member States,69 a template of a Letter of Rights is provided in Annex 1 to the Directive. ____________________ 63 Recital 19 of the Directive. 64 Supra note 10 at 212. 65 Article 3(2) of the Directive. Recital 26 of the Directive also stipulates that particular attention should be paid to persons who cannot

understand the content or meaning of the information, due to their youth or physical or mental condition for example. 66 Article 4 of the Directive. 67 Recital 22 of the Directive. 68 Article 4(5) of the Directive. 69 Open Society Justice Initiative, Arrest Rights Brief No. 2: The Right to Information (June 2013), para. 52.

<http://www.opensocietyfoundations.org/sites/default/files/arrest-‐rights-‐brief-‐right-‐to-‐Information-‐20121021.pdf> (date accessed: 8 December 2014).



The Directive states that the Letter of Rights is to include information about the following rights as they apply under national law:70

____________________ 70 Article 4(2) of the Directive. 71 This right is also provided for separately in Article 7 of the Directive. 72 According to Recital 23 of the Directive, the specific conditions and rule relating to the right to have another person informed about the

arrest or detention are to be determined by Member States in their national laws. The exercise of the right should not prejudice the due course of the criminal proceedings.

• The right of access to a lawyer;

• Any right to free legal advice, an how to obtain it;

• The right to be informed of the accusation;

• The right to interpretation and translation;

• The right to remain silent;

• The right of access to the materials of the case;71

• The right to have consular authorities and another person

informed; 72

• The right of access to urgent medical assistance; and

• The maximum number of hours or days the suspected or accused person may be deprived of their liberty before being brought before a judicial authority.

• Any possibility under national law of challenging the lawfulness of the arrest;

• Any possibility of obtaining a review of the detention; or

• Any possibility of making a request for provisional release.



More detailed information about these rights can be found in the JUSTICIA guide, Know Your Rights to Information on Criminal Charges.73 The right of access to the materials of the case is included as a separate provision in the Directive and is discussed in more detail below. 2.3c Letter of Rights in European arrest warrant proceedings Where a person is arrested for the purpose of the execution of a European arrest warrant, they must be provided promptly with a Letter of Rights which contains information on their rights according the law implementing Framework Decision 2002/584/JHA74 in the executing Member State.75 A model Letter of Rights in European arrest warrant proceedings is included in Annex II to the Directive. 2.3d Right to information about the accusation All suspected or accused persons must be provided with information about the criminal act they are suspected or accused of having committed. This includes:76

• A description of the facts relating to the criminal offence, (including, where known, the time and place); and

• The nature and legal classification of the alleged offence, as well as the nature of the participation by the accused person (this information is to be provided, at the latest, on submission of the merits of the accusation to a court).

____________________ 73 JUSTICIA, Mulvey, G., and Skelly, S., Know Your Rights to Information on Criminal Charges (December 2012), pp. 28-‐32

<http://www.eujusticia.net/images/uploads/pdf/KYR_Right_to_Information_on_Criminal_Charges.pdf> (date accessed: 28 November 2014).

74 2002/584/JHA: Council Framework Decision of the 13 June 2002 on the European arrest warrant and the surrender procedures between Member States <http://eur-‐lex.europa.eu/legal-‐content/EN/ALL/?uri=CELEX:32002F0584> (date accessed: 8 December 2014).

75 Article 5. 76 Article 6(2)-‐6(4). Recital 28 and 29 of the Directive.



Where there are changes to the information given, the suspected or accused person must be informed promptly of such changes, where it is necessary to safeguard the fairness of the proceedings. The information must be provided promptly, and at the latest before the first official interview by the police or other competent authority,77 and in such detail as is required in order to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.78 The case law of the ECtHR79 has established that it is not enough for the relevant authorities to provide information when requested to do so. The authorities have a positive obligation to make this information available to suspected and accused persons.80 As has been noted, this “is to enable the suspected or accused person to fully understand the allegations with a view to challenging the lawfulness of their detention or to preparing a defence”.81 2.3e The right of access to the materials of the case The Directive provides that where a person is arrested or detained at any stage of the criminal proceedings, documents relating to the specific case in the possession of the competent authorities, which are essential to challenging effectively the lawfulness of the arrest or detention,82 are to be made available to the arrested person or their lawyer.83 This right derives from the right to ‘adequate time and facilities’ under Article 6(3)(b) of the ECHR and is an element of the principle of equality of arms.84 The ECtHR in its case law has also established that the prosecution authorities should disclose all material evidence to

____________________ 77 Recital 28 of the Directive. 78 Article 6. 79ECtHR 25 July 2000, Mattoccia v Italy, No. 23969/94, para. 65. 80 Under Article 5(2) of the ECHR, a person arrested must be informed promptly, in a language they understand, of the reasons for their

arrest and the charges against them. Article 6(3)(a) of the ECHR sets out the same stipulations for persons charged with a criminal offence

81 Supra note 4 at 41. 82 In accordance with national law. 83 Article 7(1). 84 Supra note 4 at 42.



the defence, including material evidence for or against the accused.85 The ECtHR has also held that the prosecution and defence are both entitled to have disclosed, and to comment on, the observations and the evidence of the other party.86 Under the Directive, all material evidence in the possession of the competent authorities which relates to the specifics of the case must be made available to the suspected or accused person or their lawyer to safeguard the fairness of the proceedings and to prepare the defence. This includes evidence for or against the suspected or accused person.87 Access to materials is to be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow it to be considered.88 Derogations from the Directive Access to certain material may be refused in certain instances, which are:

• Where access may lead to a serious threat to the life or the fundamental rights of another person; or

• If the refusal is strictly necessary to safeguard an important public interest, such as in cases were access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings were instituted.89

____________________ 85 ECtHR 16 December 1992, Edwards v United Kingdom, No. 13071/87, para. 36. 86 ECtHR 28 August 1991, Brandstetter v Austria, Nos. 11170/84, 12876/87, 13468/87, para. 66; ECtHR 16 February 2000, Jasper v United

Kingdom, No. 27052/95, para. 51; and ECtHR 6 September 2005, Salov v Ukraine, No. 65518/01, para. 87. 87 Article 7(2) of the Directive. 88 Article 7(3) of the Directive. 89 Article 7(4) of the Directive.



A derogation is only permissible where it does not prejudice the right to a fair trial. Moreover, in accordance with procedures in national law, a decision to refuse access to certain materials, must be taken by a judicial authority or is at least subject to judicial review. Access to the materials of case file are to be provided free of charge.90 When information is provided to suspected or accused persons under the Directive, this must be noted using the recording procedure specified in the law of the relevant Member State.91 2.4 Remedies Where the competent authorities refuse or fail to provide information in accordance with the Directive, Member States must ensure that suspected or accused persons or their lawyers have the right to challenge such failure or refusal.92 2.5 Training The Directive states that Member State must request those responsible for the training of judges, prosecutors, police and judicial staff engaged in criminal proceedings, to provide appropriate training on the Directive.93 Further relevant information can be found in the JUSTICIA guide, Know Your Rights to Information on Criminal Charges.94

____________________ 90 Article 7(5) of the Directive. 91 Article 8(1) of the Directive. 92 Article 8(2) of the Directive. 93 Article 9 of the Directive. 94 Supra note 73 at 28-‐32.



3. MEASURE C - THE RIGHT OF ACCESS TO A LAWYER AND TO COMMUNICATE UPON ARREST

3.1 Background

The Directive on the right of access to a lawyer in criminal proceeding and the right to communicate upon arrest, was adopted on 22 October 2013 and must be transposed into national law by the 27 November 2016. By this date, Member States must have implemented at least the minimum standards in the Directive. Some discretion is afforded to Member States when interpreting and implementing certain provisions of a Directive. They are also free to extend the rights beyond the minimum standards that are provided for by the Directive. The Directive builds on rights protected in the EU Charter of Fundamental Rights (made binding by the Treaty of Lisbon)95 and the ECHR96, as interpreted by the CJ EU and the ECtHR. 25 Member States will participate in the adoption and application of this Directive. Ireland, the UK and Denmark are not taking part in the adoption of this Directive and therefore at present are not bound by it.97 It is anticipated that Ireland will agree to be bound by the Directive in due course. As commentators have noted, “[t]he right to legal assistance is a key aspect of procedural rights of suspected and accused persons. A suspect who is assisted by an effective lawyer is in a better position with regards to the enforcement of all of their other rights, because they will be better informed of those rights, and because the lawyer is able to assist them in ensuring that their rights are respected.”98 ____________________ 95 Prohibition of torture and inhuman or degrading treatment or punishment (Article 4); the right to liberty and security of person (Article

6); respect for private and family life (Article 7); the right to an effective remedy and the right to a fair trial (Article 47); the presumption of innocence and the rights of the defence (Article 48).

96 Prohibition of torture and inhuman or degrading treatment or punishment (Article 3), the right to liberty and security of person (Article 5); the right to a fair trial (Article 6); Article 6(3)(c) provides that a person charged with a criminal offence has the right to defend himself through legal assistance; right to respect for private and family life (Article 8).

97 Recital 58-‐59 of the Directive. 98 Supra note 4 at 48.



The Directive lays down the minimum rules regarding the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant. It also outlines the right to have a third party informed upon the deprivation of liberty and the right to communicate with third persons and with consular authorities while deprived of liberty. 3.2 When the rights set out in the Directive apply According to Article 2, the rights set out in the Directive apply “to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty”.99 The Directive applies until such time when there is a final determination of the question whether the suspected or accused person has committed the offence, including, where applicable, sentencing and resolution of any appeal.100 In the case of minor offences such as minor traffic offences, minor offences relating to general municipal regulations and minor public order offences, which provide for the imposition of sanctions by an authority other than the courts and such a sanction may be appealed, the Directive will only apply to the proceedings before the court following the appeal.101 In addition, the Directive is not applicable where deprivation of liberty cannot be imposed as a sanction in the case of minor offences.102 However, this does not affect a Member State’s obligation to guarantee the right to a fair trial under the ECHR.

____________________ 99 Article 2 of the Directive. 100 According to Article 11, the “Directive is without prejudice to national law in relation to legal aid, which shall apply in accordance with

the Charter and the ECHR”. 101 Article 2(4)(a) of the Directive. 102 Article 2(4)(b) of the Directive.



With regard to European arrest warrant proceedings, the Directive applies from the time of arrest in the executing Member State.103 3.3 The procedural rights guaranteed by the Directive The Directive guarantees the rights of suspected and accused persons by: 104

• Providing the right of access to a lawyer from the first stage of police questioning and throughout criminal proceedings;

• Allowing for a right to meet in private and ensuring confidentiality of communication with their lawyer;

• Allowing the lawyer to play an active role during questioning; • Ensuring that upon arrest a third person can be made aware of

the arrest; • Providing the right to communicate with third persons while

deprived of liberty; • Allowing for the right to communicate with consular

authorities; and • Giving people subject to European arrest warrants

proceedings the right of access to a lawyer.

____________________ 103 Article 2(2) of the Directive. 104 Article 13 of the Directive also provides that the particular needs of vulnerable suspects and accused persons must be taken into account

in the application of the Directive.



3.3a Access to a lawyer from the first stage of police questioning and throughout criminal proceedings

Suspected or accused persons are entitled to have access to a lawyer without undue delay and from whichever of the following points in time is the earliest:

General information should be made available in order to facilitate the suspected or accused person obtaining a lawyer.106 This includes for example information on a website or by way of a leaflet available in police stations. Where the person does not have a lawyer, arrangements should be made for the assistance of a lawyer. This could include the arrangement of a lawyer on the basis of a list of available lawyers from which the suspected or accused person can choose one.

____________________ 105 Article 3(2)(a)-‐(d) of the Directive. 106 Article 3(4) of the Directive.

• Before they are questioned by the police or by another law

enforcement or judicial authority;

• Upon the carrying out by investigating or other competent authorities of an investigative or other evidence–gathering act;

• Without undue delay after deprivation of liberty; or

• Where they have been summoned to appear before a court

having jurisdiction in criminal matters, in due time before they appear before the court.105



Derogations from the Directive Regarding the “undue delay” provision, a temporary derogation may be permissible in exceptional circumstances, where the geographical remoteness of the suspected or accused persons does not make it possible to ensure access to a lawyer without undue delay after the deprivation of liberty. However, such a derogation would only be permissible at the pre-‐trial stage.107 Any derogations under any of the provision of the Directive must meet the following requirements:

3.3b Meeting in private and confidentiality of communication with lawyer

Confidentiality of communication is an essential element of the right to a fair trial. Under the Directive, Member States are obliged to ensure that suspected or accused persons can meet in private and communicate with their lawyer.108 This includes meeting and communicating prior to questioning by the police or other law enforcement or judicial authorities. ____________________ 107 Article 3(5) of the Directive. 108 Article 3(3)(a) of the Directive.

• They must be proportionate and not go beyond what is necessary;

• They must be strictly limited in time;

• They must not be based exclusively on the type or the seriousness of the alleged offence; and

• They must not prejudice the overall fairness of the proceedings.



The confidentiality of communication between a suspected or accused person and their lawyer must be respected. This includes meetings, correspondence, phone conversations and other forms of communication that are permitted under national law.109

3.3c Allowing lawyer to play an active role during questioning

Suspected or accused persons have the right for their lawyer to be present and participate effectively when being questioned.110 At a minimum, Member States must ensure that suspected or accused persons have the right to have their lawyer present at certain investigative or evidence-‐gathering acts, including: identity parades; confrontations; and reconstruction of the scene of crime.111 Derogations from the Directive With regard to meeting in private, confidentially of communication and the role of the lawyer during questioning, certain temporary derogations may be permissible in exceptional circumstances, on the basis of compelling reasons, which are:

Such derogations would only be permissible at the pre-‐trial stage. ____________________ 109 Article 4 of the Directive. 110 Article 3(3)(b). According to the Directive such participation shall be in accordance with procedures under national law, provided that these procedures do not prejudice the effective exercise and essence of the right. Where a lawyer participates during questioning this is to be noted using recording procedures laid down in national law. 111 Where those acts are provided for by national law and if the suspected or accused person is permitted or required to attend the act

concerned (Article 3(3)(c) of the Directive). 112 Article 3(6) of the Directive.

• There is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; or

• Immediate action by the investigating authorities is essential in order to prevent substantial jeopardy to criminal proceedings.112



3.3d Informing a third person of deprivation of liberty When a suspected or accused person is deprived of their liberty they must be given the right to have at least one person informed of their deprivation of liberty without undue delay.113 This could be a relative or an employer for example. The suspected or accused person has the right to nominate the person they wish to be informed. Where the suspected or accused person is a child, Member States must ensure that the holder of parental responsibility is informed about the deprivation and the reasons for the deprivation, as soon as possible. This is so unless informing the holder of parental responsibility would be contrary to the best interests of the child, in which case another appropriate adult must be informed. Derogations from the Directive Temporary derogations from the right to inform a third person of one’s deprivation of liberty may be justified in light of the particular circumstances of the case and on the basis of compelling reasons, which are:

• There is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; or

• There is an urgent need to prevent a situation where criminal proceedings could be substantially jeopardised.114

Where the derogation applies to a case involving a child, an authority with responsibility for the protection of children’s welfare must be informed of the deprivation of liberty of the child without undue delay.115 ____________________ 113 Article 5 of the Directive. 114 Article 5(3) of the Directive. 115 Article 5(4) of the Directive.



3.3e Communicating with third persons while deprived of liberty Member States have an obligation to ensure that a suspected or accused person deprived of their liberty has the right to communicate with at least one third person without undue delay. This could be a relative for example. The suspected or accused person has the right to nominate the person they wish to be informed.116 Member States may make practical arrangements with regard to the timing, means, duration and frequency of communication, taking into account the need to ensure good order, safety and security in the place where the person is being deprived of their liberty. Limiting or deferring the exercise of the right to communicate with third persons Where imperative requirements or proportionate operational requirements exist, Member States may limit or defer the exercise the right of a suspected or accused person to communicate with a third person, while deprived of liberty.117 Such requirements could include for example the need to prevent a criminal offence, to await a court hearing or the need to protect victims of crime. 3.3f Communicating with consular authorities A suspected or accused person who is a non-‐national must be permitted to have the consular authorities of his/her State informed of his/her deprivation of liberty without undue delay and must be able to communicate with those authorities. If a suspected or accused person has two or more nationalities, they may choose which consular authorities, if any, they wish to have informed of their deprivation of liberty and with whom they wish to communicate. Suspected or accused persons have to right to be visited by their consular authorities, to converse and correspond with them and to have legal representation arranged for them by their consular ____________________ 116 Article 6(1) of the Directive. 117 Article 6(2) of the Directive.



authorities. This is subject to the agreement of the consular authorities and the wishes of the suspected or accused person.118 3.3g European arrest warrants In European arrest warrant proceedings, Member States must ensure that a requested person has the right of access to a lawyer in the executing Member State upon arrest.119 This includes:

• The right of access to a lawyer in such time and manner that allows the requested person to exercise their rights effectively and without undue delay from deprivation of liberty;

• The right to meet and communicate with their lawyer; and

• The right for their lawyer to be present and, in line with national law procedures, participate during a hearing of the requested person. Where a lawyer participates during a hearing, this must be noted using the recording procedure in accordance with the law of the Member State.

Where a person is deprived of their liberty, the authorities in the executing Member State must, without undue delay, inform the requested person that they have the right to appoint a lawyer in the issuing Member State. The purpose of this lawyer is to provide assistance to the lawyer in the executing Member State, through the provision of information and advice.120

____________________ 118 Article 7(2) of the Directive. 119 Article 10 of the Directive. 120 This is to ensure the effective exercise of the rights of requested persons under the Council Framework Decision 2002/584/JHA on the

European arrest warrant and surrender procedures <http://eur-‐lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0584:en:HTML> (date accessed: 11 December2014).



Where a requested person wishes to appoint a lawyer in the issuing Member State and does not already have a lawyer, the competent authority in the executing Member State must promptly inform the competent authority in the issuing Member State, who must then, without undue delay, provide the requested person with the relevant information to appoint a lawyer.121 The rights applicable to suspected and accused persons under the Directive also apply to requested persons in European arrest warrant proceedings, as do the conditions for temporary derogations and for waiver of rights as outlined below.122 3.4 Waiver The ECtHR has emphasised that a waiver “must not only be voluntary, but must also constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be”.123 Where a suspected or accused person wishes to waive any of the rights in the Directive, certain conditions must be met, as follows:

____________________ 121 According to Article 19(6) “[T]he rights of a requested person to appoint a lawyer in the issuing Member State is without prejudice to the

time-‐limits set out in Framework Decision 2002/584/JHA or the obligation on the executing judicial authority to decide, within those time-‐limits and the conditions defined under that Framework Decision, whether the person is to be surrendered”.

122 Article 10(3) of the Directive. 123 ECtHR 24 September 2009, Pishchalnikov v Russia, No. 7025/04, para. 76. See also ECtHR 31 March 2009, Plonka v Poland, No. 20310/02

and ECtHR 1 April 2010, Pavlenko v Russia, No. 42371/02, para. 102.

• The suspected or accused person must be provided with clear and sufficient information in simple and understandable language about the content of the right the person wishes to waive and the possible consequences of waiving that right. This information may be provided orally or in writing; and

• The waiver must be given voluntarily and unequivocally.



The waiver and the circumstances under which the waiver was given must be noted. Member States must also ensure that a suspected or accused person may revoke a waiver at any stage of the criminal proceedings and that they are made aware of this possibility.124

3.5 Remedies

Where the rights under the Directive are breached, suspected and accused persons as well as requested persons in European arrest warrant proceedings, must have an effective remedy under national law.125 Member States must make sure that in the assessment of statements made by suspected or accused persons in criminal proceedings or of evidence obtained in breach of the right to a lawyer, or where a derogation from the right was authorised, the rights of the defence and the fairness of the proceedings are respected. Regard should be had to the ECtHR case of Salduz v Turkey126 which established that the rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction. Further relevant information can be found in the JUSTICIA publication, A guide to minimum standards on the right of access to a lawyer and to communicate upon arrest.127

____________________ 124 Article 9 of the Directive. Any revocation of a waiver shall be effective from the moment it is made. 125 Article 12 the Directive. 126 Salduz v Turkey, ECtHR, Grand Chamber Judgment of 27 November 2008, paras. 54-‐55. 127 JUSTICIA, A guide to minimum standards on the right of access to a lawyer and to communicate upon arrest (December 2012).

<http://www.eujusticia.net/images/uploads/pdf/Policy_paper_Access_to_a_Lawyer_December_2012.pdf> (date accessed: 8 December 2014).



4. IMPLEMENTING AND ENFORCING THE DIRECTIVES

The European Commission is responsible for assessing the extent to which Member States have introduced the necessary measures128 to ensure compliance with the relevant Directive, once the transposition date has passed. Member States send their officially adopted texts which implement the Directive, to the European Commission, which evaluates these texts to ensure that Member States are complying with the Directive. If a Member State is found not to be in compliance with the relevant Directive, the European Commission decides whether or not to institute infringement proceedings against the Member State. This could lead to proceedings in the CJ EU.129 An individual may also lodge a complaint with the European Commission against their Member State, requesting the European Commission to begin infringement proceedings against it. It is not a prerequisite for the individual to be directly affected by the alleged infringement in order for him/her to make such a complaint.130

____________________ 128 If necessary, this could include legislative measures. 129Supra note 73 at 19. 130 For further information see the Europa website at: <http://ec.europa.eu/eu_law/your_rights/your_rights_forms_en.htm> and

<http://ec.europa.eu/eu_law/your_rights/your_rights_en.htm> (date accessed: 12 December 2014).

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