TABLE OF CONTENTS

Executive Summary Sheet............................................................................................................. 4

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Error! Bookmark not defined.

1........... Introduction.................................................................................................................... 6

2........... Policy context................................................................................................................. 7

3........... Procedure and consultation of interested parties............................................................. 10

3.1........ Consultation of interested parties................................................................................... 10

3.2........ Studies and publications................................................................................................ 12

3.3........ Internal consultation and scrutiny of the Impact Assessment........................................... 12

4........... Problem definition......................................................................................................... 12

4.1........ The general problems.................................................................................................... 12

4.1.1..... Insufficient protection of fair trial rights of children and vulnerable adults......................... 12

4.1.2..... No overarching protection of children and vulnerable adults by the measures already adopted according to the Stockholm Programme................................................................................................. 14

4.1.3..... The insufficient protection of children and vulnerable adults affects mutual trust and hampers the smooth functioning of mutual recognition..................................................................................................... 15

4.2........ The specific problems................................................................................................... 17

4.2.1..... Specific Problem 1: The vulnerability of suspected or accused persons is not sufficiently assessed from the very beginning of the criminal proceedings............................................................................. 18

4.2.2..... Specific Problem 2: Vulnerable persons, in particular children, are not sufficiently assisted throughout the criminal proceedings and their access to a lawyer is not ensured................................................. 21

4.2.3..... Specific Problem 3: Vulnerable persons, in particular children, lack particular safeguards taking into account their special needs at the various stages of the proceedings.................................................... 25

4.2.4..... Lack of training of professionals in contact with children and vulnerable adults and lack of specialisation of judges.................................................................................................................................... 28

4.3........ The scale of the problem............................................................................................... 29

4.4........ Baseline scenario: how would the problem evolve in the future if no EU action takes place? 30

4.5........ Does the EU have power to act?................................................................................... 31

4.5.1..... The Legal basis............................................................................................................. 31

4.5.2..... Subsidiarity: Why is the EU better placed to take action than Member States?............... 32

5........... Objectives.................................................................................................................... 33

6........... Policy options............................................................................................................... 34

6.1........ Discarded Options........................................................................................................ 34

6.2........ Overview of the policy options...................................................................................... 35

6.3........ Detailed description of the options................................................................................. 36

7........... Impact analysis of the options........................................................................................ 43

8........... Comparative assessment of the policy options............................................................... 61

9........... The preferred option..................................................................................................... 61

9.1........ Children....................................................................................................................... 61

9.2........ Vulnerable Adults......................................................................................................... 63

10......... Transposition, monitoring and evaluation........................................................................ 66

Annex......................................................................................................................................... 68

Annex I The Implementation of the Roadmap – Specific provisions with regard to vulnerable persons 69

Annex II Overview of stakeholder views on key elements of the proposed measures................... 72

Annex III Bibliography of documents and studies........................................................................ 82

Annex IV Relevant International Legal Framework.................................................................... 88

Annex V Case-law of the ECtHR related to children and other vulnerable persons...................... 90

Annex VI Estimates of affected population................................................................................ 105

Annex VII Method for estimating the cost.................................................................................. 110

Annex VIII General Cost calculations........................................................................................ 111

Annex IX Cost assessment per Member State........................................................................... 132

Annex X Number of affected children and vulnerable persons for each option............................ 135

Annex XI Procedure................................................................................................................. 146

Executive Summary Sheet

Impact assessment on a Proposal for measures on special safeguards for children and vulnerable adults suspected or accused in criminal proceedings

A. Need for action

Why? What is the problem being addressed?

Despite the existence of common principles and minimum standards stemming from the European Union Charter of Fundamental Rights, the European Convention of Human Rights and other international law instruments, the fair trial rights of vulnerable persons (i.e. children as persons below the age of 18 years old and vulnerable adults) throughout the various stages of criminal proceedings are, at present, not sufficiently guaranteed within the EU. This leads to shortcomings with regard to the way in which these principles are applied which may undermine mutual trust between judicial authorities. Mutual recognition of judgments and judical decisions and police and judicial cooperation in criminal matters, which rely on mututal trust, may therefore be affected. The number of children facing criminal justice is approximately 1.086.000 across the EU, i.e. 12% of the European population facing criminal justice each year. Estimates with regard to vulnerable adults range between 358.000 to 719.000 persons.

What is this initiative expected to achieve?

The main objectives of the proposal are (1) to guarantee an effective minimum standard of protection of fundamental procedural rights for vulnerable persons suspected or accused in criminal proceedings; (2) to enhance mutual trust between Member States thus facilitating mutual recognition of judgments and judicial decisions and improving judicial cooperation in the EU. These general objectives will be achieved by putting in place appropriate assessment mechanisms of vulnerabilities, by ensuring adequate assistance by parents or legal representatives, by providing mandatory access to a lawyer, by ensuring appropriate safeguards taking into account the specific needs of vulnerable persons at all stages of the criminal proceedings.

What is the value added of action at the EU level?

Action at EU-level would establish common minimum standards of procedural safeguards for children and vulnerable adults suspected or accused in criminal proceedings across Member States. Those common minimum standards are necessary in particular when dealing with the most fragile part of citizens facing criminal justice (e.g. children) mostly because they face a higher risk of discrimination or deprivation of their fundamental rights due to their lack of knowledge, maturity or mental and physical disabilities. Moreover, children and vulnerable adults can be involved in criminal proceedings outside their own Member State. This cross-border dimension constitutes another factor for the need of action at EU-level.

B. Solutions

What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why?

Four main policy options were considered: status quo (Option 1), a soft law option (Option 2) and two policy options which would take the form of a Directive (for children) or a Recommendation for (vulnerable adults) (Options 3 and 4). The status quo would involve taking no action at EU level. Option 2 (non-legislative action/soft-law) would support the protection of the rights of vulnerable persons though, for example, monitoring and evaluation, training and good practice examples dissemination, but its impact would be rather low. Options 3 would set minimum rules applying the ECtHR acquis and pertinent aspects of relevant international provisions on procedural safeguards (e.g. appropriate assistance by parents/legal representatives, mandatory access to a lawyer, protection of privacy rules, proportionality and limitation of detention). Option 4 is the most ambitious and prescriptive option which goes beyond option 3 on certain safeguards such as an "in-depth" assessment of vulnerability, enhanced medical examination (vulnerable adults) audio-video recording of police interviews, specially trained judges, access to educational facilities in detention. It is likely to contribute more effectively to the objectives. However, the costs are higher than the other options (under the assumption that a Recommendation for vulnerable adults would be implemented by Member States). The preferred option is a combination of elements from options 3 and 4, for children in the form of a Directive, and for vulnerable adults in the form of a Recommendation.

Who supports which option?

Consultations with stakeholders have demonstrated clear support for legislative action related to procedural safeguards for children. Most agree that other forms of action would neither be efficient nor effective enough to address the problems identified. With regard to measures for vulnerable adults the support for legislative action was more mitigated given in particular the difficulties to find a standard definition of vulnerable persons.

C. Impacts of the preferred option

What are the benefits of the preferred option (if any, otherwise main ones)?

By the introduction of procedural safeguards for children and vulnerable adults from the very beginning of the criminal proceedings until the trial stage, the preferred options for children and vulnerable adults will significantly contribute to the achievement of the general objectives set out. In terms of fundamental rights, the preferred options will have an overall very positive impact. The rights to a fair trial, to information and legal advice, protection against ill-treatment and protection of privacy will be significantly enhanced. The social impact will be overall very positive as the individual situations of children and vulnerable adults (including in most cases the situation of family members) will be improved (e.g. assessment, information, assistance). Moreover, limitation of the length of pre-trial detention will reduce costs and facilitate reintegration into society. As regards the proposed Recommendation for vulnerale adults, the impact will depend on its implementation by the EU Memer States.

What are the costs of the preferred option (if any, otherwise main ones)?

The costs of the different options vary quite considerably. The financial and economic impact of option 2 would be rather limited. The maximum financial costs are estimated to be approximately €20.2 million (including mainly training costs for law enforcement authorities and costs for studies and workshops). For options 3 and 4 total costs are expected to be in the higher range. Option 3 would amount to €100.1 million [children] and to range from €40.3 to 72.8 million [adults], Option 4 (which would be the highest of the four options) would amount to €164.2 million [€182.8 million, training incl.] [children] and to range from €134.4-228.9 million [€153 to 247.5 million, training incl.] [adults]. The total costs of the preferred option for children (Directive) amount to €136.2 million [€154.8 million, training incl]. The total costs of the preferred option for vulnerable adults (Recommendation) range between €70.9 to 133.6 million [€89.5 million to 152.2 million, training incl.] (based on the assumption that all Member States will implement the Recommendation). However, these costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and also to the reduction of custodial measures. In the long term, the financial impact estimated should gradually decrease as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used.

How will businesses, SMEs and micro-enterprises be affected?

Businesses, SME's and micro-enterprises will not be directly affected by this proposal.

Will there be significant impacts on national budgets and administrations?

The enhancement of procedural safeguards will lead to an increase in the costs for law enforcement authorities (e.g. assessment mechanisms, medical assistance, access to a lawyer, safeguards during police-interviews, pre-trial detention and court hearings, training costs). Almost all costs will have to be borne by public administration on both national and local level. However, cost savings will be achieved by a reduction of lengthy trials or the frequency of appeals.

Will there be other significant impacts?

The establishment of common minimum standards for the protection of children and vulnerable adults would enhance confidence in the judicial systems of Member States and the EU in general.

D. Follow up

When will the policy be reviewed?

It is foreseen that Member States should report on the effective implementation of this proposal. The Commission will be monitoring transposition and implementation of the Directive as well as carrying out specific empirical studies with an emphasis on data collection 3-5 years into the application of the proposal. A number of indicators to assess the effectiveness of the proposal have been established.

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the document

Proposal for a directive of the European Parliament and of the Council

Proposal for a on procedural safeguards for children suspected or accused in criminal proceedings

1. Introduction

This impact assessment concerns a set of measures for special safeguards for children and vulnerable adults suspected or accused[1] in criminal proceedings.[2] These measures aim at setting minimum rules and thereby ensuring an enhanced level of protection within the EU. This will not only strengthen the fair trial rights of children and vulnerable adults suspected or accused in criminal proceedings but it will also ultimately benefit the overall quality of justice within the EU, improve the mutual trust between EU Member States' judicial authorities and thus facilitate judicial cooperation in criminal matters between the Member States.

The right to an effective remedy and to a fair trial, presumption of innocence and a right of defence are laid down in the Charter of Fundamental Rights of the European Union ("the Charter") in Article 47 and Article 48 and have the same meaning and scope as the rights guaranteed by Article 6(3) of the European Convention of Human Rights ("ECHR"). The ability to effectively exercise these rights largely depends on the ability of the suspect or accused person to follow and fully participate in the procedure, which may be limited due to age, lack of maturity or disabilities. This means that for children and vulnerable adults[3] special measures need to be taken to ensure that they can effectively participate in the proceedings and benefit from their fair trial rights to the same extent as other suspects or accused persons.[4]

Despite these common principles, there are insufficient standards in some Member States with regard to special safeguards for children and vulnerable adults to ensure the effective exercise of their fair trial rights, for example regarding the detection of the need for special assistance. This leads to shortcomings with regard to the way in which these rights are applied which may hamper the mutual recognition of decisions. Moreover, while applying to suspects and accused persons who are children and vulnerable adults, the recent EU Directives adopted according to the Stockholm Programme to ensure the fair trial rights of suspected and accused persons, do not take particular account of the specific needs of these two groups to be able to exercise their fair trial rights and might not be sufficient to achieve mutual trust on the matter. To this end, the Stockholm Programme and the Roadmap on Procedural Rights explicitly foresee a specific measure for the protection of vulnerable persons.[5]

At present, there is no overarching comprehensive protection for children and other suspects or accused persons who are vulnerable across the EU.

This impact assessment accompanies the Commission's proposal for measures on special safeguards for children and vulnerable adults suspected or accused in criminal proceedings.

2. Policy context

Mutual recognition is the cornerstone of judicial cooperation. Judicial decisions taken in one Member State should be considered as equivalent to each other wherever that decision is taken, and so enforceable anywhere in the EU. Without mutual trust between authorities of the Member States of the EU, mutual recognition of judgments and judicial decisions and of police and judicial cooperation in criminal matters in the EU will be affected. It is recognised that the perception that the rights of suspects or accused persons are not respected in every instance has a disproportionately detrimental effect on mutual trust and, in turn, on judicial cooperation[6]. Thus, Article 82 of the Treaty on the Functioning of the EU (TFEU) states that the principle of mutual recognition of judgements and judicial decisions should be facilitated by means of minimum rules on procedural rights.

In this context, the Stockholm Programme[7] put a strong focus on the strengthening of the rights of individuals in criminal proceedings and on the rights of the child. It is specifically stated that the Commission must show special attention to suspected or accused persons who are vulnerable (i.e. who cannot understand or follow the context or the meaning of proceedings, owing, for example, to their age, mental or physical condition)[8], in order to safeguard the fairness of proceedings. This measure forms also part of the EU Agenda for the Rights of the Child[9] to which the European Parliament, the Committee of the Regions, the Economic and Social Committee and the Council of Europe as well as key stakeholders such as UNICEF, the Ombudspersons for children in the Member States, and civil society have contributed[10].

The European Council also invited the Commission to put forward proposals contained in the Roadmap on Procedural Rights[11] ("the Roadmap") adopted by the Council of Ministers in November 2009, setting out a step by step approach to strengthening the rights of suspects and accused persons in criminal proceedings. The Roadmap measures deal with distinct procedural rights or set of rights of suspects or accused persons which had been identified by Member States and stakeholders alike as needing to be strengthened by action at EU level, and thus has to be considered as a building-block for a whole edifice.

Roadmap measures: · Translation and Interpretation · Information on Rights and Information about the Charges · Legal Advice and Legal Aid · Communication with Relatives, Employers and Consular Authorities · Special Safeguards for Suspected or Accused Persons who are Vulnerable · Green Paper on Pre-Trial Detention

A Directive on the right to interpretation and translation, a Directive on the right to information in criminal proceedings and a Directive on the right of access to a lawyer and the right to communicate upon deprivation of liberty in criminal proceedings have been adopted[12]. Moreover, a Directive establishing minimum standards on the rights, support and protection of victims of crime has been adopted in October 2012[13].

However, the instruments that have been adopted so far relate to procedural rights that apply to all suspects or accused persons in criminal proceedings. They are based on the assumption that all suspects are able to understand and to effectively participate in the criminal proceedings (which is often not the case for vulnerable persons). In fact, during the negotiations of these measures, specific rules with regard to vulnerable persons were left aside by the European Parliament and the Council as it was intended to foresee specific safeguards for vulnerable persons, in particular children, in a separate, overarching legal instrument[14]. Therefore these instruments provide for some limited and general provisions dedicated to children and vulnerable adults (such as persons with disabilities, for further details, see Annex I) and do not intend to address all their specific needs and guarantees to ensure that vulnerable persons can effectively exercise their rights. It results that without additional measures, specifically dedicated to the protection of children and vulnerable adults, the present legal situation would leave the weakest and most sensitive suspected persons without appropriate safeguards in criminal proceedings.

Finally, without specific measures for vulnerable persons, the objectives of the Roadmap in its entirety will be weakened as the already adopted measures do not provide sufficient protection for vulnerable persons. Only if all envisaged initiatives on procedural rights in criminal proceedings are implemented, an environment of enhanced mututal trust between judicial authorities will be in place.

Who are vulnerable suspected or accused persons? Jurisprudence of the European Court of Human Rights (ECtHR) defines a vulnerable suspected and accused person as an individual who cannot effectively participate in criminal proceedings, i.e.: “A suspected or accused that does not have a broad understanding of the nature of the accusation or the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed”[15]. There are two main categories of vulnerable persons in criminal proceedings: children and vulnerable adults. The treatment of those two categories varies considerably which is why throughout this Impact Assessment these two categories will be treated separately. While there is no standard definition of who is a vulnerable adult in criminal proceedings in the EU Member States, there is a common definition for children and all Member States do regard children as being vulnerable in criminal proceedings. Children[16] Children are considered by definition vulnerable in criminal proceedings and special safeguards are in place to ensure their fair treatment primarily for three reasons: - Children are vulnerable due to their young age and their unfinished physical and psychological development and emotional and educational immaturity. Because of their immaturity, children face difficulties in understanding what is at stake in a criminal proceeding, in understanding the law and their rights and to defend themselves and to effectively exercise their rights provided by law. - Children are also vulnerable because of a general imbalance that exists when they face adults with special authority in criminal matters and might have limited and often incorrect knowledge or understanding of criminal courts and their rights in criminal procedures. - Finally, children are further disadvantaged as a large number of them are not only vulnerable due to their young age but also due to mental health problems, learning disabilities, learning difficulties and communication difficulties. Vulnerable adults Vulnerable adults are not defined in any international or European legal instrument. Based on the ECtHR case law and legislation in Member States, vulnerable adults are "individuals who cannot understand or effectively exercise their legal rights because of, for instance, a disability, mental impairment, a physical or psychological weakness". Although vulnerable adults are not easy to define, it is generally recognised by stakeholders[17] that they need special safeguards in criminal proceedings in order to ensure that these persons understand their rights and can exercise them. If people do not understand the proceedings or the consequences of their actions in the proceedings, such as confessing, because their vulnerability is not identified or because special safeguards are not in place, this leads to inequality of arms, undermining the chances of receiving a fair trial and threatens the integrity of the judicial process. It is the objective of this initiative to ensure that the procedural rights of vulnerable adults are adequately respected in the EU by ensuring that their vulnerabilities are identified and matched with relevant necessary safeguards. In the case Vaudelle v. France[18], the applicant who had a mental impairment was under the supervision of his son who was responsible for his affairs. The applicant was charged with sexual offences against minors and was sent a summons to attend the trial. He did not appear at trial and was convicted in this absence. The applicant claimed that the fact the summons to attend the trial and notification of the judgment were sent to him only and not to his supervisor had prevented him from exercising his defence rights under Article 6(1) ECHR (right to a fair trial) and Article 6(3) (right to be informed in detail of the nature of the accusation) ECHR. The ECtHR ruled that the French authorities had indeed violated Article 6 ECHR in that they had failed to ensure that the applicant could understand the criminal proceedings, inform him in an appropriate manner of the accusation against him and grant a fair trial[19]. The absence of definition of vulnerable persons can be overcome by a modulated response in the form of a less prescriptive measure such as a Recommendation and by focussing on ensuring that there are procedures in place in the Member States that help identify vulnerabilities early on, in order to grant access to the necessary additional assistance.

3. Procedure and consultation of interested parties

3.1. Consultation of interested parties

General principles and minimum standards for consultation of interested parties have been followed in relation to this initiative. The views of all major stakeholders and Member States were sought on several occasions[20].

Vulnerable persons have been consulted through NGOs and professionals in contact or dealing with them.

This impact assessment relies on previous consultations of children made in the context of the EU Agenda for the Rights of the Child, for the Council of Europe, consultations made by the contractor in its external study, several meetings with experts and stakeholders and relevant studies (for more details, see Annex II and III)[21].

Member States and stakeholders (such as bar associations, family associations, NGO's specialised in the protection of children) clearly underlined the need for specific safeguards for vulnerable persons, in particular for children. In this context, stakeholders highlighted the insufficient and patchy implementation of international standards and the absolute need to establish common minimum rules among EU Member States. Stakeholders suggested to provide safeguards for children in a specific measure, preferably a directive. All safeguards set out in this Impact Assessment were largely supported by stakeholders, in particular mandatory access to a lawyer was considered as a key measure. Despite the similarity of problems faced by vulnerable adults in criminal proceedings, stakeholders suggested to deal separately with vulnerable adults given the absence of a common definition and the need to avoid any form of discrimination or stigmatisation by naming certain categories of person as vulnerable. An appropriate solution should be found to overcome the lack of definition. This could be done by a less prescriptive legal instrument, such as a Recommendation. (For more details see overview on stakeholder views, Annex II).

(a) A meeting with experts was held on 23 September 2011. Representatives of 18 Member States as well as a panel of experts from the Council of Europe, International Association of Youth and Family Judges and Magistrates, the United Nations, medical and legal practitioners specialising in children cases were gathered. A reflection paper outlining the current legislative framework concerning suspected and accused children and vulnerable persons was issued to which all Member States replied.

(b) A workshop was held by the contractor of the external study ICF - GHK on 13 January 2012 to evaluate the problem definition and policy options[22].

(c) A further experts' meeting was held on 26 April 2012, bringing together experts from NGOs active in the field of protecting the rights of defendants, children and persons with disabilities, bar associations and organisations of magistrates. The experts discussed legislative and non-legislative measures that could be taken at an EU level to increase protection for children and vulnerable adult suspects and accused persons.

(d) A third experts' meeting was held on 11 December 2012 hosting representatives of 18 Member States as well as experts from the International Association of Youth and Family Judges and Magistrates, the European Parliament and legal practitioners specialising in children cases. This meeting offered the opportunity to collect reactions from the experts regarding the introduction at EU level of certain safeguards for vulnerable person. (e) Also, the 2003 Green Paper Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union and the discussions with stakeholders in this context have been a valuable starting point and guide in the development of this Impact Assessment.

It resulted from the meetings and written replies that Member States agreed on the need for action on EU level, especially in relation to children. Any proposal should take into account existing international rules and standards. Mandatory access to a lawyer for children and those vulnerable adults who cannot understand the proceedings was considered as the core issue, also the assistance and presence of parents or legal representatives, the need for a proper assessment of vulnerabilities, safeguards for police interviews, court hearings and detention were generally acknowledged. Finally, also the need for appropriate training of professionals in contact with children and vulnerable adults was highlighted (for more details, see Annex II).

3.2. Studies and publications

Given the comprehensiveness of this area of criminal procedural law, the Impact Assessment relies on a number of studies and publications. Bearing in mind length constraints, the most central studies for this Impact Assessment are indicated in Annex III.

An external study (hereafter referred to as "external study") to gather evidence for this Impact Assessment was commissioned on 14 September 2011. The external study, carried out by the consultant company ICF-GHK, focused on the problem definition, policy options and costs of the various options.

3.3. Internal consultation and scrutiny of the Impact Assessment

An Inter-service Impact Assessment Steering Group (IASG) was created in September 2011 involving representatives from DGT, SCIC, COMP, MARKT, RELEX, ELARG, OLAF, HOME, CNECT, the Legal Service and the Secretariat-General. The competency of this IASG was extended to the presumption of innocence. A second and third meeting were held on 15 January and 30 April 2013 both on vulnerable persons and presumption of innocence. The feedback received at these meetings has been largely taken into account throughout this Impact Assessment. Participants had the opportunity to express their views on the previously submitted text of the draft Impact Assessment (for more details, see Annex II).

The European Commission's Impact Assessment Board (IAB) examined this report and issued an opinion on 5 July 2013 in which it was requested to resubmit the report to the IAB, together with a number of suggested improvements.

A revised report submitted to the IAB on 31 July 2013 took on board the recommendations of the IAB and introduced a number of modifications and clarifications (set out in detail in Annex XI). On 6 September 2013 the IAB issued a positive opinion on the revised report, together with some recommendations which are taken into account in the present final version of the report (modifications are set out in Annex XI).

4. Problem definition

4.1. The general problems

An analysis of the legislation in place in the Member States, shows that the procedural safeguards granted by the Member States to both children and vulnerable adults are insufficient to guarantee their effective participation in criminal proceedings. This is further supported by the case-law of the ECtHR (for more details see Annex V). The problem of insufficient protection of the fair trial rights of children and vulnerable adults (see Section 4.1.1) is not sufficiently addressed by the already adopted measures on procedural rights (see section 4.1.2) and thus, at present the legal framework does not sufficiently foster mutual trust at a level which will ensure the smooth functioning of the mutual recognition instruments in criminal proceedings (see section 4.1.3).

4.1.1. Insufficient protection of fair trial rights of children and vulnerable adults

The current national,[23] international and European legal framework for the protection of the rights of suspected or accused vulnerable persons in criminal proceedings in Europe is insufficient.

On an international level, the rights of vulnerable persons in criminal proceedings are primarily governed by the UN Convention of the Rights of the Child (UN CRC)[24] and the UN Convention on the Rights of Persons with Disabilities (UN CRPD)[25]. However, the provisions are very general and relate only to a limited extent to criminal proceedings[26]. Moreover, international treaties are rarely directly applicable and - to benefit from these rights - individuals must rely on national implementing legislation – a step which EU Member States have not always taken or, if legislation is adopted, it may insufficiently capture the international law provisions. Censures of Member States by international monitoring bodies such as the UN Committee on the Rights of the Child (CRT) and the Council of Europe's Committee for the Prevention of Torture (CPT), in case of non-compliance, have not been able to change the practice of Member States[27].

Moreover, a number of other international standards are not binding upon Member States but foresee recommendations or guidelines (e.g. Guidelines of the Council of Europe on child-friendly justice, UN Beijing, Riyadh and Havana Rules for the Administration of Juvenile Justice).

While the international instruments should be considered as a starting point (for more details, see Annex IV), action at EU level will ensure more effective minimum rules for vulnerable persons, in particular for children. In the European legal framework, the Charter and the ECHR provide specific safeguards[28] and fair trials rights in criminal proceedings,[29] applicable for all suspects and accused persons. In ECtHR case-law[30], these articles have been interpreted in relation to children and vulnerable adults (for more details see Annex V on ECHR case-law):

The principle of "effective participation" The guiding principle of the European Court of Human Rights when assessing a potential breach of Article 6 ECHR with regard to suspects or accused persons who may be said to be vulnerable has been to focus on whether or not the person was able to "effectively participate" in their trial. The European Court of Human Rights highlights that in the case of a child, it is essential that he/she will be dealt with in a manner which takes full account of his/her age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his/her ability to understand and participate in the proceedings, including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition (ECtHR, S.C v the United Kingdom, N°60958/00, judgment of 15.6.2004).

In addition, Article 24 of the Charter specifically provides for the need of the EU to promote and safeguard the rights of the children and to take the best interests of the child into account in all actions[31].

However, in many cases the application of the ECHR and the related jurisprudence is developed in a piecemeal and ad hoc way and results in diverging interpretations in the Member States[32]. Therefore, the standards and rights that vulnerable adults and children have in criminal proceedings remain legally uncertain and difficult to access. As regards the interpretation of the Charter, there is currently very limited case-law interpreting the relevant rights.

Moreover, even if there is case-law from the ECtHR on how to interpret the relevant rights in relation to vulnerables, such rulings are not always implemented. The insufficient protection of procedural safeguards is, to a certain extent, due to the absence of any effective enforcement mechanism to oblige and encourage States to change their national laws in the case of breaches of ECtHR decisions. Moreover, as rulings are given in a specific case, it is difficult to generalise and extract the exact meaning of the ruling. This is one reason for the high ratio of ‘repetitive decisions’ before the ECtHR in relation to fair trial issues (around 70 per cent of the Court's judgments in 2011[33]). This indeed suggests that the concerned Member State, or even less other Member States, are not reforming their national legislation after a breach of Article 6 ECHR. There are also limitations for individuals wishing to bring a case before the ECtHR, and the reparations to remedy a violation generally consist of declaratory judgments, coupled with, depending on the circumstances, damages[34]. Moreover, experience shows that vulnerable persons often do not understand that their procedural rights have been breached and introduce therefore only very rarely remedies in accordance with national law or an appeal to the ECtHR.

This shortage of strong enforcement powers in the ECHR system, coupled with the perennial ECtHR backlog that poses a serious risk to the effectiveness of the whole ECHR system,[35] also adds to the insufficiency of relying only on the ECtHR to ensure sufficient protection of vulnerable persons in the EU criminal justice area as being developed under the Roadmap.

4.1.2. No overarching protection of children and vulnerable adults by the measures already adopted according to the Stockholm Programme

The measures relating to procedural rights which have already been adopted in the EU according to the Stockholm Programme do not foresee a sufficient protection of vulnerable persons, in particular children (for more details see Annex I).

Whereas it is considered that the Directive on the right to interpretation and translation and the Directive on the right to information, once they are implemented by Member States[36], will ensure a certain level of protection within the EU with regard to the right of interpretation and translation[37] and the right of information of vulnerable persons on their procedural rights and about the accusation, the Directive 2013/48/EU on the right of access to a lawyer and to communicate upon arrest[38] does not foresee any specific safeguards for vulnerable persons with regard to legal assistance, especially with regard to children.

In addition, although these measures of the Roadmap foresee safeguards with regard to certain specific rights of vulnerable persons, they do not take account of all problems suspected and accused vulnerable persons may face in the various stages of criminal proceedings (e.g. need for appropriate assessment mechanisms of vulnerabilities, medical assistance, mandatory access to a lawyer, specific safeguards with regard to police questioning, need for protection against abuse and ill-treatment in detention etc.). In fact, the Stockholm programme and the ensuing Commission Action Plan[39] explicitly forsee that a specific measure should be adopted to provide common minimum rules for vulnerable persons in addition to the other procedural rights measures. Without such an instrument, the protection of suspects or accused persons in criminal proceedings would not be complete and and the objectives of the Stockholm Programme and the Roadmap could not be fully achieved[40].

4.1.3. The insufficient protection of children and vulnerable adults affects mutual trust and hampers the smooth functioning of mutual recognition

Mutual recognition and judicial cooperation in criminal matters presupposes that there is mutual trust in the legal systems of other Member States. The underlying idea of the mutual recognition instruments is to ensure fast-track and simple procedures for cross-border law enforcement and cooperation. Such cross-border instruments build on the assumption that each Member State provides a system of justice which guarantees fair trial rights to a fairly similar degree; something that is not the case in practice. The grounds for refusal for the executing Member State in the EU mutual recognition instruments, including the European Arrest Warrant Framework Decision[41] and the Transfer of Prisoners Framework Decision[42], were built to verify the compatibility of the measure sought with the "public policy" of the executing Member State, but not to help ensure respect for human rights in the main criminal proceedings taking place in the issuing Member State. The European Arrest Warrant (EAW) is also applicable to children and vulnerable adults. In addition, several mutual recognition instruments (e.g. Framework Decision on Probation Measures and Alternative Sanctions[43], Framework Decision on Custodial Sentences[44], Framework Decision on supervision measures[45]) foresee specific provisions with regard to children in order to strengthen the control of the executing State when it comes to the recognition of judicial decisions or judgments[46].

If judicial authorities doubt the compliance with fair trial rights by another jurisdiction and believe that a suspect or accused person might not get, or has not got sufficient protection, requests for judicial cooperation from that jurisdiction can be denied or systematically challenged, in the latter case leading to delays in the judicial cooperation. This means that a person is not to be surrendered under the EAW, that a court might refuse to collect evidence requested by judicial authorities in another Member State and that a transfer of a prisoner request is denied as the receiving Member State has doubts as to the fairness of the trial underlying the conviction.

In practice, the system of mutual recognition often works sub-optimally as the swift operation is hampered by challenges and appeals, resulting in additional costs and delays, partially due to complex and drawn-out investigations into the systems of other Member States in such situations. The insufficient protection of fair trial rights that results from the lack of adequate protection of procedural safeguards for children and vulnerable adults, as has been set out in the previous section 4.1.1, may affect mutual trust negatively. This has the potential to undermine confidence in cross-border instruments such as the European Arrest Warrant.

There is limited statistical quantifiable evidence on insufficient mutual trust between the Member States. Member States do not collect data on the number of judicial cooperation requests that are challenged or refused. Therefore, it is also difficult to quantify the problem. However, the execution of an estimated 4 to 8% of EAWs is refused. This means that up to 1 in 12 EAW requests are unsuccessful; added to the number that are delayed, this points to a degree of strain in the confidence and trust that Member States and their citizens place in each other's criminal justice systems, and shows that judicial cooperation does not run smoothly. There is wide support from stakeholders on how fostering mutual trust, by laying down common minimum standards, will help the system work more smoothly, and avoid delays and refusals.

Indeed, stakeholder interviews conducted by ICF GHK with NGOs representing children (e.g. EJJO[47] and DEI[48]) as well as professionals involved in criminal proceedings (e.g. ECBA[49] and IAYFJM[50]) - in the context of the external study – confirmed that there could be a clear link between lack of minimum standards for fair trial rights at EU level and the suboptimal functioning of judicial cooperation in the EU. Perceptions of potential unfair treatment in the trial rights afforded to defendants in other Member States could lead to delays in certain cases and in a few instances to failure of European Arrest Warrant requests and other judicial agreements[51]. Stakeholder interviews suggested that delays in recognition proceedings have taken place on account of concerns about the procedural rights available to children or other vulnerable persons in the Member States.

There is therefore a need to foster and reinforce mutual trust by setting some common minimum standards with respect to a set of procedural safeguards. This will establish a climate of mutual trust that also ensures the proper working of upcoming mutual recognition instrument such as the European Investigation Order.

By ensuring that fair trial rights are respected from the outset of proceedings, by enacting common minimum standards, one can avoid costs in the administrative and judicial system, costs which are usually not that visible.[52] By respecting fair trial rights and operating a system where there is trust in the respect of such rights, there are fewer appeals, fewer claims for retrial and one avoids appeals to and condemnations by the ECtHR. By having sufficient safeguards for fair trial rights, one also avoids challenges that obtained evidence is inadmissible. In mutual recognition proceedings, one avoids delays and costs arising therefrom, e.g. costs of providing pre-trial detention in EAW cases, or having more lengthy proceedings and more judicial and legal costs in case of non-consent in EAW cases.

As the principle of mutual recognition is the cornerstone of the area of justice, it is necessary to enhance mutual trust for the effective functioning of the area of Freedom, Security and Justice. To establish this climate of mutual trust, the Member States have in the Roadmap indicated the measures that are considered necessary to achieve these minimum standards of mutual trust, and specific safeguards for vulnerable persons is one of these necessary measures. An enhancement of procedural safeguards for children (and other vulnerable persons) by the existing and foreseen measures of the Roadmap and by the present initiative will contribute to the reinforcement of mutual trust and thereby to a more optimal functioning of mutual recognition mechanisms between Member States.

4.2. The specific problems

In this context, seven specific problems need to be addressed by this initiative which are relevant for both children and vulnerable adults, but to a varying degree. The problems and possible safeguards have been discussed in several meetings with Member States and stakeholders. They interact with each other and need to to be addressed in order to provide an overall protection of children and vulnerable persons in all stages of criminal proceedings.

Examples for interaction of problems: Parents who are not duly informed are neither in a position to explain to their child what is at stake nor assist the child in the exercise of his or her rights of defence nor provide moral support. Moreover, they cannot inform the police about any specific vulnerabilities of their child. In the absence of a lawyer a child may make wrong confessions without understanding the consequences of such action. Moreover, possible ill-treatment of the child during interviews may happen more easily. A child left on its own might not ask for necessary medical examination which might have been requested by a lawyer who is present. In the absence of an individual assessment of the child, specific needs with regard to detention conditions might be overlooked (e.g. level of maturity, educational needs)[53].

4.2.1. Specific Problem 1: The vulnerability of suspected or accused persons is not sufficiently assessed from the very beginning of the criminal proceedings

There is currently no legal definition of vulnerable persons, neither at International or European level. The notion of "vulnerability" is very broad. Based on ECtHR case-law, potential categories of vulnerable persons include children, foreign nationals, persons with mental health problems, disabilities and persons affected by chronic illness. Traditionally, two main categories of vulnerable persons can be distinguished: (1) Children and (2) Vulnerable adults.

- Children

In the case of S.C. v. The United Kingdom[54] which concerned an 11 year old boy convicted for an attempted theft, the Court held that "effective participation" requires that the accused has a "broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court".

Children are considered, per se, vulnerable persons in criminal proccedings due inter alia to their insufficient maturity and/or mental capacity. It is commonly accepted in international law instruments (Article 1 of UN CRC), that in criminal matters any individual below the age of 18 should be considered as a child[55].

The foreseen measures will not deal with the age of criminal responsibility for children. This is the age when a child becomes criminally responsible for his/her actions. Although the age of criminal responsibility varies considerably between Member States, it became clear from the discussions in the expert meetings that there would be no consensus to legislate in this area. In addition, this is a matter of substantive criminal law which would go beyond the current legal basis of Article 82(2) (b) TFEU (relating to criminal procedural law) (See below, Section 6.1 lit.b).

The determination of the exact age of a child is important to determine the criminal responsibility of the child and triggers his or her specific rights in the criminal proceedings which may vary according to the age (e.g. the nature of sanctions and level of sanctions may be different). In certain circumstances the age assessment may be more complicated (e.g. the birth certificate or identity card is unobtainable, has been destroyed or falsified or documents need to be required from other Member States). One international standard[56] recommends that if there is no proof of age of children, they should be entitled to a reliable medical (or social) investigation that may establish his/her age; in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.

The determination of the exact age of a child suspected or accused in criminal proceedings is essential to determine the criminal responsibility of the child and the procedural rights which result from it, and research evidence shows that all Member States foresee already such an age assessment. Given that no particular problems have been identified in this respect and taking into account the principle of subsidiarity, this confirmed that there is no need for EU action.

All international and European standards emphasises that the child's best interests should be a primary consideration in all cases involving children within justice systems[57]. It derives from that fundamental principle that the assessement of the personal situation of the children confronted to criminal justice needs to be undertaken appropriately.

In addition to their age, a significant proportion of children in conflict with criminal law may face vulnerabilities such as mental disorders or multiple addictions. Studies demonstrate that a high proportion of children entering the criminal justice system have mental health problems, learning disabilities and communication difficulties[58]. Despite the prevalance of multiple vulnerability among suspected or accused children, in many cases the vulnerability of children on grounds other than their age is not systematically identified[59]. At present, certain Member States do not foresee any specific assessment mechanisms (e.g. LT), others only provide for a one-off screening on a case-by-case basis, usually at the beginning of the proceedings (e.g. BE, CY, ES, SK). Currently, only the NL and LV foresee a systematic assessment mechanism conducted on all children. The absence of any systematic and regular assessment mechanism or procedure in a large majority of Member States bears the risk that the detection of potential vulnerabilities of children remains random.

In addition, the mental state of a child, his or her maturity and economic, social and cultural situation may differ substantially. In order to take into account the best interests of the child and to adapt the proceedings in an appropriate manner to the child's intellectual capacities and social background, an individual assessment of the child should be ensured. The extent of such an assessment may be adapted according to the severity of the offence and the damage caused. This would also comply with the fact that traditional objectives of criminal justice, such as repression or retribution, must give way to rehabilitation and restorative justice objectives, when dealing with child offenders[60].

- Vulnerable Adults

As explained above, vulnerable adults are individuals who cannot understand or effectively exercise their legal rights because of, for instance, a mental impairment, a physical or psychological weakness. These vulnerabilities might be of permanent or temporary nature. Permanent vulnerabilities include, for instance, mental, physical, or sensorial disabilities, chronic illness and illiteracy. Temporary vulnerabilities include, for instance, intoxication through alcohol or drugs, or injury or short-term illness requiring medical treatment. An additional challenge that vulnerable adults face is that they often suffer from more than one vulnerability.

Stakeholders and Member States have indicated at various occasions that it is very difficult if not impossible to find a definition for vulnerability[61]. Nevertheless, they have acknowledged the need of protection of vulnerable persons and the need to ensure minimum safeguards in criminal proceedings[62]. Research evidence suggests that a high proportion of the persons who enter the criminal justice system are potentially vulnerable. However, there is limited reliable data on the exact percentage of vulnerable adults among the arrested and accused population but it is commonly accepted that vulnerabilities are prevalent[63]. It is increasingly acknowledged that these additional disadvantages act as multipliers of difficulty[64].

In the case Standford v. UK[65], an adult defendant was involved who was convicted of sexual offences against a 15 year old girl. He claimed that during the trial he was unable to hear and to check for himself which matters of evidence where consistent or inconsistent. The ECtHR recalled that Article 6 ECHR, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general this includes, inter alia, not only his right to be present but also to hear and follow the proceedings.

Against this background, it is essential that vulnerabilities are carefully assessed at an early stage of the proceedings. Otherwise, if the existence and nature of the impairments are unknown, special safeguards assisting vulnerable adults cannot be put in place. This may breach Article 6 ECHR and potentially hamper Member States' trust in their respective judicial systems.

At present, international and European legal instruments do not require a standardised assessment procedure with regard to vulnerabilities. Although relevant provisions exist in the Council of Europe Recommendation[66] (2004) 10, these are not binding. In most Member States the assessment which is conducted in relation to vulnerable adults is rather basic[67]. Medical expert advice is sought only if the suspected persons have "obvious" signs of vulnerability. This means that often vulnerabilities remain unrecognised at an early stage of the proceedings and "less obvious" are not at all detected. Thus, vulnerable adults facing criminal charges who are not able to understand the nature of the allegations against them, or to effectively participate in the proceedings, may experience a number of potential disadvantages and breaches of their fair trial rights. An appropriate assessment of the vulnerability of suspected or accused persons in criminal proceedings in the form of a screening by police officers and, if indicated, by medical expertise is therefore key to detect the vulnerability of persons at an early stage of the proceedings and to ensure that they will get adequate safeguards.

Member States generally agreed on the need to detect and assess potential vulnerabilities of suspects or accused persons, if needed by an expert (see Annex II).

4.2.2. Specific Problem 2: Vulnerable persons, in particular children, are not sufficiently assisted throughout the criminal proceedings and their access to a lawyer is not ensured

In order to ensure that children and vulnerable adults can fully understand and follow the criminal proceedings, procedural safeguards for the following key aspects need to be ensured:

– (a) Assistance by parents/legal representative or a person of trust[68];

– (b) Medical assistance;

– (c) Mandatory access to a lawyer.

(a) Need to ensure assistance by parents/legal representative

- Children

The role of the parents[69] is important to ensure moral and psychological support and adequate guidance to the suspected or accused child. Parents are better placed to protect the rights of defense of the suspected person (e.g. to appoint a lawyer or to decide to appeal of a decision). Moreover, the parents are also legally responsible and can be held civilly liable for the behaviour of the child.

The provision of appropriate information of parents as well as their assistance during the proceedings is recommended by international rules, such as the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the Beijing Rules and the 2007 UN CRC General Comment N°10 on the Children's rights in juvenile justice. Moreover, it is generally acknowledged by Member States and stakeholders (for more details, see Annex II).

Whereas Directive 2013/48/EU on the right of access to a lawyer foresees specific rules on the notification of custody of children to parents, it does not foresee the provision of appropriate information on the procedural rights and charges concerning children to parents or a person of trust. Also the Directive 2012/13/EU on the right to information in criminal proceedings does not foresee such a right.

Moreover, the subsequent presence of parents at the police station and court – where they could actually assist and guide the child – is not covered by these measures[70]. In this respect, the situation varies across Member States. In several Member States the presence of parents at the police station is currently not foreseen (e.g. BE, BG, EE, ES, FR, HU, NL, PT, SE).

However, the issue whether parents should be present at interrogations is discussed controversially[71] and will therefore not be covered by this initiative[72]. This does not affect any existing legislation in Member States or prevent Member States from adopting rules in this respect.

- Vulnerable Adults

The information of the legal representative or a person of trust is important if a vulnerable adult is involved in criminal proceedings because they provide any necessary support to the vulnerable suspected or accused person and facilitate communication between the vulnerable person on the one hand and any lawyer and the police on the other. If appropriate adults are not informed on how they can assist vulnerable adults when they are notified of the vulnerable person's custody they might not be able to assist them in the course of the proceedings and this increases their risk to be subject to ill-treatment.

Neither the Directive 2013/48/EU on the right of access to a lawyer nor the Directive 2012/13/EU on the right to information foresee the provision of appropriate information on the procedural rights and charges concerning the vulnerable adult to their legal representative or a person of trust.

Also the review of national legislation demonstrates that with the exception of England and Wales, the right to notification for vulnerable adults does not go beyond what is accorded to non-vulnerable adults.

(b) Need to ensure appropriate medical assistance

- Children

International standards require that law enforcement authorities respect the dignity and personal rights of all children, having regard to their vulnerability. Children, due to their young age and physical and mental immaturity, are more strongly exposed to ill-treatment and health problems than other suspects or accused persons. Often they are not able to properly express their health problems. Particular care is needed to ensure their integrity, in particular in detention (e.g. the health of children with learning disabilities is often poorer than for the general offender population, particularly with regard to mental health[73]).

The right to medical examination by a physician and adequate medical care throughout a child's stay in detention is recommended, for instance, by the 2007 UN General Comment N°10 on the Children's rights in juvenile justice[74]. The CPT has repeatedly stressed the importance of prompt and thorough medical screening of persons in detention. CPT country reports demonstrate that the right to medical assistance for children is not ensured in certain Member States (EE[75], IT[76], LT[77]).

- Vulnerable Adults

Insufficient protection of the right to medical assistance has significant implications for vulnerable adults as the general health of such persons is often poorer than for the general population, particularly with regard to mentally ill persons[78]. The need to ensure an access of a vulnerable person to a doctor, and to receive medical care adapted to his needs, in particular in the case of deprivation of liberty, is important. Similar to children, the right to medical assistance for vulnerable adults is not ensured in certain Member States (EE, IT, LT).

(c ) Need to ensure appropriate access to a lawyer

Article 6 (3) lit.c) ECHR and Articles 47 and 48 of the Charter guarantee the right of an individual to have access to a lawyer. The Directive 2013/48/EU on the right of access to a lawyer lays down general rules on such a right for all suspects and accused persons in criminal proceedings. However, this Directive allows suspects and accused persons to renounce to their right to be assisted by a lawyer. No specific safeguards are foreseen for children or vulnerable adults. There is a high risk that children and vulnerable adults renounce to their right to a lawyer without fully understanding the consequences of their action.[79]

- Children

Although there is no specific ECtHR jurisprudence requiring mandatory defence for vulnerable persons, the ECtHR has repeatedly underlined the importance of assistance by a lawyer for children from the outset of the proceedings and during police questioning thereby suggesting that a waiver can represent significant risks for them. The importance of access to a lawyer for children is also recognised by all relevant international rules, such as the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice[80], the Beijing Rules[81] and the 2007 UN 2007 General Comment N°10 on the Children's rights in juvenile justice[82].

Examples of case-law by the ECtHR concerning violations of the right to legal assistance with regard to children: In the case Panovits v. Cyprus where a 17 year old boy was sentenced in May 2001 for manslaughter and robbery, the Court ruled that the absence of a lawyer during police questions had been particularly detrimental for his defence given that he was a minor at the time."[83] In the case Adamkiewicz v. Poland where a 16 year old boy had been arrested for the murder of a 12 year old boy, the Court held that the fact that the applicant was questioned without the presence of a lawyer and was not informed of his right to remain silent and not incriminate himself had amounted to a violation of Article 6 § 3 c) in conjunction with Article 6 §1 ECHR[84].

Access to a lawyer throughout the proceedings is particularly important for children, as evidence suggests that they find the trial experience "intimidating", "stressful" and "confusing"[85]. The common problems they encounter are as follows: they have even more limited and often incorrect knowledge of criminal proceedings and courts; they fail to foresee the long-term consequences of their action; they tend to consider legal rights as "conditional", i.e. that they can be withdrawn or waived.

The need to ensure mandatory access to a lawyer for children has been generally acknowledged by stakeholders[86] and Member States and is considered as the "core measure" of any initiative with regard to vulnerable persons. (for more details see Annex II).

At present, there are significant differences between EU Member States in terms of when access to a lawyer is mandatory. As regards children, some Member States do not at all provide for mandatory defence (CY, IE, LU, UK), others provide for a mandatory defence at court but not at police stations (FR, NL, SI). Again others foresee mandatory defence upon decision by the competent judge (DE, FI, SE)[87].

The costs for mandatory access to a lawyer are governed by national law, including national legal aid schemes. The analysis of legal measures related to legal aid will be subject of a separate impact assessment on legal aid.

- Vulnerable Adults

Access to a lawyer throughout the proceedings is particularly important for vulnerable adults who are unable to understand and follow the proceedings. Research evidence has shown that this concerns in particular persons with mental problems but also with learning disabilities and communication problems as evidence suggests that it is difficult for them to communicate and effectively defend themselves[88]. The ECtHR has underlined, when applicants have mental health problems, the importance of presence of a lawyer in a number of cases suggesting that a waiver of this right can present significant risks for them. However, there is no specific ECtHR jurisprudence requiring mandatory defence for vulnerable adults.

Example of violation of the right to legal assistance with regard to vulnerable adults In the case Megyeri v. Germany[89] the applicant was arrested and detained in a psychiatric hospital after he had committed criminal acts for which he could not been held responsible due to mental health problems. The applicant requested the reopening of criminal proceedings in which he was not represented by a legal counsel. The ECtHR ruled that the applicant’s deteriorated mental condition and need for guardianship had been known to the court and that he would have been unable to represent himself in the review proceedings.

The legal situation with regard to mandatory access to a lawyer varies within the EU. Several Member States do not foresee mandatory access to a lawyer (e.g. BE, CY, DK, IE, UK) and would therefore be affected by the proposed measure.

4.2.3. Specific Problem 3: Vulnerable persons, in particular children, lack particular safeguards taking into account their special needs at the various stages of the proceedings

Vulnerable persons are more susceptible to ill-treatment or discrimination by law-enforcement officers than other suspected and accused persons. Because of their lack of capacity to fully understand and participate in the criminal proceedings, there is a higher risk for vulnerable persons to be deprived of their fundamental rights, to see the available safeguards denied and even more to suffer from discrimination or ill-treatment.

In several cases relating to children, the ECtHR has found a violation of Article 3 ECHR which prohibits torture or inhuman or degrading treatment or punishment.

Example for violations of Article 3 ECHR in connection with children: In the case of Darraj v. France[90], where a 16-year-old boy sustained serious injuries in the hands of police officers, the ECtHR rejected the police's version of events, whereby force had been used against the applicant, a child at the time of the incident, because of his violent behaviour when they attempted to handcuff him. Instead, the ECtHR found that handcuffing a child who was not visibly violent prior to his arrival at the police station could not be justified.[91]

In order to ensure that vulnerable persons are treated with adequate respect and dignity, appropriate procedural safeguards for the following key steps of criminal proceedings should be ensured: police interviews, pre-trial detention, hearings.

(a) Need to ensure appropriate safeguards during police interviews

The arrest and questioning of children and vulnerable adults are potentially risky situations where their personal rights and dignity may not always be respected and their vulnerability may not be duly taken into account. Moreover, police interviews may be lengthy and the pace is not always adapted to their capacities.

- Children

Example for ill-treatment of children during police questioning: Mr. Wall was 17 years old when he was held at the young offenders unit in Bridgend in the UK. Mr. Wall alleged that the police gave him cigarettes and alcohol, took him on a drive and questioned him about burglaries. Later on, the police asked him to admit to some of these offences. Although Mr. Wall asked repeatedly for a lawyer, no access to a lawyer was granted. It appeared later on that Mr. Wall admitted to crimes that occurred when he was in custody awaiting sentence for other burglaries. Following the revelation that Mr. Wall had admitted to crimes he could not have committed, the police officers were found guilty of misconduct[92]. Mr. James Milton (not his real name) was 16 years old and had recently moved from the UK to Malta when he was arrested. He was taken to the police station when he was questioned aggressively for several hours without a lawyer or any appropriate adult present. During police questioning, James was not informed about any details of the allegations or of any charges against him or informed of his legal rights. He was interrogated from 9.30 pm until 2.30 am the following morning without receiving anything to eat or to drink. His passport was taken pending trial, so that from June 2009 until the trial in June 2010 he was unable to visit his family in the UK. At the trial, James Milton was acquitted of all charges[93].

One significant element to protect children against ill-treatment (in addition to other safeguards like appropriate information, assistance by parents and access to a lawyer) is the recording of police interviews. According to the CPT[94], the electronic (i.e. audio and/or video) recording of police interviews represents an important additional safeguard against the ill-treatment of detainees. It provides a complete and authentic record of the interview process, thereby also greatly facilitating the investigation of any potential allegations of ill-treatment. This would be in the interest of both persons who have been ill-treated by the police and of police officers confronted with unfounded allegations that they have been engaged in physical ill-treatment or psychological pressure.

At present, there are no legally binding standards within the EU on how interviews with children should be conducted. Only in eight Member States police interviews are systematically audio or video recorded: BE, FI, FR, IT, IE, LV, NL and UK (England and Wales).

The use of video or audio recording has been recommended by the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. During the expert meetings, several Member States were in favour of video or audio recording (see Annex II)[95].

- Vulnerable Adults

With regard to vulnerable adults there are certain Member States where standardised procedures on how the police interview should be conducted do not exist. Moreover, even when there is clear guidance, this is often not systematically followed in practice.[96] Research evidence shows that the majority of Member States do not systematically tape or video record the interviews with vulnerable adults[97].

(b) Need to ensure appropriate measures with regard to detention

- Children

Children held in detention, given their young age and physical and mental immaturity, are often subject to ill-treatment. They are at heightened risk of abuse from prison officials and other detainees. Lack of privacy, frustration, overcrowding and failure to segregate detainees according to their age and the gravity of the alleged offence are all factors that can exacerbate violence. There exist other less obviously brutal risks as well. Contacts with parents and friends are reduced and decrease moral and social support. A child who is detained is more likely to drop out of school.

Recent example of abuse of a child in pre-trial detention: In Austria, a fourteen years old boy, showing signs of multiple vulnerability, was raped in pre-trial detention in May 2013. He was not held separately from adult inmates[98].

Such cases underline the urgent need to detain children separately from adult inmates. It is the responsibility of public authorities to protect children in detention and to avoid their victimisation.

The Committee of Ministers of the Council of Europe has recommended that pre-trial detention for children, in whatever form, needs to be avoided as much as possible and should only be a measure of last resort, used for the shortest time possible and restricted to serious cases[99]. International children's rights bodies are very critical about the use of pre-trial detention and are seeking to reduce it[100].

In order to avoid pre-trial detention for children, all measures alternative to the deprivation of liberty should be taken by the competent authorities whenever this is in the best interests of the child. Such measures should include for instance reporting obligations to the competent authorities, restrictions on contacts with specific persons or participation in therapeutic treatment or educational measures.

Nevertheless, in certain cases pre-trial detention might be necessary, for example, to avoid the risk of tampering with evidence, influencing witnesses, when there is a risk of collusion or flight, etc. In such cases, particular attention should be paid to the way detained vulnerable persons are treated and relevant alternatives to detention that can achieve similar aims should be envisaged. Whereas international standards[101] provide that children should not be detained together with adults, this is not the situation in all EU Member States. Separate detention of children does not exist in several Member States (e.g. BG, CY, CZ, EL) and even where Member States, in principle foresee separate detention it is not always implemented in practice[102]. Such practical measures for the detention of children are suggested in the above-mentioned Council of Europe instruments which are, however, not binding upon Member States and certain variations with regard to the application of safeguards exist. However, the measures foreseen in this report do not require the creation of detention centers or prisons specifically designed for children, although this would be the most effective solution implementing the international standards, but only that children should be held separately from adults and that detention should be the last resort for them.

- Vulnerable Adults

Vulnerable adults, in particular the mentally impaired or persons with reduced mental or physical capacities, are particularly exposed to abuse and ill-treatment in detention. Moreover, separation from family, friends and their social environment may have dramatic consequences on their mental and physical condition.

Most Member States do not foresee any separation between vulnerable and non-vulnerable adults in detention[103]. Some have specific provisions for mentally impaired persons (e.g. detention in hospital or psychiatric unit)[104].

(c) Need to ensure safeguards with regard to Court hearings

- Children

Their involvement in criminal proceedings stigmatises children and may have a detrimental impact on their chances for reintegration into society and their future professional and social life. All international standards, notably the UN CRC, the ECHR and the ECtHR's case-law underline the importance to respect the right of privacy for children, including when involved in criminal proceedings, as a critical component of their rehabilitation.

In its General Comment N°10 on Children's Rights in Juvenile Justice, the UN CRC recommends, among others, proceedings 'in camera', preserving confidentiality in records, delivering judgments which will not reveal the child's identity, etc. However, according to research evidence, in several Member States court hearings relating to children are open to the public[105] (AT, DK, EE, FI, LV, LT, MT, SK, SE)[106]. In Italy, the public is always to be excluded in cases of defendants under 16 years old but not for those between 16 and 18 years old. Moreover, in Austria and in Portugal judgments related to children are rendered public.

- Vulnerable Adults

With regard to vulnerable adults, several Member States foresee that medical expertise is kept confidential[107]. However, most Member States indicated that no other specific safeguards with regard to the protection of privacy of vulnerable adults are available[108].

4.2.4. Lack of training of professionals in contact with children and vulnerable adults and lack of specialisation of judges

- Children

International requirements[109] recommend that all professionals working with children should receive necessary training on the rights and needs of children.

Judicial authorities (i.e. judges and prosecutors) and law enforcement authorities (e.g. police officers) are often not sufficiently aware of the particular problems that children face in criminal proceedings and of the special safeguards that exist to ensure their fair treatment. Due to a lack of specialised training, competent authorities do not always adequately assess their particular needs.

Stakeholders confirmed that the lack of training is a key factor contributing to insufficient protection of the rights of suspected and accused children[110]. An enhanced need for training of judges and law enforcement authorities on the specific needs of children in all Member States results from the external study.

Research evidence suggests that judges are not required to be specialised to deal with juvenile cases in a number of Member States. A certain number of Member States (EE, FI, LV, LT, RO, SK, SE) do not have specific youth courts. Three further Member States (BG, UK partly - England and Wales, IE) do not require judges to be specialised[111]. In the remaining Member States in principle there are certain requirements for specialisation of judges. However, these provisions are not systematically implemented in practice.[112] Similar problems of insufficient specialisation exist to varying degrees in the Member States in relation to prosecutors, police officers and lawyers. For reasons of proportionality and subsidiarity, this initiative will not, however, foresee any changes to the organisation of judicial systems in the Member States with regard to juvenile justice, but rather contemplate the strengthening of the specialisation of practitioners confronted with children during the criminal proceeding by better training.

- Vulnerable Adults

Several Member States do not foresee any specific training of judges for the treatment of vulnerable adults (e.g. DE, ES, IT, LT, LU, MT, SK, SE). Due to lack of training[113], judges are not always aware of the specific needs of vulnerable persons.

Conclusion: Despite the existence of common principles and minimum standards stemming from the ECHR, the EU Charter, and other international law instruments, the fair trial rights of children and vulnerable adults throughout the various stages of criminal proceedings are, at present, not sufficiently guaranteed within the EU with regard to their specific needs and vary from one Member State to another. The criminal proceedings and practices of a certain number of Member States have serious shortcomings when measured against these minimum criteria. This lack of adequate standards affects the overall quality of justice within the EU and consequently undermines mutual trust between judicial authorities. Mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters, which rely on mutual trust, may therefore be affected.

4.3. The scale of the problem

Data suggest that the number of children facing criminal justice is approximately 1.086.000[114] across the EU, i.e. 12% of the total of the European population facing criminal justice each year. About 1.6% of the total prison population within the EU are children[115]. When it comes to other vulnerable persons it is assessed that 4 to 8%[116] of the total population facing criminal justice could face some kind of impairment that prevents them to fully participate or to fully understand and therefore to properly exercise their rights. These figures are unlikely to decrease by any significant amount in the coming years.

In terms of cross-border cases, there is no precise information with regard to vulnerable persons being arrested or prosecuted outside their own Member State. Data suggest that a 1% figure can be retained as representative of the cross-border cases concerning vulnerable defendants[117].

Nevertheless, the number of cross-border cases is likely to rise. Available statistics compiled for the years 2005 to 2010 record 68580 issued EAWs and 15923 executed EAWs in that time. Taking into account provisional figures for 2011 (as at 15/01/2013, 8 MS have not yet supplied figures), the total number is 78364 issued EAWs and 19076 executed EAWs. The rise of cross-border cases can also concern prison sentences and requests for mutual legal assistance. This will lead to a greater need for judicial cooperation in criminal proceedings, including also cases relating to children and vulnerable adults.

4.4. Baseline scenario: how would the problem evolve in the future if no EU action takes place?

Whilst a range of international standards on children and vulnerable adults’ rights have been established in the past years, these have not led to a significant improvement in the manner that vulnerable persons suspected or accused in criminal proceedings are treated. These provisions are often very general and only very few relate to criminal proceedings. They are rarely directly applicable and require national implementing legislation which is not always adopted.

At EU level, the Directives on procedural rights that have been adopted provide certain specific provisions with regard to children and vulnerable adults but do not take account of all problems suspected or accused children and vulnerable persons may face in the various stages of criminal proceedings. They do not provide an overarching protection for the specific needs of these persons. This is not a flaw of the already adopted measures but inherent to the Stockholm Programme which left explicitly the protection of vulnerable persons for a separate legal instrument (for more details, see above, Section 4.1.2).

Without further action, it is unlikely that there will be a sufficient development in national legislation and action to ensure that vulnerable persons receive treatment which fully respects their rights to a fair trial, no matter where in the EU they find themselves, in particular during custody, interrogations by police services or during hearings at courts. This may in turn affect mutual trust in judicial systems in the European Union and undermine the effective application of the Treaty-endorsed principle of mutual recognition.

At Member State level, Finland and Belgium are the only Member States where forthcoming initiatives addressing the needs of vulnerable defendants have been identified[118]. In the near future, there is no indication that all Member States will tackle deficits with regard to the protection of vulnerable persons in their legislation and practice. Consequently, in the absence of major legislative developments in the protection of procedural rights of the vulnerable defendants, it is anticipated that these rights will remain at the current insufficient level.

4.5. Does the EU have power to act?

4.5.1. The Legal basis

The power to act and, where necessary, propose EU legislation in the area of civil and criminal law is conferred, inter alia, by two articles of the Treaty on the Functioning of the European Union (TFEU). The EU's legislative competence for a Directive laying down minimum rights in criminal proceedings is set out in Art 82(2) (b) TFEU. Minimum rules concerning the rights of individuals in criminal proceedings may be adopted by means of directives, to the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. While Article 82 (2) (b) TFEU makes explicit reference to directives, this legal basis would indeed also allow for adopting any less intrusive measures according to the principle the larger contains the lesser[119]. Art 82(2) (b) TFEU provides the legal basis for legislation applicable not only to cross-border criminal proceedings (i.e. proceedings with a link to another MS or a third country) but also to domestic cases as a precise, ex ante categorisation of criminal proceedings as cross-border or domestic is impossible in relation to a significant number of cases.

This initiative will apply to all criminal proceedings irrespective of whether they present a cross-border element or not. The reason for this is that both the policy objectives as described below can only be met if minimum rules apply to all criminal proceedings. In order to improve mutual trust and thus judicial cooperation, judicial authorities need to be aware that sufficiently high standards apply across the board in the jurisdictions of other Member States. If Member States were at liberty to apply lower standards to purely domestic proceedings, the requisite of mutual trust between judicial authorities could not be boosted.

As concerns the need to safeguard the fundamental rights of citizens, the enactment of minimum rules for cross-border proceedings only, far from addressing the problem, would create two different classes of defendants in criminal proceedings, one with more rights than the other; this distinction, made on the basis of the cross-border nature of the procedure, would lead to unreasonable differentiation and would eventually be detrimental to the protection of fundamental rights. In addition, when the matter is linked to EU law, the Charter guarantees rights to everyone suspected of a criminal offence, whether involved in cross-border or purely national proceedings.

Additionally, it must be noted that the cross-border nature of any given proceedings is difficult to define and can appear at any point of time throughout the various stages of criminal proceedings, at which stage the application of specific provisions dealing with cross-border situations might not be possible anymore or would make the proceedings much more complex. Moreover, even after criminal proceedings have concluded with a final judgment imposing a sentence on the defendant by the courts of his Member State of nationality, such a case could still turn into a cross-border case necessitating judicial cooperation between Member States where the convicted person moves (or flees) to another Member State prior to having served his sentence in full. An EAW might thus have to be issued for achieving the return of that person (or the enforcement of a financial penalty sought by the court which had imposed the penalty). Thus, it is essential for the promotion of mutual trust to ensure that measures strengthening minimum fair trial rights apply to suspects and accused persons in all criminal proceedings throughout the EU and not just those proceedings which present a cross-border aspect at their outset.

4.5.2. Subsidiarity: Why is the EU better placed to take action than Member States?

It is considered that there is a need for EU action based on the following factors:

(1) The EU is establishing its own, unique system of judicial cooperation based on the principle of mutual recognition throughout the EU. Such a system calls for a guarantee of uniform standards of fundamental procedural rights protection in the EU. A lack of common standards reduces confidence in the judicial systems of the Member States, which in turn impedes the effective operation and application of the principle of mutual recognition of judicial decisions and consequently the strengthening of the European area of freedom, security and justice. Given the current diversity of existing national legislation in this area and Member State action based primarily on varying internal priorities, it is unlikely that Member States acting individually would be able to establish common standards of rights with regard to children/vulnerable persons.

(2) Those common standards have to be implemented in particular when dealing with the most fragile part of citizens facing criminal justice (i.e. children) mostly because they face a higher risk of discrimination or deprivation of their fundamental rights due to their lack of knowledge or ability to act with freewill. Vulnerable persons have specific needs that need to be respected and a comprehensive level of protection across Member States can only be ensured by action at EU level.

(3) In the EU people are constantly travelling and moving across borders. Around 11.3 million Europeans reside permanently outside their home country, 10% of Europeans have lived and worked abroad during a period of their lives and 13% have gone abroad for education and training. These numbers show the importance of ensuring proper, effective action on the rights of those who get involved in criminal proceedings, in their own country of while travelling or living abroad. The EU must ensure that suspects and accused persons, although they may not be fully aware of various specific aspects of the procedure, should be protected by minimum safeguards across the EU.

(4) Also, children and other vulnerable persons can be involved (as any other offender) in criminal proceedings outside their own Member State. Situations occur where they are prosecuted during a stay, journey or after returning home and subject to pre-trial detention following the issuance of a European Arrest Warrant. In addition to the complexity of criminal proceedings and the differences with regard to the legal culture, languages and other elements, the vulnerability of such persons is increased when they are separated from their natural surroundings. This cross-border dimension constitutes another factor for the need to tackle procedural safeguards of these suspects or accused persons at EU level.

(5) The ECHR already sets European-wide fair trial standards but due to the absence of any effective enforcement mechanisms a sufficient and consistent level of compliance by its signatory States, including EU Member States, cannot be guaranteed. Moreover, the lack of enforceability of International Conventions addressing children and disabled persons, which the Union has ratified, render a coherent EU wide application of such standards unlikely.

(6) The Directives 2010/64/EU of 20 October 2010 on the right to interpretation and 2012/13/EU of 22 May 2013 on the right to information in criminal proceedings as well as Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer provide provisions dedicated to some vulnerable persons. Following their adoption, it is essential to achieve an overall protection of children and vulnerable adults with a specifically dedicated instrument in order to complete the acquis.

5. Objectives

The policy objectives of introducing special safeguards for children and vulnerable adults suspected and accused in criminal proceedings in the EU are as follows:

Objectives:

General: || § An effective standard of protection of fundamental procedural rights for vulnerable persons suspected or accused in criminal proceedings will be guaranteed. § Mutual trust will be enhanced thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU.

Specific: || § A: The vulnerability of persons suspected or accused in criminal proceedings is adequately assessed at the very beginning and throughout the criminal proceedings. § B: Vulnerable suspected or accused persons are duly assisted in criminal proceedings and have access to a lawyer in order to allow them to understand and effectively participate in the criminal proceedings. § C: Vulnerable persons, in particular children, have a set of adequate procedural safeguards taking into account their special needs at all stages of the criminal proceedings (e.g. police interviews, detention, court hearings).

Operational: || § A.1: Appropriate assessment mechanisms for children and vulnerable adults are put in place from the very beginning of the criminal proceedings starting with their first contact with law enforcement or judicial authorities. § B.1: Children and vulnerable adults will be duly assisted by parents, legal representatives or a person of trust during the proceedings. § B.2: Children and vulnerable adults will benefit from mandatory access to a lawyer from the very beginning of the criminal proceedings in order to enable them to effectively participate in the proceedings. § C.1: Children and vulnerable adults will receive appropriate safeguards taking into account their specific needs at the various stages of criminal proceedings (e.g. medical examination, police interviews, detention and court hearings).

The present initiative forms part of a package of measures for improving mutual trust and enhancing the level of protection of suspects or accused persons in criminal proceedings. Only once all the measures envisaged in the Stockholm Programme are in place, it will be possible to achieve the general objective. The following options are assessed against the specific and operational objectives.

6. Policy options

The policy options for addressing the problems as defined in Section 6.2 of this Impact Assessment, in line with the objectives as established in Section 5, are set out below. In accordance with the Communication from the Commission on the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union[120], this impact assessment examines the impact on fundamental rights of the options proposed.

All the policy options are intended to operate in the framework of the Roadmap measures and have the same scope of application. In previous measures, suspected or accused persons have consistently been used as the category of persons falling within the personal scope of the action. This encompasses all people (including children) who are involved in criminal proceedings, against whom a suspicion that they have committed a criminal offence exists, irrespective of the terms used in domestic law. The personal scope also covers persons subject to EAW proceedings. The temporal scope for the other fair trial instruments is "from the time a person is made aware that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings", the latter term being understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal.

6.1. Discarded Options

Certain policy options were discarded at an early stage of the proceedings. In particular:

(a) To define vulnerable adults: The introduction of a definition of vulnerable adults was discarded as not feasible. As set out already above, stakeholders have indicated at various occasions that it is very dif