Procedural rights of
suspects and accused in
the EU
The Roadmap and its
implementation
Justice
Adrienne Boerwinkel
Senior Legal Adviser
Dutch Ministry of Security and
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?
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TAIEX 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
fundamental legal principles of Member States.”
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TAIEX Ankara | 6-7 December 2010
the
European Convention on Human Rights
Key articles in this context:
Article 5: right to liberty
Article 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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TAIEX Ankara | 6-7 December 2010
Roadmap on procedural rights
Six measures announced:
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»
Right to interpretation and translation
»
Right to information
»
Right to legal assistance
»
Right to communicate while in detention
»
Rights of vulnerable suspects
»
Detention conditions
TAIEX Ankara | 6-7 December 2010
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
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TAIEX 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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TAIEX Ankara | 6-7 December 2010
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
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TAIEX Ankara | 6-7 December 2010
Right to information on rights and accusation
Proposal 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
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TAIEX 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 minors
or mentally disabled
Measure F:
Green paper on detention conditions
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TAIEX Ankara | 6-7 December 2010