The proposal aims to set common minimum standards on the rights of suspects and accused persons in criminal proceedings throughout the European Union to have access to a lawyer and to communicate upon arrest with a third person, such as a relative, employer or consular authority.
The proposal is the third stage in a series of measures identified in the 30 November 2009 European Council Resolution on a 'Roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings'. Those measures were tied to the Stockholm Programme approved by the Council in December last year and represent -
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.The first stage was Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation. The second stage ("currently under negotiation on the basis of a Commission proposal") concerns the right to information regaring criminal proceedings, setting out minimum rules on "the right to receive information on one’s rights, and on the charges, as well as on the right of access to the case file".
The proposed Directive noted here is based on Article 82(2) of the Treaty on the Functioning of the European Union, which provides that -
to 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.The Directive thus "seeks to improve the rights of suspects and accused persons", with the Commission commenting that -
Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. A certain degree of compatibility between the legislation of Member States is pivotal to improve judicial cooperation in the EU.The Commission notes that -
Article 47 of the Charter of Fundamental Rights of the European Union stipulates 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(3) of the European Convention of Human Rights & Fundamental Freedoms (ECHR). Article 6(3)(b) ECHR stipulates that everyone charged with a criminal offence has the right ‘to have adequate time and facilities for the preparation of his defence’ while Article 6(3)(c) enshrines the right ‘to defend [one]self in person or through legal assistance of [one’s] own choosing’. Article 14(3) of the International Covenant on Civil & Political Rights contains very similar provisions. Both the right of access to a lawyer and the right to communicate upon arrest provide formal safeguards against ill treatment and thus protect against a potential breach of Article 3 ECHR (prohibition of ill treatment). The right to communicate upon arrest promotes the right to respect for private and family life in Article 8 ECHR. The 1963 Vienna Convention on Consular Relations provides that, on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.The European Court of Human Rights has repeatedly held that Article 6 of the ECHR applies to the pre-trial stage of criminal proceedings and that a suspect must be offered the assistance of a lawyer at the initial stages of police questioning and as soon as deprived of liberty, irrespective of any questioning1. The Court has also ruled that these guarantees must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial.
The proposed Directive indicates that
A suspected or accused person deprived of his liberty should be entitled to communicate upon arrest with at least one person named by him, such as a family member or employer. Member States should also make sure that the legal representatives of a child suspected or accused of crime are informed as soon as possible that the child has been taken into custody and the reasons why the child has been taken into custody, unless it is contrary to the best interests of the child. This right should only be subject to derogation in very limited circumstances.
Where the detained person is a non-national, it is appropriate for the consular authorities of the person’s home state to be informed. Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the 1963 Vienna Convention on Consular Relations, which provides that on arrest or on detention, a foreign national has the right to ask for his consulate to be informed of the detention and to receive visits from consular officials.
