Know Your Rights to Information on

Transcription

1 Know Your Rights to Information on CRIMINAL Charges GRACE MULVEY & SINÉAD SKELLY The JUSTICIA European Rights Network is coordinated by the Irish Council for Civil Liberties

2 9 13 Blackhall Place Dublin 7 Ireland T F E info@eujusticia.net

3 CONTENTS 1 Keywords 4 2 General information 11 3 How are EU Directives made? 13 4 Your guide to the Directive on the Right to Information in Criminal Proceedings 16 5 Background to the Directive on the Right to Information in Criminal Proceedings 18 6 Directive on the Right to Information in Criminal Proceedings: 20 A Scope of the right to information 20 B From the investigation stage 20 C From the arrest and/or detention stage 22 D Information about the accusation 24 E Access to materials of the case 24 F Challenge to the non-provision of information or to the refusal of access to materials of the case 27 G European Arrest Warrant 27 H Letter of rights explainer 28 7 Useful Contacts 33 Annex I of the Directive: MODEL LETTER OF RIGHTS 36 Annex II of the Directive: MODEL LETTER OF RIGHTS FOR PERSONS ARRESTED ON THE BASIS OF A EUROPEAN ARREST WARRENT 38 3

4 1 KEYWORDS ACCUSED PERSON A person who has been formally charged by the prosecutor with a crime, but on whom a court has not yet passed a judgment or decision. ADOPTION When a Directive becomes law. ANNEX Attachment to the main document. APPEAL A challenge in a higher court against a decision of a lower court. APPELLATE COURT The higher court to which a challenge to a decision by a lower court can be made. CASE A legal dispute between two parties (individuals or organisations) that is resolved by a court or by some other legal process. COMMON POSITION Outline of the EU s approach to specific subjects, or certain issues of geographical character. Member States must amend their national policies to reflect the common positions. CONCILIATION A final decision-making procedure which begins when the Council of the European Union fails to approve all the amendments adopted by the European Parliament. Its purpose is to reach a joint text or compromise on amendments which can then be approved by the Council and the Parliament. See also Council of the European Union and European Parliament. CONSULAR AUTHORITIES The officials appointed by a Government to live and work in a foreign country representing their own country and assisting their fellow citizens in that foreign country. 4

5 COUNCIL OF THE EUROPEAN UNION The EU institution where the Member States government representatives sit, i.e. the ministers of each Member State with responsibility for a given area. It is a key decision-maker in the legislative process along with the European Parliament. See also Member States and European Parliament. COURT OF JUSTICE OF THE EUROPEAN UNION The Court of Justice hears cases between European Union Member States and European Union institutions. Individuals, companies or organisations can also bring a case to the court if they feel that their rights have been violated by an EU institution. The Court ensures that EU law is being applied in the same way in all European Union Member States. See also Member State. CRIMINAL OFFENCE An act or omission provided for by the criminal laws of a country, breach of which can result in a conviction. CRIMINAL PROCEDURAL LAW The law governing a criminal case from the moment of investigation until the completion of court proceedings. CRIMINAL PROCEEDINGS Legal action occurring following the commission of a criminal offence. CROSS-BORDER CRIMINALITY Where crime occurs in more than one country; or where the criminal offence is committed in one country, but the accused person or suspected person is no longer in that country; or where the effects of the criminal offence were felt beyond the country where the criminal offence was committed. See also Criminal Offence. CUSTODY Being held in a secure place by law enforcement officials. DEPRIVED OF LIBERTY/DETAINED To be obliged to remain with law enforcement officials. 5

6 DIRECTIVE A European Union law that binds Member States. A Directive may grant rights to EU citizens that can be enforced by the courts in EU Member States. The European Commission can also take infringement proceedings against a EU Member State for failure to implement a Directive. See also Infringement Proceedings, Member State and European Commission. DOMESTIC LAW The national law of a country. EUROPEAN ARREST WARRANT An arrest warrant which is valid in all European Union Member States. It is used when one Member State seeks the return of a suspected or convicted person from another Member State. See also Extradition and Member State. EUROPEAN COURT OF HUMAN RIGHTS (ECtHR) The court that hears cases from people whose rights under the European Convention on Human Rights have been affected. Please see European Convention on Human Rights. EUROPEAN CONVENTION ON HUMAN RIGHTS The international agreement establishing the European Court of Human Rights and setting out the rights and freedoms that are to be enjoyed by everyone living on the territory of States that have agreed to be bound by it. Countries that have signed up to it promise to protect the human rights and fundamental freedoms of every person. EUROPEAN COMMISSION The body of the European Union that represents the interests of the European Union. It puts forward new legislation to the European Parliament and to the European Council, and it ensures that Member States are correctly applying EU law. EUROPEAN PARLIAMENT The Parliament of the European Union. It works with the Council of the European Union and the European Commission to exercise its legislative function. 6

7 EXECUTING MEMBER STATE The country that is implementing the European Arrest Warrant, because it is the country in which the suspected or convicted person currently is present. Please see also European Arrest Warrant, and Member State. EXTRADITION A system where one country hands over a suspected or convicted person if they are wanted in another country to stand trial, be sentenced or serve their sentence. Please see also Suspected Person. FRAMEWORK DECISION Guidance by the European Union to Member States. Framework Decisions do not grant rights to citizens of the European Union and are only used in certain criminal justice matters within the European Union. The European Commission can take infringement proceedings against a Member State for failure to implement a Framework Decision. Please see also European Commission, Infringement Proceedings and Member State. IMPLEMENTATION To make law effective. INFRINGEMENT PROCEEDINGS The legal proceedings that the European Commission can start against a Member State if the Commission considers that the Member State has not fulfilled its obligations under European Union Law. Please see also Member State and European Commission. JUDICIAL REVIEW A judicial review can take three forms: (1) The review by a court of law of the actions of a government official or body. (2) A reassessment of the actions of a legally appointed person or body. (3) A re-examination by an appellate court of the decision of a trial court. Please see also appellate court. 7

8 JUDICIAL AUTHORITY An authority that interprets and applies the law. LEGAL AID The provision of a State funded lawyer to an accused or suspected person who is unable to pay for their own lawyer. Please see also Accused Person, and Suspected Person. LEGISLATION Law passed by a national parliament. LEGISLATIVE PROPOSAL The early draft of a piece of legislation that is voted upon and amended by the institutions of the European Union. After passing through the decision-making process of ordinary legislative procedure and being adopted, the legislative proposal becomes a Directive. Please see also Ordinary Legislative Procedure and Directive. LETTER OF RIGHTS A document written in simple language that contains information about the procedural rights of a detained suspected or accused person. It should be given to an suspected or accused person from the moment of arrest. Please see also Deprived of Liberty/Detained, Procedural Rights, Suspected Person and Accused Person. MATERIAL EVIDENCE Evidence which is relevant to the case and may have an influence on the outcome of the trial. MATERIALS OF THE CASE Documentation which is relevant and significant to the case. MEPs MEPs or Members of European Parliament are the directly-elected representatives of EU Member States. Please see also Member State. 8

9 MEMBER STATE A country that is a member of the European Union. OFFICIAL JOURNAL OF THE EUROPEAN UNION Published every working day in all of the official languages of the European Union. It notifies Member States of newly published EU legislation, EU information and notices. A Directive is not binding until it is published in the Official Journal of the European Union. Please see also Directive and Member State. ORDINARY LEGISLATIVE PROCEDURE The main legislative procedure of the EU s decision-making process. It refers to the process by which a Directive moves through the EU institutions, is voted upon, amended and is eventually signed into law. Please see also Directive. PLENARY SESSION Large monthly meetings of the European Parliament which bring together all the MEPs, Committees and political groups of the Parliament to present the results of their work on a legislative proposal. MEPs debate the legislative proposal and vote on amendments. Please see also MEPs and Legislative Proposal. PROCEDURAL RIGHTS The rights an accused or suspected person has within the criminal justice system, from the moment of investigation until the completion of the court proceedings. Please see also Accused Person and Suspected Person. RAPPORTEUR The Member of European Parliament (MEP) who is responsible for preparing a report on a legislative proposal. See also MEPs. RECITALS Opening statements introducing a Directive. Please see also Directive. SUSPECTED PERSON A person whom a prosecutor believes may have committed a crime, but who has not yet been formally charged. 9

10 SWEDISH ROADMAP ON PROCEDURAL RIGHTS A plan of action outlining measures to promote the protection of suspected and accused persons in criminal proceedings, on an equal basis, across all Member States of the European Union. Please see also Accused Person, Suspected Person and Member State. TRANSPOSITION When Member States align their domestic law to give effect to a European legislative Act in their country. Please see also Member State. TREATY An international legal agreement between countries. TRILOGUES Informal meetings attended by representatives of the European Parliament, the Council and the Commission during which they try to reach agreement on a package of amendments to a legislative proposal. Please see also European Parliament, Council of the European Union and Legislative Proposal. 10

11 2 GENERAL INFORMATION Currently Criminal Law and Procedure differs greatly from one Member State to the next. This effectively means that the rights of accused and suspected persons in criminal proceedings differ greatly from one Member State to the next. It is important that these rights are the same across the European Union not only because of the movement of European citizens within the EU to live, work, study or holiday, but also due to the increase in cross border criminality between Member States. It was decided that the best way to lay down minimum standards for the protection of such rights was in a series of steps, through the implementation of the Swedish Roadmap, which aims to make the rights of accused and suspected persons in criminal proceedings similar across the European Union. Please see Background to the Directive on the Right to Information in Criminal Proceedings for further information. This pack outlines the second measure of the Swedish Roadmap, i.e. the Directive on the Right to Information in Criminal Proceedings. It details what information an accused and suspected person is entitled to receive throughout the criminal proceedings from the investigation stage until the final decision of whether or not the accused or suspected person has actually committed the crime in question. This pack also outlines the format that this information should take. This booklet is the first of a new JUSTICIA Know Your Rights Guide series on the EU criminal justice area. The JUSTICIA European Rights Network is a pan European Network consisting of 11 Network Member organisations at present: Bulgarian Helsinki Committee, European Center for Human and Constitutional Rights (Germany), Greek Helsinki Monitor, Helsinki Foundation for Human Rights (Poland), Human Rights Monitoring Institute (Lithuania), Hungarian Civil Liberties Union, Irish Council for Civil Liberties, Latvian Centre for Human Rights, League of Human Rights (Czech Republic), Open Society Justice Initiative (Hungary) and Statewatch (UK). The Network works to improve the rights of all European citizens involved in the criminal justice process across the Member States. For more information please see our website Please also see the Useful Contacts page in this booklet for the contact details of the individual JUSTICIA European Rights Network partner organisations. 11

12 Please further note that when the booklet refers to in your Member State this can be interpreted as meaning in the Member State where you are being questioned or in the Member State where you are being detained or have been arrested, (depending on the section of the booklet). 12

13 3 HOW ARE EU DIRECTIVES MADE? A Directive is a piece of European law that sets out legal obligations for EU Member States. A Directive begins its life as a legislative proposal or a proposal for a Directive which is voted upon and amended in a European Union decision-making procedure called Ordinary Legislative Procedure. In this procedure, the directly elected European Parliament together with the Council of the European Union (representing governments of the 27 1 EU member states) is asked to approve a draft law. Ordinary Legislative Procedure refers to the process by which a Directive moves through the EU institutions, is voted upon or amended and is eventually signed into law. The steps of this process are set out below: 1 Proposal Usually, it is the European Commission which puts forward a legislative proposal. This often takes place after a consultation process with experts in the area. However, the European Parliament may also propose legislation and, in the case of the Area of Freedom, Security and Justice, the proposal may come from either the Commission or from a quarter of the Member States. The proposal is published in the Official Journal of the European Union and is sent to the European Parliament, the Council of the European Union and to national parliaments. 2 First Reading in European Parliament When the legislative proposal is sent to the European Parliament, the Parliament adopts an initial position. The proposal is then assigned to a Committee of the Parliament in the relevant area (e.g., in the case of the Directive on the Right to Information in Criminal Proceedings, the file was assigned to the Committee on Civil Liberties, Justice and Home Affairs). A Rapporteur is assigned to prepare a draft report for discussion within the political groups of Parliament. The Directive is then discussed at a plenary session of the European Parliament. Plenary sessions bring together all the MEPs, Committees and political groups to present the results of their work on the legislative proposal. MEPs debate the piece of legislation and vote on amendments. At the plenary session, the Parliament adopts its position on 1 28 Member States including Croatia which is expected to join on 1 July

14 the legislative proposal by a simple majority. This may contain amendments to the original legislative proposal. If the Parliament s position does not contain any amendments, and if the Council has also accepted the original proposal, the legislative proposal can be adopted at this stage. 3 Amended Proposal by the European Commission At this stage the Commission can alter its legislative proposal to incorporate amendments of the European Parliament which they believe would improve the proposal and allow it to reach an agreement as swiftly as possible. 4 Council First reading The Council reading and its preparatory work runs at the same time as the discussions in the Parliament. The Council may only adopt a position after the European Parliament has acted. When they have considered the European Parliament s proposal (amended or un-amended) the Council may either choose to adopt the legislative proposal or to adopt a common position. This happens when the Council does not share the views expressed by Parliament. This common position is forwarded to the European Parliament together with a statement of reasons. At this stage, the Commission also informs Parliament of its opinion on the Council s common position. Wherever possible, informal meetings of representatives from all the three institutions called trilogues are held before the Council gives the final notification of its common position. These are held in order to try speed up the process and to reach an agreement on a package of amendments. Any agreement must then be approved through the formal procedures. 14

15 5 European Parliament Second Reading At the second reading, the Parliament examines the Council s common position. It can approve or reject the Council s common position, in which case the proposal is either adopted or closed definitively. It can also propose amendments to the Council s common position. This position then goes back to the Council and the Commission. If the Council approves all of Parliament s amendments, the legislative proposal can be adopted. If the Parliament does not accept all of Parliament s amendments, Parliament is informed and a procedure called conciliation is launched. 6 Conciliation and Third Reading If the legislative proposal could not be adopted in the first two readings, conciliation begins. A Committee of Representatives of the 27 2 Member States and an equal number of Members of the European Parliament (MEPs) come together to consider the Council position and Parliament s amendments from the second reading. Negotiations are conducted during informal trilogues involving small teams of negotiators from each institution, with the Commission playing a mediating role. It then has six weeks to find a compromise and to draw up a joint text. If it does not agree on a joint text then the Act is deemed not to have been adopted. If the Conciliation Committee does approve a joint text, it is given to the Council and the Parliament for their approval. After both institutions have approved the text, the legislative proposal is signed, published and becomes a Directive Member States including Croatia which is expected to join on 1 July

16 4 YOUR GUIDE TO THE DIRECTIVE ON THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS What is the Directive on the Right to Information in Criminal Proceedings? The Directive came into force on 21 June It is a European Union law that all European Union Member States (except Denmark), have signed up to. Member States are obliged to implement this Directive in their country before a fixed deadline. This Directive lays down minimum rights relating to the information to be received by suspected or accused persons across the European Union in criminal proceedings and about the accusation against them. You can find a copy of the Directive on the website What is the right to information and what types of rights does the Directive protect? Currently the type of information an accused or suspected person receives about their rights in a criminal proceedings differs from Member State to Member State. The Directive on the Right to Information requires Member States to ensure that suspected or accused persons receive standardised information across the EU on the following rights: The right of access to a lawyer. Any right to free legal advice, and how to obtain this. The right to be told of what you are accused. The right to interpretation and translation. The right to remain silent. The right to access the materials of the case. The right to have consular authorities and another person informed. The right to access urgent medical assistance. The right to know how long you will be detained before being brought before a judicial authority. The right to information in European Arrest Warrant cases. 16

17 Does the Directive create new rights in my Member State? It depends on your Member State. The Directive lays down minimum rights to information in criminal proceedings and to make sure that the criminal procedural law standards are the same for suspected and accused persons across European Union Member States. Certain rights contained in the Directive may already be part of your Member State s domestic law. In this case, this Directive will strengthen these rights by obliging Member States to keep these rights in place. Please see the back of the booklet for the contact details of an organisation in your Member State that will be able to advise you on how this Directive will affect the domestic law in your own country. When is the final date for Member State transposition? Member States have until 2 June 2014 to modify their domestic law to give effect to the Directive in their country. What Member States must participate in the adoption and application of this Directive? Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom. 3 Only Denmark did not sign up to this Directive, as Denmark does not sign up to any justice and home affairs issues. Therefore Denmark is not obliged to participate in its adoption and application of the Directive on the Right to Information in Criminal Proceedings. 3 Including Croatia, which is expected to join the EU on 1 July

18 5 BACKGROUND TO THE DIRECTIVE ON THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS Where did the Directive on the Right to Information in Criminal Proceedings come from? In the European Union, the protection of the rights of suspected and accused persons in criminal proceedings is based on the European Convention on Human Rights. The Directive on the Right to Information in Criminal Proceedings is the second measure of the Swedish Roadmap. The Swedish Roadmap builds on the European Convention on Human Rights. The content of the right to information on procedural rights is inferred from the case law of the European Court of Human Rights. The Swedish Roadmap is a resolution that calls for the adoption of a series of measures to safeguard the right to a fair trial in all Member States, by laying down minimum standards for the protection of the rights of suspected and accused persons in criminal proceedings. It takes a step-by-step approach and outlines solutions in the form of measures, the implementation of which will align the procedural rights of suspected and accused persons in criminal proceedings in all Member States, and will deal with the issue of cross-border criminality. After a Member State has signed up to a Directive, what are its obligations? After the adoption of the Directive, a Member State is obliged to transpose the Directive into its domestic law within a deadline (usually two years from the date of the Directive s publication in the Official Journal of the European Union). For example, a Member State has until 2 June 2014 to transpose the Directive on the Right to Information in Criminal Proceedings. Once the transposition date has passed, the Member State must have implemented at least the minimum standards as laid down by the Directive. However, Member States are afforded some discretion on how to interpret and implement certain provisions of a Directive. Member States are free to extend the rights beyond the minimum standards provided for in the Directive. 18

19 How does the European Union ensure a Member State s compliance? Once the transposition date has passed, the European Commission assesses the extent to which each Member State has put in place measures or, if necessary, legislative proposals in order to comply with the Directive. Each Member State sends its officially adopted texts, which implement the Directive in its country to the European Commission, who in turn examines this to ensure that the Member State is in fact complying with the Directive. What happens if my Member State has not fulfilled its obligations once the transposition date has passed, and what can I do? The European Commission decides, after the evaluation, whether or not to begin infringement proceedings against a Member State. This could lead to proceedings in the Court of Justice of the European Union. Alternatively, you can lodge a complaint with the European Commission against your Member State, requesting that the European Commission begin infringement proceedings against it. Your own rights do not need to be violated for this action to be taken. Please see the website link to direct you to the necessary webpage

20 6 DIRECTIVE ON THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS A. Scope of the right to information In what circumstances must I be given information about my procedural rights and the accusation? You should be given this information from the moment you are made aware that you are suspected or accused of having committed a criminal offence in any Member State, (excluding Denmark) until the final determination of whether or not you have actually committed the criminal offence. This includes sentencing and the decision of any appeal. This is regardless of your legal status, citizenship or nationality. Are there circumstances where I do not have to be given information about my procedural rights and the accusation? Yes. In Member States where an authority other than a court can impose a sanction in minor offences, such as a minor traffic offence, then you do not have to be given information about your procedural rights. However, if there is an appeal to, or if the case is referred to a court that has the power to try criminal matters, then you must be given this information about your procedural rights, but only in relation to the proceedings before the court. B. From the investigation stage What information must I be given as a suspected or accused person in criminal proceedings? You must be provided with information about the following procedural rights, as they apply under national law: The right of access to a lawyer. Any right to free legal advice, and how to obtain this. The right to information about what you are accused of. 20

21 The right to interpretation and translation. The right to remain silent. Please see the subsequent chapter for further explanation of these rights. What type of information must I be given about the accusation made against me? You must be provided with all the information about the alleged criminal act that your lawyer needs to prepare your case. This should be provided to you promptly and in the necessary detail to allow your lawyer to build your case effectively. This includes a description of the facts relating to the alleged offence you are suspected to have committed, as well as the legal classification of the alleged offence, that is how serious the offence is, and the maximum and minimum prison sentence you may receive for the offence committed, which should all be given in detail, taking into consideration the stage of the criminal proceedings. Please also see Information about the Accusation for further information. When must I be given this information about my rights? If you are a suspected or an accused person you must be given information about your rights as promptly as possible, and at the latest, before the first official interview by the police or another competent authority. Who must give me this information? The police authorities or another competent authority, must give you this information about your procedural rights. How must this information be given to me? The information should be given to you either orally or in writing in simple and easily understandable language. If you are a vulnerable suspected or accused person, then your particular needs should be taken into consideration. Once it is given, it does not have to be repeated, unless the national law of your Member State or the specific circumstances of the case require it. 21

22 What if I do not understand the language that this information is given to me in? If necessary, your Member State must provide you with an interpretation or a translation of this information in a language you do understand. C. From the arrest or detention stage What information should I be given if I am arrested or detained as a suspected or accused person? If you are a suspected or accused person in criminal proceedings who has been arrested or detained, in addition to the information listed above, which should be provided from the investigation stage, you should also be promptly provided with a written Letter of Rights. What is the Letter of Rights? The Letter of Rights is a document written in simple language that contains information on the procedural rights of a detained suspected or accused person. What should be in the Letter of Rights? The Letter of Rights should list information about the following procedural rights, as they apply under national law: The right of access to a lawyer. Any right to free legal advice, and how to obtain this. The right to information about the accusation against you. The right to interpretation and translation. The right to remain silent. The right of access to the materials of the case. The right to inform consular authorities and to have one person informed. 22

23 The right to access urgent medical assistance. The right to know how long you can be detained before being brought before a judicial authority. Any possibility of disputing the legality of the arrest. Any possibility of seeking a review of the detention. Any possibility of requesting temporary release. Please see the subsequent chapter for further explanation of these rights. The Letter of Rights can also include information that is relevant to your own Member State s national law. The Directive provides a sample of what a Letter of Rights should look like. You can find this sample attached to this booklet (Annex I). The model Letter of Rights does not bind Member States. It is merely intended as a guide to assist Member State in drafting their own Letter of Rights. When should I be provided with a Letter of Rights? Once a suspect or accused person is arrested or detained, you should be promptly provided with a Letter of Rights in writing. Am I allowed to read and to keep the Letter of Rights? You should be given time to read the Letter of Rights and to keep it throughout the time that you are detained. What if the Letter of Rights is not in a language I understand? You should be provided with a Letter of Rights written in a language you understand. If there is no Letter of Rights available in a language you understand, you should be informed verbally of your rights in a language you do understand. You should then be provided with a Letter of Rights written in a language you do understand as soon as possible. 23

24 What if the Letter of Rights is in a language I understand but I still cannot understand the language used? The Letter of Rights should be written in simple language and should be easily understood by a person who does not have any knowledge of criminal procedural law. D. Information about the accusation Should I be given detail about the alleged offence? Yes. As previously stated you must be provided with all the information about the alleged criminal act. This should be provided promptly and in the detail necessary to enable your lawyer to build your case effectively. This includes a description of the facts relating to the alleged offence you are suspected to have committed, the nature and legal classification of the alleged offence, the nature of your involvement in the crime, which should all be given in detail taking into consideration the stage of the criminal proceedings. You should be provided with this information promptly, and at the latest upon the submission of the merits or the essential facts of the case to the court regarding the accusation. What if the details of the accusation change? If the details of the accusation change you should be informed of this change if necessary to protect the fairness of the case and in due time to allow you or your lawyer to prepare your defence. E. Access to materials of the case What does access to material mean? This means being able to obtain any material evidence of your case as defined by the national law of your Member State, i.e. documentation that is relevant and significant to your case. 24

25 Am I allowed to access the materials of the case, and if so, what materials? Yes, you are entitled to access such materials. The authorities must make available to you, the arrested person, or to your lawyer, all documents that they have that relate to your case which are required to: Challenge the legality of your arrest or detention, in line with your country s national law. Prepare the defence of the case. When should this information be provided? You should be provided with the material promptly. If further material comes to light after I already accessed the material, can I still access this material? Yes, you can. You should be allowed to access this material in due time to allow it to be considered. What type of material can I access? You should be able to access the following material if necessary to allow you to challenge the legality of your arrest or detention, in accordance with the national law of your Member State: Documents. Photographs (where appropriate). Audio and video recordings (where appropriate). In what circumstances am I not allowed to access the materials of the case? There are certain circumstances where you are not allowed to access the materials of the case such as: 25

26 If access to the materials may lead to a serious threat to the life or to the fundamental rights of another person. Or If refusal is necessary to safeguard an important public interest such as: If access to materials: - could influence an ongoing investigation. - will seriously harm the national security of the Member State. - would violate the national law of your Member State regarding the protection of personal data or the whereabouts of protected witnesses. However, any refusal to provide you with access to the materials of the case must be balanced against your right to a fair trial, as well as taking into consideration the stage of the criminal proceedings. Who decides whether such circumstances to refuse access exist? Either a judicial authority or court must make the decision whether the above circumstances exist to warrant a refusal or the decision to refuse must be subject to a judicial review. Must I pay a charge to access the materials? No. The authorities must provide access to the materials of the case free of charge except for any charge related to the copying of the case file or to the sending of the materials. 26

27 F. Challenge to the non-provision of information or refusal of access to materials of the case What do I do if I am not given the above information or refused access to materials to my case? You, as a suspected or accused person, have the right to challenge the authorities failure to provide you with information, or their refusal to provide you with access to materials in accordance with the procedures in the domestic law of your Member State. However, the right to challenge in these circumstances does not mean that the Member State has to provide a special appeal or complaint procedure for this type of challenge. G. European Arrest Warrant Am I entitled to be given information if I am arrested for the purposes of the execution of a European Arrest Warrant? Yes. You are entitled to be provided with written information about your rights upon your arrest, as discussed in the previous sections, as well as information about your rights according to the law regarding the European Arrest Warrant Framework Decision in the executing Member State, i.e. the Member State implementing the European Arrest Warrant. What information am I entitled to receive? You are entitled to receive all the written information that any other arrested person would receive. This includes: The right of access to a lawyer. Any right to free legal advice, and the conditions for obtaining this. The right to information about the accusation made against you. The right to interpretation and translation. 27

28 The right to remain silent. Letter of Rights. The Directive provides a sample of what a Letter of Rights should look like in European Arrest Warrant cases. You can find this sample attached to this booklet (Annex II). The model Letter of Rights does not bind the Member States. It is merely intended as a guide to assist Member States in drafting their own Letter of Rights. When should I be provided with the Letter of Rights? You should be provided with the Letter of Rights promptly when you are detained or arrested. What if I cannot understand the Letter of Rights? The Letter of Rights should be drafted in simple easily understandable language. H. LETTER OF RIGHTS EXPLAINER The Directive recommends that the following rights are set out in the letter of rights: The right of access to a lawyer: The letter of rights should inform you that you have the right of access to a lawyer. This right is derived from Article 6 (3)(c) of the ECHR which states that everyone charged with a criminal offence has the minimum right to defend himself in person or through legal assistance of his own choosing. Recent case law from the European Court of Human Rights defines the situations in which this right arises. A proposed Directive on the Right of Access to a Lawyer and to Communicate upon Arrest 4 is due to be adopted soon and will set out the minimum rights in this area. 4 Proposal for a Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest, COM/2011/

29 Any right to free legal advice, and how to obtain this: The letter of rights should state that you may be entitled to free legal advice. The ECHR states, in Article 6 (3)(c) that if a person has not sufficient means to pay for legal assistance then the person should be given it free when the interests of justice so require. The right to free legal assistance will only arise in certain circumstances. A legislative proposal from the European Commission is currently being developed to lay down minimum standards in this area. The right to information about what you are accused of: The letter of rights should set out your right to be informed of the nature of the accusation against you. Article 5 (2) of the ECHR provides that a person who is arrested must be informed promptly, in a language which they understand, of the reasons for their arrest and of any charge against them. Article 6 (3)(a) also states that a person who is charged with a criminal offence must be informed promptly and in a language which he understands and in detail, of the nature and cause of the accusation against him. The right to interpretation and translation: A suspected or accused person who does not speak or understand the language of the criminal proceedings cannot fully and effectively participate in the proceedings. In recognition of this, the letter of rights should inform you of your right to be assisted by an interpreter free of charge. It should also inform you that you have the right to translation of at least the relevant passage of essential documents, including any order by a judge allowing your arrest or keeping you in custody. The Directive on the Right to Interpretation and Translation in Criminal Proceedings was adopted in 2010 and sets out the specific conditions and rules surrounding this right. 5 5 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings 29

30 The right to remain silent: The letter of rights should inform you that you have the right to remain silent. Although the right to remain silent is not explicitly mentioned in the ECHR, it has been found to be a fundamental feature of the right to a fair trial under Article 6. The right to silence can be restricted in certain limited circumstances. The ECtHR has indicated in its case law that information about this right must be given from the moment that a person is charged with a criminal offence. The right of access to the materials of the case: The letter of rights should inform you that you have the rights to access the materials of your case. This right is derived from Article 6 (3)(b) of the ECHR which states that everyone charged with a criminal offence... must have adequate time and facilities for the preparation of his defence. It has also been established in the case law of the ECtHR that the prosecution authorities should disclose to the defence all material evidence for or against the accused. The right to access materials is not absolute and may be restricted in certain circumstances. The right to inform consular authorities and to have one person informed: The letter of rights should inform you that you have the right to inform your consular authorities of your arrest. It should also inform you that you have the right to contact another person. The specific conditions and rules relating to this right will depend on the national law of the Member State. The proposal for a Directive on the Right of Access to a Lawyer and to Communicate upon Arrest, if adopted, will clearly set out this right. 30

31 The right to access urgent medical assistance: The right to access urgent medical assistance should be set out in the letter of rights. This right is derived from Article 2 of the European Convention on Human Rights which states that everyone s right to life shall be protected by law. This has been held to include a positive obligation on states to provide medical assistance. The European Court of Human Rights has emphasised through its case law that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being. The right to know how long one can be detained before being brought before a judicial authority: The letter of rights should tell you how long you can be detained before you must be brought before a judicial authority. These detention periods vary from Member State to Member State and set down the particular time limits during which you can be questioned for the offence. When the time limit has run out you must either be released or brought before the judicial authority. Article 5 (3) of the European Convention on Human Rights provides that suspects shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time Any possibility of disputing the legality of the arrest: The letter of rights should state that you can dispute the legality of your arrest. Article 5 (4) of the European Convention on Human Rights states that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 31

32 Any possibility of seeking a review of the detention: Similarly, the letter of rights should also set out whether there is any possibility of seeking a review of the detention. This is also derived from Article 5 (4) of the ECHR which states that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Any possibility of requesting temporary release: The letter of rights should set out whether you have the possibility of requesting temporary release. Article 5 (3) of the European Convention on Human Rights states that everyone arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 32

33 7 USEFUL CONTACTS For more information about the JUSTICIA European Rights Network, please see The website addresses of the JUSTICIA European Rights Network member organisations are listed below: Country Organisation Description Ireland (Consortium Leader and Western European Cluster) Irish Council for Civil Liberties (ICCL) (1976) and With its headquarters in Dublin, ICCL is Ireland s independent human rights watchdog, which monitors, educates and campaigns around the protection and promotion of human rights in Ireland. ICCL is the lead partner in JUSTICIA. Germany (Western European Cluster) European Center for Constitutional and Human Rights (ECCHR) (2007) ECCHR is an independent, non-profit legal and educational organisation dedicated to protecting civil and human rights throughout Europe. ECCHR engages in innovative strategic litigation and works in two main areas: business and human rights and international crimes and accountability. Bulgaria (Central and Eastern European Cluster) Bulgarian Helsinki Committee (1992) Bulgarian Helsinki Committee is an independent, non-governmental organisation dedicated to strategic litigation and legal protection of human rights in Bulgaria. Its work is focused on selected areas, such as discrimination, freedom of assembly and of association, freedom of expression, right to privacy, torture and ill treatment by law enforcement officers. Czech Republic League of Human Rights (LIGA) (2002) LIGA is an independent non-profit watchdog organisation focused on promoting respect for human rights in the Czech Republic. LIGA has been implementing projects promoting human rights of children, persons with disabilities, victims of police violence and hate crimes, and offenders. 33

34 Country Organisation Description Hungary (Central and Eastern European Cluster) Hungarian Civil Liberties Union (HCLU) (1994) The HCLU is a non-profit human rights watchdog organisation dedicated to promoting law reform and legal defence of public interest in Hungary. Its goal is to build and strengthen civil society and the rule of law in Hungary and the CEE region. Latvia (Central and Eastern European Cluster) Latvian Centre for Human Rights (LCHR) (1993) LCHR is an independent nongovernmental organisation which works for the elimination of discrimination and hate speech, asylum, migration and fundamental rights issues. LCHR conducts human rights monitoring, research and policy analysis, provides legal assistance on human rights issues and is actively involved in advocacy for change. Lithuania (Central and Eastern European Cluster) Human Rights Monitoring Institute (HRMI) (2003) HRMI is a non-governmental organisation dedicated to the promotion of an open democratic society. HRMI engages in monitoring of human rights situation in Lithuania, advocating for changes in national legislation and pursuing strategic litigation in areas such as the right to a fair trial, right to privacy, equality and non-discrimination, rights of vulnerable groups. Poland (Central and Eastern European Cluster) Helsinki Foundation for Human Rights (HFHR) (1989) HFHR is an organisation dedicated to promote the development of a culture based on the respect of freedom and human rights in Poland and abroad. Its methods of activity include strategic litigation, monitoring and interventions. Since 2007, HFHR holds consultancy status with the United Nations Economic and Social Council (ECOSOC). 34

35 Country Organisation Description Greece (Southern European Cluster) Greek Helsinki Monitor (1992) Greek Helsinki Monitor is an organisation which monitors, publishes and lobbies on human rights issues in Greece and, occasionally, in the Balkans. It has participated in, and often coordinated, the monitoring of Greek and Balkan media for stereotypes and hate speech. It has also prepared parallel reports to UN Treaty Bodies and specialised reports on ill-treatment, ethnicity issues, religious and immigrant communities. Hungary: Transnational Organisation Open Society Justice Initiative (OSJI) (1993) OSJI is a programme of the Open Society Foundations, which is dedicated to strengthening the rule of law and respect for human rights, minorities, and diversity of opinions. OSJI promotes human rights and builds legal capacity for open societies through litigation, advocacy, research and technical assistance. UK: Transnational Organisation Statewatch (1991) Statewatch is a non-profit-making voluntary group with contributors drawn from 18 countries. The organisation is dedicated to monitoring state and civil liberties in Europe. One of Statewatch s primary purposes is to provide a service for civil society to encourage informed discussion and debate. 35