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Right to information in criminal proceedings – frequently asked questions
Commission Européenne - MEMO/10/351 20/07/2010
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Brussels, 20 July 2010
Right to information in criminal proceedings – frequently asked questions
Why is action at European level needed on the right to information for suspects?
This right to information about basic fair trial rights is a necessary step to all other fair trial rights.
EU citizens are entitled to move and reside freely within the territory of all 27 EU Member States. More and more of them travel, study and work outside their home country (for example, an average of 47% of Germans, 34% of UK nationals and 16% of Italians take a holiday in another Member State). With this freedom comes a greater chance of finding themselves involved in criminal proceedings in another country.
If this happens, at home or abroad, every suspect must receive a fair trial that respects basic procedural rights like consulting a lawyer or having interpretation if needed. If you do not know that these are basic rights to which everyone is entitled, you may not insist upon them. Failure by the police to respect those rights will jeopardise the fairness of criminal proceedings and may lead to miscarriages of justice.
Immediate information about basic rights is essential because suspects are most vulnerable to intimidation and ill-treatment just after they have been arrested. This is best achieved with a Letter of Rights.
How well is this right to information respected today?
The European Court of Human Rights in Strasbourg says that authorities must make sure suspects are informed of their fair trial rights. These rights are not meant to be only theoretical but also to be effective in practice.
However, Member States still differ in their rules, the amount of information they give and how they provide it.
This means that the way suspects are informed of various fair trial rights depends on what country they are in: a suspect will be told of their right to interpretation orally in Belgium, in writing in Hungary and through a Letter of Rights in Germany. 15 countries only tell suspects about their right to remain silent orally.
The impact of the Letter of Rights to people in other countries depends on factors like translation: some EU countries provide a comprehensive Letter of Rights but only provide oral translations of it to people who cannot understand the language.
These varying standards and approaches can lead to suspects not being given all or any of the information they need for their defence.
This can hamper cooperation between different national authorities. Without minimum common standards to ensure fair proceedings, judicial authorities will be reluctant to send someone to face trial in another country. As a result, EU measures to fight crime – such as the European Arrest Warrant – may not be fully applied. 14,000 European arrest warrants were issued in 2008, up from 6,900 in 2005.
What is the effect of the proposal?
It would oblige Member States to make sure suspects receive two types of information:
When someone is arrested, Member States will be obliged to give them written information about their rights in everyday language – in the form of a Letter of Rights (see annex of IP for a model letter proposed by the Commission).
Member States would also have to ensure that they or their lawyers have access to documents in the case-file held by the police, prosecution or court. This right exists in all but three EU Member States, but the ease with which citizens can avail of it varies significantly.
This is part of the Commission's work to provide common standards for procedural rights in all criminal proceedings, including cross-border proceedings such as those based on a European Arrest Warrant.
What information is in the Letter of Rights?
The Letter of Rights, with which persons will have to be provided promptly when they are arrested, will contain practical details about their right:
The Letter of Rights does not create these rights – they come from the EU Charter of Fundamental Rights and the ECHR. The letter reflects the current minimum standard of fair trial rights that already apply across the EU.
EU countries are free to draw up their own Letters of Rights in an appropriate range of foreign languages as long as they include accurate information about these four core fair trial rights.
As a high level of consistency in the information in the Letters of Rights throughout the EU will make it easier for citizens to know their rights, the proposal contains a model Letter of Rights in all official EU languages. This is meant to help Member States design their Letters of Rights.
EU countries are encouraged to go further by including information about more rights or rights going beyond these four minimum rights.
The European Commission first called on EU countries to use Letters of Rights in 2004. At that time, only one country (Luxembourg) provided a Letter of Rights, as defined in today's proposal, which gave information on the rights to legal defence and the right to be immediately examined by a doctor.
Since then, more countries have introduced, expanded and provided translation for their Letters of Rights. Germany adopted its Letter on 1 January 2010 (available in 48 languages) and the Netherlands started on 1 April, 2010.
To be truly effective, Letters need to be given to arrested suspects automatically because not everyone knows if they can ask for them. They should be written in simple language and translated into several languages.
The EU proposal will help other countries learn from existing good practice – and also encourage consistency between different systems so that citizens know what to expect.
Won't this be a drain on resources for justice authorities? How will the letter be shown to suspects in practice?
Police officers will not have to carry 23 or more different linguistic versions of the Letter of Rights with them. It is expected that a Letter of Rights will be issued at the police station. They can be stored on the station’s computer and then issued in the correct language.
This is what already happens in 12 Member States. Germany produces the letter in 48 languages, the UK in 44, Sweden in 42, Austria in 20, but the Czech Republic in only one.
The Commission is providing a template in all EU languages to limit translation costs.
Are there examples of cases where the proposal would have made a difference?
Independent organisations have provided examples of EU citizens who were not sufficiently informed of their basic fair trial rights and the case against them. Suspects could not adequately defend themselves, leading to allegations of miscarriages of justice:
Is there already a specific right to information enshrined in law?
The European Convention on Human Rights (ECHR – Articles 5(2) and 6(3) (a)) obliges criminal justice authorities to inform suspects of the nature and cause of the accusation so they understand the charges and can prepare their defence.
The ECHR does not explicitly mention the right to information about fair trial rights, but the case-law of the Strasbourg Court requires judicial authorities to take proactive measures informing the suspect about the right to see a lawyer and take all reasonable steps to ensure that a suspect is fully aware of his rights.
What if countries already have a standard of protection higher than this measure?
The measure will implement common minimum standards in the EU. All countries will have to live up to these standards, but a country should not lower them if they have higher standards.
The Directive proposed today includes a non-regression clause to this effect (article 10).
What is the legal basis for EU law in this area?
Article 82(2) of the Treaty on the Functioning of the European Union says that the European Parliament and the Council may establish minimum rules to make sure judicial authorities in EU countries recognise and execute each others’ judgments and judicial decisions.
It also says that they can take measures to ensure that police and judicial cooperation in criminal matters carries no risk to the rights of individuals in criminal procedures.
What else will the Commission do to ensure the fair trial rights across the EU?
This proposal is the first step in a series of measures in the procedural rights roadmap, adopted by the Council on 30 November 2009. This invites the Commission to put forward proposals on a "step by step" basis (IP/10/447). The roadmap, which is an indicative list of measures, suggests the following:
This proposal seeks to translate Measure B into legislation, in accordance with the roadmap.
The timetable: what happens next?
The proposal will be discussed within the European Parliament and among EU governments. The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) will vote on it, followed by a vote in full plenary session.
For figures showing the number of foreigners per Member State, see
Provision of information on fair trial rights in June 2009:
N.B. Some Member States have introduced letters and may have changed systems since this survey was carried out.
O: Oral provision of information
W: Provision of information in writing by other means than Letter of Rights1
LR: Letter of Rights2
N/A: Right not applied in practice
NO: No right
Number of criminal proceedings in the EU
Figures and graphics available in PDF and WORD PROCESSED
There are several options by which information can be provided in writing but not amounting to a Letter of Rights, such as posters in police stations or the simple provision of suspects and accused persons with a copy of the legal provisions governing their right.
While there is no official definition of a Letter of Rights, in the study on EU Procedural Rights in Criminal Proceedings (2009) the LR is defined as ‘written information of the suspect’s procedural rights in a standardised form’ (p.34); it is possible to narrow the scope of this definition of LR to (1) easy and accessible document and understandable information on rights, (2) in a standardised form, (3) that is given to the suspect in the initial contacts with investigating authorities. The latter definition was provided directly by Taru Spronken and will be used in ‘EU-wide Letter of Rights in criminal proceedings: towards best practice’, Maastricht University, 2010
Germany introduced a Letter of Rights in January 2010
The Netherlands introduced a Letter of Rights in April 2010