Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings: - Outstanding issues and consolidated text - Montesquieu Instituut

 

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COUNCIL OFBrussels, 1 July 2011

THE EUROPEAN UNION

12163/11

Interinstitutional File:

2010/0215 (COD)

DROIPEN 69 COPEN 166 CODEC 1116 -

NOTE

from:

Presidency

to: JHA Counsellors

No. initiative: 12564/10 DROIPEN 83 COPEN 162 CODEC 727 + ADD 1 + ADD 2

No. prev. doc.: 10978/1/11 DROIPEN 50 COPEN 139 CODEC 946

Subject:

Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings:

• - 

  Outstanding issues and consolidated text

I.

INTRODUCTION

Following the discussions at the Trilogue on 16 June 2011, the Presidency would like to submit to

As before, given the fact that the instrument is still subject to debate, the Presidency would like to

reassure delegations that any provisional agreement on these issues will have to be confirmed

against the results of future negotiations with the co-legislator ("nothing is agreed until everything

is agreed").

II. OUTSTANDING ISSUES

• 1) 

  Information about rights (Article 3)

At the Trilogue on 16 June, while welcoming the substantial steps forward taken on a number of

issues in the Directive, the European Parliament still expressed its reluctance to retain the wording

"as they apply under their national law " as well as "when those rights become applicable ". In this

respect the European Parliament's compromise proposal would be the following:

1. Member States shall ensure that any person who is suspected or accused is provided

promptly, and in any event upon questioning by law enforcement authorities, with

information concerning at least the following procedural rights including how they are

exercised under national law:

[omissis]

2. The information referred to in paragraph 1 shall be provided in due time to allow the

To partially meet these concerns, the Presidency suggests the following amendments to the text of

Article 3:

• 1. 

  Member States shall ensure that any person who is suspected or accused of having

committed a criminal offence is provided promptly, and in any event upon

questioning by law enforcement authorities with information concerning at least the

following procedural rights as they apply under their national law, (...) in order to

allow for their effective exercise:

• - 

  the right of access to a lawyer;
• - 

  any entitlement to legal advice free of charge and the conditions for

obtaining it;

- the right to be informed of the accusation, in accordance with Article 6 of

this Directive;

• - 

  the right to interpretation and translation;
• - 

  the right to remain silent.

[omissis]

This proposal has to be read in conjunction with the changes brought into recital 18 which would

read as follows:

Concerning the reference to Article 6 in the third indent of the list, the Presidency proposal would

be to revert to this issue once an agreement has been reached on the content of the referred Article.

Delegations are invited to endorse the above compromise wording for Article 3 of the draft

Directive.

• 2) 

  Content of the Letter of rights (Article 4 (2))

At the meeting of the COREPER on 16 June the Presidency has proposed a revised compromise

wording concerning the description of the content of the Letter of rights. The Presidency has taken

note of a positive attitude of delegations on the matter, although concerns have been expressed by

certain delegations in relation to specific issues. In order to further improve the proposal along the

lines indicated by delegations, the Presidency would like to propose the following amendments:

• - 

  In relation to the first indent of the list : the reference to Article 7 has been deleted;
• - 

  In relation to the second indent: some delegations expressed their worries about the risk to

preclude the ongoing discussion on the initiative on the right to communicate upon arrest

that has been recently presented by the Commission; The Presidency proposes therefore to

stick to the wording used by the roadmap ("at least one person ") on the last sentence of

paragraph 2, some delegations argued that the information required would be too extensive

to fit with the condition of simplicity required by a Letter of Rights. The Presidency

Delegations are invited to endorse the following compromise wording for the text of Article 4

para. 2a of the draft Directive:

Article 4

The right to written information about rights

• 1. 

  [omissis]

2a. In addition to the information to be given under Article 3, the Letter of rights referred

to in paragraph 1 shall contain information about the following rights as they apply under

national law:

- the right to access to the materials of the case (...);

• - 

  the right to have consular authorities and at least one person informed (...) ,

- the right of access to urgent medical assistance;

• - 

  for how many hours/days he may be deprived of liberty before being brought before

a judicial authority.

The Letter of rights shall also contain basic information about any possibility to obtain a

review of the detention or to ask for provisional release.

[omissis]

In order to find compromise, delegations are invited to consider the following wording:

Article 6

The right to information about the accusation

• 1. 

  (ex 2.) Member States shall ensure that a suspected or accused person who is subject to

a criminal charge is provided promptly with (...) information about that charge or the

criminal act he is suspected of having committed. This information shall be provided in

due time and in such detail as is necessary to safeguard the fairness of the criminal

proceedings and effectively exercise his right of defence

[1a. Member States shall ensure that a person who is officially interviewed as a suspect or

accused by the police or another competent authority in the course of a criminal proceeding is

informed of the criminal act he is suspected of having committed.]

• 2. 

  (ex 1.) Member States shall ensure that a person who is [arrested/deprived of liberty ] is

informed of the reasons for his [arrest/deprivation of liberty ], including the criminal act he is

suspected of having committed.

• 3. 

  At the latest upon submission of the merits of the accusation to a court, the

information on the accusation shall (...) include as a minimum:

(a) a description of the acts the accused is alleged to have committed, including time and

place and

In order to take into account the EP's request for specification of the content of the information on

the charge outside the trial stage, Article 6 (1) as proposed above could be complemented by a

Recital stating as follows:

"(..) In the course of the proceedings the suspected or accused person should be

informed in due time of the charge against him, or of the acts he is suspected of having

committed. This information should be given in enough detail, in relation to the phase

of the proceedings when it is given, to safeguard the fairness of the proceedings and

allow for an effective exercise of the right of defence, and should include, where

necessary and possible, a description of the facts the person is suspected or accused of

having committed as well as the possible legal classification of the offence."

• 4) 

  Exceptions to the right of access to the materials of the case (Article 7)

At the Trilogue on 16 June, the EP expressed strong opposition to the wording used in paragraph 1

of Article 7 which refers to "information related to the specific case ". The EP would prefer a

reference to "material " or "document " related to the case. In its amendment, EP also proposed to

replace "essential " by "relevant ".

In order to partially meet these concerns, delegations are invited to consider the following

wording for paragraph 1 of Article 7:

At the Coreper of 16 June, delegations also discussed the insertion in Article 7 (4) of an explicit

reference to the possibility that the decision not to disclose certain materials be subject, at some

stage of the procedure, to the review of a judicial authority. This possibility was also discussed with

EP at the Trilogue on the same day. EP has insisted on the following wording for Article 7 (4):

"4. Access to certain documents may exceptionally be refused on the basis of a reasoned

decision by a competent judicial authority where access to those documents is likely to

lead to serious risk to the life or fundamental rights of another person, is likely to

seriously harm an overriding public interest such as in the cases where it risks to

prejudice other ongoing investigations or where it may seriously harm the national

security of the Member State in which the proceedings take place.

Taking into account the comments made both by EP and the delegations, the Presidency would like

to ask delegations to accept a possible compromise text.

Delegations are invited to endorse the following compromise wording for paragraph 4 of

Article 7:

• 4. 

  As an exception to paragraphs 2 and 3, provided that this does not prejudice the right to

a fair trial, access to certain materials may be refused if it may lead to serious risk to the life

or fundamental rights of another person or if it is strictly necessary to safeguard an important

public interest, such as in the cases where it risks jeopardizing an ongoing investigation, or

ANNEX

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2010/0215 (COD)

Proposal for a

DIRECTIVE .../.../EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the right to information in criminal proceedings

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article

82(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national Parliaments,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1)3 The European Union has set itself the objective of maintaining and developing an area of

freedom, security and justice. According to the conclusions of the European Council in

(2) On 29 November 2000 the Council, in accordance with the Tampere Conclusions, adopted a

programme of measures to implement the principle of mutual recognition of decisions in

criminal matters1. The introduction to the programme of measures states that mutual

recognition is "designed to strengthen cooperation between Member States" and "to enhance

the protection of individual rights".

(3) Implementation of the principle of mutual recognition of decisions in criminal matters

presupposes that Member States have trust in each other's criminal justice systems. The

extent of the mutual recognition exercise is very much dependent on a number of

parameters, which include mechanisms for safeguarding the rights of suspected or accused

persons and common minimum standards necessary to facilitate the application of the

principle of mutual recognition.

(4) Mutual recognition can only operate effectively in a spirit of confidence, whereby not only

judicial authorities, but all actors in the criminal process see decisions of the judicial

authorities of other Member States as equivalent to their own, implying not only trust in the

adequacy of one's partners' rules, but also trust that those rules are correctly applied.

(5) Article 47 of the Charter of Fundamental Rights of the European Union (the Charter) and

Article 6 of the European Convention for the Protection of Human Rights and Fundamental

Freedoms (ECHR) enshrine the right to a fair trial. Article 48 of the Charter guarantees

respect for the rights of the defence.

(8) Strengthening mutual trust requires detailed rules on the protection of the procedural rights

and guarantees stemming from the Charter and the ECHR.

(9) Article 82(2) of the Treaty provides for the establishment of minimum rules applicable in

the Member States so as to facilitate mutual recognition of judgments and judicial decisions

and police and judicial cooperation in criminal matters having a cross-border dimension.

Point (b) of Article 82(2) refers to "the rights of individuals in criminal procedure" as one of

the areas in which minimum rules may be established.

(10) Common minimum rules should lead to increased confidence in the criminal justice systems

of all Member States, which in turn should lead to more efficient judicial cooperation in a

climate of mutual trust. Such common minimum rules should apply to information in

criminal proceedings.

(11) On 30 November 2009, the Council adopted the Roadmap for strengthening procedural

rights of suspected and accused persons in criminal proceedings ("the Roadmap")1. Taking a

step-by-step approach, the Roadmap calls for the adoption of measures regarding the right to

translation and interpretation, the right to information on rights and information about the

accusation, the right to legal advice and legal aid, the right to communication with relatives,

employers and consular authorities, and regarding special safeguards for suspected or

accused persons who are vulnerable. The Roadmap emphasises that the order of the rights is

indicative only and thus implies that it may be changed according to priorities. It is designed

to operate as a whole; only when all its component parts have been implemented will its

(13) The first measure on the Roadmap is a Directive of the European Parliament and of the

Council on the rights to interpretation and to translation in criminal proceedings1.

(14) The present Directive relates to measure B of the Roadmap. It lays down common minimum

standards to be applied in the field of information about rights and about the accusation to be

given to persons suspected or accused of having committed a criminal offence, with a view

to enhancing mutual trust among Member States. The Directive builds on the rights laid

down in the Charter, and in particular its Articles 6, 47 and 48 by building upon Articles 5

and 6 ECHR as interpreted by the European Court of Human Rights. In its Communication

"Delivering an area of freedom, security and justice for Europe's citizens", the Action Plan

Implementing the Stockholm Programme2, the Commission announced the presentation of a

proposal on the right to information in 2010.

(14a) The Directive should apply to suspected and accused persons regardless of their legal

status, citizenship or nationality.

(15) (...)

(15a) In some Member States an authority other than a court having jurisdiction in criminal

matters has competence for imposing sanctions in relation to relatively minor offences. That

may be the case, for example, in relation to traffic offences which are committed on a large

scale and which might be established following a traffic control. In such situations, it would

(16) The right to information about procedural rights (which is inferred from the case-law of the

European Court of Human Rights) should be explicitly established by the Directive.

(17) (...)

(18) The suspected or accused person should be informed in due time by the competent

authorities of those rights, provided for under national law, which are essential to safeguard

the fairness of the proceedings, be it orally or in writing, as provided for by this Directive.

In order to allow a practical and effective exercise of the rights of the suspected or

accused person, the information should be provided as soon as possible in the course of

the proceedings, at the latest before the first questioning of the suspected or the accused

person by the police or another competent authority.

(18a) Information about those rights should as a minimum requirement under this Directive include

information on the right of access to a lawyer, any entitlement to legal advice free of charge

and the conditions for obtaining it, the right to interpretation and translation, the right to

remain silent and, when the person is arrested, the information on the national law on the

maximum length of deprivation of liberty before being brought before a judicial authority

after arrest. This is without prejudice to information to be given on other procedural rights

stemming from the Charter, the ECHR, national law and applicable EU legislation as

interpreted by the relevant courts and tribunals.

(...) Once the information about a particular right has been provided, it is understood that

(19) Where a suspected or accused person is arrested, information about applicable procedural

rights should be given by means of a written Letter of Rights drafted in an easily

comprehensible manner so as to assist the actual understanding of his rights. [To help

Member States design such a Letter of Rights, a model of the Letter of Rights, which

Member States may use, is provided in Annex I to the Directive. 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 actual letter may also include other relevant

procedural rights that apply in Member States] 1.

(19a) In cases where the competent authority has already informed the suspected or accused

person of the accusation itself, the obligation to inform him of the right to be informed of

the accusation according to Art. 3 para 1 should not apply.

(19a) The arrested person should be allowed to keep in his possession the Letter of Rights

throughout the time he is deprived of his liberty. However, under exceptional circumstances,

when necessary to safeguard the safety of the person under arrest or another person,

competent authorities may decide not to allow the arrested person to keep in his possession

the Letter of Rights, provided that he has been fully informed about its content.

(19b) (...).

(21) (...)

(21a) For the purpose of this Directive, access to the materials of the case should include at least

access to the material evidence, as defined in national law, which is for or against the

suspected or accused person and in the possession of the competent authorities in relation to

the specific criminal case. Such information may be contained in a case file or otherwise

held by competent authorities in any appropriate way in accordance with national law.

(21b) Access to the material evidence for or against the accused in the possession of the competent

authorities, as provided for under this Directive, may be refused, according to national law,

if this may lead to the serious risk for the fundamental rights of another person or if strictly

necessary to safeguard an important public interest. This must be weighed against the rights

of defence of the suspected or accused person, taking into account the different phases of the

proceedings. These limitations should be interpreted strictly and in accordance with the

principle of the right to a fair trial as provided by the ECHR and interpreted by case law of

the European Court of Human Rights.

(21c) Access to the materials of the case may be provided directly, by allowing consultation of the

materials or documents contained therein, or indirectly, by providing copies or information

about its contents, if so required by national law.

(21d) Consultation of the materials of the case, as provided for by this Directive, should be

(22a) A suspected or accused person or his lawyer should have the right to challenge, in

accordance with procedures in national law, the possible failure or refusal of the competent

authorities to provide the information or to disclose certain materials of the case in

accordance with this Directive. That right does not entail the obligation for Member States

to provide for a specific appeal procedure, a separate mechanism or complaint procedure in

which such failure or refusal may be challenged.

(23) Without prejudice to judicial independence and differences in the organization of the

judiciary across the Union, Member States should provide or encourage the provision of

adequate training with respect to the objectives of this Directive (...) to the relevant officials

in Member States.

(23a) Member States should undertake all the necessary action to comply with this Directive. A

practical and effective implementation of some of the provisions such as the obligation to

provide the suspected or accused person with information on his rights in simple and

accessible language could be achieved by different means including non legislative

measures such as appropriate training for the competent authorities or by a Letter of Rights

drafted in a simple and non technical language so as to be easily understood by a lay person

without any knowledge of criminal procedural law.

(...)

(25) The right to be informed about rights on arrest provided for in this Directive should also

apply, mutatis mutandis , to persons arrested for the purpose of the execution of a European

Arrest Warrant according to the Council Framework 2002/584/JHA of 13 June 2002 on the

(26) The provisions of this Directive set minimum rules. Member States may extend the rights set

out in this Directive in order to provide a higher level of protection in situations not

explicitly dealt with in this Directive. The level of protection should never go below the

standards provided by the ECHR, as interpreted in the case-law of the European Court of

Human Rights.

(27) This Directive respects fundamental rights and observes the principles recognised by the

Charter. In particular, this Directive seeks to promote the right to liberty, the right to a fair

trial and the rights of the defence. It has to be implemented accordingly.

(28) Member States should ensure that the provisions of this Directive, where they correspond to

rights guaranteed by the ECHR are implemented consistently with those of the ECHR and as

developed by the relevant case-law of the European Court of Human Rights.

(29) Since the aim of achieving common minimum standards cannot be achieved by Member

States acting unilaterally, either at national, regional or local level, and can only be achieved

at Union level, the European Parliament and the Council may adopt measures in accordance

with the principle of subsidiarity as referred to in Article 5 of the Treaty on European Union.

In accordance with the principle of proportionality, as set out in the latter Article, this

Directive does not go beyond what is necessary in order to achieve that objective.

(30) In accordance with Articles 1, 2, 3 and 4 of Protocol on the position of the United Kingdom

and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the Treaty

Article 1

Objective

The Directive lays down rules concerning the right to information about (...) rights in criminal

proceedings and rights in proceedings for the execution of a European arrest warrant and about the

[charge/accusation ] in criminal proceedings.

Article 2

Scope

• 1. 

  This Directive applies from the time a person is made aware by the competent authorities of a

Member State (...) that he is suspected or accused of having committed a criminal offence

until the conclusion of the proceedings, which is understood to mean the final determination

of the question whether the suspected or accused person has committed the offence,

including, where applicable, sentencing and the resolution of any appeal.

2. (...)

• 3. 

  Where the law of a Member State provides for the imposition of a sanction regarding minor

offences by an authority other than a court having jurisdiction in criminal matters, and the

imposition of such a sanction may be appealed to such a court, this Directive shall apply only

to the proceedings before that court following such an appeal.

Article 3

The right to information about rights

• 1. 

  Member States shall ensure that any person who is suspected or accused of having

committed a criminal offence is provided promptly, and in any event upon

questioning by law enforcement authorities with information concerning at least the

following procedural rights as they apply under their national law, (...) in order to

allow for their effective exercise:

• - 

  the right of access to a lawyer;
• - 

  any entitlement to legal advice free of charge and the conditions for

obtaining it;

- the right to be informed of the accusation, in accordance with Article 6 of

this Directive;

• - 

  the right to interpretation and translation;
• - 

  the right to remain silent.

1a. (...)

• 2. 

  The information shall be provided either orally or in writing and in simple and

Article 4

The right to written information about rights on arrest

• 1. 

  Member States shall ensure that a person who is [arrested/deprived of liberty ] is provided

promptly with a written Letter of Rights (...). He shall be given an opportunity to read the

Letter of Rights and be allowed (...) to keep it in his possession throughout the time he is

deprived of his liberty [unless this could directly lead to a risk of harm to the detained

person or another person] 1.

2a. In addition to the information to be given under Article 3, the Letter of rights referred to in

paragraph 1 shall contain information about the following rights as they apply under

national law:

- the right to access to the materials of the case (...);

• - 

  the right to have consular authorities and at least one person informed (...) ,

- the right of access to urgent medical assistance;

• - 

  for how many hours/days he may be deprived of liberty before being brought before

a judicial authority.

The Letter of rights shall also contain basic information about any possibility to obtain a

review of the detention or to ask for provisional release.

• 2. 

  The Letter of Rights shall be drafted in simple and accessible language. Annex I to this

Directive contains an indicative model of such a Letter2.

Article 5

The right to written information about rights in European Arrest Warrant proceedings

Member States shall ensure that any person who is arrested for the purpose of the execution of a

European Arrest Warrant receives promptly an appropriate Letter of Rights containing information

on national law concerning at least the rights of that person as laid down in Articles 11, 13 (2), 14

and 19 of the Framework Decision 2002/584/JHA.1 Annex II to this Directive contains an indicative

model of such Letter2. The Letter of Rights shall be drafted in simple and accessible language.

Article 6

The right to information about the accusation

• 1. 

  (ex 2.) Member States shall ensure that a suspected or accused person who is subject to a

criminal charge is provided promptly with (...) information about that charge or the

criminal act he is suspected of having committed. This information shall be provided in

due time and in such detail as is necessary to safeguard the fairness of the criminal

proceedings and effectively exercise his right of defence

• 2. 

  (ex 1.) Member States shall ensure that a person who is [arrested/deprived of liberty ] is

informed of the reasons for his [arrest/deprivation of liberty ], including the criminal act he is

suspected of having committed.

• 3. 

  At the latest upon submission of the merits of the accusation to a court, the information

on the accusation shall (...) include as a minimum:

(a) a description of the acts the accused is alleged to have committed, including time and

place and

(b) the nature and legal classification of the offence, as well as the nature of

participation by the accused person.

4. After submission of the merits of the accusation to a court, the accused person shall be

informed of any changes to the information referred to in paragraph 3, where this is

necessary to safeguard the fairness of the proceedings. -

Article 7

The right to access to the materials of the case

• 1. 

  Where a person is arrested and detained at any stage of the criminal proceedings, Member

States shall ensure that all information related to the specific case in the possession of the

competent authorities and which is essential to effectively challenge according to national law

the lawfulness of the arrest or detention, is made available to the arrested person or his lawyer

• 3. 

  Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be

granted in due time to allow the effective exercise of the right of defence and at the latest upon

submission of the merits of the accusation to the judgement of a court. Where further material

evidence comes into the possession of the competent authorities, access shall be granted to it

in due time to allow for it to be considered.

• 4. 

  As an exception to paragraphs 2 and 3, provided that this does not prejudice the right to a fair

trial, access to certain materials may be refused if it may lead to serious risk to the life or

fundamental rights of another person or if it is strictly necessary to safeguard an important

public interest, such as in the cases where it risks jeopardizing an ongoing investigation, or

where it may seriously harm the national security of the Member State in which the

proceedings take place. Member States shall ensure that, in accordance with procedures in

national law, the decision not to disclose certain materials in accordance with this

paragraph be taken by a judicial authority or that the suspected or accused person has the

right to challenge before a judicial authority a decision not to give access to certain

materials.

• 5. 

  The information or access referred to in this Article shall be provided free of charge.

Article 8

Verification and remedies

Article 9

Training

Without prejudice to judicial independence and differences in the organisation of the judiciary

across the Union, Member States shall request those responsible for the training of judges,

prosecutors, police and judicial staff involved in criminal proceedings to provide appropriate

training with respect to the objectives of this Directive.

Article 10

on-regression clause

Nothing in this Directive shall be construed as limiting or derogating from any of the rights and

procedural safeguards that are ensured under the the Charter, the European Convention for the

Protection of Human Rights and Fundamental Freedoms, and other relevant provisions of

international law or the law of any Member States which provide a higher level of protection.

Article 11

Transposition

• 1. 

  Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by...1 .

Article 12

Report

The Commission shall, by .......... 1 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.

Article 13

Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official

Journal of the European Union .

Article 14

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Brussels,

For the European Parliament For the Council

The President The President -

____________