Explanatory Memorandum to COM(2010)392 - Right to information in criminal proceedings - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)392 - Right to information in criminal proceedings. |
|---|---|
| source | COM(2010)392  |
| date | 20-07-2010 |
1. This proposal for a Directive of the European Parliament and the Council aims to set common minimum standards as regards the right to information in criminal proceedings throughout the European Union. The proposal is the second step in a series of measures in the Procedural Rights Roadmap, adopted in Council on 30 November 2009 inviting the Commission to put forward proposals on a 'step by step' basis. This approach is now seen as a good way to build confidence and contribute to promoting and further enhancing mutual trust. This proposal should therefore be considered as part of a comprehensive package of legislation to be presented over the next few years which will provide a minimum set of procedural rights in criminal proceedings in the European Union.
2. The proposal seeks to improve the rights of suspects. Having common minimum standards in relation to these rights should facilitate the application of the principle of mutual recognition, thereby improving the functioning of judicial cooperation between Member States of the EU.
3. The first step, on the right to interpretation and translation, is a Directive adopted on 8 October 2010.
4. As regards the legal basis, the proposal is based on Article 82 i of the Treaty on the Functioning of the European Union (TFEU). That Article provides that, "[t]o the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d)[…]."
For mutual recognition to function well it is necessary to have mutual trust. A certain degree of compatibility is necessary to improve mutual trust and hence, cooperation.
5. Article 47 of the Charter of Fundamental Rights of the European Union (the Charter) provides for the right to a fair trial; Article 48 guarantees the rights of the defence and has the same meaning and scope as the rights guaranteed by Article 6 i of the ECHR i. As regards the European Convention on Human Rights and Fundamental Freedoms (ECHR), the right to information about rights can be inferred from the case-law of the European Court of Human Rights (ECtHR) on Article 6 ECHR, which has stated that authorities should take a proactive approach to ensuring that persons facing a criminal charge are informed of their rights. The right to information about the charge, which stems from Article 6(3)(a) ECHR, is fundamental for a person facing a criminal charge who must know the charges against him so that he is in a position to prepare his defence. Articles 9 i and 14 i of the International Covenant on Civil and Political Rights (ICCPR) i contain very similar provisions.
6. In order to inform the proposal, the Commission carried out an Impact Assessment. The report on the Impact Assessment is available at ec.europa.eu/governance/impact/ia_carried_out
Contents
- 2. BACKGROUND
- 3. THE RIGHT TO INFORMATION AS ESTABLISHED UNDER THE CHARTER AND THE ECHR
- 4. SPECIFIC PROVISIONS
- Article 7 - The right to access to the case-file
- Article 8 - Verification and remedies
- Article 9 - Training
- Article 10 - Non-regression clause
- Article 13 - Entry into force
- Annex I
- Annex II
- 5. SUBSIDIARITY PRINCIPLE
- 6. PROPORTIONALITY PRINCIPLE
7. Article 6 i of the Treaty on European Union (TEU) provides that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law. Article 6 i TEU provides that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the TFEU and TEU. The Charter applies to EU institutions and Member States when they are implementing Union law, such as in the field of judicial cooperation in criminal matters in the European Union.
8. The Presidency Conclusions of the Tampere European Council i stated that mutual recognition should become the cornerstone of judicial cooperation, but make the point that mutual recognition "...and the necessary approximation of legislation would facilitate […] the judicial protection of individual rights" i.
9. The Commission Communication to the Council and the European Parliament of 26 July 2000 on Mutual Recognition of Final Decisions in Criminal Matters i stated that “it must […] be ensured that the treatment of suspects and the rights of the defence would not only not suffer from the implementation of the principle [of mutual recognition] but that the safeguards would even be improved through the process”.
10. This was endorsed in the Programme of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters i, adopted by the Council and the Commission. It pointed out that “mutual recognition is very much dependent on a number of parameters which determine its effectiveness”.
11. These parameters include mechanisms for safeguarding the rights of suspects (parameter 3) and the definition of common minimum standards necessary to facilitate the application of the principle of mutual recognition (parameter 4). This proposal for a Directive is an embodiment of the stated aim of enhancing the protection of individual rights.
12. In 2004, the Commission put forward a comprehensive proposal i for legislation covering the most important rights of defendants in criminal proceedings. This proposal was not adopted by Council.
13. On 30 November 2009, the Justice Council adopted a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings i calling for the adoption of five measures covering the most basic procedural rights, based on a 'step-by-step' approach and inviting the Commission to present the necessary proposals to this end. The Council recognised that to date, not enough had been done at the European level to safeguard fundamental rights of individuals in criminal proceedings. The full benefit of EU legislation in this area will only be felt once all measures have been transposed into legislation. The second measure in the Roadmap, concerns the right to information.
14. The Stockholm Programme, adopted by the European Council of 10-11 December 2009 i, reaffirmed the importance of the rights of the individual in criminal proceedings as a fundamental value of the Union and an essential component of mutual trust between Member States and of public confidence in the EU. Protecting individuals' fundamental rights will also remove obstacles to free movement. The Stockholm Programme refers to the Roadmap as being an integral part of the multiannual programme and calls on the Commission to present appropriate proposals for its swift implementation.
15. Article 6 of the Charter - Right to liberty and security – stipulates that:
"Everyone has the right to liberty and security of person."
Article 47 of the Charter - Right to an effective remedy and to a fair trial – provides that:
"(…) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
(…)."
Article 48 of the Charter - Presumption of innocence and right of defence – stipulates that:
"2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed."
Within its scope of application, the Charter guarantees and reflects the corresponding rights enshrined in the ECHR.
Article 5 ECHR – Right to liberty and security - stipulates that:
" i Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
(…)".
And Article 6 – Right to a fair trial – stipulates that:
" i Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence
[…]"
16. A number of recent studies i show that the way suspects are informed of their rights varies widely and that in the majority of cases information on rights is only provided orally, which decreases its effectiveness and makes it more difficult to monitor. The right to information is not explicitly mentioned in the ECHR. However, there is case-law that requires judicial authorities to take positive measures in order to ensure effective compliance with Article 6 ECHR such as the decisions in Padalov i and Talat Tunc i in which the ECtHR stated that authorities should adopt an active stance in informing the suspect about the right to free legal aid. In the case of Panovits,[13] the ECtHR stated that authorities have a positive obligation to provide the suspect with information on the right to legal assistance and free legal aid if the conditions for it are fulfilled. It is not sufficient that this information is given in writing, for instance by a Letter of Rights, as was done by the authorities in the Panovits case. The ECtHR stresses that authorities have to take all reasonable steps to ensure that a suspect is fully aware of his rights.
17. Article 5 i and Article 6(3)(a) ECHR impose an obligation on the judicial authorities to inform a suspect of the nature and cause of the accusation so as to enable the suspect to understand the charges, to allow him to prepare his defence i and to challenge the lawfulness of his detention i. Even though both articles are specific in the information they require, they are limited to factual information about the reasons for the arrest and the nature and cause of the accusation and the respective legal basis. The amount of information to be communicated to the accused depends on the nature and complexity of the case since Article 6(3)(b) provides that the person must be provided with ' adequate time and facilities ' to prepare his defence and this will vary according to the case i. It follows that the authorities can be required to take additional steps in order to ensure that the suspect effectively understood the information i. The ECtHR case-law shows that most problems of compliance arise with regard to the positive measures that should ensure a fair trial. It is not sufficient to make the information available, in the sense that the suspect could have asked for it. The duty to inform the suspect about the nature and cause of the accusation rests on the prosecuting authority and cannot be complied with passively by making information available without bringing it to the attention of the defence i. The ECHR does not give any indication as to how the information should be given. Even though the Court decided in Kamasinski i that a suspect should in principle be provided with a written translation of the indictment if he does not understand the language, the Court accepted that oral explanations were sufficient in order to comply with Article 6 (3)(a).
18. In line with the mandate set out in the Procedural Rights Roadmap, this Directive lays down minimum requirements at EU level for the information of suspected and accused persons about their procedural rights and the case against them. It thus promotes the application of the Charter of Fundamental Rights, and in particular its Articles 6, 47 and 48 by building upon Articles 5 and 6 ECHR as interpreted by the ECtHR.
Article 1 - Objective
19. This Article sets out the objective of the Directive as laying down rules concerning the rights of suspected and accused persons to information about their rights and information about the charge in criminal proceedings against them.
Article 2 – Scope
20. The Directive applies from the time that a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings (including any appeal). It does not, however, apply in proceedings conducted by administrative authorities in relation to the breach of competition legislation, whether national or European, unless the case is brought before a court having jurisdiction in criminal matters.
21. European Arrest Warrant i proceedings are explicitly covered. In this respect, the Directive makes applicable the procedural guarantees contained in Articles 47 and 48 of the Charter and Articles 5 and 6 ECHR to surrender proceedings based on a European Arrest Warrant.
Article 3 – The right to information about rights
22. This Article lays down the general principle that all suspected and accused persons in criminal proceedings should be informed about relevant procedural rights at the earliest possible moment in the proceedings. Such information should be given in simple and accessible language, orally or in writing.
23. Paragraph 2 of this Article sets out those minimum rights and Member States' obligations arising from the Charter, the ECHR, the ICCPR and applicable EU legislation, which are considered key to safeguarding the fairness of criminal proceedings at their outset.
Article 4 – The right to written information about rights on arrest
24. This Article specifies Member States' general duty to inform suspected or accused persons about their procedural rights in cases where such persons are deprived of their liberty by Member States' competent authorities in the course of the criminal proceedings on suspicion of having committed a criminal offence (e.g. through arrest by the police and being placed in pre-trial detention on the order of a judge). Member States are required to inform these persons of their relevant rights in writing . The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), has repeatedly stressed in its reports that, in its experience, the period immediately following deprivation of liberty is when the arrested person is considered to be most vulnerable in relation to risks of intimidation and physical ill-treatment. According to the CPT it is essential that a suspected or accused person is informed of his rights promptly, i.e. without delay after his arrest and in the most effective way which is by means of a form explaining the rights in a straightforward manner i (Letter of Rights). In the light of recent ECtHR jurisprudence i, Member States' competent authorities are required to ensure that the arrested person has a broad understanding of the information contained in the Letter of Rights. The arrested person must be allowed to keep the Letter of Rights throughout the time of his detention.
25. The Letter of Rights should be drafted in language which is easily understood by a lay person without any knowledge of criminal procedure and should contain the information referred to in Article 3 i. To help Member States design such a Letter of Rights and to promote consistency in the written information throughout the European Union, Annex I to the Directive contains a model of the Letter of Rights which Member States may use. This model is indicative and may be subject to review in the context of the report on implementation to be presented by the European Commission pursuant to Article 12 of the Directive and also once all the Roadmap measures have come into force. The content of the model does not prejudice rights that currently apply in Member States.
26. The Letter of Rights has to be provided to the suspected or accused person in a language he understands. Police authorities are expected to keep language versions for all commonly spoken languages in their locality available in electronic form that can be printed as the need arises. When a given language version is not available, the suspected or accused person should be informed of their rights orally in a language they understand and the Letter of Rights should be given to them without undue delay (i.e. as soon as it becomes available after translation into the relevant language). For persons who are partially sighted or blind, or who cannot read, Member States must have a method of transmitting the information.
Article 5 – The right to written information about rights in European Arrest Warrant proceedings
27. Different rights apply to persons subject to a European Arrest Warrant (e.g. the right to a hearing). Member States should ensure that a specific version of the Letter of Rights exists for persons subject to those proceedings. Annex II to this Directive contains a model of the Letter of Rights which Member States may use. This model is indicative and may be subject to review in the context of the report on implementation to be presented by the European Commission pursuant to Article 12 of the Directive and also once all the Roadmap measures have come into force. The content of the model does not prejudice rights that currently apply in Member States.
Article 6 – The right to information about the charge
28. Once a person has been charged with a criminal offence, he should be given sufficient information promptly, in detail and in a language he understands, to enable him to prepare his defence, and to challenge pre-trial decisions if necessary. This is a requirement under the Charter and the ECHR. This Article sets out exactly what information must be given as a minimum requirement.
29. The most effective way to provide a suspected or accused person with detailed information about the charge in order to allow him adequately to prepare his defence at trial is to give him or his lawyer access to the case-file. Recent research i shows that in the large majority of Member States access to the case-file is already granted at some point in the criminal proceedings. The ECtHR has consistently ruled that, depending on the stage of criminal proceedings, Articles 5 i and 6(3)(b) ECHR and the principle of equality of arms between the prosecution and the defence require Member States to disclose to the defence all material evidence for or against the accused i and to provide the accused person's lawyer with access to relevant documents contained in the case-file i.
30. Paragraph 1 provides that where a suspected or accused person is arrested in the course of criminal proceedings, access to those documents contained in the case-file which are relevant to the determination of the lawfulness of the detention by the competent judicial authority should be granted. This limited access to the case-file ensures the fairness of pre-trial proceedings concerning the lawfulness of arrest and detention. In considering what documents and information access is being granted to, Member States should pay particular attention to the protection of the effectiveness of Leniency Programmes that are used in investigations under criminal law into cartel behaviour.
31. Paragraph 2 requires Member States to grant access to the case-file to all accused persons whether or not they are in custody, where the criminal investigation is concluded. Access to certain documents in the case-file may be excluded by a competent judicial authority where access to those documents may lead to serious risk to the life of another person or may seriously harm the internal security of the Member State in which the proceedings are taking place. Such limitation of access to the file is only to be used in exceptional circumstances.
32. Access to the case-file should not be limited to a one-off inspection. If the accused person or his lawyer deems it necessary, further access should be granted. If a file is particularly voluminous or where the interests of justice so require it, the accused person should be provided with an index of the documents contained in the case-file to enable him to decide to which documents he wishes to be given access.
33. In order to ensure that a suspected or accused person receives all the information to which he is entitled, Member States should establish a procedure to ascertain whether the person has received the information. This can for example be a form for the person to sign confirming that he has received the information or a note in the custody record.
34. The purpose of this Article is to ensure that Member States' police officers, prosecutors and judges receive the necessary training to discharge adequately their duties arising from Articles 3 to 8 of the Directive. In particular, it is imperative that these officials have the requisite detailed knowledge of the procedural rights of suspected and accused persons in order to provide relevant and practically effective information on these rights.
35. The purpose of this Article is to ensure that setting common minimum standards in accordance with this Directive does not have the effect of lowering standards in certain Member States and that the standards set in the ECHR are maintained. Member States remain entirely free to set standards higher than those agreed in this Directive.
Article 11 – Implementation
36. This Article requires that Member States must implement the Directive by x /xx/ 20xx and, by the same date, send the text of the provisions transposing it into national law to the Commission.
Article 12 – Report
37. 36 months after publication of the Directive in the Official Journal of the European Union , the Commission must submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, accompanied, if necessary, by legislative proposals.
38. This Article provides that the Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union .
39. This Annex contains an indicative model of the Letter of Rights to be provided to a suspected or accused person on arrest pursuant to Article 4 i. The model Letter of Rights sets out an explanation in simple language of the immediately relevant minimum rights as listed in Article 3 i of the Directive. Whilst there is no obligation on Member States to use the model, those that do will be presumed to have implemented Article 4 of the Directive. The model may be subject to review in the context of the report on implementation to be presented by the European Commission pursuant to Article 12 of the Directive and also once all the Roadmap measures have come into force. The content of this model does not prejudice rights that currently apply in Member States.
40. This Annex contains an indicative model of the Letter of Rights to be provided to a person arrested on the basis of a European Arrest Warrant as required by Article 5. Whilst there is no obligation on Member States to use the model, those that do will be presumed to have implemented Article 5 of the Directive. The model may be subject to review in the context of the report on implementation to be presented by the European Commission pursuant to Article 12 of the Directive and also once all the Roadmap measures have been brought into effect. The content of this model does not prejudice rights that currently apply in Member States.
41. The objective of the proposal cannot be sufficiently achieved by Member States alone, since there is still significant variance in the precise way and timing of the provision of information which leads to divergence of standards across the EU. As the aim of the proposal is to promote mutual trust only action taken by the EU will allow setting consistent common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States' substantive procedural rules in respect of the transmission of information about rights and about the charge to persons suspected or accused of having committed a criminal offence in order to build mutual trust. The proposal therefore complies with the subsidiarity principle. The Commission proposes a solution which differs slightly from the preferred option described in the Impact Assessment, but has comparable impacts. The cost of EU-mandated action is as estimated for the initially preferred option, because Member States will only incur extra costs if they choose to exercise their discretion rather than use the indicative model proposed within a Letter of Rights.
42. The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose.