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 www.iccl.ie
JUSTICIA – European Rights Network
9 – 13 Blackhall Place
Dublin 7
Ireland
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T +353 1 799 4504
F +353 1 799 4512
E [email protected]
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www.eujusticia.net
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CONTENTS
1Keywords
4
2 General information
11
3 How are EU Directives made?
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4 Your guide to the Directive on the Right to Information in Criminal Proceedings
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5 Background to the Directive on the Right to Information in Criminal Proceedings
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6 Directive on the Right to Information in Criminal Proceedings:
A Scope of the right to information
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C From the arrest and/or detention stage
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B From the investigation stage
D Information about the accusation
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20
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E Access to materials of the case
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F Challenge to the non-provision of information or to the refusal of access to materials of the case
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G European Arrest Warrant
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H Letter of rights explainer
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7 Useful Contacts
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Annex II of the Directive: MODEL LETTER OF RIGHTS FOR PERSONS ARRESTED ON THE BASIS OF A EUROPEAN ARREST WARRENT
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Annex I of the Directive: MODEL LETTER OF RIGHTS
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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.
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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.
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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.
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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’.
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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’.
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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.
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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’.
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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 www.eujusticia.net. Please also see the ‘Useful Contacts’ page in this
booklet for the contact details of the individual JUSTICIA European Rights Network
partner organisations.
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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).
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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 271 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 2013.
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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.
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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 272 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.
2 28 Member States including Croatia which is expected to join on 1 July 2013.
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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 2012. 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 www.eujusticia.net.
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.
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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 2013.
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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.
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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.
http://ec.europa.eu/eu_law/your_rights/your_rights_forms_en.htm
http://ec.europa.eu/eu_law/your_rights/your_rights_en.htm
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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.
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• 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.
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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.
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• 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.
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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.
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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:
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• If access to the materials may lead to a serious threat to the life or to the Or
fundamental rights of another person.
• 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.
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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.
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• 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 Arrest4 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/2011/0326
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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
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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.
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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.”
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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.
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7 USEFUL CONTACTS
For more information about the JUSTICIA European Rights Network, please see
www.eujusticia.net. 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)
www.iccl.ie and
www.eujusticia.net
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)
www.ecchr.de
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)
www.bghelsinki.org
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)
www.llp.cz
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.
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Country
Organisation
Description
Hungary (Central
and Eastern
European Cluster)
Hungarian Civil Liberties Union
(HCLU) (1994)
www.tasz.hu
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)
www.cilvektiesibas.org.lv
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)
www.hrmi.lt
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)
www.humanrightshouse.org
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).
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Country
Organisation
Description
Greece (Southern
European Cluster)
Greek Helsinki Monitor (1992)
www.greekhelsinki.gr
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)
www.opensocietyfoundations.org
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)
www.statewatch.org.uk
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.
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ANNEX I of
the directive
model Letter of Rights
The sole purpose of this model is to assist national authorities in drawing up their
Letter of Rights at national level. Member States are not bound to use this model.
When preparing their Letter of Rights, Member States may amend this model
in order to align it with their national rules and add further useful information.
The Member State’s Letter of Rights must be given upon arrest or detention. This
however does not prevent Member States from providing suspects or accused
persons with written information in other situations during criminal proceedings.
You have the following rights when you are arrested or detained:
A. ASSISTANCE OF A LAWYER/ENTITLEMENT TO LEGAL AID
You have the right to speak confidentially to a lawyer. A lawyer is independent from
the police. Ask the police if you need help to get in contact with a lawyer, the police
shall help you. In certain cases the assistance may be free of charge. Ask the police
for more information.
B. INFORMATION ABOUT THE ACCUSATION
You have the right to know why you have been arrested or detained and what you
are suspected or accused of having done.
C. INTERPRETATION AND TRANSLATION
If you do not speak or understand the language spoken by the police or other
competent authorities, you have the right to be assisted by an interpreter, free of
charge. The interpreter may help you to talk to your lawyer and must keep the content
of that communication confidential. You have the right to translation of at least the
relevant passages of essential documents, including any order by a judge allowing
your arrest or keeping you in custody, any charge or indictment and any judgment.
You may in some circumstances be provided with an oral translation or summary.
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D. RIGHT TO REMAIN SILENT
While questioned by the police or other competent authorities, you do not have
to answer questions about the alleged offence. Your lawyer can help you to decide
on that.
E. ACCESS TO DOCUMENTS
When you are arrested and detained, you (or your lawyer) have the right to access
essential documents you need to challenge the arrest or detention. If your case goes
to court, you (or your lawyer) have the right to access the material evidence for or
against you.
F. INFORMING SOMEONE ELSE ABOUT YOUR ARREST OR DETENTION/INFORMING
YOUR CONSULATE OR EMBASSY
When you are arrested or detained, you should tell the police if you want someone
to be informed of your detention, for example a family member or your employer.
In certain cases the right to inform another person of your detention may be
temporarily restricted. In such cases the police will inform you of this.
If you are a foreigner, tell the police if you want your consular authority or embassy
to be informed of your detention. Please also tell the police if you want to contact an
official of your consular authority or embassy.
G. URGENT MEDICAL ASSISTANCE
When you are arrested or detained, you have the right to urgent medical assistance.
Please let the police know if you are in need of such assistance.
H. PERIOD OF DEPRIVATION OF LIBERTY
After your arrest you may be deprived of liberty or detained for a maximum period
of … [fill in applicable number of hours/days]. At the end of that period you must
either be released or be heard by a judge who will decide on your further detention.
Ask your lawyer or the judge for information about the possibility to challenge your
arrest, to review the detention or to ask for provisional release.
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ANNEX II of
the directive
Model Letter of Rights for persons arrested on the
basis of a European Arrest Warrant
The sole purpose of this model is to assist national authorities in drawing up their
Letter of Rights at national level. Member States are not bound to use this model.
When preparing their Letter of Rights, Member States may amend this model in
order to align it with their national rules and add further useful information.
You have been arrested on the basis of a European Arrest Warrant. You have the
following rights:
A. INFORMATION ABOUT THE EUROPEAN ARREST WARRANT
You have the right to be informed about the content of the European Arrest Warrant
on the basis of which you have been arrested.
B. ASSISTANCE OF A LAWYER
You have the right to speak confidentially to a lawyer. A lawyer is independent from
the police. Ask the police if you need help to get in contact with a lawyer, the police
shall help you. In certain cases the assistance may be free of charge. Ask the police
for more information.
C. INTERPRETATION AND TRANSLATION
If you do not speak or understand the language spoken by the police or other
competent authorities, you have the right to be assisted by an interpreter, free of
charge. The interpreter may help you to talk to your lawyer and must keep the
content of that communication confidential. You have the right to a translation
of the European Arrest Warrant in a language you understand. You may in some
circumstances be provided with an oral translation or summary.
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D. POSSIBILITY TO CONSENT
You may consent or not consent to being surrendered to the State seeking you. Your
consent would speed up the proceedings. [Possible addition of certain Member
States: It may be difficult or even impossible to change this decision at a later stage.]
Ask the authorities or your lawyer for more information.
E. HEARING
If you do not consent to your surrender, you have the right to be heard by
a judicial authority.
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DECEMBER 2012
THE JUSTICIA european rights NETWORK IS FINANCIALLY SUPPORTED BY THE
CRIMINAL JUSTICE PROGRAMME OF THE EUROPEAN UNION. JUSTICIA NETWORK
PARTNERS ARE:
BULGARIAN HELSINKI COMMITTEE
EUROPEAN CENTeR FOR CONSTITUTIONAL AND HUMAN 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)
STATEWATCH (UNITED KINGDOM)
9–13 BLACKHALL PLACE
DUBLIN 7, IRELAND
T + 353 1 799 4504
F + 353 1 799 4512
[email protected]
WWW.EUJUSTICIA.NET
The JUSTICIA European Rights Network is financially supported
by the Criminal Justice Programme of the European Union.