7 December 2010

Procedural rights of suspects and accused in the EU

The Roadmap and its implementation

Adrienne Boerwinkel Senior Legal AdviserDutch Ministry of Security and

Justice

2TAIEX Ankara | 6-7 December 2010

Overview presentation

Why EU legislation on procedural rights of suspects and

accused?

Roadmap on procedural rights of suspects and accused

Measure A: right to interpretation and translation

Measure B: right to information

Measure C: right of access to a lawyer

What will follow?

3TAIEX Ankara | 6-7 December 2010

European Council Conclusions Tampere 1999

“The European Council asks the Council and the Commission

to adopt (…) a programme of measures to implement the

principle of mutual recognition. In this programme, work

should also be launched on (…) those aspects of procedural

law on which common minimum standards are considered

necessary in order to facilitate the application of the

principle of mutual recognition, respecting the

fundamental legal principles of Member States.”

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European Convention on Human RightsKey articles in this context:

Article 5: right to libertyArticle 6: right to a fair trial

More detailed interpretation through case-law of the ECtHR, but...

… not always clear to what extent a judgment against one specific State has consequences for the other State Parties.

Result: uneven implementation

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ECHR: Check by European Court of Human Rights of an alleged infringement in a specific case on the basis of an individual complaint against a specific State

EU Directive: Check by Commission whether the directive has been implemented correctly into national legislation. Possibility of infringement procedure

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EU action

2004: Commission initiative for comprehensive instrument

2007: Failure to agree on the instrument

2009: Commission and Swedish Presidency restarted the debate: step-by-step approach agreed

30 November 2009: Adoption of a Resolution on a Roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings (OJ C295, 4.12.2009, p. 1)

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Roadmap on procedural rights

Six measures announced:

» Right to interpretation and translation

» Right to information

» Right to legal assistance

» Right to communicate while in detention

» Rights of vulnerable suspects

» Detention conditions

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Directive on interpretation and translation

Directive of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010, L 280)

Implementation before 27 October 2013

Right to interpretation Right to translation Additional provisions

9TAIEX Ankara | 6-7 December 2010

Right to interpretation

If suspect does not speak or understand the language of the proceedings

During police questioning, court hearings and interim hearings etc.

Also certain communication between lawyer and client (preparation of the defence)

Quality, register, confidentiality

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Right to translation At least the essential documents:

- charge/indictment- detention order- judgments

Only passages which are relevant to have knowledge of the case

Possibility to waive the right to translation (unequivocal and voluntarily)

Oral translation possible as exception and provided that it does not prejudice the fairness of the proceedings

11TAIEX Ankara | 6-7 December 2010

Right to information on rights and accusationProposal for a Directive issued on 20 July 2010 (COM(2010) 392) -> currently under negotiation

Right to be informed on certain procedural right – Letter of Rights(right to remain silent, right of access to a lawyer, conditions for legal aid, right to interpretation and translation, when detained: right to be brought before a court)

Right to be informed on the accusation(on arrest, before interrogation and indictment)

Right of access to the case-file

12TAIEX Ankara | 6-7 December 2010

Right of access to a lawyer Proposal for a Directive in preparation by Commission

Expected in June 2011

Possible important issues:

- Right to be assisted by a lawyer prior to and/or during

police questioning (Salduz-judgment and following

judgments; Brusco)

- Legal aid: assistance free of charge

- Exceptions

- Independence of lawyers

- Quality

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What will follow?

Measure D: Communication while in detention: with family,employer, consular authorities

Measure E: Procedural rights of vulnerable suspects such as minorsor mentally disabled

Measure F:Green paper on detention conditions