Procedural rights in domestic criminal proceedings
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.
Informing defendants about their rights in an effective manner
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:
- law enforcement officers assigning defendants a procedural status other than that of a suspect – for example person of interest, witness, person invited for an ‘intelligence talk’ – during the first phases of the criminal proceedings, in cases in which the person is in fact suspected;
- barriers to defendants accessing information due to particular vulnerabilities, such as language barriers, a lack of education, a disability or intoxication with alcohol or drugs;
- the overall accessibility of the format in which the information about rights is provided;
- authorities not having practices to verify a defendant’s understanding of the information provided, especially when no lawyer is present. Directive 2012/13/EU on the right to information in criminal proceedings provides, in Article 3 (2) and Article 4, that information about rights should be given orally or in writing, in simple and accessible language, taking into account any particular needs of vulnerable defendants. Only when defendants are deprived of liberty do the relevant authorities have to provide them with a written ‘letter of rights’, drafted in simple and accessible language so that it can be easily understood by a lay person without any knowledge of criminal procedural law. Accordingly, the directive stresses the need for people to actually understand the information provided. Relevant case law of the European Court of Human Rights (ECtHR) also establishes requirements of accessibility of information, as only a defendant’s effective understanding of rights makes it possible for him or her to exercise those rights.
FRA opinion 1
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.
Treating defendants as witnesses
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.
FRA opinion 2
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.
Facilitating defendants’ direct and prompt access to legal assistance
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.
FRA opinion 3 EU Member States should ensure that relevant safeguards are in place to allow the effective exercise of the right to a lawyer. In this context, EU Member States should provide further guidance to law enforcement authorities to facilitate prompt, direct and confidential access to a lawyer before the first questioning of defendants deprived of their liberty. Such guidance should also highlight the need for confidential access, to allow defendants to have a private conversation with a lawyer and to obtain legal advice as soon as possible after an arrest.
In general, Member States should ensure that, when defendants want their lawyers present, law enforcement authorities delay questioning and refrain from any procedural activities until the lawyer arrives. This should apply regardless of whether or not the defendant is deprived of liberty.
Providing accurate and clear information about the charges against a defendant and reasons for their arrest
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.
FRA opinion 4 EU Member States are encouraged to put in place necessary safeguards to ensure that suspects receive an accurate description of the charges against them, which should include both the legal classification and the facts (i.e. details of the alleged wrongdoing). Equally, any person arrested should know why they are being deprived of their liberty. Accordingly, national authorities should provide such defendants with information about not only the essential legal provisions, but also the factual grounds for their arrest. To this end, EU Member States should provide further guidance to national authorities on how to ensure that the information about the accusation and the reasons for arrest be provided as soon as possible, and be as detailed and as clear as possible.
Surrender proceedings under the European arrest warrant
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.
Informing defendants about their rights in an effective manner
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.
EU Member States should ensure that relevant safeguards are in place to allow the effective exercise of the right to information. EU Member States should encourage competent national authorities to find ways of verifying that defendants, especially those who do not speak the national language, have understood the information provided to them. EU Member States might consider cooperation on access to interpretation services (for instance, by sharing a pool of interpreters available via a secure phone line). National authorities should also take measures to explain to anyone arrested on an EAW, in detail and in simple language, what it means to consent to a transfer to another EU Member State. This explanation should clearly cover the defendant’s deprivation of liberty and forced transport to the Member State that asked for their transfer, as well as the subsequent proceedings that will take place there.
Ensuring effective legal representation in both the issuing and executing Member States
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.
EU Member States must ensure that the right of the accused to appoint and be assisted by a lawyer in both the executing and issuing Member States is fully respected, with the executing Member State ensuring early access to interpretation services.
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.