This report looks at how these key criminal procedural rights are applied in practice. It is based on interviews with over 250 respondents in eight Member States, including judges, prosecutors, police officers, lawyers, staff of bodies that monitor prisons, as well as defendants. In highlighting diverse challenges, the report aims to spur efforts to ensure that criminal procedural rights are applied both effectively and consistently throughout the EU.
The various rights guaranteed by the Charter and outlined in the Roadmap include defendants’ right to information in criminal proceedings from the moment they are aware they are suspected of having committed a crime; the right to silence and the privilege against self-incrimination; and the right to access a lawyer.
FRA’s research highlights several challenges when it comes to accessing these rights.
FRA’s fieldwork shows that authorities in the eight EU Member States covered in this report inform defendants about their criminal procedural rights in various ways. Most practitioners and defendants agree that defendants receive this information before the first official questioning. However, the information given differs in its scope and content, and in how it is conveyed. This ranges from law enforcement authorities providing defendants with comprehensive information, both in writing and orally, to authorities handing defendants a written leaflet about rights without further explanation.
Several factors determine whether or not defendants receive information about their rights in an effective manner. These include, among others:
EU Member States should put in place safeguards to ensure that individuals can effectively exercise their right to be informed about their criminal procedural rights as soon as they are suspected of having committed an offense. For instance, Member States should provide further guidance to relevant law enforcement authorities on how to verify defendants’ understanding of the information they receive about their rights. Authorities should, in particular, pay attention to situations in which defendants may be disadvantaged through a language barrier, a lack of education or a physical or intellectual disability or by being in a state of intoxication. EU Member States could also consider making it obligatory for the relevant authorities to provide information to defendants about their rights in both written and oral formats, using non-technical and accessible language, regardless of whether or not a defendant is deprived of their liberty.
FRA’s research identifies cases in which law enforcement authorities question a person as a witness or ‘informally’ ask them questions, even when there are plausible reasons for suspecting that person’s involvement in a crime. This means that defendants do not receive information about their rights as a suspect – in particular, the right to remain silent and not to incriminate themselves. FRA’s research also highlights instances in which law enforcement authorities establish informal practices so that defendants’ self-incriminatory statements, made as a witness, can be later used against them legally in the course of the proceedings – for example, by questioning former witnesses again, this time as defendants, and asking them if they stand by their previous statements.
Directive 2013/48/EU on the right of access to a lawyer guarantees rights to persons who become suspects in the course of questioning by the police. In addition, Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings requires Member States to respect the right to silence and the privilege against self-incrimination. Those rights are also recognised by the ECtHR.
Whenever a person is suspected of having committed an offense, that person should be informed and should be made aware of their rights from the outset of the proceedings. EU Member States should call on relevant national authorities to eliminate practices of placing defendants under a different procedural, ‘pre-suspect’, status and therefore of failing to inform them of their rights.
Respondents in FRA’s research highlight the crucial importance of defendants having access to legal assistance – especially from the very beginning of criminal proceedings. Respondents argue that defendants deprived of liberty, in particular, face difficulties in accessing lawyers directly and/or in private. For example, police officers or defendants’ relatives call lawyers on their behalf. Sometimes, these calls are significantly delayed after the moment of arrest or detention. When such ‘indirect’ or delayed contact occurs, defendants cannot obtain advice at an early stage, such as to remain silent. Lawyers cannot ask questions that may help them to prepare an effective defence. Moreover, findings show that defendants deprived of liberty do not always have the possibility of talking to their lawyers in private before the first questioning. Instead, where conversations happen at all, they are often short and/or take place in public corridors in the presence of police officers.
According to the standards of the ECtHR and the requirements set out in Directive 2013/48/EU on the right of access to a lawyer, defendants should have access to a lawyer without undue delay and the confidentiality of their communication should be respected.
Respondents in FRA’s research indicate that very often, when informing defendants about the accusations (charges) against them and the reasons for arrest, authorities tend to limit themselves to indicating the relevant provisions of criminal law, using technical language, and not specifying the actual allegations. In addition, in some cases, both persons deprived and persons not deprived of liberty receive information about the accusation after some delay, and suspects deprived of liberty learn about the grounds for arrest only after being detained for some time. This creates practical challenges for building an effective defence and impedes a defendant’s ability to challenge deprivation of liberty, especially for defendants who do not benefit from legal assistance.
Directive 2012/13/EU on the right to information obliges Member States to promptly inform defendants about the necessary details of the criminal act that they are suspected of having committed and about the reasons for their arrest. The ECtHR has also reiterated this obligation.
Persons arrested pursuant to an EAW benefit from the right to the presumption of innocence, the right to a defence, the right to a fair trial and the right to an effective remedy, as set out in Articles 47 and 48 of the Charter. The measures introduced pursuant to the Roadmap more specifically outline what these rights entail.
In accordance with Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, defendants should benefit from interpretation and translation services to the extent set by this directive. In addition, pursuant to Directive 2012/13/EU on the right to information, defendants should receive a written letter of rights drafted in simple and accessible language. In addition to the procedural rights set by this directive, in accordance with Framework Decision 2002/584/JHA (EAW Framework Decision), persons arrested pursuant to an EAW have a right to receive information about the warrant and its contents, the possibility of consenting to transfer and a right to legal assistance. Directive 2013/48/EU on the right of access to a lawyer, confirming the right to access a lawyer in both the executing and the issuing Member State, further specifies the scope of the right to legal assistance.
FRA’s fieldwork shows that defendants in EAW proceedings (‘requested persons’) face similar challenges to those involved in domestic criminal proceedings (see FRA opinion 1, in particular). Moreover, requested persons can face additional challenges, particularly given the cross-border nature of EAW cases.
In EAW cases, language barriers frequently impede individuals’ ability to benefit from their right to information about their rights, including to a lawyer. Respondents also highlight problems with understanding the possibility of consenting to the transfer to another EU Member State, which is also their right. Requested persons often misunderstand such information. Several respondents indicated that, as a result, they made decisions that were contrary to their interests.
FRA’s research shows that, overall, the right to be assisted and represented by a lawyer in surrender proceedings under an EAW is respected in executing Member States. However, the main practical problems arise from language barriers. Given the cross-border nature of EAW proceedings, which frequently involve defendants who do not speak the national language, ensuring access to interpretation services at the initial stage of the proceedings – and, in particular, facilitating communication with lawyers – is one of the most important safeguards of fair proceedings.
In addition, Member States do not effectively provide defendants (requested persons) with information about their right to access a lawyer in the issuing Member State. This leads to problems in defendants exercising this right in practice. One reason for this is that executing authorities do not feel competent to comment on laws in other states. In practice, relatives of defendants and/or lawyers in executing Member States often fill this gap by resorting to their own private contacts, including through different professional associations, hence facilitating defendants’ access to legal representation in issuing Member States.
In relation to the enjoyment of the right to a lawyer in the issuing Member State, the competent authority of the executing Member State should, without undue delay, provide the requested person with information about this right, and undertake the necessary steps to facilitate the appointment of a lawyer in the issuing Member State when requested persons wish to exercise this right. In particular, EU Member States should ensure that relevant authorities have in place practical arrangements to facilitate the effective exercise of this right.
Practical arrangements should ensure that executing authorities inform persons arrested on an EAW, both orally and in writing, of their right to have access to a lawyer in the issuing Member State in the language of the person requested. In addition, these should ensure that executing authorities take further positive steps in assisting persons requested under an EAW to access a lawyer in the issuing Member State. This would require a systematic solution. For example, the issuing Member State could provide a list of associations of lawyers together with the EAW or let defendants make a call abroad to the relevant association. To this end, EU Member States are encouraged to make use of all the networks available to them, such as the Contact Points of the European Judicial Network and/or Eurojust.
