7 december 2010 procedural rights of suspects and accused in the eu the roadmap and its...
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7 December 2010
Procedural rights of suspects and accused in the EU
The Roadmap and its implementation
Adrienne Boerwinkel Senior Legal AdviserDutch Ministry of Security and
Justice
2TAIEX Ankara | 6-7 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?
3TAIEX 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 the
fundamental legal principles of Member States.”
4TAIEX Ankara | 6-7 December 2010
European Convention on Human RightsKey articles in this context:
Article 5: right to libertyArticle 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
5TAIEX Ankara | 6-7 December 2010
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
6TAIEX Ankara | 6-7 December 2010
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)
7TAIEX Ankara | 6-7 December 2010
Roadmap on procedural rights
Six measures announced:
» Right to interpretation and translation
» Right to information
» Right to legal assistance
» Right to communicate while in detention
» Rights of vulnerable suspects
» Detention conditions
8TAIEX 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
9TAIEX 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
10TAIEX 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
11TAIEX Ankara | 6-7 December 2010
Right to information on rights and accusationProposal 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
12TAIEX 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
13TAIEX Ankara | 6-7 December 2010
What will follow?
Measure D: Communication while in detention: with family,employer, consular authorities
Measure E: Procedural rights of vulnerable suspects such as minorsor mentally disabled
Measure F:Green paper on detention conditions
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