Green Paper from the Commission - Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union
Date: 2003-02-19
Institutions: European Commission
Subjects: EU law - national law, courts and tribunals, criminal procedure, deepening of the European Union, legal system, rights of the defence

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 19.2.2003
COM(2003) 75 final

GREEN PAPER FROM THE COMMISSION

Procedural Safeguards for Suspects and Defendants in Criminal Proceedings
throughout the European Union

TABLE OF CONTENTS

Introduction ................................................................................................................................ 8

1.

1.1.

1.2.

1.3.

1.4.

1.5.

1.6.

1.7.

1.8.

1.9.

WHY EU ACTION IN THIS AREA IS APPROPRIATE ........................................ 10

Background ................................................................................................................ 10

The Treaty on European Union.................................................................................. 10

The Charter of Fundamental Rights of the European Union ..................................... 12

The Commission Communication “Towards an Area of Freedom, Security and
Justice” ....................................................................................................................... 12

The Tampere Conclusions ......................................................................................... 12

The Mutual Recognition Programme of Measures .................................................... 13

Enhancing mutual trust .............................................................................................. 13

Freedom of movement ............................................................................................... 14

Acceding states .......................................................................................................... 14

1.10.

Responding to the demand ......................................................................................... 15

1.11.

The Commission Green Paper on a European Prosecutor ......................................... 15

1.12.

Subsidiarity ................................................................................................................ 15

1.13.

Compliance and monitoring....................................................................................... 16

2.
2.1.

2.2.

2.3.

2.4.

2.5.

2.6.

3.
3.1.

3.2.

3.3.

3.4.

4.
4.1.

4.2.

IDENTIFYING THE BASIC RIGHTS ..................................................................... 17
Introduction................................................................................................................ 17

The JAI Website Consultation ................................................................................... 17

The questionnaire to the Member States.................................................................... 18

The experts' meeting .................................................................................................. 19

The "basic rights"....................................................................................................... 19

Rights not covered in the Green Paper....................................................................... 20

TREATY OBLIGATIONS AND EXISTING PROVISIONS .................................. 21
Introduction................................................................................................................ 21

The European Convention for the Protection of Human Rights and Fundamental
Freedoms .................................................................................................................... 21

The Charter of Fundamental Rights of the European Union ..................................... 22

Other instruments ....................................................................................................... 24

THE RIGHT TO LEGAL ASSISTANCE AND REPRESENTATION.................... 25
Introduction................................................................................................................ 25

Existing provisions..................................................................................................... 26

2

4.3.

Discussion and questions ........................................................................................... 28

5.

5.1.

5.2.

THE RIGHT TO A COMPETENT, QUALIFIED (OR CERTIFIED)
INTERPRETER AND/OR TRANSLATOR SO THAT THE ACCUSED KNOWS
THE CHARGES AGAINST HIM AND UNDERSTANDS THE PROCEDUR...... 32
Introduction................................................................................................................ 32

Discussion and questions ........................................................................................... 33

5.2.1.

Level of provision ...................................................................................................... 34

5.2.2. Means of provision..................................................................................................... 35

6.
6.1.

6.2.

7.
7.1.

7.2.

8.
8.1.

8.2.

9.

9.1.

9.2.

9.3.

9.4.

9.5.

PROPER PROTECTION FOR ESPECIALLY VULNERABLE CATEGORIES ... 39
Introduction................................................................................................................ 39

Discussion and questions ........................................................................................... 41

CONSULAR ASSISTANCE..................................................................................... 43
Introduction................................................................................................................ 43

Discussion and questions ........................................................................................... 44

KNOWLEDGE OF THE EXISTENCE OF RIGHTS/ LETTER OF RIGHTS ........ 44
Introduction................................................................................................................ 44

Discussion and questions ........................................................................................... 45

COMPLIANCE AND MONITORING ..................................................................... 46

Introduction................................................................................................................ 46

Carrying out the evaluation........................................................................................ 47

Tools for evaluation ................................................................................................... 47

Sanctions .................................................................................................................... 48

Conclusions................................................................................................................ 48

Questions :................................................................................................................................ 49

General                                                                                                                                      49

Legal Representation................................................................................................................ 49

Provision of legal translators and interpreters.......................................................................... 49

Protecting vulnerable groups.................................................................................................... 50

Consular assistance .................................................................................................................. 51

The Letter of Rights ................................................................................................................. 51

Evaluation and monitoring ....................................................................................................... 52

ANNEX53

Relevant provisions of existing treaties ................................................................................... 53

3

GREEN PAPER FROM THE COMMISSION

Procedural Safeguards for Suspects and Defendants in Criminal Proceedings
throughout the European Union

INTRODUCTION

This Green Paper is the next step in the consultation process on achieving minimum common
standards  of  procedural  safeguards  throughout  the  Member  States  in  respect  of  persons
suspected of, accused of, prosecuted for and sentenced in respect of criminal offences. It will
consider what those minimum common standards could be and the areas in which they may
be applied.

It  is  important  for  the  judicial  authorities  of  each  Member  State  to  have  confidence  in  the
judicial systems of the other Member States. From May 2004, this will apply to twenty-five
rather  than  fifteen  Member  States.  Faith  in  procedural  safeguards  and  the  fairness  of
proceedings  operate  so  as  to  strengthen  that  confidence.  It  is  therefore  desirable  to  have
certain minimum common standards throughout the European Union, although the means of
achieving those standards must be left to the individual Member States.

For the past year, the Commission has been carrying out a review of procedural safeguards.
To this end, it published a broad Consultation Paper in several languages on the Justice and
Home Affairs website in January and February 2002. That paper set out the areas that might
become  the  focus  of  subsequent  measures  and  asked  for  comments  and  responses  from
interested parties.

At  the  same  time,  a  questionnaire  on  various  aspects  of  trial  procedures  under  their  own
existing domestic system was sent to the Member States.

Using the responses to those two documents, the Commission identified the following areas
as appropriate for immediate consideration:

–  access to legal representation, both before the trial and at trial,

–  access to interpretation and translation,

–  notifying suspects and defendants of their rights (the “Letter of Rights”),

–  ensuring that vulnerable suspects and defendants in particular are properly protected,

–  consular assistance to foreign detainees.

Accordingly, after a discussion of why EU action in this area is appropriate, this Green Paper
will  focus  on  these  five  areas  and  consider  how  to  evaluate  whether  the  Member  States  are
complying with their obligations. The remaining rights identified as needing to be examined
will form the basis of subsequent Commission work. Priorities will need to be reviewed in the
light of enlargement.

4

The Green Paper lists a number of specific questions. Answers to these questions and general
comments can be sent, preferably by 15 May 2003, to the following address:

European Commission
Justice and Home Affairs Directorate-General
Unit B3 - Judicial cooperation in criminal matters
B-1049 Brussels
Belgium
Fax: + 32 2 296 7634
Marked for the attention of Caroline Morgan
Or by email to:

caroline.morgan@cec.eu.int

The Commission intends to organise a public hearing on  procedural safeguards for suspects
and defendants in criminal proceedings throughout the European Union in 2003.

5

1.  WHY EU ACTION IN THIS AREA IS APPROPRIATE

1.1. Background

For  many  years,  the  European  Union,  or  European  Community,  did  not  have  any  explicit
jurisdiction as far as the human  rights  aspects  of  criminal  proceedings were concerned. The
European  Court  of  Justice  (ECJ)  was  occasionally  called  upon  to  consider  the  relationship
between  the  Community  legal  order  and  human  rights  and  it  made  some  constructive
pronouncements1 but there was no European Community instrument or position on fair trial
rights.  However,  the  ECJ  had  held  that  it  was  important  that  these  be  respected2.  In  the
absence  of  any  relevant  treaty  provisions,  the  ECJ  had  been  the  main  source  of  any
Community  fair  trial  rights  policy.  In  1996,  the  ECJ  ruled  that  "as  Community  law  now
stands", the Community lacked competence to accede to the European Convention on Human
Rights (ECHR)3,  but  by then fair  trials provisions had started  to apply at Community  level.
Signed  in  1992,  the  Maastricht  Treaty4  provided  that  matters  in  the  newly  created  field  of
Justice and Home Affairs were to be "dealt with in compliance with the European Convention
for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950"5. These
"matters  of  common  interest"  included  judicial  co-operation  and  police  co-operation  for  the
purposes of combating terrorism and other  forms  of  serious  crime.  In  1997,  the  Amsterdam
Treaty  explicitly  amended  the  Treaty  on  European  Union  (TEU)  strengthening  the  EU's
competence  in police and  judicial cooperation in criminal matters so  as to create  an  area  of
freedom,  security  and  justice.  One  of  its  underlying  principles,  expressed  in  Article  6,  was
that human rights and fundamental freedoms would be respected within the Union.

1.2. The Treaty on European Union

From 1997, date on which the Amsterdam Treaty was signed, the European Union, declaring
itself to be “founded on” respect for human  rights  and  fundamental freedoms, has set  about
ensuring that those rights and freedoms are respected within its borders. Article 7 TEU lays
down very strict sanctions for breaches of the obligation to respect those rights. The history of
this initiative can be traced back to that declaration.

The TEU, as amended by the Nice Treaty, came into force in  February 2003.

Its Articles 6 and 7 provide:

“Article 6

1. The Union is founded on the principles of liberty, democracy, respect for human rights and
fundamental  freedoms  and  the  rule  of  law,  principles  which  are  common  to  the  Member
States.  2.  The  Union  shall  respect  fundamental  rights,  as  guaranteed  by  the  European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome

1

2

3

4

5

E.g.  Case  29/69,  Stauder  v..City  of  Ulm[1969]  ECR  419  in  which  the  ECJ  accepted  that  Community
law should not override nationally protected human rights, and Nold v. Commission [1974] ECR 491, in
which the ECJ held that “fundamental rights form an integral part of the general principles of law, the
observance of which it ensures” (para.13).
E.g. in Case C-49/88 Al-Jubail Fertilizer Co. and Saudi Arabian Fertilizer Co. v. Council [1991] ECR
I-3187,  the  ECJ  stressed  the  importance  of  the  right  to  a  fair  hearing  and  in  Cases  46/87  &  227/88
Hoechst AG v. Commission [1989] ECR 2859, it held “...regard must be had in particular to the rights of
the defence, a principle whose fundamental nature has been stressed on numerous occasions…”
Opinion 2/94 on Accession of the Community to the ECHR [1996] ECR I-1759.
The Treaty on European Union, signed at Maastricht on 7 February 1992.
Article K.2 of Title VI - Provisions on Co-operation in the fields of Justice and Home Affairs

6

                                                
on 4 November 1950 and as they result from the constitutional traditions common to Member
States, as general principles of Community Law.

(…)
4. The Union shall provide itself with the means necessary to attain its objectives and carry
through its policies.
Article 7

1. On a reasoned proposal by one third of the Member States, by the European Parliament or
by  the  Commission,  the  Council,  acting  by  a  majority  of  four  fifths  of  its  members  after
obtaining the assent of the European Parliament, may determine that there is a clear risk of a
serious  breach  by  a  Member  State  of  principles  mentioned  in  Article  6(1),  and  address
appropriate recommendations to that State. Before making such a determination, the Council
shall hear the Member State in question and, acting in accordance with the same procedure,
may  call  on  independent  persons  to  submit  within  a  reasonable  time  limit  a  report  on  the
situation in the Member State in question. The Council shall regularly verify that the grounds
on which such a determination was made continue to apply.

2. The Council, meeting in the composition of the Heads of State or Government and acting
by unanimity on a proposal by one third of the Member States or by the Commission and after
obtaining  the  assent  of  the  European  Parliament,  may  determine  the  existence  of  a  serious
and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting
the government of the Member State in question to submit its observations.

3.  Where  a  determination  under  paragraph  2  has  been  made,  the  Council,  acting  by  a
qualified majority, may decide to suspend certain of the rights deriving from the application
of  this  Treaty  to  the  Member  State  in  question,  including  the  voting  rights  of  the
representative  of  the  government  of  that  Member  State  in  the  Council.  In  doing  so,  the
Council shall take into account the possible consequences of such a suspension on the rights
and obligations of natural and legal persons. The obligations of the Member State in question
under this Treaty shall in any case continue to be binding on that State.

4.  The  Council,  acting  by  a  qualified  majority,  may  decide  subsequently  to  vary  or  revoke
measures taken under paragraph 3 in response to changes in the situation which led to their
being imposed.

5. For the purposes of this Article, the Council shall act without taking into account the vote
of  the  representative  of  the  government  of  the  Member  State  in  question.  Abstentions  by
members present in person or represented shall not prevent the adoption of decisions referred
to  in  paragraph  2.  A  qualified  majority  shall  be  defined  as  the  same  proportion  of  the
weighted votes of the members of the Council concerned as laid down in Article 205(2) of the
Treaty establishing the European Community. This paragraph shall also apply in the event of
voting rights being suspended pursuant to paragraph 3.

6. For the purposes of paragraphs 1 and 2, the European Parliament shall act by a two-thirds
majority of the votes cast, representing a majority of its Members.”

7

1.3. 

The Charter of Fundamental Rights of the European Union

In December 2000, the European Commission, the Council and the Parliament jointly signed
and  solemnly  proclaimed  the  Charter  of  Fundamental  Rights  of  the  European  Union
(CFREU). The CFREU covers the whole range of civil, political, economic and social rights
of  European  citizens,  by  synthesising  the  constitutional  traditions  and  international
obligations  common  to  the  Member  States.  A  significant  aspect  of  the  Charter  is  that  it
affirms  that  the  European  Union  is  indeed  a  political  community,  rather  than  solely  an
economic organisation. Moreover, it asserts that respect for fundamental rights will be at the
foundation of all European law.

The  rights  described  are  divided  into  six  sections:  Dignity,  Freedoms,  Equality,  Solidarity,
Citizen’s Rights and Justice. The relevant section of the CFREU here is that entitled “Justice”
(Articles  47-50).  Like  the  ECHR,  it  lays  down  the  right  to  a  fair  trial.  It  provides  for  the
presumption  of  innocence,  legality  and  proportionality  of  criminal  offences  and  penalties.
Furthermore, it extends the principle of ne bis in idem to the whole of the EU.

1.4. 
Justice”

The Commission Communication “Towards an Area of Freedom, Security and

In  July  1998,  the  Commission  set  out  its  vision  for  an  “Area  of  Freedom,  Security  and
Justice”  in  a  Communication6.  It  stated  that  its  aims  were  to  examine  what  the  area  of
“justice” should seek to achieve. “The ambition is to give citizens a common sense of justice
throughout the Union”. This was to be achieved by facilitating the bringing to justice of those
who  threaten  the  freedom  and  security  of  individuals  and  society  whilst  ensuring  that
individual rights were respected. A minimum standard of protection for individual rights was
the necessary counterbalance to  judicial co-operation measures that  enhanced the  powers  of
the
prosecutors,  courts  and 
Commission to pursuing “respect for individual rights”.

investigating  officers.  The  Communication  committed 

1.5. The Tampere Conclusions
The  1999  Conclusions  of  the  Tampere  European  Council7  endorsed  the  principle  of  mutual
recognition as “the cornerstone of judicial co-operation”8 and went on to say that “enhanced
mutual  recognition  of  judicial  decisions  and  judgments  and  the  necessary  approximation  of
legislation  would  facilitate  cooperation  between  authorities  and  the  judicial  protection  of
individual rights”9 (point 33).

1.6. The Mutual Recognition Programme of Measures

The Commission Communication to the Council and the European Parliament dated 26 July
2000  on  Mutual  Recognition  of  Final  Decisions  in  Criminal  Matters10provides,  in  its
paragraph 10, entitled “Protection of Individual Rights” that “it must therefore be ensured that
the  treatment  of  suspects  and  the  rights  of  the  defence  would  not  only  not  suffer  from  the
implementation of the principle [of mutual recognition] but that the safeguards would even be
improved through the process”.

6

7

8

9

10

COM(1998) 459 final, 14 July 1998, “Towards an Area of Freedom, Security and Justice”.
Presidency Conclusions, Tampere European Council 15 /16 October 1999.
Point 33 - Presidency Conclusions – Tampere European Council 15/16 October 1999.
Point 33, Tampere Conclusions
COM(2000) 495 final

8

                                                
The Council’s Programme of Measures to Implement the Principle of Mutual Recognition of
Decisions in Criminal Matters11dated 15 January 2001 provided, in its preamble, that “Mutual
recognition  is  designed  to  strengthen  co-operation  between  Members  States  but  also  to
enhance  the  protection  of  individual  rights”.12  The  Programme  listed  24  specific  mutual
recognition  measures,  some  of  which,  such  as  the  European  Arrest  Warrant,  have  been
achieved13. It is also stated that “in each of these areas the extent of mutual recognition is very
much  dependent  on  a  number  of  parameters  which  determine  its  effectiveness”.  These
parameters include “mechanisms for safeguarding  the  rights of  […]  suspects”  (parameter 3)
and “the definition of common minimum standards  necessary to  facilitate the  application of
the  principle  of  mutual  recognition”  (parameter  4).  It  is  important  now  to  ensure  that  the
Programme’s  stated  aim  of  enhancing  the  protection  of  individual  rights  should  be  given  a
concrete form, taking appropriate account of these parameters.

In  order  to  implement  the  commitment  given  in  the  foregoing  measures,  the  Commission
launched  this  initiative  with  a  view  to  setting  minimum  safeguards  for  suspects  and
defendants in criminal proceedings throughout the European Union. The preliminary work in
the area has given rise to a number of underlying considerations that it is now appropriate to
cover.

1.7. Enhancing mutual trust

Mutual  recognition  rests  on  mutual  trust  and  confidence  between  the  Member  States’  legal
systems.  In  order  to  ensure  mutual  trust,  it  is  desirable  for  the  Member  States  to  confirm  a
standard set of procedural safeguards for suspects and defendants. The desired  end  result of
this initiative  is therefore to highlight  the degree  of  harmonisation  that  will  enhance  mutual
trust  in  practice.  The  Member  States  of  the  EU  are  all  signatories  of  the  principal  treaty
setting  these  standards,  the  European  Convention  on  Human  Rights,  as  are  all  the  acceding
states  and  candidate  countries,  so  the  mechanism  for  achieving  mutual  trust  is  already  in
place. The question is now one of developing practical tools for enhancing the visibility and
efficiency of the operation of those standards at EU level. . The purpose of this Green Paper is
also to ensure that rights are not “theoretical or illusory” in the EU, but rather “practical and
effective”.  Differences  in  the  way  human  rights  are  translated  into  practice  in  national
procedural  rules  do  not  necessarily  disclose  violations  of  the  ECHR.  However,  divergent
practices run the risk of hindering mutual trust and  confidence which is the basis  of mutual
recognition.  This  observation  justifies  the  EU  taking  action  pursuant  to  Article  31(c)  of  the
TEU.  This  should  not  necessarily  take  the  form  of  intrusive  action  obliging  Member  States
substantially  to  amend  their  codes  of  criminal  procedure  but  rather  as  “European  best
practice” aimed at facilitating and rendering more efficient and visible the practical operation
of  these  rights.  It  goes  without  saying  that  the  outcome  will  in  no  case  reduce  the  level  of
protection currently offered in the Member States.

1.8. Freedom of movement

As  the  Commission  indicated  in  its  Communication  of  14  July  1998,  Towards  an  Area  of
Freedom,  Security  and  Justice  “procedural  rules  should  respond  broadly  to  the  same
guarantees  ensuring  that  people  will  not  be  treated  unevenly  according  to  the  jurisdiction

11

12

13

2001/C 12/02
(Council and Commission) Programme of measures to implement the principle of mutual recognition of
decisions in criminal matters, OJ C12, 15.1.2001, p. 10
Council  Framework  Decision  of  13  June  2002  on  the  European  arrest  warrant  and  the  surrender
procedures between Member States (2002/584/JHA) OJ L190/1 of 18.7.2002

9

                                                
dealing with their case”. European citizens and residents can reasonably expect to encounter
equivalent standards in respect of safeguards in criminal proceedings throughout the EU

1.9. 

Acceding states

At  the  1993  Copenhagen  European  Council,  the  Member  States  laid  down  the  accession
criteria14 for candidate countries, including a guarantee that human rights will be respected. At
the  2002  Copenhagen  European  Council,  accession  negotiations  were  completed  with  10
countries15. They will accede on 1 May 2004, subject to the respective ratification procedures.
Obviously,  the  conclusion  of  negotiations  implies  that  the  acceding  states  are  deemed  to
satisfy the accession criteria.

The Accession Treaty will include a safeguard clause on Justice and Home Affairs for cases
where in a new Member States there are serious shortcomings, or  an imminent  risk thereof,
regarding the transposition, implementation or application of the acquis on mutual recognition
in civil or criminal matters.

The Commission will continue, up to accession, its monitoring of commitments taken in the
negotiations by the acceding states, including in the area of Justice and Home Affairs

1.10.  Responding to the demand

There is a growing demand from several quarters (for example civil society and human rights
organisations, relevant media and the European Parliament) for the Commission to take action
in this direction. This is all the more so since it is the logical counterbalance to other mutual
recognition measures16. There is also an argument that it is appropriate for the Commission to
take the initiative in order to ensure that equivalence is achieved throughout the EU, and so
that any agreement reached eschews the risk of any particular national or geographical legal
tradition  affecting  the  final  text.  It  is  to  be  hoped  that  a  Commission  initiative  will  ensure
neutrality.

1.11.  The Commission Green paper on a European Prosecutor

In its Green Paper on criminal law protection of the financial interests of the Community and
the establishment of a European Prosecutor, which was adopted on 11 December 200117 the
Commission  also  addressed  the  problem  of  appropriate  procedural  safeguards  at  EU  level,
from  the  particular  viewpoint  of  a  possible  future  European  Prosecutor  who  would  direct
investigations throughout the Union. The consultation process launched with the Green Paper
on  the  European  Prosecutor  further  stimulated  the  debate  on  the  general  question  of  the
appropriate EU wide protection of individual rights, and thus contributed to highlight the need
of a specific initiative on this issue. .

14

15

16
17 

“Membership  requires  that  the  candidate  country  has  achieved  stability  of  institutions  guaranteeing
democracy, the rule of law, human rights and respect for and, protection of minorities, the existence of
a  functioning  market  economy  as  well  as  the  capacity  to  cope  with  competitive  pressure  and  market
forces within the Union. Membership presupposes the candidate's ability to take on the obligations of
membership including adherence to the aims of political, economic and monetary union.”
COM(2002)700  final  of  9  October  2002.  The  10  countries  are  Cyprus,  the  Czech  Republic,  Estonia,
Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia.
Such as the European Arrest Warrant (see footnote 13).
COM(2001)715 final.

10

                                                
1.12.  Subsidiarity

Notwithstanding  the  above,  some  consideration  must  be  given  to  the  argument  that  the
principle of subsidiarity dictates that Member States should be entitled to exercise autonomy
in  this  area18.  The  subsidiarity  principle  is  intended  to  ensure  that  decisions  are  taken  as
closely  as  possible  to  the  citizen  and  that,  if  action  is  taken  at  the  Community  level,  it  is
justified, having regard to the options available at national, regional or local level. This means
that the EU should not take action unless to do so would clearly be more effective than action
taken  at  national,  regional  or  local  level.  It  is  closely  bound  up  with  the  principles  of
proportionality and necessity, which require that any action by the EU should not go beyond
what is necessary to achieve the objectives of the Treaty.
The Commission considers that in  this  area,  only  action  at  the  EU  level  can  be  effective  in
ensuring  common  standards.  To  date,  the  Member  States  have  complied  with  their  fair  trial
obligations,  deriving  principally  from  the  ECHR,  on  a  national  basis  and  this  has  led  to
discrepancies in the levels of safeguards in operation in the different Member States.
As  explained  above  under  point  1.7,  such  discrepancies  may  prevent  the  process  of  mutual
recognition to be fully developed in practice. Therefore there is a perceived need to support,
by  way  of  concrete  measures  aimed  at  defining  common  standards,  a  genuine  mutual
confidence  in  the  way  those  rights  are  respected  throughout  the  EU.  Any  Commission
proposals would take account of national specificities. The Action Plan of the Council and the
Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area
of  Freedom,  Security  and  Justice19  specifically  states  that:  “the  principle  of  subsidiarity,
which applies to all aspects of the union’s action, is of particular relevance to the creation of
an area of freedom, security and justice”.
As regards the specific objectives of the TEU, which form the legal basis and the justification
for this initiative, the relevant provisions are:
Article 31 TEU:
“Common action on judicial cooperation in criminal matters shall include:
(a)  facilitating  and  accelerating  cooperation  between  competent  ministries  and  judicial  or
equivalent authorities of the Member States in relation to proceedings and the enforcement of
decisions;
[..]
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to
improve such co-operation;[…]” which must be balanced against:
Article 33 TEU:
“This Title [Title VI] shall not affect the exercise of the responsibilities incumbent upon the
Member  States  with  regard  to  the  maintenance  of  law  and  order  and  the  safeguarding  of
internal security”
Making  procedural  rules  more  comparable  is  a  way  of    “ensuring  their  compatibility”    and
this can only be achieved by action at the EU level.

18

19

Article 5 of the Treaty establishing the European Community (which applies here by virtue of Article 2
of the TEU) provides:
“The Community shall act within the limits of the powers conferred upon it by this Treaty and of the
objectives assigned to it therein.
In  areas  which  do  not  fall  within  its  exclusive  competence,  the  Community  shall  take  action,  in
accordance  with  the  principle  of  subsidiarity,  only  if  and  in  so  far  as  the  objectives  of  the  proposed
action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or
effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this
Treaty.”
OJ C 19/1 of 23.1.1999

11

                                                
1.13.  Compliance and monitoring

It  is  essential  that  rights  may  be  enforced  expeditiously  and  in  a  uniform  manner  in  the
Member  States.,  Member  States  have  a  duty  to  ensure  that  their  domestic  criminal  justice
schemes operate efficiently and fairly so that the ECtHR retains its function as a court of last
resort and is not so submerged by applications that it too becomes unwieldy.
The  final  area  for  consideration  in  this  Green  Paper  will  therefore  be  how  to  measure  and
ensure  compliance  with  any  subsequent  EU  measure  taken.  It  is  appropriate  for  the
Commission to have a role in monitoring and evaluation, using information provided by  the
Member  States  or  by  an  independent    team  of  experts.  Once  a  Framework  Decision  is
adopted,  it  is  incumbent  on  the  Commission  to  ensure  both  that  the  Member  States  have
adopted  the  necessary  legislation  to  give  effect  to  the  Framework  Decision  and  that  it  is
properly implemented..
Question 1:
Is it appropriate to have an initiative in the area of procedural safeguards at European
Union level?

2.  IDENTIFYING THE BASIC RIGHTS

2.1. Introduction

This  Green  Paper  is  the  outcome  of  a  lengthy  consultation  process,  both  with  interested
parties (such as lawyers and experts in the fields) and with government representatives. The
Commission needed information on what rights were currently protected by the legislation of
the Member States and what rights were considered by experts in the field to be essential for
fair trials. Additionally, the Commission wanted to act as fast as possible since this measure
was at the heart of the programme of mutual recognition, and several of the measures forming
the mutual recognition programme were underway. Largely for this reason, the Commission
decided  not  to  carry  out  a  survey.  Experience  has  shown  that  a  survey,  undertaken  by  an
independent  research  institute,  can  be  a  lengthy  process  and  the  results  are  variable.  The
Commission therefore decided to carry out as much research as it could itself and to consult
widely  in  order  to  have  the  benefit  of  the  views  of  as  many  parties  as  possible.  Its  main
research  tool  was  therefore  consultation,  in  particular  via  its  website,  but  it  also  received
experts  from  various  NGOs  and  was  glad  to  have  their  views,  and  sent  representatives  to
relevant conferences and seminars. The Commission also carried out a modest survey of the
current provisions in the Member States by way of a questionnaire.

In early 2002, a Consultation Paper was posted in several languages on the JAI website20 to
which there was a considerable response. The Commission received about 100 contributions
(from government departments, professional bodies, NGOs and individuals).

At that time, the Commission also sent the questionnaire to the Ministries of Justice of all the
Member  States  on  the  current  situation  within  their  criminal  justice  systems.  Once  the
Commission  had  received  and  analysed  replies  to  the  Consultation  Paper  and  the
questionnaire it was able to convene a group of experts for an intensive discussion.

An  experts'  meeting  was  held  on  7/8  October,  gathering  50  experts  made  up  of  nationally
appointed  representatives  (1  per  Member  State),  academics/professionals  chosen  by  the
Commission (1 per Member State) and representatives from NGOs.

20

http://europa.eu.int/comm/justice_home/index_en.htm

12

                                                
2.2. The JAI Website Consultation

The  Consultation  Paper  was  the  first  step  in  collecting  the  views  of  experts.  At  that  early
stage,  the  Commission  was  not  sure  what  areas  would  be  perceived  as  priorities,  nor  how
much  could  be  covered  in  a  single  measure.  It  therefore  listed  all  the  rights  that  might  be
covered in any future Green Paper in the Consultation Paper with a view to assessing external
perceptions of the most important rights to be safeguarded at the European level.

The  Commission  received  over  100  replies,  ranging  from  simple  enquiries  to  lengthy
discussion papers covering all the issues raised in the Consultation Paper. The responses come
from  students,  practitioners,  lawyers’  professional  associations  (such  as  Bar  Associations),
government  departments,  civil  liberties  organisations  and  academics.  There  were  responses
from nationals of nearly all the Member States.

In  its  Consultation  Paper,  the  Commission  specifically  sought  comments  on  the  following
areas:

(i)  whether  it  was  appropriate  to  introduce  a  mechanism  ensuring  that  suspects/defendants
were aware of their rights (“the Letter of Rights”),

(ii) how to offer vulnerable groups a high degree of protection, and

(iii) these specific rights:

a. The right to be presumed innocent until proved guilty;

b. The right to have someone informed of the detention;

c. The right to legal advice and assistance;

d. The right to a competent, qualified (or certified) interpreter and/or translator;

e. The right to bail (provisional release) where appropriate;

f. The right against self-incrimination;

g. The right to consular assistance (if not a national of the State of prosecution);

h.  Fairness  in  obtaining  and  handling  evidence  (including  the  prosecution’s  duty  of
disclosure);

i. The right to review of decisions and/or appeal proceedings;

j. Specific guarantees covering detention, either pre- or post-sentence;

k. Ne bis in idem.

The Commission was  also interested in hearing about in absentia proceedings.

The  Consultation  Paper  was  greeted  enthusiastically  by  those  working  in  the  field  and  the
Commission was  very grateful to respondents for offering such constructive encouragement
and  advice.  The  translators'  and  interpreters'  organisations  were  particularly  helpful,  as  this
specialist  area  was  the  one  the  Commission  had  the  least  information  about.  Numerous
respondents  considered  that  the  suggestion  of  a  "Letter  of  Rights",  a  short  document  to  be

13

given to suspects as early as possible, possibly on arrest, was a good one. For this reason, and
because it appeared to be a cost-effective and easily implemented measure, the Commission
decided to include it among the proposals to be made in the Green Paper.

2.3. The questionnaire to the Member States

Also in early 2002, a questionnaire was sent, via the representations of the Member States in
Brussels to their governments. It contained questions covering many aspects of their criminal
justice systems, including the budget devoted to legal aid, to the provision of legal aid, to the
provision  of  translation/interpretation  in  criminal  proceedings  and  the  identification  and
treatment  of  vulnerable  suspects.  In  most  cases,  the  questions  were  answered  by  the
Ministries  of  Justice  and  of  the  Interior  in  the  Member  States,  but  some  questions  also  had
replies from the governments' statistical and other services.

From  the  replies    the  Commission  was    able  to  build  up  a  picture  of  existing  levels  of
provision  and  identify  where  action  from  the  Commission  would  be  most  effective.  In
particular, it became clear that legal aid was provided in very different ways in the different
Member  States  and  that  when  it  came  to  vulnerable  suspects,  there  was  only  unanimity  in
considering children to be vulnerable.

2.4. The experts' meeting

A Discussion Paper was drafted in preparation for the experts' meeting. By then it had already
become clear that the most promising areas for immediate consideration were the provision of
legal  aid,  the  provision  of  translators  and  interpreters,  the  "Letter  of  rights"  and  the
identification of vulnerable suspects. From the European vantagepoint, it was also clear to the
Commission that foreign suspects could easily be at a disadvantage, and may be particularly
vulnerable. The Commission planned to consider the question of translators and  interpreters
and  the  inclusion  of  non-nationals  in  our  categories  of  vulnerable  suspects.  It  was  also
decided to complement these measures with another that applied to foreign suspects - that of
ensuring that they were offered consular assistance, in accordance with an existing convention
to that effect and to which all Member States were already parties.

The Discussion Paper therefore set out the five areas the Commission had decided to focus on
at this stage and these formed the basis of our discussions.

2.5. The "basic rights"

The  Commission  concluded  that  whilst  all  the  rights  that  make  up  the  concept  of  "fair  trial
rights" were important, some rights were so fundamental that they should be given priority at
this stage. First of all among these was the right to legal advice and assistance. If an accused
person  has  no  lawyer,  they  are  less  likely  to  be  aware  of  their  other  rights  and  therefore  to
have  those  rights  respected.  The  Commission  sees  this  right  as  the  foundation  of  all  other
rights. Next, the suspect or defendant must understand what he is accused of and the nature of
the proceedings so it is vital for those who do not understand the language of the proceedings
to be provided with interpretation of what is said and translation of essential documents. The
consultation  showed  a  high  level  of  support  for  the  "Letter  of  Rights"  by  which  a  suspect
would be given information regarding his fundamental rights in writing and in a language he
understands. Several respondents agreed with us that rights are only effective if the suspect is
aware of them - this seemed to the Commission to be a simple, inexpensive way of ensuring
that all suspects were aware of their rights. The Commission wanted to include a section on
the  most  vulnerable  in  society,  although  it  has  not  proved  easy  to  identify  who  is  actually

14

covered  by  this.  The  Commission  has  therefore  suggested  that  Member  States  require  their
police authorities and judicial authorities to consider the question of a suspect or defendant's
potential vulnerability and to take appropriate measures without  going as far as to lay down
exactly who is to be considered "vulnerable". The Commission considers that if the potential
vulnerability  is  raised  at  an  early  stage  of  proceedings,  together  with  a  duty  to  take
appropriate  action,  this  will  constitute  an  improvement  for  the  persons  concerned.  Finally,
having identified non-nationals as at a disadvantage in criminal proceedings, the Commission
wanted to include a measure that is of undoubted assistance to the foreigner, namely the offer
of consular assistance. This right has existed in principle for many years but the Commission
wanted to take this opportunity to ensure that it was fully complied with by including it in this
Green Paper as a corollary of the other rights for non-nationals that it proposes.

This Green  Paper does  not  seek  to  create  new  rights  nor  to  monitor  compliance  with  rights
that exist under the ECHR or other instruments, but rather to identify the existing rights the
Commission sees as basic and to promote their visibility.

2.6. Rights not covered in the Green Paper

All the rights set out in the Consultation Paper will in time be covered by the Commission in
accordance with the priorities emerging from a European Union with 25 Member States .

Two  of  the  rights  the  Commission  had  identified  appeared  to  warrant  separate  measures  of
their own in order to do them justice. These were the right to bail (provisional release pending
trial) and the right to have evidence handled fairly.

The work on the right to bail (which also covers detention conditions), which is an important
and substantial are in its  own  right,  was  separated  from  the  work  on  other  safeguards  at  an
early  stage.  It  forms  the subject-matter of a  measure  in  the  Mutual  Recognition  programme
(measure 10) and would be more appropriately dealt with as a single issue. A Communication
on the subject is included in the Commission's Work Programme for 2003. Also in the Work
programme for this year is a Communication on approximation, execution and recognition of
criminal sanctions in  the  EU.  This  is  designed to  ensure  equality of  treatment for  convicted
persons throughout the EU so that, for example, those sentenced in a Member State other than
their own are not discriminated against by virtue of their foreign nationality.

Fairness  in  handling  evidence  actually  covers  many  rights  and  many  aspects  of  the
proceedings. It soon became clear that this area should be covered in a separate measure as it
was too vast to cover in a Green Paper that already proposed several rights. The Commission
therefore decided to devote  more  time and  a specific  study  to  this  topic  as  soon  as  the  first
stage  of  the  procedural  safeguard  work  was  completed.  The  Commission  has  now  started
work  on  a  study  of  safeguards  in  fairness  in  gathering  and  handling  of  evidence.  This  will
cover,  inter  alia,  the  right  to  silence,  the  right  to  have  witnesses  heard,  the  problem  of
anonymous witnesses, the right to disclosure of exculpatory evidence, how the presumption of
innocence  is  to  be  understood  (whether  there  are  circumstances  where  the  burden  of  proof
may be  reversed) and  many  other aspects of  the law of evidence.  Article  48 of  the  CFREU
provides that “everyone who has been charged shall be presumed innocent until proved guilty
according  to  law”.    The  treatment  of  non-convicted  defendants  in  relation  to  remands  in
custody  and  the  question  of  the  reversal  of  the  burden  of  proof  are  aspects  of  the  same
principle and will be considered both in the work on the right to bail and on evidence.

A study of ne bis in idem (a measure included in the Mutual Recognition Programme) is also
underway.  Article  50  CFREU  provides  that  “no-one  shall  be  liable  to  be  tried  or  punished

15

again  criminal  proceedings  for  an  offence  for  which  he  or  she  has  already  been  finally
acquitted or convicted within the Union in accordance with the law”. Greece has announced
that it will soon table an initiative on the subject, which will be taken into account to assess
the  necessity  of  submitting  additional  proposals  in  the  light  of  very  recent  case-law.  On  10
February  2003,  the  ECJ  gave  its  judgment  in  joined  Cases  C-187/01  and  C-385/01  on  the
implementation  of  Article  54  of  the  Convention  implementing  the  Schengen  Agreement.  It
held  that  a  person  may  not  be  prosecuted  in  a  Member  State  on  the  same  facts  as  those  of
which  his  case  has  been  “finally  disposed  of”,  even  if  no  court  has  been  involved  in  the
procedure, in another Member State.

In absentia (or default) judgments were not considered to be among the first priorities for the
work  on  safeguards  and  consequently  were  postponed  to  a  later  date.  It  is  now  hoped  to
devote a Green Paper to the subject in 2004, with a view to a proposal for legislation perhaps
at the end of 2004 or early in 2005.

As far as victims of crime are concerned, there have been a number of initiatives undertaken,
further to the Commission Green Paper on Crime Victims in the EU – reflections on standards
and action21. A Framework Decision on the Standing of Victims in Criminal Proceedings was
adopted  on  15  March  200122.  On  October  16  2002,  the  Commission  proposed  a  Council
Directive on Compensation to Crime Victims23.

3.  TREATY OBLIGATIONS AND EXISTING PROVISIONS

3.1. Introduction

The  TEU  provides,  in  its  Article  6  that  "The  Union  shall  respect  fundamental  rights,  as
guaranteed  by  the  European  Convention  for  the  Protection  of  Human  Rights  and
Fundamental  Freedoms  signed  in  Rome  on  4  November  1950  and  as  they  result  from  the
constitutional  traditions  common  to  Member  States,  as  general  principles  of  Community
Law". For that reason, the Commission has taken the ECHR as the starting point for assessing
common minimum standards. It sets minimum standards which are common by virtue of the
fact that all Member States are parties to it. The ECHR is fleshed out by the caselaw so where
clarification  is  needed,  it  may  often  be  found  in  the  judgments  of  the  European  Court  of
Human Rights (ECtHR).  That  said, the  Green Paper  is  not  designed  to  ensure  that  Member
States  comply  with  the  ECHR  but  rather  to  make  sure  that  those  rights  identified  here  are
applied in a more consistent and uniform manner throughout the European Union.

3.2. The  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental
Freedoms

Article 6 of the ECHR lays down fair trial guarantees. It is worded as follows:

ARTICLE 6

1. In the determination of his civil rights and obligations or  of any criminal  charge against
him,  everyone  is  entitled  to  a  fair  and  public  hearing  within  a  reasonable  time  by  an
independent  and  impartial  tribunal  established  by  law.  Judgment  shall  be  pronounced

21 
22 
23 

COM(1999)349 final.
OJ L 82/1 of 22.3.2001.
COM(2002)562 final.

16

                                                
publicly by the press and public may be excluded from all or part of the trial in the interest of
morals,  public  order  or  national  security  in  a  democratic  society,  where  the  interests  of
juveniles  or  the  protection  of  the  private  life  of  the  parties  so  require,  or  the  extent  strictly
necessary  in  the  opinion  of  the  court  in  special  circumstances  where  publicity  would
prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature
and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of justice
so require;

(d)  to  examine  or  have  examined  witnesses  against  him  and  to  obtain  the  attendance  and
examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.”

The various rights of which a non-exhaustive list appears in paragraph 3 reflect certain of the
aspects of the notion of a fair trial in criminal proceedings24 .The “purpose” of the ECHR is
set out forcefully in the case of Artico v. Italy25 in which the ECtHR held: “The Court recalls
that  the  Convention  is  intended  to  guarantee  not  rights  that  are  theoretical  or  illusory  but
rights  that  are  practical  and  effective;  this  is  particularly  so  of  the  rights  of  the  defence  in
view  of  the  prominent  place  held  in  a  democratic  society  by  the  right  to  a  fair  trial,  from
which they derive.”

3.3. The Charter of Fundamental Rights of the European Union

The legal status of the Charter  has been under consideration for some time.

Already the CFREU has been cited with increasing frequency by the Court of First Instance
of the European Communities (CFI)26, and in numerous Opinions of the Advocates General27.

24

25

26

27

Deweer v. Belgium Judgment of 27 February 1980, Series A no. 35,  para. 56
Artico v. Italy, 13 May 1980, Series A, N°37, paras. 32 and 33.
See for example Case T-112/98 Mannesmannröhren-Werke v Commission [2001] ECR II-729, Case T-
54/99 Max.mobil v Commission (judgment of 30 January 2002), paragraphs 48 and 57, Case T-177/01
Jégo-Quéré  v  Commission  (judgment  of  3  May  2002),  paragraphs  42  and  47  that  ruling  is  currently
under appeal (Case C-263/02P).
See for example: AG Alber in Case C-340/99 TNT v Poste Italiane [2001] ECR I-4109, para. 94; AG
Geelhoed in Case C-313/99 Mulligan v. AG, para. 28, C-413/99 Baumbast v Secretary of State for the
Home  Department,  para.  59  and  Case  C-491/01  The  Queen  v  Secretary  of  State  for  Health  ex  parte
BAT,  paras.  47  and  259;  AG  Jacobs  in  Cases  C-377/98  Netherlands  v  Parliament  and  Council
(biotechnology Directive) (judgment of 9 October 2001), paras. 97 and 210, C-270/99P Z v Parliament

17

                                                
Where they have  discussed  its  status, they  have consistently declared it  not to  be binding28.
Nevertheless,  they  have  stated  that  the  Charter  "includes  statements  which  appear  in  large
measure  to  reaffirm  rights  which  are  enshrined  in  other  instruments"29  and  that  certain
articles of the Charter  proclaim  generally recognised  principles30. The ECJ itself has not, to
date, referred to the Charter at all, even in cases where the Advocate General's Opinion had
done so.

At  the  Laeken  European  Council  on  15  December  2001,  the  Heads  of  State  of  the  EU
Member  States  made  a  Declaration  on  the  future  of  Europe  in  which  it  is  stated  that  :
“Thought would also have to be given to whether the Charter of Fundamental Rights should
be included in the basic treaty and to whether the European Community should accede to the
European Convention on Human Rights.”

The  Praesidium  proposed  on  6  February  2003  a  draft  text  of  the  first  articles  of  the  treaty
establishing  a  constitution  for  Europe  to  the  Members  of  the  Convention  on  the  future  of
Europe31. It proposes that the CFREU should be an integral part of the constitution:

“Article 5: Fundamental rights
 The Charter of Fundamental Rights shall be an integral part of the Constitution. […]
1. 
2. 
The  Union  may  accede  to  the  European  Convention  for  the  Protection  of  Human
Rights and Fundamental Freedoms. Accession to that Convention shall not affect the Union's
competences as defined by this Constitution.
3
Fundamental rights, as guaranteed by the European Convention for the Protection of
Human  Rights  and  Fundamental  Freedoms,  and  as  they  result  from  the  constitutional
traditions  common  to  the  Member  States,  shall  constitute  general  principles  of  the  Union's
law.”

There is a growing consensus in support of this draft.

3.4. Other instruments

Other  international  instruments  offering  procedural  safeguards  to  individuals  involved  in
criminal proceedings to which all Member States32 are parties are:

-the 1945 Charter of the United Nations,

(judgment of 21 November 2001), para. 40, and C-50/00P Unión de Pequeños Agricoltores v Council
(judgment of 25 July 2002), para. 39; AG Léger in Cases C-353/99P Council v Hautala (judgment of 6
December 2001), paras. 51, 73 and 78-80, and C-309/99 Wouters v Nederlandse Orde van Advocaten
(judgment  of  19  February  2002),  paras.  173  and  175;  AG  Mischo  in  Cases  C-122  and  125/99  D  v
Council  [2001]  ECR  I-4319,  para.  97,and  C-20/00  and  64/00  Booker  Aquaculture  v  The  Scottish
Ministers,  para.  126  AG  Stix-Hackl  in  Case  C-49/00  Commission  v  Italy,  para.  57,and  C-459/99
MRAX v Belgium (judgment of 25 July 2002), para. 64; and AG Tizzano in Case C-173/99 The Queen
v Secretary of State for Trade and Industry ex parte BECTU [2001] ECR I-4881, para. 27. Paragraph
references are to the Opinions of the Advocates General, not the judgments.
Baumbast para. 59, BECTU para. 27, Council v Hautala para. 80, Mulligan para 28, Unión de Pequeños
Agricoltores para. 39, Z, para 40.
BECTU, para. 27
Unión de Pequeños Agricoltores, para. 39;

The  candidate  countries,  including  Bulgaria  and  Romania,  are  also  parties  to  these  treaties,  with  the
exception of the Rome Statute which all candidate countries have ratified except the Czech Republic,
Lithuania and Malta. As of November 2002, these three countries have signed but not ratified the Rome
Statute.

28

29

30
31            CONV 528/03
32

18

                                                                                                                                                        
-the 1966 International Covenant on Civil and Political Rights, (“ICCPR”)

-the 1963 Vienna Convention on Consular Relations,(“VCCR”)

-the  1993  Statute  of  the  International  Criminal  Tribunal  for  the  former  Yugoslavia,(“ICTY
Statute”). Member States are bound to comply with the Statute by  virtue  of Articles  25  and
103 of the Charter of the United Nations.

-the  1994  Statute  of  the  International  Criminal  Tribunal  for  Rwanda  (“ICTR  Statute”).
Member States are bound to comply with the Statute by virtue of Articles 25 and 103 of the
Charter of the United Nations.

-the 1998 Rome Statute for an International Criminal Court.(“Rome Statute”).

The International Covenant on Civil and Political Rights

This instrument was adopted as a resolution of the General Assembly of the United Nations33.
This means that it is not generally binding34 but since the rights it lays down are codified in a
treaty,  it  is  binding  on  the  states  that  ratify  or  accede  to  it.  Furthermore,  it  establishes  the
Human  Rights  Committee,  a  body  providing  authoritative  guidance  on  fair  trial  rights.  The
relevant articles for present purposes are Articles 9 and 10 which may be found in the Annex
to this Green Paper.

The Rome Statute

Under  the  Rome  Statute,  suspects  and  defendants  have  extensive  rights  under  Article  55
(Rights  of  a  person  during  an  investigation)  and  Article  67  (Rights  of  the  accused)    which
may be found in the Annex. It is clear that the Rome Statute goes somewhat further than the
ECHR.  It  is  interesting  to  note  that  this  instrument,  decided  on  an  intergovernmental  basis,
provides  very  comprehensive  safeguards  to  persons  accused  of  serious  violations  of
international  humanitarian  law.  It  was  drawn  up  by  representatives  of  the  international
community,  including  all  the  Member  States.  It  is  worth  noting  that  the  international
community  has  accepted  these  safeguards  as  the  “minimum”  for  future  suspects  and
defendants  at  the  International  Criminal  Court  whilst  suspects  and  defendants  in  “ordinary”
criminal proceedings throughout the European Union do not always benefit from this level of
protection.

33

34

G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force 23 March 1976.
The  UN  Charter  provides  that  the  General  Assembly  may  “make  recommendations”  (Article  11  and
12). However, the International Court of Justice stated in its 1996 Advisory Opinion on the Legality of
the threat or use of nuclear weapons:
“General  Assembly  resolutions,  even  if  they  are  not  binding,  may  sometimes  have  normative  value.
They can, in certain circumstances, provide evidence important for establishing the existence of a rule
or  the  emergence  of  an  opinio  juris.  To  establish  whether  this  is  true  of  a  given  General  Assembly
resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to
see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the
gradual evolution of the opinio juris required for the establishment of a new rule”.

19

                                                
4.  THE RIGHT TO LEGAL ASSISTANCE AND REPRESENTATION

4.1. Introduction

The key issue is probably that of access to legal assistance and representation. The suspect or
defendant who has a lawyer is in a far better position as regards enforcement of all his other
rights,  partly  because  his  chances  of  being  informed  of  those  rights  is  greater  and  partly
because  a  lawyer  will  assist  him  in  having  his  rights  respected.  It  would  therefore  seem
appropriate to start by considering the right of access to legal assistance and representation.

4.2. Existing provisions

The right to a lawyer is well established – it is contained in the ECHR and stated again in the
Charter of Fundamental Rights of the European Union as well as in other instruments35.

4.2.(a) Under the ECHR

Article 6(3) lays down the “minimum rights” of “everyone charged with a criminal offence”:

“3. Everyone charged with a criminal offence has the following minimum rights:

[…]

(c) to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of justice
so require; […]”36

4.2.(b) Under the CFREU

Article 47(Right to an effective remedy and to a fair trial) provides:

“Everyone whose rights and freedoms guaranteed  by the law of  the Union are  violated has
the right to an effective remedy before a tribunal in compliance with the conditions laid down
in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent
and  impartial  tribunal  previously  established  by  law.  Everyone  shall  have  the  possibility  of
being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid
is necessary to ensure effective access to justice.”

4.2.(c ) The European Court of Justice

In  Hoechst  v.  Commission37,  the  ECJ  held  explicitly  that  the  right  to  legal  representation  is
one  of  the  basic  rights  governing  the  administrative  procedure,  the  violation  of  which  may

35

36

37

International Covenant on Civil and Political Rights (“ICCPR”) and rule 93 of the Standard Minimum
Rules for the Treatment of Prisoners (Council of Europe Res. CM(73)5).
In  the  Artico  v.  Italy  case  (cited  in  footnote  27  above)  the  ECtHR  held:  “Article  6(3)  contains  an
enumeration of specific applications of the general principle stated in paragraph 1 of the Article (art. 6-
1)[…] When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten
nor must it be severed from its roots”.
Cases 46/87 & 227/88 Hoechst AG v. Commission [1989] ECR 2859, Paras 15 and 16.

20

                                                
lead  to  the  imposition  of  penalties.  The  proceedings  were  not  criminal  ones,  but  the  ECJ’s
statement  was  broad  “although  certain  rights  of  the  defence  relate  only  to  the  contentious
proceedings which follow the delivery of the statement of objections, other rights, such as the
right to legal representation […] must be respected as from the preliminary inquiry stage”..

4.2.(d) Under other international instruments

ICCPR

Article 14 of the ICCPR provides as follows:

"3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality

[…]

d) To be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of this right; and to
have legal assistance assigned  to him, in  any case where the interests of justice so require,
and without payment by him in any such case if he does not have sufficient means to pay for it
. . .”

The Rome Statute

The rights of the accused are covered in two articles of the Rome Statute. Article 55(2), which
covers the pre-trial stage, provides, as follows:
[…]2. Where there are grounds to believe that a person has committed a crime within the
jurisdiction of the Court and that person is about to be questioned either by the Prosecutor,
or by national authorities pursuant to a request made under Part 9, that person shall also
have the following rights of which he or she shall be informed prior to being questioned:[…]

(c) To have legal assistance of the person's choosing, or, if the person does not have legal
assistance, to have legal assistance assigned to him or her, in any case where the interests of
justice so require, and without payment by the person in any such case if the person does not
have sufficient means to pay for it; and

(d) To be questioned in the presence of counsel unless the person has voluntarily waived his
or her right to counsel.”

And Article 67, which covers the trial, provides:

“1.  In  the  determination  of  any  charge,  the  accused  shall  be  entitled  to  a  public  hearing,
having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to
the following minimum guarantees, in full equality: […]

(b)  To  have  adequate  time  and  facilities  for  the  preparation  of  the  defence  and  to
communicate freely with counsel of the accused's choosing in confidence;

(c) To be tried without undue delay;

(d)  Subject  to  article  63,  paragraph  2,  to  be  present  at  the  trial,  to  conduct  the  defence  in
person or through legal assistance of the accused's choosing, to be informed, if the accused
does  not  have  legal  assistance,  of  this  right  and  to  have  legal  assistance  assigned  by  the

21

Court in any case where the interests of justice so require, and without payment if the accused
lacks sufficient means to pay for it; […]”

The ICTY Statute:

Article 18 of the ICTY Statute provides as follows:

“3.  If  questioned,  the  suspect  shall  be  entitled  to  be  assisted  by  counsel  of  his  own  choice,
including the right to have legal assistance assigned to him without  payment by  him in any
such case if he does not have sufficient means to pay for it, […].”

The ICTR Statute lays down similar rights in its Article 20.

4.2.(e) Legal representation in civil cases at EU level – a comparison

In  January  2002,  the  Commission  presented  a  Proposal  for  a  Council  Directive  to  improve
access to justice in cross-border disputes by establishing minimum common rules relating to
legal aid and other financial aspects of civil proceedings throughout the EU38. This measure,
was  adopted  on  27  January  200339..  It  provides  that  “natural  persons”  are  to  be  entitled  to
“appropriate legal aid” in certain conditions. Although the conditions for granting legal aid in
civil  proceedings  are  somewhat  different  from  those  applying  to  criminal  proceedings,  and
civil  proceedings  come  under  the  ambit  of  the  first  pillar,  this  will  provide  a  model  of
harmonisation 
legal  representation.  Naturally  different
considerations apply in the civil law sphere and in areas coming within the ambit of the first
pillar.

to  standards  for 

in  relation 

4.3. Discussion and questions

The  ECHR  and  the  case-law  of  the  ECtHR  lay  down  the  right  to  legal  assistance  and
representation. In recent years, the international community has seen the creation of the two
ad  hoc  tribunals  for  the  former  Yugoslavia  and  Rwanda  and  the  establishment  of  the
International Criminal Court and for all of them, the statute provides that the accused has the
right to be represented by Counsel, and to have that legal assistance free of charge if he has
not  the  means  to  pay  for  it.  This  reflects  acceptance  of  the  right  to  legal  assistance  and
representation as a fundamental  right.  The  issue  here  is  therefore  not  should  this  right  arise
but how may it best be enforced.

4.3.(a) When does the right arise?

The  right  to  legal  representation  arises  immediately  on  arrest  (whether  this  is  actually  in  a
police station or elsewhere)40 although of  course  a  reasonable  time  must  be  allowed  for  the
lawyer  to  arrive.  Pre-trial  proceedings  are  covered41.  A  suspect  is  entitled  to  have  legal

38

39 
40

41

Proposal for a Council Directive to improve access to justice in cross-border  disputes  by  establishing
minimum  common  rules  relating  to  legal  aid  and  other  financial  aspects  of  civil  proceedings,
COM(2002)13 final of 18.01.2002
OJ L26/41 of 31.1.2003.
In John Murray v. UK (Judgment of 8 February 1996, Series A 1996-I) a violation of the ECHR was
found  as  the  accused  was  arrested  for  terrorist  offences  and  refused  access  to  a  lawyer  for  48  hours.
Also Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Council of Europe Res.
CM(73)5  provides  that  “Untried  prisoners  shall  be  entitled,  as  soon  as  imprisoned,  to  choose  a  legal
representative…”.
Imbrioscia v. Switzerland (Judgment of 24 November 1993, Series A, N°275, para. 36).

22

                                                
representation  throughout  the  questioning  and  interview  stages  of  the  proceedings.  If  the
suspect has declined the offer of legal assistance at this early stage, is then charged with the
offence, and still does not have legal representation, he should be reminded of his right and
provided with a lawyer as soon as possible if he then wants to exercise that right.

4.3.(b) What is the accused entitled to?

The rights conferred by Art. 6(3)(c)ECHR, taking into account its “basic purpose” of ensuring
a fair trial, and by other relevant provisions cited above, can be summarised as follows:

–  The defendant, once charged with a criminal offence, has:

–  the right to defend himself in person, if he so chooses, or

–  by counsel of his own choosing, and

–  if  he  has  not  sufficient  means  to  pay  for  legal  assistance,  to  be  given  it  free  when  the

interests of justice so require.

Art.  6(3)(b)ECHR  lays  down  the  right  “to  have  adequate  time  and  facilities  for  the
preparation of his defence”. This right must be respected without the time between charge and
trial  being  excessive  since  Article  5(3)ECHR  and  Article  9(3)  ICCPR  both  provide  that
persons arrested or detained should be tried “promptly”.
The right to defend oneself
Should the accused decide to avail himself of this right, he must be present at the proceedings
in order to “defend himself in a practical and effective manner”. It  goes without saying that
the  right  conferred  by  Art.  6(3)(b)ECHR  “to  have  adequate  time  and  facilities  for  the
preparation of his defence” is of vital importance to the defendant choosing to defend himself.
The Commission, whilst recognising the right to defend oneself, is, for obvious reasons, not
concerned with the situation of the defendant seeking to defend himself. The situation which
causes concern is the reverse, of the defendant wanting legal assistance and representation and
not able to exercise this right.
The right to counsel of his own choosing
Art. 6(3)(c)ECHR, Art. 14 ICCPR, Art. 55 Rome Statute and Art. 18 ICTY Statute explicitly
provide  for  the  defendant’s  right  to  choose  his  legal  counsel.  However,  this  right  generally
only applies when the defendant has the means to pay for his legal representation.
The right to free legal representation
Art. 6(3)(c)ECHR, Art. 14 ICCPR, Art. 55 Rome Statute and Art. 18 ICTY Statute and other
instruments explicitly provide for the defendant’s right to free legal representation “if he has
not sufficient means to pay for legal assistance”
The defendant does not have to prove “beyond all doubt” that he lacks the means to pay for
his defence42. Some Member States  operate  a means test to establish  whether the  defendant
“has not sufficient means to pay for his defence”. Others provide free legal representation to
all  on  the  basis  that  a  means  test  is  expensive  to  operate  and  that  some  of  the  costs  can  be
recovered from the defendant in certain circumstances. This would seem to be an area where
it is appropriate for Member States to operate the system that appears to them to be the most
cost effective.

The  right  to  free  legal  representation  is  not  unconditional.  The  ECHR,  the  ICCPR  and  the
Rome Statute all provide that this right arises “when the interests of justice so require”. The

42

Pakelli v. Germany, judgment of 25 April 1983, Series A n° 64 para. 34

23

                                                
difficulty lies in establishing criteria that may be applied throughout the EU for determining
when the “interests  of  justice”  so  require.  In Quaranta v. Switzerland, the ECtHR indicated
three factors which should be taken into account:

–  the seriousness of the offence and the severity of the potential sentence,

–  the complexity of the case, and

–  the personal situation of the defendant43.

It should be noted that these categories are broad and cover  many  cases where  perhaps  free
legal aid is not currently being granted.

The right to free legal representation does not confer a right to a choice of lawyer, but some
Member  States  will  allow  this  and  in  any  event,  any  lawyer  appointed,  whether  by  the
defendant or under a national legal aid scheme, must offer “effective assistance” 44.

In Benham v United Kingdom (1996) the ECtHR held that “Where the deprivation of liberty is
at  stake,  in  principle  the  interests  of  justice  call  for  legal  representation”.  Some  Member
States extend this principle to cover offences that carry not only a risk of a custodial sentence
but  also  loss  of  employment  or  livelihood.  Some  Member  States  extend  it  even  further  to
cover all offences except “minor” ones such as road traffic offences or shoplifting45.
Minimum requirements
It is not enough that the State appoint a lawyer – the legal  assistance provided must also be
effective and the State is under a duty to ensure that the lawyer has the information necessary
to  conduct  the  defence46.  The  accused  should  receive  from  his  lawyer  all  the  information
necessary to understand the nature and consequences of the accusation he faces. He should be
advised of any right to silence he may have (or conversely of the adverse inferences that may
subsequently be drawn from his silence), of the consequences of making any confession and
of the weight to be given in any subsequent proceedings to any answers he makes.
Art 6 read in conjunction with other Articles
Article 1 ECHR (Obligation to respect human rights) provides:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and
freedoms defined in Section I of this Convention.
Article 14 ECHR (Prohibition of discrimination) provides:
“The  enjoyment  of  the  rights  and  freedoms  set  forth  in  this  Convention  shall  be  secured
without discrimination on any ground such as sex, race, colour, language, religion, political
or  other  opinion,  national  or  social  origin,  association  with  a  national  minority,  property,
birth or other status.”

These Articles taken together imply that the fair trial safeguards provided by Article 6 must
be  guaranteed  to  all  persons  within  the  territory  of  a  Member  State,  regardless  of  their
nationality and whether they are lawfully on the territory of the State. Consequently, the right
to  legal  representation  in  criminal  proceedings,  and  all  the  attendant  rights  discussed  above

43

44

45

46

Quaranta v. Switzerland, judgment of 24 May 1991, Series A n° 205, para. 35 describes Mr Quaranta as
"a  young  adult  of  foreign  origin  from  an  underprivileged  background...[having]  no  real  occupational
training and a long criminal record. He has taken drugs since 1975, almost daily since 1983, and, at the
material time, was living with his family on social security benefit".
Artico v. Italy 1980 cited above.
E.g. Sweden, but N.B. shoplifting is not considered a “minor” offence in all Member States.
In  Goddi  v.  Italy  (Judgment  of  9  April  1984),  failure  on  the  part  of  the  State  to  notify  Mr  Goddi’s
lawyer of the hearing date meant that he did not have the benefit of a “practical and effective” defence.

24

                                                
must  be  available  to  everyone  in  the  country.  Article  14  precludes  most  forms  of
discrimination.

4.3.(c) What provision should the Member States make?

In the Commission's questionnaire to the Member States, there was a question about access to
legal  assistance  and  representation.  The  arrangements  in  the  Member  States  varied
considerably.  The  Commission  is  interested  in  the  idea  of  having  national  schemes  in  the
Member States so that the rules on eligibility are applied uniformly throughout one Member
State.  This  would  lead  to  a  more  equitable  system,  since  all  arresting  officers  would  be
familiar with the nationally  applicable provisions.  If these were  also explained in writing to
arrested persons (see Part 6 - The Letter of Rights - below), this would lead to a situation of
greater transparency and increased general awareness of the right.

In some Member States, legal advice on arrest is given on a pro bono basis by  trainees and
students. Lawyers giving legal assistance in these circumstances must be competent in order
for  the  proceedings  to  comply  with  the  ECHR.  If  there  are  not  enough  qualified  lawyers
prepared to undertake this type of work, this could be in part because the remuneration is not
attractive  enough.  In  the  case  of  trainees  giving  legal  assistance  to  arrested  persons,  and
indeed for  all lawyers undertaking this  work, there  should  be  some  form  of  quality  control.
This  quality  control  must  apply  also  to  the  preparation  for  trial  and  the  trial  itself.  A
mechanism for ensuring competence should therefore be established by the Member States.

The Commission recognises that schemes that provide legal assistance and representation at
the  State's  expense  are  very  costly.  Naturally,  this  begs  the  question  of  whether  the  duty
extends  to  those  who  can  afford  to  pay  for  some  or  all  of  their  legal  costs  and  to  persons
charged with minor offences only. Some Member States apply a means test, such as "earning
less than twice the minimum monthly salary" as the threshold for eligibility. Others have no
threshold and deem it more expensive to assess the defendant's means than to grant legal aid
without a means test. The Commission wonders whether in view of the  costs of the system,
there should be common standards regarding the level of seriousness of the offence for which
free  legal  representation  should  be  provided,  and  whether  certain  trivial  offences  can  be
excluded. The following questions reflect these concerns.

Question 2:
In  order  to  ensure  common  minimum  standards  of  compliance  with  Article  6(3)(c)
ECHR,  should  all  Member  States  be  required  to  establish  a  national  scheme  for
providing legal representation in criminal proceedings?

Question 3:
If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
representation in criminal proceedings, should the requirement extend to verifying that
remuneration  is  enough  to  make  participation  in  the  scheme  attractive  for  defence
lawyers?

Question 4:
If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
representation in criminal proceedings, should the requirement extend  to verifying the
competence, level of experience and/or qualifications of the lawyers participating in the
scheme?

Question 5:

25

Article  6(3)  of  the  ECHR  provides  that  a  person  charged  with  a  criminal  offence  be
given  free  legal  representation  “if  he  has  not  sufficient  means  to  pay  for  legal
assistance”. How should Member States determine whether the defendant is able to pay
for legal representation or not?

Question 6:
Article 6(3) (c ) of the ECHR provides that a person charged with a criminal offence be
given  free  legal  representation  “when  the  interests  of  justice  so  require”  Should  this
right  be  limited  to  offences  which  carry  a  risk  of  a  custodial  sentence  or  extended  to
cover, for example, a risk of loss of employment or loss of reputation?

Question 7:
If free legal representation is to be provided for all offences except “minor” ones, what
definition of “minor offences” would be acceptable in all Member States?

Question 8:
Should there be sanctions, other than any findings of the ECtHR, if a Member State fails
to provide legal assistance and representation where a person is entitled to it?

5.  THE  RIGHT  TO  A  COMPETENT,  QUALIFIED 
(OR  CERTIFIED)
INTERPRETER AND/OR TRANSLATOR SO THAT THE ACCUSED KNOWS THE
CHARGES AGAINST HIM AND UNDERSTANDS THE PROCEDUR

5.1. Introduction

The  right  of  access  to  a  competent  interpreter  and  translation  of  the  key  documents  is
fundamental. It is clear that the suspect or defendant must understand what he is accused of.
This right is well established – it is contained in the ECHR as well as in other instruments set
out below. It is all the more pertinent today when many more people travel from one country
to another, not only on holiday or to look for work, but to make another country their home.
The  difficulty  is  not  in  establishing  the  existence  of  this  right,  but  rather  one  of
implementation. The professions of legal translator and interpreter are not as well established
as  other  branches  (such  as  conference  interpreter),  but  they  are  in  the  throes  of  getting
organised,  drawing  up  common  standards  of  education,  devising  methods  of  registration  or
certification  and  drafting  a  code  of  conduct.  The  aim  of  this  section  is  to  consult  on  this
specific  point  rather  than  to  confirm  the  right  of  access  to  translation  and  interpretation.
However,  a  short  review  of  the  legal  provisions  is  necessary  to  set  out  the  minimum
requirements.
(The rights of deaf people, who also need a sign language interpreter, will be covered in Part
6 – Proper Protection for Especially Vulnerable Groups.)
Under the ECHR
Article 5 (2) stipulates that:
“Everyone who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him.”
And Article 6:
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature
and cause of the accusation against him;
(…)
(e) to have the free assistance of an interpreter if he cannot understand or speak the language
used in court.

26

Other international instruments
Under the ICCPR
Article 14 (3) provides:
“In  the  determination  of  any  criminal  charge  against  him,  everyone  shall  be  entitled  to  the
following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature
and cause of the charge against him; […]
(f) To have the free assistance of an interpreter if he cannot understand or speak the language
used in court”
Under the Rome Statute
Article 55 (Rights of persons during an investigation) provides:
“1. In respect of an investigation under this Statute, a person:
[…](c) Shall, if questioned in a language other than a language the person fully understands
and  speaks,  have,  free  of  any  cost,  the  assistance  of  a  competent  interpreter  and  such
translations as are necessary to meet the requirements of fairness; […] “
and Article 67 (Rights of the accused [at trial]) provides:
“1.  In  the  determination  of  any  charge,  the  accused  shall  be  entitled  to  a  public  hearing,
having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to
the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a
language which the accused fully understands and speaks; […]
(f) To have, free of any cost, the assistance of a competent interpreter and such translations
as  are  necessary  to  meet  the  requirements  of  fairness,  if  any  of  the  proceedings  of  or
documents presented to the Court are not in a language which the accused fully understands
and speaks; […].”
Grotius Projects 98/GR/131 and 2001/GRP/015
The  Commission’s  Grotius  Programme  supported  a  two-year  study  of  how  to  promote
equivalent standards in legal interpreting and translation throughout the Member States. The
participating institutions were from Belgium, Denmark, Spain and the United Kingdom. The
results  of  that  project  (98/GR/131)  are  published  in  book  form  under  the  title  Aequitas  –
Access to Justice Across Language and Culture47. The recommendations of the project cover
selection, training, assessment and accreditation of legal translators and interpreters. It offers a
model  Code  of  Conduct  and  Good  Practice,  together  with  suggested  registration  and
disciplinary  procedures  and  an  analysis  of  interdisciplinary  arrangements  between  legal
services  and  linguists.  A  second  phase  of  this  work  is  being  financed  under  the  Grotius
Programme (2001/GRP/015) to disseminate the information gathered in the first phase. This
research  project  has  very  much  informed  the  Commission’s  position  on  provision  of  legal
translators and interpreters.

5.2. Discussion and questions

Defendants  who  do  not  speak  or  understand  the  language  of  the  proceedings  (e.g.  either
because they are non-nationals ) are clearly at a disadvantage. They might be on holiday or in
the foreign country  for a  temporary  work  assignment  and  due  home  shortly.  There  is  every
chance  that  they  do  not  have  any  knowledge  of  the  country’s  legal  system  or  court
procedures. Whatever their circumstances, they are especially vulnerable. Consequently, this
right, which is enshrined in numerous instruments as set out above, strikes the Commission as
particularly important. The difficulty is,  as already alluded  to,  not  one  of  acceptance  on  the

47

ISBN  90  804438  8  3;  Contact  Professor  Erik  Hertog  at  erik.hertog@lessius-ho.be  or  website
http://www.legalinttrans.info/Grotius

27

                                                
part  of  the  Member  States48,  but  one  of  levels  and  means  of  provision,  and  perhaps  most
importantly, costs of implementation. Accordingly, the questions fall into two categories, the
first considering the level of provision, the second considering the means of provision.

5.2.1.  Level of provision

5.2.1 (a) When should language assistance be provided?

The  Commission  is  not  aware  of  any  mechanisms  for  determining  whether  a  suspect  or
defendant  “cannot  understand  or  speak  the  language  used  in  court”49.  This  seems  to  be
decided on an ad hoc basis  by the  people  the  suspect  or  defendant  comes  into  contact  with
(police  officers,  lawyers,  court  staff  etc.)50.  The  ultimate  duty  to  ensure  fairness  of  the
proceedings, in this respect as in others, rests with the trial judge who have a duty to consider
this  matter  with  “scrupulous  care”51.  However,  clearly  it  is  desirable  for  any  language
difficulties to come to light long before the trial begins.

5.2.1.(b) Should the assistance of an interpreter be free?

In the case of Luedicke, Belkacem and Koç v. Germany, the ECtHR held that Article 6(3)(b)
entails that “for anyone who cannot speak or understand the language used in court, the right
to  receive  the  free  assistance  of  an  interpreter,  without  subsequently  having  claimed  back
from  him  payment  of  the  costs  thereby  incurred52.  In  that  case,  the  State  (Germany)  tried
unsuccessfully  to recover  the costs  of  interpretation after conviction.  Then  in Kamasinski v.
Austria53,  the  ECtHR  held  that  the  principle  also  extended  to  translation  of  “documentary
material”. All other instruments that refer to interpretation and translation provide that, in the
normal  course  of  events,  the  defendant  should  not  have  to  pay  for  these  services.  It  can
therefore be stated categorically that the assistance of legal translators and interpreters during
the criminal proceedings must be free of charge to the defendant.

5.2.1.(c) Extent of the duty to provide translators and interpreters

The ECtHR has held that Art. 6(3)(e) “does not go so far as to require a written translation of
all items of written evidence or official documents in the procedure”.
As  regards  translation,  the  ECtHR  has  held  that  “documentary  material”  must  be  translated
but this duty is limited to those documents which the defendant must understand in order to
have a fair trial54. The rules on how much material is translated vary from one Member State
to the next and also in accordance with the nature of the case. This variation is acceptable as
long as the proceedings remain “fair”.
As  regards  interpretation,  all  the  oral  proceedings  have  to  be  interpreted.  If  a  conflict  of
interest  may  arise,  two  interpreters  may  be  needed,  one  for  the  defence  and  one  for  the

48

49

50

51

52

53

54

Our questionnaire shows that all the Member States are conscious of their ECHR obligations and make
provision for translators and interpreters during at least part of the proceedings if circumstances seem to
dictate that there is a need for them.
Kamasinski v. Austria (judgment of 19 December 1989 A Series N° 168) para74.
In Brozicek v. Italy, Judgment of 19 December 1989, A Series N°167, the ECtHR held that it was for
the judicial authorities to prove that the defendant did speak the language of the court adequately and
not for the defendant to prove he did not.(Para.41).
In Cuscani v. United Kingdom, judgment of 24 September 2002, application n° 32771/96, the ECtHR
held: “ However, the ultimate guardian of the fairness of the proceedings was the trial judge who had
been  clearly  apprised  of  the  real  difficulties  which  the  absence  of  interpretation  might  create  for  the
applicant. It further observes that the domestic courts have already taken the view that in circumstances
such as those in the instant case, judges are required to treat an accused's interest with “scrupulous care”
(Luedicke, Belkacem and Koç v. Germany – judgment of 28 November 1978, Series A N°29 paragraph
46)
Kamasinski v. Austria (cited above).
Kamasinski v. Austria, cited above, para 74

28

                                                
prosecution (or the court, depending on the legal system). It is not sufficient only to provide
interpretation of questions directly put to the defendant and answers given by the defendant.
The defendant must be in a position to understand everything that is said (such as speeches by
both  prosecuting  and  defending  lawyers,  what  the  judge  says  and  the  testimony  of  all
witnesses). The ECtHR held that “the interpretation assistance provided should be such as to
enable  the  defendant  to  have  knowledge  of  the  case  against  him  and  to  defend  himself,
notably by being able to put before the court his version of events”55.

5.2.2. Means of provision

5.2.2.(a) Training, accreditation and registration

The Commission considers that in order  to  comply  with  the requirements of the  ECHR  and
numerous  other  international  instruments,  all  Member  States  should  ensure  that  training,
accreditation  and  registration  of  legal  translators  and  interpreters  is  provided.  The  Aequitas
proposals set out the following minimum requirements:

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

that  Member  States  must  have  a  system  of  training  specialist  interpreters  and
translators,  with  training  in  the  legal  system,  visits  to  courts  police  stations  and
prisons, leading to a recognised qualification,

that  Member  States  must  have  a  system  of  accreditation/certification  for  these
translators and interpreters,

that  Member  States  should  operate  a  registration  scheme  that  is  not  unlimited  (for  5
years for example) so as to encourage professionals to keep their language skills and
knowledge of court procedures up to date in order to renew their registration,

that  Member  States  should 
Development, so that legal translators and interpreters can keep their skills up to date,

institute  a  system  of  Continuous  Professional

that Member States adopt a Code of Ethics and Guidelines for Good Practice, which
should be the same or very substantially similar throughout the EU,

that Member States undertake to offer training to lawyers and judges so that they can
better understand the role of the translator and interpreter and consequently work with
them more efficiently.

that  Member  States  adopt  an  interdisciplinary  approach  to  the  above  requirements,
involving either the  Ministry  of  Justice  or  of  the  Interior  in  the  recruitment,  training
and accreditation of legal translators and interpreters.

5.2.2.(b)Two different professions

Although they are often considered as one group, interpreters and translators, having different
skills  and  different  roles  to  play  during  the  criminal  proceedings,  should  be  treated  as  two
distinct professional groups.
(a) Interpreters are required during the police investigation stage (questioning of suspect, and
maybe of witnesses) and during all court hearings. Additionally, the defendant may need an
interpreter present when he instructs his lawyer (at the police station, in prison if he remains
in custody, at the lawyer’s office and in court).

55

Kamasinski v. Austria, cited above, para 74

29

                                                
(b)  Translators  are  required  to  translate  all  the  procedural  documents  (charge  sheet,
indictment)  in  the  file,  but  also  all  the  statements  of  witnesses  that  are  provided  in  writing,
and evidence to be tendered by both sides.
Any  national  registers  should  take  account  of  this,  and  indeed  it  may  be  more  efficient  for
Member States to operate two separate registers.

5.2.2.(c) ) Special linguistic regime

 Some languages can present a problem. It is for the Member States to make arrangements to
cover such  languages, either by ensuring that they have on their register at least a minimum
cover for all languages or by using methods such as “relay interpreting” via a more common
language. It may also be possible to relax the qualifications required for unusual languages in
order to be able to provide translators and interpreters able to work in them. The Commission
is aware of the special problem raised by these languages, but considers that the principle of
subsidiarity dictates that arrangements are more appropriately to be made at the national level.

5.2.2.(d) Costs

Cost is often mentioned as a reason why Member States do not fulfil their ECHR obligations
in this respect. Member States must make funds available for this purpose. Court interpreters
and translators must be offered competitive rates of pay so as to make this career option more
attractive  to  language  graduates.  But  it  should  not  be  limited  to  language  graduates.  Law
graduates  who  find  that  practice  is  not  for  them,  but  who  have  excellent  language  skills
should be encouraged to join the  profession  and offered  appropriate  training.  The  European
Communities  have  a  term  for  these  professionals  with  dual  qualifications  –  “juristes-
linguistes” or “lawyer-linguists”.

5.2.2.(e) Recruitment

Apart from the costs of full provision, Member States contend that they do not have enough
translators and interpreters at their disposal.  It is therefore important to promote recruitment
into the profession. The drive to recruit well-qualified professionals should not be seen simply
as  a  question  of  salary.  Better  rates  of  pay  will  attract  more  people  into  the  profession,  but
there  are  other  factors  too  such  as  treating  language  professionals  with  more  respect,
consulting them about  court procedures  and involving them in such a  way as to  ensure that
their specialist skills are acknowledged and valued.
Level of provision:
Question 9:
Should  there  be  a  formal  mechanism  for  ascertaining  whether  the  suspect/defendant
understands the language of the proceedings sufficiently to defend himself?

Question 10:
Should  Member  States  adopt  criteria  to  determine  how  much  of  the  proceedings,
including those prior to the trial, should be interpreted for the suspect/defendant?

Question 11:
What criteria can  be used to determine when it is necessary for the defendant to  have
separate translators and interpreters from the prosecution/court (depending on the legal
system)?

Question 12:
Should Member States be required to provide translations of certain clearly defined
procedural documents in criminal proceedings? If so, which documents represent the
minimum necessary for a fair trial?

30

Means of provision:
Question 13:
Should Member States be required to draw up national registers of legal translators and
interpreters?  If  so,  should  a  system  of  accreditation,  renewable  registration  and
continuous professional development be established?

Question 14:
If Member States set up national registers of legal translators and interpreters, would it
be preferable to use those registers as a basis for drawing up a single European register
of  translators  and  interpreters  or  to  have  system  of  access  to  the  registers  of  other
Member States?

Question 15:
Would  there  be  any  benefit  if  Member  States  were  required  to  establish  a  national
scheme for training legal translators and interpreters?

Question 16:
Should  the  Member  States  be  required  to  appoint  an  accrediting  body  to  govern  a
system  of  accreditation,  renewable  registration  and  continuous  professional
development? If so, is it desirable that the Ministry of Justice or Interior work with the
accrediting  body  so  as  to  ensure  that  the  views  and  needs  of  the  legal  and  linguistic
professions are both taken into account?

Question 17:
If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
translators and interpreters in criminal proceedings, should the requirement  extend to
verifying that remuneration is enough to make participation in the scheme attractive for
translators and interpreters?

Question 18:
How may and by whom should a Code of Conduct be drawn up and regulated?

Question 19:
The  Commission  understands  that  there  is  a  dearth  of  appropriately  qualified  legal
translators  and  interpreters.  What  can  be  done  to  make  this  a  more  attractive
profession?

Question 20:

Should there be sanctions, other than any findings of the ECtHR, if a Member State fails
to provide adequate interpretation and translation where a person is entitled to it?

31

6.  PROPER PROTECTION FOR ESPECIALLY VULNERABLE CATEGORIES

6.1. Introduction

In  the  Consultation  Paper,  the  Commission  asked  whether  it  was  appropriate  to  require
Member  States  to  provide  vulnerable  groups  with    proper  degree  of  protection  as  far  as
procedural safeguards were concerned to offset their disadvantages. This suggestion was well
received  but  it  presents  two  substantial  difficulties:  (1)  defining  vulnerable  groups  and  (2)
establishing the mechanisms for offering this  level of protection.

A non-exhaustive list of potentially vulnerable groups could include:
(a) foreign nationals, especially but not limited to those who do not speak the language.
The foreign national is vulnerable by virtue of his nationality, linguistic disadvantage and also
possibly  other  factors  (on  holiday  or  only  temporarily  in  the  country  so  may  be  at  risk  of
losing  his  employment  or  livelihood  etc  in  his  country  of  origin).  Other  than  being  offered
linguistic assistance, foreign nationals may be assisted by their Consulate (see Part 7 below).
Practical assistance should be available, under the auspices of the relevant Consulate or other
appropriate  organisation.  The  legal  systems  of  the  Member  States  could  be  required  as  a
minimum requirement, not to allow this assistance to be impeded.

(b) children.
The  especially  vulnerable  position  of  children  has  already  been  recognised  in  the  UN
Convention on the Rights of the Child56.  The relevant provision, Article 40, may be found in
the Annex.
Under the Convention on the Rights of  the  Child, all  persons  under  the  age  of  eighteen  are
considered  children,  except  where  the  national  legislation  provides  for  a  lower  age  of
majority. The  higher level for protection envisaged should apply to  all  “children” under  the
Convention definition. However, the age of criminal liability varies throughout the EU from 8
in Scotland to 16 in Portugal, which means that there  are  substantial differences  inherent in
the legal systems of the Member States.

(c)  those  who  are  vulnerable  as  a  result  of  their  mental  or  emotional  state  (for  instance  the
mentally  handicapped,  those  suffering  from  a  psychiatric  condition  such  as  schizophrenia,
persons  of  subnormal  IQ  and  persons  with  a  disability  on  the  autistic  spectrum)Defendants
with  a  low  IQ,  low  reading  age  or  a  poor  understanding  may  be  more  likely  to  make
damaging  assertions,  including  false  confessions,  at  the  police  interview  stage57.  One
suggestion would be to require police officers arresting a suspect to have to answer a specific
question  on  the  suspect’s  mental  state  in  the  custody  record  on  arrest.  If  police  officers  are
required to consider the question (and make a written note of their assessment), it may be that
suspects who are vulnerable for those reasons will become easier to identify over time. With

56

57

Which every State in the world has signed except the United States and Somalia.
Gudjonsson,  Clare,  Rutter  and  Pearse  Persons  at  Risk  During  Interviews  in  Police  custody:  the
Identification  of  Vulnerabilities.  Research  Study  n°  12.  The  Royal  Commission  on  Criminal  Justice.
HMSO. London (1993)

32

                                                
this  category,  there  is  a  real  problem  with  identification.  Training  of  police  officers  and
lawyers should go some way towards solving it.

(d)  those  who  are  vulnerable  as  a  result  of  their  physical  state  (the  physically  handicapped,
including the deaf, those with illnesses such as diabetes, epilepsy, pacemakers etc and persons
with speech impediments, as well as more obviously physically handicapped suspects).
This  group  also  includes  suspects  with  very  serious  medical  conditions  such  as  HIV/AIDS,
necessitating  frequent  medication  and/or  monitoring  and  pregnant  women,  especially  those
who are at risk of miscarrying.
Suspects  stating  that  they  have  a  health  problem,  even  one  which  has  no  visible  signs  or
symptoms,  could  be  given  the  automatic  right  to  be  examined  by  a  doctor.  The  medical
examination could be  used  to  establish  that  the  person  is  well  enough  to  be  questioned  and
also well enough to be kept in custody (especially if the period of custody is to be longer than
a few hours).
Police  keeping  a  person  who  says  that  they  have  a  health  problem  in  custody  could  be
required  to  ensure  that  the  person  is  also  offered  medication.  Monitoring  may  also  be
required. Given that police officers cannot have the necessary expertise, it may be necessary
to  ensure  a  mechanism  for  offering  a  medical  examination  to  all  suspects  stating  that  they
have a health problem,.

(e) those who are vulnerable by virtue of having children or dependants (for example pregnant
women and mothers of  young children, especially single mothers, and,  where the father has
sole charge of young children, single fathers).
The risk arises,  especially  in  police  custody,  that  a  person  with  sole  care  of  young  children
will take steps that they perceive as likely to shorten the time in custody. This is particularly
so where the  person  in custody believes  they  can be released  on bail  rapidly if for  example
they  confess  to  the  offence  or  make  some  other  statement  that  seems  to  be  required  by  the
police.

(f) persons who cannot read or write.
Those falling into this category may be more vulnerable by virtue of not fully understanding
the proceedings.

(g)  persons  with  refugee  status  under  the  1951  Refugee  Convention,  other  beneficiaries  of
international protection and asylum seekers58.
Refugees and other persons in need of international protection, including asylum seekers, are
vulnerable for a number of reasons. These include: possible language and cultural difficulties,
fears  of antagonism  on the part of  law  enforcement officers  and owing  to  the limited rights
they enjoy within the host State, having lost the protection of their country of origin and not
being able to avail themselves of consular protection of their country of origin. A person in
need of international protection may be suspected by the authorities of being unlawfully in the
country,  whether  this  is  the  case  or  not,  and  may  therefore  feel  particularly  vulnerable  in
relation  to  the  offence  for  which  he  is  a  suspect  or  a  defendant.  As  a  consequence  of
prosecution  or  conviction,  these  individuals  may  be  excluded  from  or  at  risk  of  losing
“refugee” status59 or subsidiary protection status. “Temporary protection” within the meaning

58

59

For  these  categories  of  persons,  the  European  Union  is  developing  measures  and  standards  in
accordance with Article 63 of the Treaty establishing the European Community.
Article 12 of the 1951 Convention relating to the Status of Refugees provides that the status of refugee
is governed by the law of the country of domicile or residence.

33

                                                
of Council Directive 2001/55/EC60 may be excluded for a person having committed a “serious
non-political crime” (Article 28). Consequently, the stakes are higher for persons in need of
international  protection  for  whom  a  conviction  may  be  a  heavier  burden  than  for  other
suspects/defendants.  Additionally,  the  threat  of  double  jeopardy  (deportation  once  the
sentence is served) or “double peine” raises specific questions owing to the fact that refugees
and  persons  in  need  of  international  protection  cannot,  in  principle,  be  returned  to  their
country of origin.

(h) persons dependent on alcohol or drugs (alcoholics and drug addicts, especially if under the
influence of drugs/alcohol during questioning).
Persons falling into this category may be vulnerable for a number  of  reasons. The  extent of
the  vulnerability  will  depend  on  a  number  of  factors  such  as  the  level  of  addiction,  age,
underlying general health and of course whether the individual is suffering from withdrawal
symptoms. They  may  be  unwell  and  not  fit  to  answer  police  questions,  in  which  case,  they
should be treated as persons with a health problem and offered medical assistance, as in (d)
above.  This  can only  be done if the person states that they have  a  health  problem  or  police
officers  have  sufficient  training  to  make  this  assessment  themselves.  Additionally,  the
provision  of  medical  assistance  in  these  circumstances  must  be  unconditional  and  should
never be part of a trade-off for agreeing to answer questions or provide information.
In the case of drug addicts, they may be subject to various pressures to disclose the source of
the drugs with a view to locating and prosecuting  the  pushers and  traffickers. Alternatively,
they may have been threatened by pushers and traffickers about retribution in the event of any
disclosures made to the police.
However,  the  criminal  proceedings  may  be  the  opportunity  for  the  suspect/defendant  to  be
offered  help,  or  to  feel  motivated  to  seek  help  for  the  addiction.  Accordingly,  sensitivity
should be shown in relation to suspects in this category.

6.2. Discussion and questions

The Commission proposes that there be a general obligation for Member States to ensure that
their  legal  system  recognises  the  higher  degree  of  protection  that  must  be  offered  to  all
categories  of  vulnerable  suspects  and  defendants  in  criminal  proceedings.  The  Commission
acknowledges  that  the  assessment  of  vulnerability  can  be  difficult  to  make  and  that  simply
using  a  category-based  method  may  not  always  be  appropriate.  The  ECtHR,  in  considering
whether  a  young  man  should  have  been  awarded  free  legal  aid,  identified  "the  personal
situation" of the defendant as a factor to be taken into account in assessing whether it was in
the interests of justice to make such an award61. In the judgment, the defendant is described as
"a  young  adult  of  foreign  origin  from  an  underprivileged  background,  [having]  no  real
occupational training and a long criminal record. He has taken drugs since 1975, almost daily
since 1983, and, at the material time, was  living  with his family on social security benefit".
Some  aspects  of  this  description  are  covered  by  the  categories  listed  above,  some  are  not.
However,  it  is  clear  that  the  ECtHR  considers  legal  aid  awarding  authorities  capable  of
making an assessment of the "personal situation" of suspects and defendants. Police and law
enforcement officials could also be called upon to make this type of assessment.

60

61

Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection
in  the  event  of  a  mass  influx  of  displaced  persons  and  on  measures  promoting  a  balance  of  efforts
between Member States in receiving such persons and bearing the consequences thereof. OJ L212/12 of
7.8.2001.
Quaranta v. Switzerland , judgment of 24 May 1991, Series A n° 25, cited in footnote 43 above.

34

                                                
Prior  to  charge,  that  is  to  say,  while  the  suspect  is  under  arrest,  at  the  police  station  or
otherwise being questioned (or having his property searched) law enforcement officers should
consider the question of the suspect’s potential vulnerability. They could be required to show,
by making a written record, that they have made an assessment of the suspect’s vulnerability.
If a finding that the suspect is particularly vulnerable has been made, law enforcement officers
could  be  required  to  demonstrate  that  they  have  taken  the  appropriate  steps  (for  example
medical  assistance,  contacting  family,  enabling  the  suspect  to  inform  someone  of  the
detention etc) to provide for the higher degree of protection. They should be required to make
a written note, which can be verified subsequently, of the steps they deemed it necessary to
take  if  a  finding  of  vulnerability  is  made  and  confirmation  that  those  steps  were  actually
taken.
Once the suspects is charged with a criminal offence, and becomes  a  defendant facing trial,
any  potential  vulnerability,  such  as  the  need  for  linguistic  or  medical  assistance,  should  be
noted in the court record of the proceedings and in the defendant’s custody record if he is kept
in pre-trial detention.
If it  subsequently  comes  to  light  that  a  defendant’s  vulnerability  was  either  not  recorded  or
that if a record was made, it was not acted upon, the Member State in question should provide
for some recourse or remedy for the person concerned.
The assessment of the suspect's potential vulnerability is difficult to make, but training in this
field could be offered.
Question21:
Are persons in the  following  categories especially vulnerable?  If  so, what  can  Member
States  be  required  to  do  to  offer  them  an  adequate  level  of  protection  in  criminal
proceedings:
(a) foreign nationals,
(b) children,
(c) persons suffering from a mental or emotional handicap, in the broadest sense,
(d) the physically handicapped or ill,
(e) mothers/ fathers of young children
(f) persons who cannot read or write,
(g) refugees and asylum seekers,
(h) alcoholics and drug addicts?
Should any further categories be added to this list?

Question22:
Should police officers, lawyers and/or prison officers be required to make an assessment,
and a written note of that assessment, of a suspect/defendant’s potential vulnerability at
certain stages of criminal proceedings, together with a note of the steps they have taken
if a finding of vulnerability is made?

Question23:
If  police  officers,  lawyers  and/or  prison  officers  are  to  be  required  to  make  an
assessment of a suspect/defendant’s potential vulnerability at certain stages of criminal
proceedings, should there be an obligation to follow up the assessment with appropriate
action?

Question24:
If  the  police  and/or  law  enforcement  authorities  fail  to  assess  and  report  a  suspect's
vulnerability, or fail to take the necessary steps after making a finding of vulnerability,
are sanctions appropriate? If so, what should those sanctions be?

35

7.  CONSULAR ASSISTANCE

7.1. Introduction

As  already  seen  above  in  relation  to  interpreters  and  translators,  one  readily  identifiable
vulnerable group is  that  of  non-nationals,  both nationals of other  EU  Member  States and of
third  countries.  Numerous  NGOs  identify  this  group  as  one  that  does  not  always  receive
equitable treatment. Some considerable protection would be offered by full implementation of
the  provisions  of  the  1963  Vienna  Convention  on  Consular  Relations  (VCCR),  which
provides, in its Article 36(1), that:
“(a) consular officers shall be free to communicate with nationals of the sending State and to
have access to them. Nationals of the sending State shall have the same freedom with respect
to communication with and access to consular officers of the sending State;
(b)  if  he  so  requests,  the  competent  authorities  of  the  receiving  State  shall,  without  delay,
inform the consular post of the sending State if, within its consular district, a national of that
State is arrested or committed to prison or to custody pending trail or is detained in any other
manner. Any communication addressed to the consular post by the person arrested, in prison;
custody or detention shall also be forwarded by the said authorities without delay. The said
authorities  shall  inform  the  person  concerned  without  delay  of  his  rights  under  this  sub-
paragraph; (...)”
This provision also lays down a right to visit detained nationals.
Foreign  nationals  may  refuse  to  see  the  representative  of  their  government  (this  can  be
imagined, for example, in the case of asylum seekers and refugees fleeing persecution in their
State of origin and who therefore might not expect or want help from their Consulate). Those
falling  into  this  category  may  contact  representatives  from  another  state  that  has  agreed  to
look  after  their  interests62  or  a  national  or  international  organisation  of  their  choice  for  this
type of assistance63. Implementation of the VCCR could entail appointing a dedicated official
in each Consulate to cover cases where their nationals were accused of crimes while  abroad
(this consular official could also assist with victims of crime, since they would be required to
know the local law and criminal procedure). The consular official could assist in liasing with
the family of the accused, with lawyers, with any potential witnesses, with NGOs that offer
assistance  to  prisoners  abroad  and  if  necessary  in  organising  special  procedures  such  as
appeals in the newspapers etc.
The attraction of this idea is that it would reduce the burden on the Host State and increase the
suspect/defendant’s  chances  of  getting  assistance,  especially  assistance  in  a  language  he
understands.

7.2. Discussion and questions

The  Commission  understand  that  at  present  many  defendants  do  not  get  the  benefit  of  this
right, sometimes because they are not aware of it (or made aware of it) and also because when

62

63

Rule  38  of  the  Standard  Minimum  Rules  for  the  Treatment  of  Prisoners  adopted  in  1955  by  the  UN
Congress on the Prevention of crime and the Treatment of Offenders: (1) […]. (2) Prisoners  who  are
nationals of States without diplomatic or consular representation in the country and refugees or stateless
persons  shall  be  allowed  similar  facilities  to  communicate  with  the  diplomatic  representative  of  the
State which takes charge of their interests or any national or international authority whose task it is to
protect such persons.
Principle 16 of the Body of Principles for the Protection of all Persons under any Form of Detention or
Imprisonment adopted by the UN General assembly in 1988:
1.[…] 2. If a detained or imprisoned person is  a  foreigner,  he  shall  also  be  promptly  informed  of  his
right to communicate by appropriate means with […] the representative of the competent international
organisation,  if  he  is  a  refugee  or  is  otherwise  under  the  protection  of  an  intergovernmental
organisation.

36

                                                
consular  assistance  is  offered,  defendants  often  refuse  it  for  fear  of  the  authorities  in  their
home  State  learning  of  their  arrest  abroad.  The  right  should  be  better  understood  by  all
concerned and Member States should address the question of how their consular officials can
offer useful assistance to their nationals arrested abroad, without fear of subsequent prejudice
on  their  return  home.  There  is  very  little  information  available  on  how  often  consular
assistance is offered and whether Member States are failing to comply with this right.
Currently,  failure  to  comply  with  the  VCCR  may  give  rise  to  a  cause  of  action  in  the
International Court of Justice64. However, proceedings in that court are lengthy. Actions are
brought by States so the basis of the remedy is that the State has suffered prejudice as a result
of the failure to treat its national in accordance with consular protocol. This does not represent
a remedy for the actual individual who has been the victim of the breach. Even if his home
State is prepared to bring an action against the offending State, it will not provide an effective
and  practical  remedy  for  the  individual  concerned.  It  is  therefore  worth  considering  what
remedies should or could be available to an individual in this situation.
Suspects and defendants could be made aware of the right by way of the Letter of Rights (Part
8).  Police  forces  could  be  made  aware  of  it  during  the  course  of  training  if  Member  States
would cooperate to ensure that arresting officers are trained  to  contact the  relevant  consular
authorities if and when they arrest a foreign national.
Question 25:
Should Member States be required to ensure that there is an official with responsibility
for  looking  after  the  rights  of  suspects  and  defendants  in  criminal  proceedings  in  the
Host state, including acting as a liaison person with their families and lawyers?

Question 26:
Should Member  States  be  required  to  ensure  that  their  police  authorities  comply  with
the  Vienna  Convention  on  Consular  Relations  by  ensuring  that  police  officers  receive
appropriate training?

Question 27:
Should there be any sanction for failing to comply with the VCCR? If so, what should
this be?

8. 

KNOWLEDGE OF THE EXISTENCE OF RIGHTS/ LETTER OF RIGHTS

8.1. 

Introduction

It is important for both the investigating authorities and the persons being investigated to be
fully aware of what rights exist. The Commission suggests that a scheme be instituted
requiring Member States to provide suspects and defendants with a written note of their basic
rights – a “Letter of Rights”. This suggestion received a favourable response on the whole and
variations on this theme were also put forward. Many respondents thought that if a measure
such as this were introduced, it would significantly improve the position of suspects and
defendants. The European Parliament has reacted favourably to the suggestion of a Letter of
Rights and has proposed that a budget be made available for funding it. Producing such a
document should be inexpensive, especially once the initial costs of drawing it up had been
met.

64

See ICJ cases: Paraguay v. USA (Breard case) Order of 9 April 1998 (case discontinued) and Germany
v  USA  (Lagrand  case)  Judgment  of  27  June  2001.Also  the  recent  case  of  Avena  and  other  Mexican
Nationals (Mexico v. United States of America) in which an Order on Provisional Measures is expected
on 5 February 2003.

37

                                                
8.2. 

Discussion and questions

Various suggestions were put forward, such as a Letter of Rights in several parts, with one
common part for all the EU and a second part that Member States could draft according to
their own national legislation. An important consideration is to ensure that the Letter of
Rights can be understood, even by a suspect/defendant with poor reading ability or a low IQ.
The Letter of Rights could have a common Part 1 and a Part 2 to be added by the Member
States to take account of national provisions. It should contain enough information to be
useful but be drafted in a simple form so as to be easily understood. The aim would be to keep
it as short as possible. It could be produced in all EU languages in some centralised way or
there could be some other mechanism to ensure that it is as uniform as possible.

The Letter of Rights should be given to the suspect at the point when the suspect’s rights are
first at risk and in need of protection. The difficulty is in pinpointing that moment. This could
be on arrest, or before. The letter could be given once the suspect is in custody at the police
station but no later since in order to be useful, the Letter of Rights must be given as soon as
the person is “detained” and rights conferred by Articles 5 and 6 ECHR arise. If it is not given
to the suspect until arrival at the police station, the question of ensuring that he is aware of his
rights before receipt of the letter arises. For practical reasons, it would seem logical that it be
given  at  the  police  station  since  stocks  of  the  letters  themselves  would  presumably  be  kept
there, together with the different language versions.
It  is  difficult  to  assess  whether  the  defendant  should  be  required  to  sign  for  the  Letter  of
Rights.  The  Commission  consulted  representatives  from  the  Member  States  on  the  point.
Many were happy that it should not need to be signed for. Some experts wondered what the
status of the Letter of Rights would be and what the consequences of failing to give it to the
defendant would be.
The  Commission  is  aware  of  some  of  the  difficulties  perceived  by  Member  States.  Some
consider  that  the  ECHR  already  exists  as  a  statement  of  rights.  Others  argue  that  their
legislation is too complicated to boil down to an easily digestible document or that the rights
of the defendant evolve during the course of proceedings so that any “Letter of Rights” would
have to be up to 50 pages long in order to cover all options and all stages. However this latter
problem  should  not  apply  since  once  the  suspect  has  a  lawyer  acting  for  them  (a  right  the
person will be made aware of in the Letter of Rights if not before), that lawyer will be in a
position to explain the person’s rights to them.
Question 28:
Is a common EU wide Letter of Rights feasible? If so, what should it contain?

Question 29:
When should the Letter of Rights be given to the suspect?

Question 30:
Should the defendant be required to sign a receipt as evidence that he has been given the
Letter of Rights?

Question 31:
What would be the legal consequences, if any, of failing to give the suspect the Letter of
Rights?

38

9.  COMPLIANCE AND MONITORING

9.1. Introduction

It  is  worth  repeating  that  the  intention  behind  the  initiative  on  procedural  safeguards  for
suspects and defendants in criminal proceedings throughout the European Union is not in any
way  to  replace  or  even  to  complement  the  ECtHR.  The  hope  is  that  as  a  result  of  this
initiative, Member States will achieve better standards of compliance with the ECHR in the
areas  covered  by  this  Green  Paper.  The  ECtHR  cannot  be  relied  upon  as  a  safety  net  to
remedy  all  breaches  of  the  ECHR.  This  is  unrealistic  in  view  of  a  number  of  factors.  The
ECtHR is  a  court  of  last  resort  and  additionally  it  has  expressed  concern  over  its  ability  to
handle  its  ever-increasing  caseload65.  If  there  are  repeated  allegations  of  violations  of  the
ECHR, the Member States should have the means to remedy them of their own motion. Since
the  principle  of  mutual  recognition  may  only  be  implemented  efficiently  where  there  is
mutual trust, it is, as discussed above66, important that these common minimum standards be
complied with for this reason also. The level of compliance should be demonstrably high. In
order  for  each  Member  State  to  be  certain  of  the  level  of  compliance  in  the  other  Member
States, there should be some form of evaluation. Mutual trust must go beyond the perceptions
of  the  governments  of  the  Member  States-it  must  also  be  established  in  the  minds  of
practitioners,  law  enforcement  officers  and  all  those that will  administer  decisions  based  on
mutual  recognition  on  a  daily  basis.  This  cannot  be  achieved  overnight,  and  cannot  be
achieved  at  all  unless  there  is  some  reliable  means  of  assessing  compliance  with  common
minimum standards across the European Union. This will be all the more so after accession of
the  candidate  countries.  Furthermore,  once  a  mechanism  for  evaluation  has  been  decided
upon, assessment should be carried out on a regular, continuous basis.

At present there is a growing demand for  evaluation of Justice and Home Affairs measures.
Several  contributions  to  Working  Group  X  (“Freedom,  security  and  justice”)  of  the
Convention  on  the  Future  of  Europe67  have  called  for  evaluation  and  monitoring  of  the
implementation of the Area of Freedom, Security and Justice. Working Group X has been set
up to consider “Freedom, Security and justice” issues more closely. Justice and Home Affairs
Commissioner  Antonio  Vitorino  favours  “enhancing[…],  evaluation  and  monitoring
mechanisms to check the real application of Union legislation at operational level”68. Other
suggestions  are  an  early  warning  mechanism  for  breaches  of  fundamental  rights  69  and
evaluation together with a greater involvement on the part of the ECJ 70.

65

66

67

68

69

70

the  Future  of  Europe–for 

information  and  documents, 

Report of the Evaluation Group on the means to guarantee the continued effectiveness of the European
Court of Human Rights, Strasbourg, September 2002.
See Part 1–“Enhancing mutual trust”
Convention  on 
the
website:http://european-convention.eu.int/bienvenue.asp?lang=EN Working Group X has been set up to
consider “Freedom, Security and justice” issues more closely.
Working Group X “Freedom, Security and justice", WD 17, 15 November 2002.
Working Group X “Freedom, Security and Justice”, WD 13, 15 November 2002
Working Group X, as above, Comments of Ana Palacio, Member of the Convention, Representative of
the  Spanish  Government,  on  WD05,  18  November  2002.  Mrs  Palacio  states:  “As  far  as  operational
action is concerned, the main responsibility to monitor Member States would lay on the Council, which
should ensure proper control through a system of “peer evaluation”. Finally, the Court of Justice would
have full powers under the new Treaty, corresponding to those it enjoys today for “first pillar” issues, to
exercise judicial control in JHA matters

refer 

to 

39

                                                
9.2. Carrying out the evaluation

The Commission considers it appropriate that it should play the major role in the evaluation
and monitoring process. It needs to be informed about how measures are being implemented
in  practice.  Once  a  Framework  Decision  has  been  adopted,  one  of  its  final  provisions  lays
down  an  obligation  for  Member  States  to  inform  the  Commission  of  the  arrangements  they
have made in order to transpose the obligations stemming from the Framework Decision into
their national legislation. An example of such a provision is:
"Member States shall transmit to […]the Commission the text of the  provisions transposing
into their national law the obligations imposed on them under this Framework Decision.[…]
"71
The Commission is then also under a duty to ensure that the Framework Decision is properly
implemented, that is to say that the national legislation adequately achieves the aim of the EU
measure.
It  would  therefore  seem  appropriate  for  the  Commission  to  extend  its  task  of  collecting
information  on  the  transposition  into  national  legislation  of  the  EU  obligations  to  a  regular
monitoring  exercise  on  compliance.  This  could  be  on  the  basis  of  the  Member  States
themselves  submitting  reports  or  statistics  compiled  by  their  national  authorities  and
submitted  to  be  collated  and  analysed  by  the  Commission.  The  Commission  could  also  use
the services of a team of experts. There is a newly appointed independent network of experts
on fundamental rights commissioned by DG-Justice and Home Affairs “to assess how each of
the  rights  listed  in  the  CFREU  is  applied  at  both  national  and  Community  levels…[taking]
account of developments in national legislation, the case law of constitutional courts […] as
well as the case law of the Court of Justice of the European Communities and the European
Court  of  Human  Rights”.  The  tasks  of  this  team  will  be  the  production  of  a  written  report
summarising the situation of fundamental rights in  the context of both European Union law
and  national  legal  orders72.  That  network  will  report  to  the  Commission.  It  is  currently
operating  on  the  basis  of  a  contract  for  a  first  evaluation  to  be  carried  out  over  a  one-year
period and which may be renewed for up to five years. If the outcome is satisfactory, the role
of this team of experts could be expanded to encompass all the provisions of any Framework
Decision on procedural safeguards. Since Article 47 of the Charter of Fundamental Rights of
the EU provides for the right to a fair trial, this network is already mandated to consider many
of the provisions included in this Green Paper. In any event, evaluation of common minimum
standards  for  procedural  safeguards  should  be  carried  out  on  a  continuous  basis  at  regular
intervals rather than as a once-off or on an ad hoc basis. In this way, any persistent breaches
will come to light, together with any patterns of standards falling below the agreed minimum.

9.3. Tools for evaluation

The  evaluation  should  cover  compliance  at  all  levels  and  stages  of  proceedings.  There  are
many  possible  tools  for  evaluation.  The  more  obvious  are  the  statistics  to  be  provided  by
Member  States  regarding  numbers  of  proceedings  and  trials,  the  percentage  of  defendants
with  legal  representation,  percentages  of  cases  where  legal  translators  and  interpreters  were
used  and  other  similar  indicators.  However,  there  should  be  a  mechanism  for  reporting  and
investigating complaints of non-compliance. Allegations of non-compliance, especially where
they persistently refer to the same entity (court, police station or even geographical area) are
good indicators of an underlying problem. Some Member States make recordings (audio and
video)  of  police  interviews.  Not  only  does  this  protect  police  officers  from  subsequent

71

72

Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States. OJL190 of 18.7.2002
Network of experts on the Charter appointed in July 2002, Unit A5, DG-JHA; its terms of reference are
set out in Contract notice 2002/S60 – 046435, OJ S60 of 26.3.2002.

40

                                                
allegations  of  unfair  treatment  but  it  also  provides  excellent  evidence  of  what  actually
occurred. If Member States accepted the introduction of recording, this would be a good tool
for evaluating compliance with the agreed common minimum safeguards.
For  evaluation  to  serve  its  desired  purpose,  the  scope  of  the  evaluation  and  the  expected
results must be precisely indicated. Thus clarity in  setting  the terms of the monitoring body
will be an absolutely necessary prerequisite.

9.4. Sanctions

The question of evaluation and monitoring also begs the question of what action to take in the
event of non-compliance or of a persistent falling below agreed common standards. There are
remedies  for  individual  violations  of  the  ECHR,  decided  on  a  case  by  case  basis  by  the
ECtHR. Article 7 TEU provides very grave sanctions for “serious and persistent breaches” on
the part of Member States73. It is necessary to consider whether there could be any other type
of sanction, for example for persistent breaches not serious enough to fall within the ambit of
Article 7 TEU.

9.5. Conclusions

Setting common minimum standards for procedural safeguards for suspects and defendants in
criminal  proceedings  throughout  the  European  Union  will  help  clarify  what  is  expected  of
police  and  judicial  authorities.  Efficient  and  continuous  monitoring  will  ensure  that  those
standards are adhered to in reality.

Question 32:
Is evaluation  of compliance  with  common  minimum  standards  an  essential  component
of mutual trust and consequently of mutual recognition?

Question 33:
What information does the Commission need in order to make an effective assessment of
compliance with any agreed common minimum standards of procedural safeguard?

Question 34:
Is  recording  of  police  interviews  a  desirable  tool  for  efficient  monitoring?  What  other
tools would be effective?

Question 35:
Are  sanctions  for  a  level  of  provision  found  to  fall  below  commonly  agreed  minimum
standards appropriate? If so, what could those sanctions be?

73

See Part 1(2) above.

41

                                                
QUESTIONS :

General

1

Is it appropriate to have an initiative in the area of procedural safeguards at European
Union level?

Legal Representation

2

3

4

5

6

7

8.

In  order  to  ensure  common  minimum  standards  of  compliance  with  Article  6(3)(c)
ECHR,  should  Member  States  be  required  to  establish  a  national  scheme  for
providing legal representation in criminal proceedings?

If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
representation  in  criminal  proceedings,  should  the  requirement  extend  to  verifying
that  remuneration  is  enough  to  make  participation  in  the  scheme  attractive  for
defence lawyers?

If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
representation in criminal proceedings, should the requirement extend  verifying  the
competence, level of experience and/or qualifications of the lawyers participating in
the scheme?

Article 6(3) of the ECHR provides that a person charged with a criminal offence be
given  free  legal  representation  “if  he  has  not  sufficient  means  to  pay  for  legal
assistance”.  How  should  Member  States  make  the  assessment  of  whether  the
defendant is able to pay for legal representation or not?

Article 6(3) of the ECHR provides that a person charged with a criminal offence be
given free legal representation “when the interests of justice so require”. Should this
right be limited to offences which carry a risk of a custodial sentence or extended to
cover, for example, a risk of loss of employment or loss of reputation?

If  free  legal  representation  is  to  be  provided  for  all  offences  except  “minor”  ones,
what definition of “minor offences” would be acceptable in all Member States?

Should there be sanctions, other than any findings of the ECtHR, if a Member State
fails to provide legal assistance and representation where a person is entitled to it?

Provision of legal translators and interpreters

9

10

11

Should there be a formal mechanism for ascertaining whether the suspect/defendant
understands the language of the proceedings sufficiently to defend himself?

Should  Member  States  adopt  criteria  to  determine  how  much  of  the  proceedings,
including those prior to the trial should be interpreted for the suspect/defendant?

What criteria can be used to determine when it is necessary for the defendant to have
separate  translators  and  interpreters  from  the  prosecution/court  (depending  on  the
legal system)?

42

12

13

14

15

16

17

18

19

20

Should Member States be required to provide translations of certain clearly defined
procedural documents in criminal proceedings? If so, which documents represent the
minimum necessary for a fair trial?

Should Member States be required to draw up national registers of legal translators
and interpreters?

If Member States set up national registers of legal translators and interpreters, would
it  be  preferable  to  use  those  registers  as  a  basis  for  drawing  up  a  single  European
register of translators and interpreters or to have system of access to the registers of
other Member States?

Should  Member States  be required to  establish  a national scheme for training  legal
translators  and  interpreters?  If  so,  should  a  system  of  accreditation,  renewable
registration and continuous professional development be established?

Should Member States be required to appoint an accrediting body to govern a system
of accreditation renewable registration and continuous professional development? If
so,  is  it  desirable  that  the  Ministry  of  Justice  or  Interior  work  with  the  accrediting
body so as to ensure that the views and needs of the legal and linguistic professions
are both taken into account?

If  Member  States  are  required  to  establish  a  national  scheme  for  providing  legal
translators and interpreters in criminal proceedings, should the requirement extend to
verifying that remuneration is enough to make participation in the scheme attractive
for translators and interpreters?

How may and by whom should a Code of Conduct be drawn up and regulated?

The  Commission  understands  that  there  is  a  dearth  of  appropriately  qualified  legal
translators  and  interpreters.  What  can  the  Member  States  do  to  make  this  a  more
attractive profession?

Should there be sanctions, other than any findings of the ECtHR, if a Member State
fails to provide interpretation and translation where a person is entitled to it?

Protecting vulnerable groups

21

Are  persons  in  the  following  categories  especially  vulnerable?  If  so,  what  can
Member  States  be  required  to  do  to  offer  them  an  adequate  level  of  protection  in
criminal proceedings:

(1) 

foreign nationals,

(2) 

children,

(3) 

persons suffering from a mental or emotional handicap, in the broadest sense,

(4) 

the physically handicapped or ill,

(5)  mothers/ fathers of young children,

43

(6) 

persons who cannot read or write,

(7) 

refugees and asylum seekers,

(8) 

alcoholics and drug addicts,

Should any further categories be added to this list?

22

23

24

Should  police  officers,  lawyers  and/or  prison  officers  be  required  to  make  an
assessment, and a written note of that assessment, of a suspect/defendant’s potential
vulnerability at certain stages of criminal proceedings?

If  police  officers,  lawyers  and/or  prison  officers  are  to  be  required  to  make  an
assessment  of  a  suspect/defendant’s  potential  vulnerability  at  certain  stages  of
criminal proceedings, should there be a mechanism for following up the assessment
with appropriate action?

if the police and/or law enforcement  authorities fail to assess and report a suspect's
vulnerability, are sanctions appropriate? If so, what should those sanctions be?

Consular assistance

25

26

27

Should  Member  States  be  required  to  ensure  that  there  is  an  official  with
responsibility  for  looking  after  the  rights  of  suspects  and  defendants  in  criminal
proceedings in the Host state, including acting as a liaison person with their families
and lawyers?

Should Member States be required to ensure that their police authorities comply with
the Vienna Convention on Consular Relations by ensuring that police officers receive
appropriate training?

Should  there  be  any  sanction  for  failing  to  comply  with  the  VCCR?  If  so,  what
should this be?

The Letter of Rights

28

29

30

31

Is a common EU wide Letter of Rights feasible? If so, what should it contain?

When should the Letter of Rights be given to the suspect?

Should the defendant be required to sign a receipt as evidence that he has been given
the Letter of Rights?

What  would  be  the  legal  consequences,  if  any,  of  failing  to  give  the  suspect  the
Letter of Rights?

Evaluation and monitoring

32

33

Is  evaluation  of  compliance  with  common  minimum  standards  an  essential
component of mutual trust and consequently of mutual recognition?

What  information  does  the  Commission  need  in  order  to  make  an  effective
assessment  of  compliance  with  any  agreed  common  minimum  standards  of
procedural safeguard?

44

34

35

Is recording of police interviews a desirable tool for efficient monitoring?

Are  sanctions  for  a  level  of  provision  found  to  fall  below  commonly  agreed
minimum standards appropriate? If so, what could those sanctions be?

45

ANNEX

Relevant provisions of existing treaties

The International Covenant on Civil and Political Rights

Article 9

"1.  Everyone  has  the  right  to  liberty  and  security  of  person.  No  one  shall  be  subjected  to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge
or  other  officer  authorized  by  law  to  exercise  judicial  power  and  shall  be  entitled  to  trial
within a reasonable time or to release. It shall not be the general rule that persons awaiting
trial shall be detained in custody, but release may be subject to guarantees to appear for trial,
at any other stage of the judicial proceedings, and, should occasion arise, for execution of the
judgment.

4.  Anyone  who  is  deprived  of  his  liberty  by  arrest  or  detention  shall  be  entitled  to  take
proceedings before a court, in order that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable
right to compensation."

Article 10

"1. All persons deprived of their liberty shall be treated with humanity and with respect  for
the inherent dignity of the human person.

2.

(a) Accused persons shall, save in exceptional  circumstances, be  segregated from  convicted
persons and shall be subject to separate treatment appropriate to their status as unconvicted
persons;

(b)  Accused  juvenile  persons  shall  be  separated  from  adults  and  brought  as  speedily  as
possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment appropriate to their age and legal
status.”

The Rome Statute establishing the International Criminal Court

Article 55

"Rights of persons during an investigation

46

1. In respect of an investigation under this Statute, a person:

(a) Shall not be compelled to incriminate himself or herself or to confess guilt;

(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other
form of cruel, inhuman or degrading treatment or punishment;

(c) Shall, if questioned in a language other than a language the person fully understands and
speaks, have, free of any cost, the assistance of a competent interpreter and such translations
as are necessary to meet the requirements of fairness; and

(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or
her  liberty  except  on  such  grounds  and  in  accordance  with  such  procedures  as  are
established in this Statute.

2.  Where  there  are  grounds  to  believe  that  a  person  has  committed  a  crime  within  the
jurisdiction of the Court and that person is about to be questioned either by the Prosecutor,
or by national authorities […], that person shall also have the following rights of which he or
she shall be informed prior to being questioned:

(a) To be informed, prior to being questioned, that there are grounds to believe that he or she
has committed a crime within the jurisdiction of the Court;

(b) To remain silent, without such silence being a consideration in the determination of guilt
or innocence;

(c)  To  have  legal  assistance  of  the  person's  choosing,  or,  if  the  person  does  not  have  legal
assistance, to have legal assistance assigned to him or her, in any case where the interests of
justice so require, and without payment by the person in any such case if the person does not
have sufficient means to pay for it; and

(d) To be questioned in the presence of counsel unless the person has voluntarily waived his
or her right to counsel."

Article 67

"Rights of the accused

1.  In  the  determination  of  any  charge,  the  accused  shall  be  entitled  to  a  public  hearing,
having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to
the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a
language which the accused fully understands and speaks;

(b)  To  have  adequate  time  and  facilities  for  the  preparation  of  the  defence  and  to
communicate freely with counsel of the accused's choosing in confidence;

(c) To be tried without undue delay;

(d)  Subject  to  article  63,  paragraph  2,  to  be  present  at  the  trial,  to  conduct  the  defence  in
person or through legal assistance of the accused's choosing, to be informed, if the accused
does  not  have  legal  assistance,  of  this  right  and  to  have  legal  assistance  assigned  by  the

47

Court in any case where the interests of justice so require, and without payment if the accused
lacks sufficient means to pay for it;

(e)  To  examine,  or  have  examined,  the  witnesses  against  him  or  her  and  to  obtain  the
attendance and examination of witnesses on his or her  behalf under the same conditions as
witnesses  against  him  or  her.  The  accused  shall  also  be  entitled  to  raise  defences  and  to
present other evidence admissible under this Statute;

(f) To have, free of any cost, the assistance of a competent interpreter and such translations
as  are  necessary  to  meet  the  requirements  of  fairness,  if  any  of  the  proceedings  of  or
documents presented to the Court are not in a language which the accused fully understands
and speaks;

(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence
being a consideration in the determination of guilt or innocence;

(h) To make an unsworn oral or written statement in his or her defence; and

(i)  Not  to  have  imposed  on  him  or  her  any  reversal  of  the  burden  of  proof  or  any  onus  of
rebuttal.

2.  In  addition  to  any  other  disclosure  provided  for  in  this  Statute,  the  Prosecutor  shall,  as
soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control
which he or she believes shows or tends to show the innocence of the accused, or to mitigate
the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of
shall  decide."
doubt  as 

the  application  of 

this  paragraph, 

the  Court 

to 

The United Nations Convention on the Rights of the Child

Article 40:

“1. States Parties recognize the right of every child alleged as, accused of, or recognized as
having infringed the penal law to be treated in a manner consistent with the promotion of the
child's sense of dignity and worth, which reinforces the child's respect for the human rights
and  fundamental  freedoms  of  others  and  which  takes  into  account  the  child's  age  and  the
desirability of promoting the child's reintegration and the child's assuming a constructive role
in society.
2.  To  this  end,  and  having  regard  to  the  relevant  provisions  of  international  instruments,
States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal
law by reason of acts or omissions that were not prohibited by national or international law
at the time they were committed;
(b)  Every  child  alleged  as  or  accused  of  having  infringed  the  penal  law  has  at  least  the
following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii)  To  be  informed  promptly  and  directly  of  the  charges  against  him  or  her,  and,  if
appropriate,  through  his  or  her  parents  or  legal  guardians,  and  to  have  legal  or  other
appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial
authority or judicial body in a fair hearing according to law, in the presence of legal or other
appropriate assistance and, unless it is considered not to be in the best interest of the child, in

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particular,  taking  into  account  his  or  her  age  or  situation,  his  or  her  parents  or  legal
guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined
adverse witnesses and to obtain the participation and examination of witnesses on his or her
behalf under conditions of equality;
(v)  If  considered  to  have  infringed  the  penal  law,  to  have  this  decision  and  any  measures
imposed in consequence thereof reviewed by a higher competent, independent and impartial
authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the
language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and
institutions specifically applicable to children alleged as, accused of, or recognized as having
infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have
the capacity to infringe the penal law;
(b)  Whenever  appropriate  and  desirable,  measures  for  dealing  with  such  children  without
resorting to judicial proceedings, providing that human rights and legal safeguards are fully
respected.
4.  A  variety  of  dispositions,  such  as  care,  guidance  and  supervision  orders;  counselling;
probation; foster care; education and vocational training programmes and other alternatives
to  institutional  care  shall  be  available  to  ensure  that  children  are  dealt  with  in  a  manner
appropriate  to  their  well-being  and  proportionate  both  to  their  circumstances  and  the
offence.”

49