Vitorino presenteert ontwerpbesluit voor rechten van verdachten en advocaten in strafrechtprocedures (en)

The European Commission has adopted its first defence orientated proposal for a framework decision in the area of criminal justice. The proposal, transmitted to the Council and the European Parliament, covers the issues of suspects and defendants' access to legal advice, access to interpretation and translation for non-native defendants, protecting those who cannot understand or follow the proceedings, consular assistance to foreign detainees, the Letter of Rights, evaluation and monitoring. The rights of the defence were explicitly mentioned in the conclusions of the European Council when it met in Tampere, Finland, in October 1999 to decide how to implement the Amsterdam Treaty in the field of Justice and Home Affairs. The aim is to achieve equivalence between the Member States, although the starting point will be "common minimum standards", leaving the Member States free to build on those in order to ensure a fair trial system within their jurisdiction.

"This proposed directive is inspired by the need to guarantee for all European citizens common minimum rights in judicial procedures," said Antonio Vitorino i, Commissioner for Justice and Home Affairs. "The European area of freedom, security and justice that we are creating can only be consolidated if our legislative action achieves the correct balance between the search for security and the guarantee of fundamental freedoms."

The proposal in detail

The Framework Decision covers the following areas:

Access to legal advice, both before the trial and at trial.

• Legal advice should be an entitlement throughout all criminal proceedings which here means "all proceedings taking place within the European Union aiming to establish the guilt or innocence of a person suspected of having committed a criminal offence or to decide on the outcome following a guilty plea in respect of a criminal charge".

• Where the suspected person is not able to understand or follow the proceedings (owing to a medical, physical or emotional condition) or is a minor or is the subject of a European Arrest Warrant or extradition request or other surrender procedure, legal advice should always be made available (unless the suspect explicitly exercises his right to defend himself).

• Member States should bear the costs of legal advice where those costs represent undue hardship for the suspected person or his dependants.

• Member States should implement a system for providing a replacement if the original lawyer is found not to be "effective".

  Access to interpretation and translation for non-native defendants

• The free assistance of an interpreter is to be an automatic right for a suspected person who cannot understand or speak the language used in court. The right also covers translations of all the relevant documents in the proceedings.

• Legal and court interpreters should be qualified and provide accurate interpretation (and translation) and there should be a mechanism to replace those that fall below an acceptable standard.

• Proceedings where an interpreter is used are to be recorded so that quality can be subsequently verified in the event of a dispute/appeal.

  Protecting persons who cannot understand or follow the proceedings.

• Certain suspects are in a weaker position than the average person owing to their age or their physical, mental or emotional condition when it comes to understanding or following the proceedings. These persons need specific attention to ensure that their particular rights are respected and to guard against a possible miscarriage of justice.

• Law enforcement and judicial officers should have an increased awareness of the problems of those persons. They will be required to consider whether the suspected person is in need of specific attention, and if so, they should take the necessary steps to offer that person the appropriate attention.

• The nature of the specific attention to be offered will vary according to the situation. For example, children should be accompanied by a parent or appropriate adult during questioning, persons needing medical attention should be provided with a doctor etc. Whilst every situation cannot be set out and provided for in an instrument of this type, the responsibility must be on Member States to ensure that their criminal justice system provides for specific attention for those suspects and defendants who need it. A written note must be made of any finding that specific attention is needed.

  Communication and consular assistance to foreign detainees.

• A detained person should be entitled to have family members, persons assimilated to family members and his or her employer informed of the detention. This can be achieved by having the relevant information communicated on behalf of the detained person if there are concerns about preserving any evidence.

• Where the detained person is a non-national, it may be appropriate for the consular authorities of the person's home state to be informed. Foreign suspects and defendants are an easily identifiable 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 have his consulate informed of the detention and to receive visits from consular officials.

• Foreign nationals may refuse to see a consular official who is the representative of their government (e.g. if they are asylum seekers or refugees fleeing persecution in their State of origin). Those falling into this category may contact representatives from a recognised international humanitarian organisation.

• Long-term non-national residents of an EU Member State shall be entitled to have the assistance of the consular authorities of that State on the same basis as its own nationals if they has good reason for not wanting the assistance of their consular authorities informed, for example in the case of refugees.

The Letter of Rights

The proposal is for Member States to be required to produce a short, standard written statement of basic rights (with common EU headings under which national provisions are listed) and to make it compulsory for all suspects to be given this written notification in a language they understand at the earliest possible opportunity and certainly before any questioning takes place. This should make it easier for suspected persons to enforce their rights since they would be made aware of them in an accessible and understandable form, even if not nationals of the State of arrest.

Evaluation and monitoring:

The draft also includes a section on proposals for evaluation and monitoring of compliance. The Commission proposes that this evaluation should be carried out under its supervision with the help (for analysis of statistics and research) of an independent body.

Background

This proposal has been called for by the European Parliament ever since the adoption of the proposal for a European Arrest Warrant in September 2001. Some professional associations, journalists, lawyers and NGOs as well as representatives of Ministries of Justice have also expressed concerns that the EU has adopted instruments the emphasis of which is mainly repressive, without enough consideration for individual rights.

The rights of the defence were explicitly mentioned in the conclusions of the European Council when it met in Tampere, Finland, in October 1999 to decide how to implement the Amsterdam Treaty in the field of Justice and Home Affairs.

The aim is to achieve equivalence between the Member States and not the same standards although the starting point will be "common minimum standards", leaving the Member States free to build on those in order to ensure a fair trial system within their jurisdiction.

Other defence oriented measures will be adopted over the next few years, starting very soon with the Green Paper on bail. There will be a public consultation on the presumption of innocence and other evidence-based safeguards, possibly as soon as the end of 2004.

Additionally, there is work underway on a forthcoming Green Paper on approximation, mutual recognition and enforcement of criminal sanctions.