7 December 2010 Procedural rights of suspects and accused in the EU The Roadmap and its implementation Adrienne Boerwinkel Senior Legal Adviser Dutch Ministry of Security and Justice

TAIEX Ankara | 6-7 December Overview presentation  Why EU legislation on procedural rights of suspects and accused?  Roadmap on procedural rights of suspects and accused  Measure A: right to interpretation and translation  Measure B: right to information  Measure C: right of access to a lawyer  What will follow?

TAIEX Ankara | 6-7 December European Council Conclusions Tampere 1999 “The European Council asks the Council and the Commission to adopt (…) a programme of measures to implement the principle of mutual recognition. In this programme, work should also be launched on (…) those aspects of procedural law on which common minimum standards are considered necessary in order to facilitate the application of the principle of mutual recognition, respecting the fundamental legal principles of Member States.”

TAIEX Ankara | 6-7 December European Convention on Human Rights Key articles in this context: Article 5: right to liberty Article 6: right to a fair trial More detailed interpretation through case-law of the ECtHR, but... … not always clear to what extent a judgment against one specific State has consequences for the other State Parties. Result: uneven implementation

TAIEX Ankara | 6-7 December ECHR: Check by European Court of Human Rights of an alleged infringement in a specific case on the basis of an individual complaint against a specific State EU Directive: Check by Commission whether the directive has been implemented correctly into national legislation. Possibility of infringement procedure

TAIEX Ankara | 6-7 December EU action 2004: Commission initiative for comprehensive instrument 2007: Failure to agree on the instrument 2009: Commission and Swedish Presidency restarted the debate: step-by-step approach agreed 30 November 2009: Adoption of a Resolution on a Roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings (OJ C295, , p. 1)

TAIEX Ankara | 6-7 December Roadmap on procedural rights Six measures announced: » Right to interpretation and translation » Right to information » Right to legal assistance » Right to communicate while in detention » Rights of vulnerable suspects » Detention conditions

TAIEX Ankara | 6-7 December Directive on interpretation and translation Directive of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010, L 280) Implementation before 27 October 2013  Right to interpretation  Right to translation  Additional provisions

TAIEX Ankara | 6-7 December Right to interpretation  If suspect does not speak or understand the language of the proceedings  During police questioning, court hearings and interim hearings etc.  Also certain communication between lawyer and client (preparation of the defence)  Quality, register, confidentiality

TAIEX Ankara | 6-7 December Right to translation  At least the essential documents: -charge/indictment -detention order -judgments  Only passages which are relevant to have knowledge of the case  Possibility to waive the right to translation (unequivocal and voluntarily)  Oral translation possible as exception and provided that it does not prejudice the fairness of the proceedings

TAIEX Ankara | 6-7 December Right to information on rights and accusation Proposal for a Directive issued on 20 July 2010 (COM(2010) 392) -> currently under negotiation  Right to be informed on certain procedural right – Letter of Rights (right to remain silent, right of access to a lawyer, conditions for legal aid, right to interpretation and translation, when detained: right to be brought before a court)  Right to be informed on the accusation (on arrest, before interrogation and indictment)  Right of access to the case-file

TAIEX Ankara | 6-7 December Right of access to a lawyer  Proposal for a Directive in preparation by Commission  Expected in June 2011  Possible important issues: -Right to be assisted by a lawyer prior to and/or during police questioning (Salduz-judgment and following judgments; Brusco) -Legal aid: assistance free of charge -Exceptions -Independence of lawyers -Quality

TAIEX Ankara | 6-7 December What will follow? Measure D: Communication while in detention: with family, employer, consular authorities Measure E: Procedural rights of vulnerable suspects such as minors or mentally disabled Measure F: Green paper on detention conditions