sou · H5B368 · 2017-09-05 00:00:00 — The Convention on the Rights of the Child and the Euro- pean Convention on Human Rights are two important examples of this. The Convention on the Rights of the Child is explicitly aimed at safeguarding the rights of the child; it includes standards aimed at children who are suspects or accused persons in criminal proceed- ings. In its interpretation of Convention on Human Rights, Court on Human Rights has stressed on several occasions that member states should take action to meet the special needs of children in their capacity as suspects or accused persons in criminal proceedings. In the case law of Court the child perspective often shines through concerning the right to a fair trial. All EU Member States, including , have adopted both the Convention on the Rights of the Child and Con- vention on Human Rights. Convention also has, for example, the force of Swedish law. It has been proposed that the Convention on the Rights of the Child should be given the status of Swedish law.1 EU Member States, including , are also bound 1 See referral to with proposals for an act on incorporating the UN Convention on the Rights of the Child, 7, 2017. by the EU’s Charter of Fundamental Rights, which also covers guar- antees for children who are suspects or accused persons. However, for some years the EU has been working actively on further strengthening the procedural rights of suspects or accused persons. The aim is for this to lead to greater trust between Mem- ber States and to ultimately guarantee mutual recognition of judg- ments and legal decisions between them. As part of this work the EU has adopted several directives. One of the legal acts adopted is a directive specifically aimed at proce- dural safeguards for children who are suspects or accused persons in criminal proceedings: Directive (EU) 2016/800/EU of the Euro- pean Parliament and of 2016. A large part of our remit has consisted of analysing the relation- ship between Swedish law and this Directive and proposing the amendments necessary to implement this Directive in Swedish law. Our remit has also included two somewhat smaller issues not linked to this Directive. We have been tasked with considering a question concerning the rights of public officials to compensation for trial costs in certain cases and a question concerning simplified service of process. Proposal for implementation of the Procedural Safeguards for Children Directive Overview of the standing of children as suspects and accused persons etc. in the Swedish legal system In the Swedish legal system there is a long tradition of, and broad support for, special treatment of children. Children under 15 years of age do not have criminal responsi- bility and, in principle, they cannot be subject to measures in the legal system on account of criminal offences. It follows from this that, for example, a preliminary investigation cannot be opened against a suspect who had not turned 15 years at the time of the offence. Instead it is the municipal social services that have the main respon- sibility for action being taken by society. To ensure that the assistive measures taken by the social services are appropriate and to enable them to be taken in time, it may be important to establish the cir- cumstances surrounding the offence. The social services are not always able to investigate such circumstances. Under the (Special Provisions) Act (1964:167) the and prose- cutors are therefore able, under certain conditions, to conduct an in- vestigation concerning an offence where the suspect is under 15 years of age. If someone can be suspected of commiting an offence before the age of 15 and the offence is of a serious nature, an investigation has to be opened unless there are special reasons for not doing so. In certain instances a court can also consider whether the child has committed the offence or affirm that this has not been established. In general the system is also characterised by the view that children and young people who have committed offences should be subject to action within the social services in the first place. Children and young people who have criminal responsibility are also given special treat- ment. For example, substantive law in contains a special system of sanctions for young offenders. Recently a legislative pro- posal was submitted covering two new sanctions for young persons.2 There is also an ambition that procedural rules should aim at bringing about positive change and favourable development. With respect to the treatment of children and young people who are suspected of offences, there are today a large number of explicit procedural rights that have to be guaranteed. The (Special Provisions) Act contains special rules for the processing by the , prosecutors and courts of cases and matters concern- ing offences where children are suspects or accused persons. Most of these provisions apply to the 15–17 years age group, but some of the rights guaranteed by the Act have to be applied up until the sus- pect or accused person has turned 21 years. When there is no special regulation in the Act, it is the Code of Judicial Procedure and other general provisions that are applicable. It should, for example, be men- tioned that the Preliminary Investigations Ordinance (1947:948) also contains special provisions aimed at the processing of matters where the suspect is under 18 years. The special treatment of young offenders means, to begin with, a prompt processing requirement. A preliminary investigation against a person who is under 18 years of age that concerns a crime for which imprisonment can be imposed shall be conducted particularly prompt- ly. It has to be concluded and a decision on the matter of prosecution 2 See Ministry Publication Series Ds 2017:25 has to be taken as soon as possible and no later than within six weeks from notification of the suspicion of the offence. This time- frame may only be exceeded in special cases, for example when necessary on account of the investigation or other special circum- stances. In the courts cases concerning persons who have not attained 21 years always have to be processed promptly. When a prosecution is brought against a person who has not turned 18 years for an offence for which imprisonment for more than six months is provided, the same rules regarding the prompt processing require- ment apply as when the defendant is being detained in custody by order of a court. This means, for example, that the main rule is that the main hearing has to open within two weeks from when the pro- secution was brought. The procedural rights also mean that children shall, in the same way as adults who are suspected or accused of offences, be informed of certain fundamental rights at an early stage of the process; the starting point being as early as when they are notified of the sus- picion of an offence. Another fundamental aspect is that children have to be assisted by a lawyer. The basis of the Swedish system is that a public defence counsel has to be appointed for a child – if it is not evident that the child does not need one. This means both that a child who is a sus- pect almost always has to be assisted by a defence counsel and that the state offers legal aid for the costs incurred. So it is not up to the child or the child’s custodian to determine whether or not a defence counsel is needed. The main rule is that a member of the is appointed as defence counsel. In exceptional cases another suitable person who has a law degree can be appointed. At an early stage in the process, before taking a decision on the question of prosecution, the prosecutor has, as a main rule, to obtain an opinion from the municipal social services committee. If the pre- liminary investigation applies to an offence that can result in im- prisonment, the leader of the preliminary investigation shall, if possi- ble, request such an opinion at an earlier stage, no later than when notification is given of suspicion of an offence. This opinion has to be obtained about a person who is suspected of having committed an offence before turning 18 years. The opinion has to include an assessment of whether the young person has a special need of mea- sures intended to prevent them developing in an undesirable direc- The opinion also has to include a statement of the measures that the committee intends to take and, in certain cases, also an account of the young person’s personal development and their other living circumstances. The opinion can also give an account of the young person’s family situation and social relations, school and leisure time, health, emotional behaviour, etc. The opinion is then used as supporting information when the prosecutor makes their decision on prosecution or on a waiver of prosecution with a warning to a young offender or a waiver of prosecution. If a prosecution is brought, the court uses the opinion as supporting information when, for instance, selecting any sanction. If the young person is acquitted, the social welfare committee has to consider whether there are other reasons to commence measures. Special rules also apply to children concerning deprivation of . Even in cases where the suspicion relates to a more serious offence a person under 18 years may only be detained by a court as a last resort. There is a requirement that it is evident that adequate supervision cannot be arranged and there also have to be excep- tional reasons for ordering detention (in practice the same rules apply to arrest orders3). If it is necessary to arrest and detain the young person, they are guaranteed certain rights. For example, the starting point is that the young detainee has to be placed in such a way that they do not spend time with adults unless doing so can be considered to be in their best interests. For example, a starting point is that the young person should already be able to come into contact with their close relatives when in custody. The person who has been deprived of their should also be able to continue their schooling etc. A person who has been deprived of their is also guaranteed the right to be examined by a doctor and to health care etc. The main rule is that all children who are suspected or accused of an offence have the right to have their custodians present during measures like an interview in a preliminary investigation and during their trial in court. For example, the starting point is that custo- dians have to be notified and summoned to interviews. The main rule is that they are also notified about the prosecution and 3 See also SOU 2016:52, p. 157, which proposes that the law should explicitly state that a person who has not turned 18 may only be arrested when there are exceptional reasons. the court hearing. In certain cases, if the prosecution relates to an offence that can result in imprisonment, the custodian also has to be summonsed to be heard at the court hearing. If, for example, the custodian is unable to attend or if there are special reasons for not notifying or summonsing a custodian to attend, another person or other persons who have a role in the young person’s upbringing can be notified of and summonsed to attend an interview and a court hearing instead. A representative of the social services has to attend a interview with a person who has not turned 18 years and who is suspected of an offence that can result in imprisonment – if this is possible and can be done without harming the investiga- tion. In certain instances the court also has to notify the social welfare of the main hearing against a person who has not turned 18 years. Additional measures that ultimately protect the rights of children who are suspects and accused persons include the recording of interviews in the preliminary investigation and examinations in court. Sound and visual recordings may be made of interviews during the investigation. Under the current law this may be done in cases where it is particularly justified in view of, for example, the nature of the offence and the individual circumstances of the person interviewed. One circumstance that can be a particular justification for record- ing interviews is that the person to be examined is young. In courts the starting point is that examinations held have to be recorded. Secrecy provisions that are tied to the regulations about interviews mean that the recording of the interviews does not collide with the protection for the private life of the suspect. In general the Swedish legal system is based on creating condi- tions to enable young people to participate effectively in their own trial. To give these rights the effect intended, the current law con- tains, for example, certain requirements concerning expertise or re- quirements concerning specialisation regarding persons who process matters in which children are suspects or accused persons. For exam- ple, the leader of the preliminary investigation has to be particularly suitable for the task and interviews have to be held by a person with special expertise. The judges handling cases involving young persons also have, according to the main rule, to be specially appointed. The main rule is that the person who is suspected or accused also has to be present in person at their own trial. This system is of particular importance regarding children and young people who are accused persons. Exceptions can only be made in certain instances and then the system is, for example, based on requirements that the investigation has to be adequate and that the defendant has been served with information about the trial and about the consequences of not attending. So the starting point applicable is that the child or young person has to be present in person, and here the prime justification is educative. In cases against persons who have not turned 21 years it is possible, in order to safeguard privacy, to make departures from the principle that court hearings are held in public. In certain instances – for example in cases attracting a great deal of attention – it is possible for the court to hear the case in private. But close relatives of the suspect may still be allowed to be present. The current law largely complies with the Procedural Safeguards for Children Directive The Procedural Safeguards for Children Directive places further focus on the rights of children who are suspects or accused persons – regarding procedural rights for them in criminal proceedings. The Directive’s definition of children is persons under 18 years. So they are the Directive’s main target group. When justified by the circum- stances in the particular case several articles of the Directive are also applicable to persons who reach 18 years during the period when the criminal proceedings are in progress. If – after the authorities have investigated the matter – it is uncertain whether the suspect or accused person is over or under 18 years, they shall be presumed to be a child when the Directive is applied. Member States may decide not to apply this Directive when a person concerned has reached the age of 21. The Directive is limited to criminal proceedings and shall, in addition, be applied to children who are requested persons under a European arrest warrant. But the Directive does not cover any other types of proceedings. It should, for example, not apply to proce- dures that are specially designed for children and that could lead to protective, corrective or educative measures. In our view the Directive applies to the processing of criminal matters, both in court and during the preliminary investigation. The scope of the Directive also includes proceedings that result in a summary imposition of a fine.4 It also covers other criminal pro- ceedings that do not lead to examination by a court, for example a process that results in a waiver of prosecution with a warning to a young offender or a waiver of prosecution. The Directive also has an effect for children who are apprehended in in connec- tion with European arrest warrant proceedings. We consider that the provisions of the Directive should be applied in the first place to children aged 15-18 years. In certain instances its provisions also have an impact concerning persons who have reached the age of 18 but not 21. One example of a procedure that we consider falls outside the scope of the Directive is an inves- tigation under Section 31 of the (Special Provi- sions) Act, which can be considered regarding children – who can be suspected of commiting an offence before the age of 15. The children do not have criminal liability and the proceedings cannot lead to a criminal sanction. In our view, proceedings of this type are ulti- intended to give the social services clarity as to what has happened so that they can deploy the right resources for the child. But it is, of course, important to also guarantee children under 15 strong protection for their rights in a criminal investigation. The Directive applies as soon as a child is suspected or accused of an offence. We have made the assessment that, as far as is concerned, that point of time will normally be when a child is given notice of reasonable suspicion of an offence under Chap- ter 23, Section 18 of the Code of Judicial Procedure or is notified officially of the suspicion of an offence in some other way. How- ever, even before this point in time the Directive calls for a parti- cular approach by the authorities, i.e. criminal investigators, law en- forcement agencies, courts, etc. The Directive also entails obligations in the type of proceedings in which a notification under Chapter 23, Section 18 of the Code of Judicial Procedure is not considered. With respect to proceedings in connection with a European arrest warrant the Directive applies when is the executing state and as of when the child is apprehended. It has to be possible to invoke these 4 The Directive’s provisions are not to be applied with regard to sanctions for minor offences that can be determined by an authority other than a court. As regards , summary imposition of breach-of-regulations are therefore exempted. rights up until the end of criminal proceedings or European arrest warrant proceedings. The Directive consists of several parts – all of which are in- tended to create safeguard mechanisms for children subject to criminal proceedings or a European arrest warrant. This is a separate supplement to the other measures adopted by the EU in order to satisfy the procedural rights of suspects and accused persons. For example, it includes special rules on children’s right to information in criminal proceedings. In this way it supplements the EU’s pre- viously adopted Directive on the right to information in criminal proceedings with a child perspective. It also contains rules about assistance by a lawyer – and thus supplements the EU Directive on the right to access to a lawyer in criminal proceedings. The Direc- tive also contains provisions that apply to the right of children to appear in person at their trial, the right to be accompanied by their custodians to their trial, etc. In addition, the Directive contains rules that apply to deprivation of and other matters. Finally, the Directive contains, for example, provisions that apply to the train- ing of professionals handling matters in which children are suspects or accused persons. Our starting point is that the Swedish legal system is largely designed in such a way that it already corresponds to the Direc- tive’s requirements today. Thus Swedish law already offers strong protection to safeguard the rights dealt with in the Directive. How- ever, some changes are proposed below so as to fully comply with the Directive’s requirements. Children who are suspected or accused of offences have the right to information about what rights they have in the same way as adults in the same position. A few years ago, as also indicated above, the EU adopted a Directive on the right to information in criminal proceedings. This led to Swedish legislation being supplemented with regard to what information the and prosecutor are obliged to give a suspect when the suspect is notified of reasonable suspicion of an offence, is deprived of their or is told in some other way that they are a suspect. for Children Directive contains requirements concerning addition- al and special information when the suspect or accused person is a child. They have to be informed that their custodian or – where relevant – some other adult has the right to accompany them to a court hearing. The child’s custodian or some other adult also has to receive information. To live up to the requirements in this part of the Directive we have proposed supplementary rules regarding the obligation to pro- vide information. We propose inserting the great majority of them in the Preliminary Investigations Ordinance (1947:648). Safeguards for an effective defence Article 6 of the Directive contains a provision that children who are suspects or accused persons shall be assisted by a lawyer with- out undue delay once they are made aware that they are suspects or accused persons. The Article expresses a compulsory provision – children have to be assisted by a lawyer when they are suspected or accused of an offence unless this would not be proportionate. The absolute main rule is that children shall be assisted by a lawyer when questioned and have the right to meet in private and com- municate with the lawyer representing them. There are only limited possibilities of temporarily limiting communication and meetings in private and of questioning the child when their lawyer is not present. This may only be done in isolated cases where the circum- stances are exceptional, for example where immediate action by the authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious criminal offence. Derogations from the requirement of assistance by a lawyer are also permitted where there is an urgent need to avert serious adverse consequences for the life, or physical integrity of a person. These deroga- tions may only be used at the pre-trial stage. The Swedish legal system already offers strong protection at present. The provisions of the (Special Pro- visions) Act mean that, in principle, persons under 18 always have to have a public defence counsel appointed for them. A different outcome is only possible in instances where it is evident that there is no need for a public defence counsel. So the public authorities are responsible for ensuring an effective defence – and this is in good agreement with the Directive’s compulsory requirement of access to a lawyer. The exceptions permitted by Swedish law in evi- dent cases must also be considered to be consistent with the Direc- tive. In addition, when the Directive on the right to access to a lawyer in criminal proceedings previously adopted by the EU was implemented in Swedish law, the right of a suspect or accused per- son who had been deprived of their to meet their defence counsel in private or to communicate with them in some other way was expanded. The possibilities of having their defence counsel pre- sent during questioning were also modified. In this way the Swedish legal system also guarantees possibilities for children to prepare and conduct their defence. We have therefore concluded that today Swedish law already contains the core provisions foreseen by the Directive. However, the ultimate purpose of the provisions of this part of the Procedural Safeguards for Children Directive is to make an effective defence possible. In our view, this also makes other demands on the legal system than those that are immediately apparent from the Directive.