Proposal for a council framework Decision on certain procedural rights in criminal proceedings throughout the European Union {SEC(2004) 491}
Date: 2004-04-28
Institutions: European Commission
Subjects: judicial cooperation, judicial proceedings, mutual recognition principle, penalty, ruling

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.4.2004 
COM(2004) 328 final 

2004/0113 (CNS) 

Proposal for a 

COUNCIL FRAMEWORK DECISION 

on certain procedural rights in criminal proceedings throughout the European Union 

. 

(presented by the Commission) 

{SEC(2004) 491} 

EN 

   EN 

 
 
 
  
 
 
 
 
 
1. 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

1 
2 
3 
4 
5 

EXPLANATORY MEMORANDUM 

INTRODUCTION 

This  proposal  for  a  Council  Framework  Decision  aims  to  set  common  minimum 
standards  as  regards  certain  procedural  rights  applying  in  criminal  proceedings 
throughout the European Union.  

Article  6  of  the  Treaty  on  European  Union  (TEU)  provides  that  the  Union  shall 
respect  fundamental  rights,  as  guaranteed  by  the  European  Convention  for  the 
Protection of Human Rights and Fundamental Freedoms (ECHR) and as they result 
from  the  constitutional  traditions  common  to  Member  States.  Moreover,  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.  

The  Presidency  Conclusions  of  the  Tampere  European  Council1  stated  that  mutual 
recognition  should  become  the  cornerstone  of  judicial  cooperation,  but  makes  the 
point  that  mutual  recognition  "...and  the  necessary  approximation  of  legislation 
would  facilitate  […]  the  judicial  protection  of  individual  rights"2.  Furthermore  the 
European Council asked the Council and the Commission to press ahead with mutual 
recognition  measures  "respecting  the  fundamental  legal  principles  of  the  Member 
States"3. 

The Commission Communication to the Council and the European Parliament of 26 
July 2000 on Mutual Recognition of Final Decisions in Criminal Matters4 stated 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”.  

This  was  endorsed  in  the  Programme  of  Measures  to  Implement  the  Principle  of 
Mutual Recognition of Decisions in Criminal Matters5 ("Programme of Measures"), 
adopted by the Council and the Commission. It pointed out that “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). This 
proposal  for  a  Framework  Decision  represents  an  embodiment  of  the  stated  aim  of 
enhancing the protection of individual rights.  

This  proposal  seeks  to  enhance  the  rights  of  all  suspects  and  defendants  generally. 
Offering an equivalent level of protection to suspects and defendants throughout the 

15 and 16 October 1999. 
Conclusion 33. 
Conclusion 37. 
COM(2000) 495 final, 29.7.2000. 
OJ C 12, 15.1.2001, p. 10. 

2 

 
 
  
 
                                                 
European  Union  by  way  of  these  common  minimum standards should facilitate the 
application of the principle of mutual recognition in the manner set out in section 5, 
"The Principle of Mutual Recognition", below. It was within the contemplation of the 
Heads of State at Tampere that such "necessary approximation" should occur. 

In  seeking  to  enhance  fair  trial  rights  generally,  this  Framework  Decision  will  also 
have the effect of ensuring a reasonable level of protection for foreign suspects and 
defendants6 in particular, since several of the measures are specifically intended for 
them.  The  number  of  foreign  defendants  is  increasing  owing  to  various  factors 
(increased  job  mobility,  more  people  taking  foreign  holidays,  migratory  patterns, 
growth in the number of asylum seekers, refugees and displaced persons present in 
the Union etc) and will continue to do so. In recent years, there has been a growing 
awareness of serious cross-border criminality; criminal activity against the financial 
interests of the European Union increasingly has a transnational character. The TEC 
enables  citizens  of  the  Union  to  "move  and  reside  freely  within  the  territory  of  the 
Member States"7. Statistics suggest that approximately 6 million EU nationals live in 
a  Member  State  other  than  their  country  of  origin8.  Logically,  the  number  of  those 
migrants  becoming  involved  in  criminal  proceedings  will  grow  with  the  increasing 
exercise of this right of free movement and residence. It is incumbent on the Member 
States to ensure that proper care is taken of EU citizens should they find themselves 
involved in criminal proceedings in a Member State other than their own.  

THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR) 

All  the  Member  States  have  criminal  justice  systems  that  meet  the  requirements  of 
Articles  5  (Right  to  liberty  and  security)  and  6  (Right  to  a  fair  trial)  of  the  ECHR, 
using a variety of procedural safeguards. The intention here is not to duplicate what 
is in the ECHR, but rather to promote compliance at a consistent standard. This can 
be  done  by  orchestrating  agreement  between  the  Member  States  on  a  Union  wide 
approach to a "fair trial". 

The  number  of  applications  to  the  European  Court  of  Human  Rights  (ECtHR)  and 
the  case-law  of  that  court  demonstrate  that  compliance  with  the  ECHR  is  not 
universal.  Furthermore,  the  number  of  applications  is  growing  every  year9  and  the 
ECtHR is “seriously overloaded”10 – the volume of applications grew by over 500% 
in the period 1993-2000. Higher visibility of safeguards would improve knowledge 
of rights on the part of all actors in the criminal justice systems and hence facilitate 
compliance.  

"Foreign suspects and defendants" shall mean those who are not nationals of the country in which they 
are  arrested.  There  is  a  further  subdivision  to  be  observed:  some  foreigners  are  EU  nationals  from 
another Member State, others are nationals of third countries. Unless otherwise stated, it does not matter 
which category they fall into for the purposes of this proposal. 
Article 18 TEC. 
Source: Eurostat Migration Statistics for 1998,1999 and 2000 give the figure of EU nationals living in a 
Member State other than their own as 5,900,000. 
Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights 
(EG(2001)1 of 27 September 2001. 
Preface  to  the  Report  the  Evaluation  Group  to  the  Committee  of  Ministers  on  the  European  Court  of 
Human Rights referred to in footnote 9 above. 

3 

8. 

2. 

9. 

10. 

6 

7 
8 

9 

10 

 
 
  
 
                                                 
11. 

3. 

12. 

13. 

14. 

4. 

15. 

16. 

This  proposal  for  a  Framework  Decision  highlights  some  rights  identified  as  basic, 
many  of  which  already  exist  in  some  form  in  the  criminal  justice  systems  of  the 
Member States. These include the right to legal advice and the right to understand the 
"nature and cause of the accusation", from which is derived the right to translation of 
documents and access to an interpreter where the defendant does not understand the 
language  of  the  proceedings.  Whilst  it  is  proper  and  appropriate  for  each  Member 
State  to  decide  on  its  criminal  justice  system,  the  discrepancies  in  procedure  as 
concerns these basic safeguards should be kept to a minimum.  

THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (CFREU) 

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)11.  The  CFREU  covers  the  civil,  political,  economic  and 
social  rights  of  European  citizens  and  synthesises  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  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 section entitled “Justice” (Articles 47-50) lays down the right to a fair trial (Art. 
47) and provides that respect for the rights of the defence of anyone who has been 
charged  [with  a  criminal  offence]  shall  be  guaranteed  (Art.  48).  It  provides  for  the 
presumption  of  innocence,  legality  and  proportionality  of  criminal  offences  and 
penalties. It extends the principle of ne bis in idem to the whole of the EU. 

This proposal espouses the spirit of the CFREU. It contributes to the definition of a 
"fair trial" and to agreeing common standards for "the rights of the defence" so that 
equivalent treatment in respect of trials throughout the EU can be facilitated.  

BACKGROUND TO THE FRAMEWORK DECISION 

In line with the Tampere Conclusions, the Commission has taken the necessary steps 
to  carry  out  the  Programme  of  Measures  for  Mutual  Recognition,  including 
considering the relevant parameters. The introduction to the Programme of Measures 
makes  the  point  that  "the  extent  of  the  mutual  recognition  exercise  is  very  much 
dependent on a number of parameters which determine its effectiveness". In order to 
take  parameters  3  and  4,  referred  to  in  paragraph  6  above,  into  account,  it  was 
necessary  to  consider  whether  it  was  appropriate  to  take  action  on  procedural 
safeguards  at  the  EU  level.  The  Commission  carried  out  a  comprehensive 
consultation and extended impact assessment exercise. 

In  February  2003,  the  Commission  presented  a  Green  Paper  on  Procedural 
Safeguards for Suspects and Defendants in Criminal Proceedings12. The Green Paper 
noted  that  the  Member  States  of  the  EU  are  all  signatories  of  the  principal  treaty 
setting  the  basic  standards,  the  ECHR,  as  are  all  the  acceding  states  and  candidate 
countries,  so  the  mechanism  for  achieving  mutual  trust  is  already  in  place. 

11 
12 

The text of the CFREU can be found at: http://www.europarl.eu.int/charter/default_en.htm. 
COM(2003) 75 final, 19.2.2003. 

4 

 
 
  
 
                                                 
17. 

18. 

13 

14 

15 

16 

Nevertheless,  the  Green  Paper  explained  that  existing  divergent  practices  had 
hitherto hindered mutual trust and confidence, and that in order to counter that risk, 
the EU is justified in taking action on procedural rights pursuant to Article 31 TEU. 

The  Commission  received  78  written  replies  to  the  Green  Paper13,  together  with  a 
number  of  emails,  telephone  calls  and  other  communications  in  response.  The 
overwhelming  majority  of  respondents  endorsed  the  Commission's  proposal  to  set 
common  minimum  standards  for  procedural  safeguards.  Many  respondents 
applauded this effort but considered that these proposals do not go far enough14. Of 
the  Member  States,  Ireland,  Luxembourg,  Austria,  the  United  Kingdom,  the 
Netherlands, Finland, Denmark, Germany, Sweden and France replied either through 
their Ministry of Justice or another governmental body. The views as expressed  by 
these  bodies  ranged  from  support15  to  opposition16.  The  new  Member  States  were 
also involved in the consultation, with Slovakia and the Czech Republic responding 
to the Green Paper and representatives from all the new States taking part in bilateral 
and other meetings. 

In June 2003, the Commission held a public hearing on the subject of safeguards. All 
those who had replied to the Green Paper, or manifested an interest, were invited to 
attend  and  given  the  opportunity  to  express  their  views  orally.  In  addition,  all  the 
Member  States  were  invited  to  send  a  representative.  What  emerged  at  the  hearing 
was  a  great  deal  of  support  from  legal  practitioners  and  non-governmental 
organisations  for  the  Commission's  proposals.  The  representatives  of  the  Member 
States  present  were  divided  in  their  support.  Slovakia  and  the  Czech  Republic  sent 
representatives as observers. The Member States that are opposed to the idea invoke 
(1)  the  subsidiarity  principle,  (2)  concerns  over  legal  basis  and  (3)  the  fear  that 
"common minimum standards" could result in a general lowering of standards as the 
grounds for their opposition, (4) the argument that common minimum standards have 
already  been  set  by  the  ECHR  and  that  no further  action  is  needed  and  finally,  (5) 

The written responses may be consulted on DG JHA's website at: 
http://europa.eu.int/comm/justice_home/fsj/criminal/procedural/fsj_criminal_responses_en.htm. 
For  examples  of  positive  reactions,  see  that  of  Amnesty  International:  "AI  welcomes  any  measures 
taken  which  aim  to  ensure  the  implementation  of  existing  obligations  of  Member  States  under 
international human rights treaties and ensure the highest possible standards for the protection of human 
rights, including the rights to fair trial, and do not risk weakening existing standards or practice to the 
lowest common denominator". The Law Society of England and Wales: "The Law Society welcomes 
the  publication  of  the  Green  Paper,  which  we  consider  an  important  step  in  developing  mutual  trust 
between member states in the protections of individuals". The French Cour de Cassation: "This type of 
initiative seems particularly appropriate insofar as it is part of the creation of a real European area of 
justice.  It  is  even  more  interesting  because  it  is  capable  of  giving  people  greater  confidence  in  the 
different  European  legal  systems,  by  harmonising  procedural  safeguards".  The  criticism  from  Liberty 
(whose  response  was  generally  positive)  is  typical  of  many  comments  received  in  this  vein:  "It  is  a 
weakness of this Green Paper that it does not address certain critical rights, namely the right to bail; the 
right to have evidence handled fairly; symmetry in sentencing; double jeopardy; and trials in absentia". 
For an example of support, the following is from the Finnish Ministry of Justice: "As regards the areas 
proposed  in  the  Green  Paper,  Finland  supports  minimum  Union-level  standards  on  the  right  to  legal 
assistance,  the  right  to  interpretation  and  translation  assistance,  and  the  Letter  of  Rights.  It  is 
particularly  important  to  ensure  that  these rights  are  catered for  at  a  sufficiently  early  stage,  i.e.  right 
from the moment the suspect is apprehended or at the latest by the time he/she starts to be questioned". 
For  a  negative  assessment,  see  the  submissions  of  Response  of  the  Minister  for  Justice,  Equality  and 
Law  Reform,  Ireland:  "[t]he  Green  Paper  […]seeks  to  introduce  obligations  which  would  apply 
internally  in  each  Member  State.  This  is  outside the  scope of  article 31  and breaches  the principle  of 
subsidiarity".  

5 

 
 
  
 
                                                 
 
19. 

20. 

21. 

22. 

fears  were  expressed  that  implementing  these  proposals  would  be  technically 
difficult. 

The Commission considers first that in this area only action at the EU level can be 
effective in ensuring common standards. To date, the Member States have complied 
on  a  national  basis  with  their  fair  trial  obligations,  deriving  principally  from  the 
ECHR,  and  this  has  led  to  discrepancies  in  the  levels  of  safeguards  in  operation  in 
the  different  Member  States.  It  has  also  led  to  speculation  about  standards  in  other 
Member  States  and  on  occasion,  there  have  been  accusations  of  deficiencies  in  the 
criminal justice system of one Member State in the press and media of another. This 
would be remedied by the adoption of common minimum  standards. By  definition, 
the  standards  can  only  be  common  if  they  are  set  by  the  Member  States  acting  in 
concert, so it is not possible to achieve common standards and rely entirely on action 
at the national level. 

As regards the legal basis, the Commission relies on Article 31 (1) of the Treaty on 
European Union. Article 31(1) envisages that the EU may develop "common action" 
so  as  to  ensure  compatibility  in  rules  where  necessary  to  improve  cooperation. 
Judicial  cooperation,  in  particular  mutual  recognition  presents  a  situation  where 
compatibility  is  necessary  to  improve  co-operation.  It  is  for  that  reason  that  the 
parameters  of  the  Mutual  Recognition  Programme  include  “mechanisms  for 
safeguarding  the  rights  of  […]  suspects”  (parameter  3)  and  “common  minimum 
standards  necessary  to  facilitate  the  application  of  the  principle  of  mutual 
recognition” (parameter 4). 

There is no need to fear that common standards will lead to a lowering of standards. 
Member  States  remain  free  to  implement  the  highest  level  of  safeguards  they 
consider appropriate as long as they comply with the agreed minimum. Furthermore, 
the  non-regression  provision  in  Article  17  states  explicitly  that  nothing  in  the 
Framework  Decision  may  be  interpreted  as  "limiting  or  derogating  from"  any 
existing  rights.  The  proposal  is  for  common  minimum  standards.  It  is  unthinkable 
that Member States, bound by Article 6(2) TEU to respect fundamental rights, would 
use  that  as  a  basis  to  "level  down"  where  current  provisions  exceed  the  EU 
requirements. 

On  the  fourth  point,  the  Commission's  research  and  consultation,  together  with  the 
case-law of the ECtHR, shows the ECHR is implemented to very differing standards 
in  the  Member  States  and  that  there  are  many  violations  of  the  ECHR.  Those 
divergences  prejudice  a  common  protection  of  procedural  rights  within  the  Union, 
jeopardize  mutual  trust  and  affect  the  smooth  operation  of  the  mutual  recognition 
principle. Furthermore, the Commission's aim is to render more efficient and visible 
the  practical  operation  of  ECHR  rights  with  this  proposal  so  that  everyone  in  the 
criminal  justice  system  is  more  aware  of  them,  not  only  defendants  but  also  police 
officers,  lawyers,  translators  and  interpreters  and  all  other  actors  in  the  criminal 
justice system. This should lead to better compliance with the ECHR.  

23. 

Finally as regards technical difficulties and cost, the Commission  contends  that the 
final outcome for this proposal should not lead to an intolerable burden for Member 
States since the substance of the provisions essentially confirms existing rights under 
the ECHR and relevant case-law. 

6 

 
 
  
 
24. 

The Commission has concluded that the smooth operation of the measures set out in 
the Programme of Measures can best be achieved if accompanied by agreed common 
minimum standards in relevant areas. The areas where common minimum standards 
are proposed at this first stage are: 

– 

– 

– 

– 

– 

access to legal advice, both before the trial and at trial, 

access to free interpretation and translation, 

ensuring  that  persons  who  are  not  capable  of  understanding  or  following  the 
proceedings receive appropriate attention, 

the  right  to  communicate,  inter  alia,  with  consular  authorities  in  the  case  of 
foreign suspects, and  

notifying suspected persons of their rights (by giving them a written “Letter of 
Rights”). 

The decision to make proposals in relation to these five rights at this first stage was 
taken  because  these  rights  are  of  particular  importance  in  the  context  of  mutual 
recognition, since they have  a transnational element which is  not a  feature of other 
fair  trial  rights,  apart  from  the  right  to  bail  which  is  being  covered  separately  in  a 
forthcoming  Green  Paper.  The  foreign  defendant  will  generally  need  an  interpreter 
and  may  require  consular  assistance.  He  is  also  less  likely  to  be  familiar  with  his 
rights in the country of arrest and hence all the more likely to be helped by a Letter 
of Rights in his own language. All suspected persons are in a better position if they 
have a lawyer, and it is true that a person who has a lawyer is more likely to have his 
other  rights  respected  as  he  will  have  someone  who  is  aware  of  the  rights  and  can 
verify that they are complied with. For this reasons, it was important to include the 
right to legal advice. Persons who are not capable of understanding or following the 
proceedings and who need appropriate attention are a special category of defendant 
requiring  a  higher  degree  of  protection.  This  is  an  embodiment  of  the  concept  of 
"equality  of  arms"  which  requires  a  fair  balance  between  the  parties  in  court 
proceedings. 

The Commission reiterates that this draft Framework Decision is a first step and that 
other  measures  are  envisaged  over  the  next  few  years.  There  is  no  intention  to 
convey the impression that these five rights are more important than others, simply 
that they are more immediately relevant to mutual recognition and the problems that 
have  arisen  to  date  in  the  discussion  of  mutual  recognition  measures.  The 
Commission  has  already  started  to  examine  the  need  for  safeguards  relating  to 
fairness  in  obtaining,  handling  and  use  of  evidence  throughout  the  EU.  The  rights 
stemming from the presumption of innocence (including the right to silence, the right 
against self-incrimination and the rules governing the burden of proof) will also be 
examined.  The  Commission's  first  assessment  of  this  work,  which  has  already 
started, will be made public in 2004. 

THE PRINCIPLE OF MUTUAL RECOGNITION 

At  the  European  Council  in  October  1999  in  Tampere,  it  was  agreed  that  the 
principle  of  mutual  recognition  should  become  the  cornerstone  of  judicial  co-

7 

25. 

5. 

26. 

 
 
  
 
27. 

28. 

operation  in  both  civil  and  criminal  matters.  Mutual  recognition  implies  that  while 
another state may not deal with a certain matter in the same or even a similar way as 
one's  own  state,  the  results  are  accepted  as  equivalent  to  decisions  of  one's  own 
state17. 

The  European  Council  also  asked  the  Council  and  the  Commission  to  adopt,  by 
December  2000,  the  Programme  of  Measures  to  implement  the  principle  of  mutual 
recognition in criminal matters18.  

The  Programme  of  Measures  consists  of  twenty-four  areas  which  are  deemed 
suitable for mutual recognition, some of which will be amalgamated so that between 
fifteen  and  twenty  proposals  will  ultimately  be  put  forward  under  the  Programme. 
The first instrument to have been adopted on mutual recognition in criminal matters 
is the Council Framework Decision of 13 June 2002 on the European arrest warrant 
and the surrender procedures between Member States19. This has been followed by a 
Framework  Decision  on  orders  for  freezing  property  or  evidence20,  and  will  be 
followed by measures on confiscation orders, financial penalties and transmission of 
evidence and criminal records. If these measures, and indeed the rest of the proposals 
resulting  from  the  Programme  of  Measures,  are  to  be  implemented  successfully, 
mutual recognition must be welcomed in the Member States, not only at government 
and  policy  level  but  also  by  those  who  will  be  responsible  for  the  day-to-day 
operation of the measures. Mutual recognition can only operate effectively in a spirit 
of confidence, whereby not only the judicial authorities, but all actors in the criminal 
process see decisions of the judicial authorities of other Member States as equivalent 
to  their  own  and  do  not  call  in  question  their  judicial  capacity  and  respect  for  fair 
trial  rights.  This  is  important  so  as  to  enhance  a  general  perception  of  mutual 
recognition  which  is  positive,  and  that  involves  "not  only  trust  in  the  adequacy  of 
one's partner's rules, but also trust that these rules are correctly applied"21. 

29. 

All Member States are parties to the ECHR and this is sometimes cited as adequate 
grounds for mutual confidence. However experience has shown that, despite the need 
for  such  confidence,  there  is  not  always  sufficient  trust  in  the  criminal  justice 
systems  of  other  Member  States  and  this  notwithstanding  the  fact  that  they  are  all 
signatories  to  the  ECHR22.  This  proposal  for  a  Framework  Decision  is  an  implicit 
acknowledgement  of  that  insufficient  trust  in  that  it  provides  a  mechanism  for 
enhancing and increasing mutual confidence. This will be even more important when 
there must be trust between twenty-five states or more. 

30. 

The rights proposed will operate so as to strengthen mutual trust and thereby enhance 
the  operation  of  mutual  recognition  in  all  its  forms  as  regards  criminal  matters. 

17 
18 
19 
20 

21 
22 

COM(2000) 495 final, 26.7.2000, p. 4. 
OJ C 12, 15.1.2001, p. 10. 
OJ L 190, 18.7.2002, p. 1. 
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of 
orders freezing property or evidence. OJ L 196, of 2.8.2003, p. 45. 
COM(2000) 495 final, 26.7.2000, p. 4. 
For example in the UK case R v. Secretary of State ex parte Ramda, 27 June 2002, the High Court said 
that  France’s  status  as  a  signatory  to  the  ECHR  could  not  be  invoked  as  a  complete  answer  to 
complaints  about  the  fairness  of  his  trial.  Likewise,  in  its  judgment  of  16  May  2003,  in  the  case  of 
Irastorza Dorronsoro, the Cour d'Appel de Pau (France) - refused to accede to an extradition request 
from Spain on the ground that there was a suspicion that a co-defendant had been "tortured" by Spanish 
police officers. 

8 

 
 
  
 
                                                 
Continuous  evaluation  and  monitoring,  if  it  discloses  that  standards  are  adhered  to 
and  shows  any  improvement  in  areas  currently  causing  concern,  will  serve  to 
reinforce that trust. 

6. 

SPECIFIC PROVISIONS 

6.1. 

The right to legal advice 

31. 

32. 

33. 

During  the  consultation  period,  the  Commission  researched  the  Member  States' 
differing arrangements. The rules governing both access to legal representation and 
its organisation vary from one Member State to another.  

This  Framework  Decision  proposes  EU  wide  agreement  that  suspected  persons  be 
given access to legal advice from a qualified lawyer as soon as possible. At present, 
some Member States impose a limit on access,  have  an  initial period during  which 
the suspect may not have access to a lawyer ("garde à vue") or preclude the presence 
of  a  lawyer  during  police  questioning.  Some  Member  States  do  not  have  a  formal 
scheme  offering  24-hour  access  to  a  lawyer,  so  that  those  arrested  at  night  or  at 
week-ends  are  also  denied  access,  at  least  on  a  temporary  basis.  This  Framework 
Decision  proposes  that  legal  advice  be  an  entitlement  throughout  all  the  criminal 
proceedings  which  are  defined  as  all  proceedings  taking  place  within  the  European 
Union  aiming  to  establish  the  guilt  or  innocence  of  a  person  suspected  of  having 
committed a criminal offence or to decide on the outcome following a guilty plea in 
respect of a criminal charge. 

Where the suspected person falls into one of the listed categories of persons who are 
not able to understand or follow the proceedings or is a minor or is the subject of a 
European  Arrest  Warrant  or  extradition  request  or  other  surrender  procedure  legal 
advice  should  be  made  available.  This  does  not  affect  a  person’s  right  to  defend 
themselves  if  they  choose.  Member  States  should  bear  the  costs  of  legal  advice 
where  those  costs  represent  undue  hardship  for  the  suspected  person  or  his 
dependants. 

34. 

This Framework Decision proposes that Member States be required to implement a 
system for providing a replacement if the original lawyer is found not to be effective.  

6.2. 

The right to free interpretation and translations 

35. 

36. 

Article  6  (3)  of  the  ECHR  lays  down  the  right  for  a  defendant  to  have  the  free 
assistance  of  an  interpreter  if  he  cannot  understand  or  speak  the  language  used  in 
court.  The  case-law  of  the  ECtHR23  also  makes  it  clear  that  the  obligation  towards 
the  defendant  extends  to  translations  of  all  the  relevant  documents  in  the 
proceedings. 

The Commission's research showed that whilst Member States were conscious of this 
obligation  in  theory,  it  was  not  complied  with  in  full  in  reality.  During  police 
questioning, a qualified interpreter was not always present, with the services of lay 
persons  who  have  some  knowledge  of  the  defendant's  language  sometimes  being 
used.  There  were  limitations  on  the  documents  translated  for  defendants.  Whereas 

23 

Kamasinski v. Austria (judgment of 19 December 1989 A Series N° 168) para74. 

9 

 
 
  
 
                                                 
Article 6(3)(e) makes it clear that the obligation is to provide “the free assistance of 
an interpreter” for a defendant who cannot understand or speak the language used in 
court,  interpreters  sometimes  appeared  to  be  provided  for  the  benefit  of  the  judge 
and/or  prosecutor,  rather  than  for  the  defendant.  In  some  instances,  the  judge's  or 
prosecutor's  statements  were  not  interpreted  for  defendants  and  the  role  of  the 
interpreter  was  limited  to  interpreting  the  judge's  direct  questions  to  the  defendant 
and  his  replies  back  to  the  judge,  rather  than  ensuring  that  the  defendant  could 
understand the proceedings.  

37. 

The Commission also noted that Member States had difficulty in recruiting sufficient 
legal/court  translators  and  interpreters.  In  some  Member  States,  the  profession  of 
public  service  interpreter/translator  has  official  status,  with  training  organised  at 
national  level,  registration,  accreditation  and  continuous  professional  development. 
This  is  not  the  case  in  all  Member  States.  The  profession  suffers  from  a  lack  of 
status,  with  translators  and  interpreters  sometimes  being  poorly  paid,  not  having 
social benefits (such as paid sick leave and pension rights) and complaining that they 
are not consulted enough by their counterparts in the legal profession. 

38. 

This  is  something  that  the  Commission  will  continue  to  explore  in  the  hope  of 
finding a solution. It is essential that there are enough translators and interpreters in 
each Member State to cover the needs of foreign defendants24.  

6.3. 

Persons who cannot understand or follow the proceedings  

39. 

40. 

41. 

Certain suspects are in a weaker position than the average person owing to their age 
or their physical, mental or emotional condition when it comes to understanding or 
following the proceedings. These persons need specific attention to ensure that their 
particular rights are respected and to guard against a possible miscarriage of justice. 

Law  enforcement  and  judicial  officers  should  have  an  increased  awareness  of  the 
problems of persons who cannot understand or follow the proceedings. They should 
be required to consider whether the suspected person is in need of specific attention, 
and  if  so,  they  should  take  the  necessary  steps  to  offer  that  person  the  appropriate 
attention. 

The nature of the specific attention to be offered will vary according to the situation. 
For example, children should be accompanied by a parent or appropriate adult during 
questioning; persons needing medical attention should be provided with a doctor etc. 
Whilst  every  situation  cannot  be  set  out  and  provided  for  in  an  instrument  of  this 
type, the responsibility must be on Member States to ensure that their criminal justice 
system provides for a specific attention for those suspects and defendants who need 
it. 

6.4. 

The right to communication 

42. 

A detained person should be entitled to have family members, persons assimilated to 
family members and any employer informed of the detention. This can be achieved 
by having the relevant information communicated on behalf of the detained person if 
there are concerns about preserving any evidence. 

24 

See footnote 6 regarding foreign defendants. 

10 

 
 
  
 
                                                 
43. 

44. 

Where the detained person is a non-national, it may be appropriate for the consular 
authorities  of  the  person’s  home  state  to  be  informed.  Foreign  suspects  and 
defendants  are  an  easily  identifiable  vulnerable  group  who  sometimes  need 
additional protection such as is offered by the 1963 Vienna Convention on Consular 
Relations (VCCR), which provides that on arrest or on detention a foreign national 
has the right to ask for his consulate to be informed of the detention and to receive 
visits from consular officials.  

Foreign  nationals may refuse to see  a consular official who is the representative of 
their  government,  for  example,  if  they  are  asylum  seekers  or  refugees  fleeing 
persecution  in  their  State  of  origin.  Those  falling  into  this  category  may  contact 
representatives from a recognised international humanitarian organisation. 

6.5.  Written notification of rights (the "Letter of Rights") 

45. 

It  is  not  always  the  case  that  suspects,  and  even  sometimes  the  law  enforcement 
officers  questioning  them,  have  full  knowledge  of  the  relevant  rights.  If  suspects 
were  properly  aware  of  their  rights  on  arrest  there  would  be  fewer  allegations  of 
miscarriage of justice and violations of the ECHR. A simple and inexpensive way to 
ensure  an  adequate  level  of  knowledge  is  to  require  Member  States  to  produce  a 
short, standard written statement of basic rights (the "Letter of Rights") and to make 
it compulsory for all suspects to be given this written notification in a language they 
understand at the earliest possible opportunity and certainly before  any questioning 
takes place. 

6.6. 

Evaluation and monitoring 

46. 

47. 

Since  the  principle  of  mutual  recognition  may  only  be  implemented  efficiently  if 
there is mutual trust, and since common minimum standards will enhance trust, it is 
important for any agreed common standards to be respected. The level of compliance 
should be demonstrably high. In order for each Member State to be confident of the 
level  of  compliance  in  the  other  Member  States,  there  must  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 and 
judicial  officers  and  all  those  who  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. Evaluation and monitoring 
should be carried out on a regular, continuous basis and the results should be made 
available. This will provide a system for ensuring that standards are adhered to and 
will  bring  both  any  improvement  and/or  deterioration  to  the  notice  of  the  other 
Member States as well as the European institutions. 

48. 

It  is  appropriate  that  the  Commission,  as  a  body  charged  with  making  proposals25 
and  in  the  usual  course  of  events  with  monitoring  that  Framework  Decisions  are 

25 

Article 34(2) TEU. 

11 

 
 
  
 
                                                 
correctly  implemented  in  the  Member  States26,  should  co-ordinate  evaluation  and 
monitoring. The necessary information and data should be provided by the Member 
States for the Commission to collate. The Commission will, if necessary, delegate the 
analysis  of  the  information  to  an  outside  body  such  as  an  independent  group  of 
experts.  

LEGAL BASIS 

This  proposal  has  a  legal  basis  under  Article  31  of  the  Treaty  on  European  Union 
(TEU), as amended by the Treaty of Nice, which covers common action on judicial 
co-operation in criminal matters.  

Article 31 (1) (c) of the TEU provides for “ensuring compatibility in rules applicable 
in  the  Member  States  as  may  be  necessary  to  improve  [judicial  co-operation  in 
criminal matters]”. Ensuring compatibility can be achieved, inter alia, by providing 
for some approximation of minimum procedural rules in the Member States so as to 
enhance mutual trust and confidence.  

The  Commission considers that this  proposal constitutes the necessary complement 
to  the  mutual  recognition  measures  that  are  designed  to  increase  efficiency  of 
prosecution.  A  set  of  agreed  procedural  rights  to  ensure  equivalent  treatment  of 
suspected persons throughout the EU should enable judicial cooperation measures to 
be  applied  as  efficiently  as  possible,  especially  those  that  envisage  surrender  of 
persons or of evidence to another Member State. Any reluctance on the part of the 
authorities of one State to surrender a national to the judicial authorities of another 
may be alleviated in this way. 

EXPLANATION OF THE ARTICLES 

Gender  neutrality:  The  terms  "he"  and  "his"  are  used  throughout  to  refer  to  the 
suspected  person  or  the  suspected  person's  lawyer.  They  are  intended  to  be  gender 
neutral and to cover both male and female suspects and male and female lawyers. 

7. 

49. 

50. 

51. 

8. 

52. 

Article 1 - Scope of application of procedural rights  

53. 

This Article sets out the scope of application of the Framework Decision. The scope 
includes all persons suspected in respect of a criminal offence in any proceedings to 
establish the guilt or innocence of a person suspected of having committed a criminal 
offence,  or  to  decide  on  the  outcome  following  a  guilty  in  plea  in  respect  of  a 
criminal  charge  or  to  rule  on  any  appeal  from  these  proceedings.  There  is  no 
differentiation  between  EU  national  and  third  country  nationals  since  to  offer  one 
group  better  protection  could  lead  to  criticisms  of  discrimination  that  would  defeat 
the  aim  of  enhancing  trust  between  the  Member  States  in  each  other’s  criminal 
justice system. 

26 

The  usual  practice  following  adoption  of  a  Framework  Decision  is  for  Member  States  to  send  the 
Commission  details  of  their  implementing  legislation  and  for  the  Commission  to  compile  a  report  on 
implementation for transmission to the Council. 

12 

 
 
  
 
                                                 
54. 

Since  the  case-law  of  the  ECtHR  has  clarified  that  persons  being  questioned  in 
relation  to  offences,  but  not  yet  formally  charged,  should  be  covered  by  Article  6 
ECHR, persons arrested or detained in connection with a criminal charge also come 
within the ambit of this provision. These rights start to apply from the time when the 
person  is  informed  that  he  is  suspected  of  having  committed  an  offence  (e.g.  on 
arrest or when the suspected person is no longer free to leave police custody).  

Article 2 – The right to legal advice 

55. 

This  Article  sets  out  the  basic  right  to  legal  advice  for  a  suspected  person  if  he 
wishes  to  receive  it.  The  Article  provides  that  legal  advice  should  be  provided  as 
soon  as  possible.  It  is  important  that  a  suspect  benefits  from  legal  advice  before 
answering  any  questions  in  the  course  of  which  he  may  say  something  he  later 
regrets without understanding the legal implications. 

Article 3 – Obligation to provide legal assistance 

56. 

Article 6 (3) (c) ECHR makes it clear that a suspected person has the right to defend 
himself  in  person  which  implies  that  he  is  entitled  to  refuse  to  be  represented  by  a 
lawyer.  Notwithstanding  that  right,  in  certain  circumstances  it  is  particularly 
desirable that the suspected person receives legal advice. Those circumstances are set 
out in Article 3 and include cases where the suspected person is remanded in custody 
prior  to  the  trial,  or  is  formally  accused  of  having  committed  a  criminal  offence 
which  involves  a  complex  factual  or  legal  situation  or  which  is  subject  to  severe 
punishment, in particular where, in a Member State, a mandatory sentence of more 
than one year’s imprisonment can be imposed, or is the subject of a European Arrest 
Warrant or extradition request or other surrender procedure, or is a minor, or appears 
not to be able to understand or follow the content or the meaning of the proceedings 
owing  to  his  age,  mental,  physical  or  emotional  condition.  This  provision  requires 
Member States to ensure that every effort is made so that those persons in particular 
receive legal advice. 

Article 4 - Obligation to ensure effectiveness of legal advice  

57. 

58. 

59. 

This Article provides that Member States should ensure that some check is made that 
effective advice is given.  

The Commission has chosen to specify that only lawyers as defined in Article 1(2)(a) 
of  Directive  98/5  EC27  are  employed  in  this  context  so  as  to  help  to  safeguard 
effectiveness.. If the legal advice offered is not effective, Member States are obliged 
to provide an alternative28. This right, stemming from Article 6(3)(c) of the ECHR, 
has been explained in the case-law of the ECtHR (e.g. in Artico v. Italy).  

Since the suspect is not always in a position to assess the effectiveness of his legal 
representation,  the  onus  must  be  on  the  Member  States  to  establish  a  system  for 
checking this. 

27 
28 

Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998. 
Artico v. Italy May 13, 1980, Series A, n° 37. 

13 

 
 
  
 
                                                 
Article 5 – The right to free legal advice  

60. 

61. 

This Article provides that where Article 3 applies legal advice should be provided at 
no cost to the suspected person if these costs would cause undue financial hardship to 
himself  or  his  dependants.  Member  States  must  ensure  that  they  have  in  place  a 
mechanism  for  ascertaining  whether  the  suspected person has  the means to  pay for 
legal  advice.  Under  the  ECHR,  the  defendant  does  not  have  to  prove  “beyond  all 
doubt”  that  he  lacks  the  means  to  pay  for  his  defence  (Pakelli  v.  Germany29). 
Member  States  should  respect  this  ECtHR  guidance  in  connection  with  the 
assessment of the person’s means. 

This Article provides that legal advice should be free if the person's means fall below 
a set minimum. 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 
advice 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.  Member 
States are free to operate the system that appears to them to be the most cost effective 
as long as free legal advice remains available when it is in the interests of justice. 

Article 6 – The right to free interpretation  

62. 

63. 

64. 

The assistance of an interpreter or a translator must be free of charge to the suspect. 
This  right  is  established  in  the  case-law  of  the  ECtHR.  In  the  case  of  Luedicke, 
Belkacem and Koç v. Germany, the ECtHR held that it follows from Article 6(3)(b) 
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  incurred30  must  be  respected.  In 
Kamasinski  v.  Austria31,  the  ECtHR  held  that  the  principle  also  extended  to 
translation of “documentary material”. 

Member States are under an obligation to provide an interpreter as soon as possible 
after  it  has  come  to  light  that  the  suspect  does  not  understand  the  language  of  the 
proceedings.  This  right  extends  to  all  sessions  of  police  questioning,  meetings 
between  the  suspect  and  his  lawyer  and,  after  charge,  occasions  when  the  person's 
presence is required at court. It is clear from the ECtHR case-law that the obligation 
to provide an interpreter, which is laid down in the ECHR, is not always respected32. 
Article  6  of  the  Framework  Decision  sets  out  the  right,  pointing  out  that  it  applies 
“throughout the proceedings”. 

This Article covers persons with hearing or speech impairments. Article 6(3) of the 
ECHR  provides  that  everyone  charged  with  a  criminal  offence  has  the  right  to  be 
informed about what he is accused of so that he understands the nature and cause of 
the  accusation.  He  also  has  the  right  to  have  the  assistance  of  an  interpreter  if  he 
cannot understand the  language used in court. This applies also to deaf suspects or 
people with hearing or speech impairments. Inadequate communication can affect a 

29 
30 
31 
32 

Pakelli v. Germany, judgment of 25 April 1983, Series A n° 64 para. 34. 
Luedicke, Belkacem and Koç v. Germany – judgment of 28 November 1978, Series A N°29 para.46. 
Kamasinski v. Austria (cited above). 
Cuscani v. UK - judgment of 24 September 2002 - is a good example where the Court proposed to rely 
on the defendant's brother to interpret, which was held to be a violation of Art. 6. 

14 

 
 
  
 
                                                 
deaf  suspect's  chances  of  receiving  fair  treatment  as  regards  questioning  by  law 
enforcement officers. It also affects his chances of a fair trial. Member States must 
therefore  ensure  that  police  stations  and  courts  provide  proper  specialised  sign 
language interpreting for deaf suspects. As the consequences of poor or incompetent 
interpreting can be so serious, it is important that only qualified and experienced sign 
language interpreters are assigned for court proceedings or police interviews. 

65. 

Some  people  who  are  deaf  require  the  services  of  a  lipspeaker.  Lipspeakers 
communicate with deaf people who do not know or use sign language, but who are 
usually skilled lipreaders. This is also covered in the Article as an alternative.  

Article 7 – The right to free translation of relevant documents 

66. 

There is a right to translations of relevant material but this right is not unlimited. The 
ECtHR has ruled that Art. 6(3)(e) ECHR does not require a written translation of all 
items of written evidence or official documents in the procedure but it has ruled that 
documents  which  the  defendant  “needs  to  understand  in  order  to  have  a  fair  trial” 
must  be  translated33.  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”. The onus should be 
on  the  defence  lawyer  to  ask  for  translations  of  any  documents  he  considers 
necessary over and above what is provided by the prosecution. Since the conduct of 
the defence is essentially a matter between the defendant and his lawyer, the defence 
lawyer  is  best  placed  to  assess  which  documents  are  needed.  Consequently,  this 
Article  places  the  onus  is  on  the  competent  authorities  to  decide  what  documents 
shall  be  provided  in  translation  but  the  suspect’s  lawyer  has  the  right  to  request 
further documents in translation. 

Article 8 – Accuracy of the translation and interpretation  

67. 

68. 

The  standard  of  interpretation  and  translation  must  be  good  enough  to  enable  the 
suspect to understand the nature and cause of the accusation.  

Member States must ensure that there is in place within their jurisdiction a system so 
that lawyers, judges, defendants or anyone else involved in criminal proceedings who 
becomes  aware  that  the  required  standard  of  interpretation  has  not  been  met  by  a 
particular  interpreter  or  in  a  particular  case  may  report  it  so  that  a  replacement 
translator or interpreter may be provided.  

Article 9 – Recording the proceedings 

69. 

The standard required by the ECHR is that the interpretation be such as to enable the 
defendant's  “effective  participation”  in  the  proceedings.  If  he  then  makes  an 
application to the ECtHR on the grounds that the interpretation was inadequate and 
damaging to his effective participation in the proceedings, it is important to have a 
method  of  verification  of  the  interpretation.  It  is  therefore  incumbent  on  Member 
States to ensure that a recording exists in the event of a dispute. 

70. 

The purpose of this provision is to have a method of verifying that the interpretation 
was accurate and not to challenge the proceedings from any other point of view since 

33 

Kamasinski v. Austria, cited above, para 74. 

15 

 
 
  
 
                                                 
this  would  otherwise  lead  to  preferential  treatment  of  suspected  persons  who  need 
interpretation. Therefore, the recordings may only be used for that one purpose. 

Article 10 – The right to specific attention 

71. 

This  Article  provides  that  Member  States  shall  ensure  that  a  person  who  cannot 
understand  or  follow  the  proceedings,  owing  to  their  age  or  mental,  physical  or 
emotional  condition,  is  offered  any  specific  relevant  attention,  such  as  medical 
attention  or  the  presence  of  a  parent  in  the  case  of  children.  The  duty  to  provide 
specific  attention  applies  throughout  criminal  proceedings.  This  enhanced  duty  of 
care is to promote fair trials and to avoid potential miscarriages of justice based on 
vulnerability.  Consultation  and  replies  to  the  Green  Paper  have  made  it  clear  that 
identifying  these  suspects  is  difficult.  The  minimum  expectation  is  that  law 
enforcement  officers  ask  themselves  the  question  whether  the  suspect  is  able  to 
understand  or  follow  the  proceedings,  by  virtue  of  his  age  or  mental,  physical  or 
emotional  condition.  Any  steps  taken  as  a  consequence  of  this  right  should  be 
recorded in writing in the suspects’ notes. 

Article 11 – The rights of suspected persons entitled to specific attention  

72. 

73. 

74. 

This  Article  specifies  which  steps  must  be  taken  in  accordance  with  Article  10.  In 
order  to  verify  that  the  correct  procedures  have  been  followed  in  the  case  of 
questioning by law enforcement officers of persons who cannot understand or follow 
the  proceedings,  Member  States  must  ensure  that  an  audio  or  video  recording  is 
made  of  any  pre-trial  questioning.  Any  party  requesting  a  copy  of  the  recording  in 
the event of a dispute must be provided with one.  

Medical assistance should be provided if the suspected person needs it. 

A  suspected  person  entitled  to  specific  attention  should,  where  appropriate,  be 
allowed to have a suitable third person present during police questioning in order to 
provide an additional safeguard of the fairness of the proceedings.  

Article 12 – The right to communicate 

75. 

76. 

This Article lays down the right for a person remanded in custody to have his family, 
persons assimilated to his family or his employer contacted as soon as possible. 

It is proposed here that if direct communication is inappropriate, communication may 
be  by  other  channels  including  the  consular  authorities  or  an  international 
humanitarian organisation.  

Article 13 – The right to communicate with consular authorities  

77. 

78. 

This  Article  restates  the  right  to  communicate  with  consular  authorities.  It  places  a 
duty  on  Member  States  to  ensure  that  all  foreign  detainees  are  able  to  have  the 
consular authorities of their home State informed of the detention if they so wish.  

If a detained suspect does not wish to have the assistance of the consular authorities 
of  his  home  State,  he  should  be  entitled  to  have  the  assistance  of  an  international 
humanitarian  organisation.  Unless  individual  Member  States  decide  otherwise,  the 
most suitable international humanitarian organisation offering this type of assistance 
is  the  International  Committee  of  the  Red  Cross  (ICRC)  whose  official  functions 

16 

 
 
  
 
include visits to detainees34. Member States are invited to decide which international 
humanitarian  organisations  they  recognise  so  that  the  concept  of  “recognised 
international humanitarian organisation” can be used to correct effect and to prevent 
recourse  to  organisations  that  do  not  have  the  approval  of  the  Member  State  in 
question. 

79. 

Member  States  have  a  duty  towards  their  long-term  non-national  residents, 
particularly  if  these  are  refugees.  A  refugee  from  the  regime  in  force  in  his  home 
State will not want the assistance of the consular authorities of that State. Refugees 
must  be  able  to  contact  representatives  from  another  State  that  has  agreed  to  look 
after  their  interests35  or  an  international  humanitarian  organisation  for  this  type  of 
assistance36. This Article proposes that the right to consular assistance be extended to 
long-term non-national residents of a Sending state, particularly if they have refugee 
status. Member States should ensure that this type of assistance is an option available 
to the suspect.  

Article 14 - Duty to inform a suspected person of his rights in writing – Letter of Rights 

80. 

Article 14 sets out the duty for Member States to ensure that all detained or arrested 
suspects are made aware of their basic rights by giving them written notification of 
those rights. The Letter of Rights should be kept available in the official Community 
languages, either in paper form or on computer so that it can be printed when needed. 
Member  States  may  assess  the  need  to  have  available  translations  into  languages 
commonly encountered in the locality, and the relevant authorities are best placed to 
know  which  those  languages  are  for  each  locality.  The  Commission  proposes  that 
suspects  be  given  a  "Letter  of  Rights"  as  soon  as  possible  after  arrest.  The  law 
enforcement officer and the suspect should ideally both sign the Letter of Rights, as 
evidence  that  it  has  been  offered,  given  and  accepted.  However  the  Commission  is 
aware  of  possible  reluctance  on  the  part  of  suspects  to  sign  anything  in  the  police 
station. The Letter of Rights should be produced in duplicate, with one (signed) copy 
being retained by the law enforcement officer and one (signed) copy being retained 
by the suspect. A note should be made in the record stating that the Letter of Rights 
was offered, and whether or not the suspect agreed to sign it. 

81. 

Annex A contains a suggested form of common wording for the Letter of Rights. It 
states the language version so that the suspect can be given the Letter of Rights in a 

34 

35 

36 

Extract  from  ICRC  annual  report  2002:  "[In  2002]  ICRC  delegates  visited  448,063  detainees  held  in 
2,007 places of detention in more than 75 countries. Of this number, 26,727 detainees were registered 
and visited in 2002 for the first time. A total of 47,205 detention certificates were issued. Detainees who 
were  not  individually  monitored  but  nevertheless  benefited  from  ICRC  assistance  are  included  in  the 
total number visited." 
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. 

17 

 
 
  
 
                                                 
language  he  understands.  It  then  sets  out  the  basic  rights  to  legal  advice,  to 
interpretation, specific attention and consular assistance, if appropriate, as  headings 
to be completed by the Member States. 

Article 15- Evaluating and monitoring the effectiveness of the Framework Decision 

82. 

83. 

It is essential that this Framework Decision is fully evaluated and monitored. Apart 
from  reporting  on  the  proper  implementation  of  its  provisions  into  national 
legislation, the Commission proposes that regular monitoring be carried out. This is 
particularly important in the case of legislation that confers rights as those rights are 
meaningless unless they are complied with. Only regular monitoring will show that 
there  has  been  full  compliance.  Additionally,  if  the  Framework  Decision  is  to 
achieve its stated objective of enhancing mutual trust, there must be public, verifiable 
statistics and reports showing that rights are complied with so that observers in other 
Member  States  (not  only  in  government,  but  also  lawyers,  academics  and  NGOs) 
may  be  confident  that  fair  trial  rights  are  observed  in  each  national  system.  The 
evaluation  and  monitoring  should  be  carried  out  under  the  supervision  of  the 
Commission.  An  independent  team  may  be  employed  to  carry  out  the  necessary 
research and analysis.  

In its resolution of 5 July 2001 on the situation as regards fundamental rights in the 
European  Union,  the  European  Parliament  recommended  that  "a  network  be  set  up 
consisting of legal experts who are authorities on human rights and jurists from each 
of  the  Member  States,  to  ensure  a  high  level  of  expertise  and  enable  Parliament  to 
receive an assessment of the implementation of each of the rights laid down notably 
in the Charter, taking account of developments in national laws, the case law of the 
Court  of  Justice  of  the  European  Communities  and  the  European  Court  of  Human 
Rights  and  any  notable  case  law  of  the  Member  States'  national  and  constitutional 
courts"37.  A  Network  of  Independent  Experts  on  Fundamental  Rights  ("the 
Network") has been set up and submitted its first report on 31 March 2003. Its tasks 
include preparing an annual report on the situation as regards fundamental rights in 
the European Union. In this connection, it is examining compliance with Articles 47 
and 48 of the CFREU38. Article 47 CFREU provides: "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  insofar  as  such  aid  is  necessary  to  ensure  effective  access  to 
justice."  Article  48  CFREU  provides  "[…]  Respect  for  the  rights  of  the  defence  of 
anyone who has been charged shall be guaranteed". 

84. 

It could be appropriate to make use of the evaluation carried out by the Network in 
respect  of  Articles  47  and  48  of  the  CFREU  and  to  assess  whether  this  could  be  a 
suitable  long-term  solution.  The  Commission  may  subsequently  decide  upon  a 
different system of evaluation and monitoring. If the Network were to cease to carry 
out  its  functions,  or  to  provide  the  necessary  services,  or  the  Commission  were  to 
decide upon a different system of evaluation and monitoring, another suitable body 

37 

38 

European Parliament resolution on the situation as regards fundamental  rights in the European Union 
(2000) (2000/2231(INI)). 
OJ C 364 of 18.12.2000. 

18 

 
 
  
 
                                                 
could  be  appointed  to  analyse  the  data  and  information  provided  by  the  Member 
States in accordance with the provisions of the Framework Decision. 

85. 

Evaluation  and  monitoring  will  benefit  all  Member  States.  It  will  enable  them  to 
show  other  countries  that  they  observe  fair  trial  rights  and  it  will  enable  them  to 
reassure those implementing the measures of the Mutual Recognition Programme in 
their home State, should such reassurance prove necessary, that safeguards ensuring 
equivalent  fair  trial  standards  are  operated  in  other  Member  States.  The  evaluation 
shall  be  for  the  purpose  of  general  assessment,  and  decisions  of  courts  will  not  be 
examined. 

Article 16 - Duty to collect data 

86. 

In  order  for  the  Framework  Decision  to  be  monitored,  and  for  the  necessary 
evaluation  of  compliance  to  be  carried  out,  Article  16  places  an  obligation  on 
Member States to collect relevant data and this data must also be analysed in order to 
be meaningful. Member States must provide relevant statistics, inter alia, as regards 
the following: 

(a) 

(b) 

(c) 

(d) 

(e) 

the total number of persons questioned in respect of a criminal charge, 
the number of persons charged with a criminal offence, whether legal 
advice was given and in what percentage of cases it was given free or 
partly free, 

the number of persons questioned in respect of a criminal offence and 
whose understanding of the language of the proceedings was such as 
to  require  the  services  of  an  interpreter  during  police  questioning.  A 
breakdown of the nationalities should also be recorded, together with 
the number of persons requiring sign language interpreting, 

the number of persons questioned in respect of a criminal offence who 
were foreign nationals and in respect of whom consular assistance was 
sought. The number of foreign suspects refusing the offer of consular 
assistance should be recorded. A breakdown of the nationalities of the 
suspects should also be recorded,  

the number of persons charged with a criminal offence and in respect 
of whom the services of an interpreter were requested before trial, at 
trial  and/or  at  any  appeal  proceedings.  A  breakdown  of  the 
nationalities and the languages involved should also be recorded, 

the number of persons charged with a criminal offence and in respect 
of  whom  the  services  of  a  translator  were  requested  in  order  to 
translate  documents  before  trial,  at  trial  or  during  any  appeal 
proceedings.  A  breakdown  of  the  nationalities  and  the  languages 
involved should also be recorded. The number of persons requiring a 
sign language interpreter should be recorded, 

(f) 

the number of persons questioned and/or charged in connection with a 
criminal  offence  who  were  deemed  not  to  be  able  to  understand  or 
follow  the  content  or  the  meaning  of  the  proceedings  owing  to  age, 

19 

 
 
  
 
mental, physical or emotional condition, together with statistics about 
the type of any specific attention given, 

(g) 

the number of Letters of Rights issued to suspects and a breakdown of 
the languages in which these were issued.  

Article 17 - Non-regression clause 

87. 

The purpose of this Article is to ensure that the Framework Decision does not have 
the  effect  of  lowering  standards  in  Member  States.  During  the  consultation  phase, 
representatives  of  certain  Member  States  expressed  concern  that  this  would  result 
from setting common minimum standards. Member States remain entirely at liberty 
to set standards higher than those agreed in this Framework Decision. 

Article 18 - Implementation  

88. 

This  Article  requires  that  Member  States  must  implement  the  Framework  Decision 
by 1 January 2006 and, by the same date, send the text of the provisions transposing 
it  into  national  law  to  the  Council  Secretariat  General  and  the  Commission.  Six 
months after implementation, the Commission must submit a report to the European 
Parliament and to the Council, assessing the extent to which the Member States have 
taken  the  necessary  measures  in  order  to  comply  with  this  Framework  Decision, 
accompanied, if necessary, by legislative proposals. 

Article 19 - Entry into Force 

89. 

This  Article  provides  that  the  Framework  Decision  will  enter  into  force  on  the 
twentieth day following that of its publication in the Official Journal of the European 
Union. 

Annex A - model common wording to be used in the "Letter of Rights" 

90. 

Annex  A  provides  a  model  for  the  common  wording  to  be  used  in  the  "Letter  of 
rights".  It  sets  out  as  headings  the  rights  stemming  from  this  Framework  Decision 
and  that  the  Commission  considers  to  be  the  basic  common  rights  that  a  suspect 
should  be  given  on  arrest  (right  to  legal  advice,  right  to  an  interpreter,  decision  on 
specific attention, right to communicate with consular authorities for foreigners). 

20 

 
 
  
 
2004/0113 (CNS) 

Proposal for a  

COUNCIL FRAMEWORK DECISION 

on certain procedural rights in criminal proceedings throughout the European Union 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 31(1) (c) thereof, 

Having regard to the proposal of the Commission39, 

Having regard to the opinion of the European Parliament40, 

Whereas,  

(1) 

(2) 

(3) 

The European Union has set itself the objective of maintaining and developing an area 
of  freedom,  security  and  justice.  According  to  the  Conclusions  of  the  Tampere 
European  Council of 15 and 16  October 1999 and in particular point 33 thereof,  the 
principle of mutual recognition should become the cornerstone of judicial cooperation 
in both civil and criminal matters within the Union.  

On  29  November  2000  the  Council,  in  accordance  with  the  Tampere  conclusions, 
adopted a programme of measures to implement the principle of mutual recognition in 
criminal matters41. The introduction to the Programme of measures states that mutual 
recognition is “designed to strengthen cooperation between Member States but also to 
enhance the protection of individual rights”42. 

Implementation of the principle of mutual recognition of decisions in criminal matters 
presupposes  that  Member  States  have  trust  in  each  other’s  criminal  justice  systems. 
The extent of the mutual recognition exercise is very much dependant on a number of 
include 
parameters  which  determine 
“mechanisms for safeguarding the rights of […] suspects” (parameter 3) and “common 
minimum  standards  necessary  to  facilitate  the  application  of  the  principle  of  mutual 
recognition”.  

its  effectiveness.43  These  parameters 

(4)  Mutual recognition can only operate effectively in a spirit of confidence, whereby not 
only the judicial authorities, but all actors in the criminal process see decisions of the 
judicial authorities of other Member States as equivalent to their own and do not call 
in question their judicial capacity and respect for fair trial rights. This is important so 
as  to  enhance  a  general  perception  of  mutual  recognition  which  is  positive,  and  that 

39 
40 
41 
42 
43 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C 12, 15.1.2001, p. 10.  
OJ C 12, 15.1.2001, p. 10. 
OJ C 12, 15.1.2001, p. 10. 

21 

 
 
  
 
                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

involves "not only trust in the adequacy of one's partner's rules, but also trust that these 
rules are correctly applied"44. 

All  Member  States  are  parties  to  the  European  Convention  for  the  Protection  of 
Human  Rights and Fundamental  Freedoms (ECHR). However experience has shown 
that,  despite  the  need  for  such  confidence,  there  is  not  always  sufficient  trust  in  the 
criminal justice systems of other Member States and this notwithstanding the fact that 
they  are  all  signatories  to  the  ECHR.  The  rights  proposed  will  operate  so  as  to 
strengthen mutual trust and thereby enhance the operation of mutual recognition. 

The Council Framework Decision of 13 June 2002 on the European arrest warrant and 
the surrender procedures between Member States45 was the first concrete measure in 
the  field  of  criminal  law  implementing  the  principle  of  mutual  recognition.  This  has 
been followed by a Framework Decision on orders for freezing property or evidence46. 
Other  planned  measures  in  the  Programme  relate  to  confiscation  orders,  financial 
penalties and transmission of evidence and criminal records. 

The  principle  of  mutual  recognition  is  based  on  a  high  level  of  confidence  between 
Member  States.  In  order  to  enhance  this  confidence,  this  Framework  Decision 
provides certain safeguards to protect fundamental rights. These safeguards reflect the 
traditions of the Member States in following the provisions of the ECHR. 

The  proposed  provisions  are  not  intended  to  affect  specific  measures  in  force  in 
national  legislations  in  the  context  of  the  fight  against  certain  serious  and  complex 
forms of crime in particular terrorism. 

Article 31(1) (c) of the TEU provides for “ensuring compatibility in rules applicable in 
the Member States as may be necessary to improve [judicial co-operation in criminal 
matters]".  If  common  minimum  standards  are  applied to  basic procedural safeguards 
throughout the European Union, this will lead to increased confidence in the criminal 
justice  systems  of  all  the  Member  States  which  in  turn  will  lead  to  more  efficient 
judicial cooperation in a climate of mutual trust. 

(10)  Five areas have been identified as appropriate ones in which common standards may 
be  applied  in  the  first  instance.  These  are:  access  to  legal  representation,  access  to 
interpretation  and  translation,  ensuring  that  persons  in  need  of  specific  attention 
because  they  are  unable  to  follow  the  proceedings  receive  it,  consular  assistance  to 
foreign detainees and notifying suspects and defendants of their rights in writing. 

(11)  The package of measures will ensure that the rights of the foreign suspect or defendant 
are protected even if he does not understand the language of the host country or have 
any  knowledge  of  the  criminal  justice  system.  Ensuring  that  the  rights  of  foreign 
suspects and defendants are properly respected will have the dual effect of improving 
each  Member  State’s  perceptions  of  the  justice  systems  of  the  other  Member  States 
and filter-down consequences for all suspects and defendants. 

44 
45 
46 

COM(2000) 495 final, 26.7.2000, p. 4. 
OJ L 190, 18.7.2002, p. 1. 
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of 
orders freezing property or evidence. OJ L 196 of 2.8.2003, p. 45. 

22 

 
 
  
 
                                                 
(12)  The right to legal assistance is enshrined in Article 6 of the ECHR. The provisions of 
this Framework Decision do not impose obligations on Member States that go further 
than the ECHR, but merely set out common ways of complying with Article 6 of the 
ECHR.  The  moment  from  when  the  right  to  legal  advice  arises  is  clarified  together 
with  the  circumstances  in  which  legal  advice  should  be  free.  In  some  cases,  the 
requirement  that  proceedings  be  fair  dictates  that  the  defendant  should  receive  legal 
advice,  notwithstanding  the  right  to  defend  oneself.  This  is  laid  down  in  the 
Framework Decision, together with an indication of which defendants should receive 
legal advice, that legal advice should be provided by suitably qualified professionals 
and the fact that the costs of the legal advice should not entail undue hardship for those 
defendants or their dependants. Member States are therefore required to ensure that the 
costs  of  providing  legal  advice  in  those  circumstances  is  met  in  whole  or  in  part  by 
their criminal justice systems. 

(13)  The right to free and accurate linguistic assistance – interpretation and translation - for 
foreigners  and,  where  necessary,  for  those  suffering  from  hearing  or  speech 
impairments  is  also  enshrined  in  Article  6  of  the  ECHR.  The  provisions  of  this 
Framework Decision do not impose obligations on Member States that go further than 
the ECHR, but merely set out common ways of complying with Article 6 of the ECHR 
in  accordance  with  the  case-law  of  the  European  Court  of  Human  Rights  and  of 
verifying that the interpretation and translation provided is accurate.  

(14)  The  duty  of  care  towards  suspected  persons  unable  to  understand  or  follow  the 
proceedings underpins a fair administration of justice. Where the suspected person is 
in  a  potentially  weak  position  owing  to  his  age,  mental,  physical  or  emotional 
condition, the balance of power may lie with the prosecution, the law enforcement and 
judicial authorities. It is appropriate therefore for those authorities to be aware of any 
potential  vulnerability  and  to  take  any  appropriate  steps,  thereby  helping  to  redress 
that balance. Accordingly, the provisions of this Framework Decision are designed to 
enhance the position of those persons by laying down certain specific rights.  

(15)  The right for detained persons to have family, persons assimilated to family members 
and employers informed promptly of the detention is laid down where the proceedings 
are not jeopardised by such information being passed. The right to have any relevant 
consular  authorities  contacted  is  also  laid  down.  The  broader  context  is  that  of  the 
detained person’s right to have access to the outside world. 

(16)  The  right  to  consular  assistance  exists  by  virtue  of  Article  36  of  the  1963  Vienna 
Convention  on  Consular  Relations  where  it  is  a  right  conferred  on  States  to  have 
access to their nationals. The provisions of this Framework Decision confer the right 
on the European citizen rather than the State. They enhance its visibility and therefore 
its  effectiveness.  That  said,  in  the  longer  term,  the  creation  of  an  area  of  freedom, 
security  and  justice  in  which  trust  is  reciprocated  between  Member  States  should 
reduce and ultimately abolish the need for consular assistance. 

(17)  Notifying  suspects  and  defendants  of  their  basic  rights  in  writing  is  a  measure  that 
improves  fairness  in  proceedings,  and  goes  some  way  to  ensuring  that  everyone 
suspected of, or charged with, a criminal offence is aware of their rights. If suspects 
and defendants are unaware of them, it is more difficult for them to insist upon having 
the benefit of those rights. Giving suspects written notification of their rights, by way 
of a simple "Letter of Rights", will remedy this problem. 

23 

 
 
  
 
(18) 

It is necessary to establish a mechanism to assess the effectiveness of this Framework 
Decision.  Member  States  should  therefore  gather  and  record  information  for  the 
purpose  of  evaluation  and  monitoring.  The  information  gathered  will  be  used  by  the 
Commission to produce reports that will be made publicly available. This will enhance 
mutual  trust  since  each  Member  State  will  know  that  other  Member  States  are 
complying with fair trial rights.  

(19)  Since  the  aim  of  achieving  common  minimum  standards  cannot  be  achieved  by  the 
Member  States  acting  unilaterally  and  can  only  be  achieved  at  Union  level,  the 
Council  may  adopt  measures  in  accordance  with  the  principle  of  subsidiarity  as 
referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty 
establishing  the  European  Community.  In  accordance  with  the  principle  of 
proportionality, as set  out  in  the  latter Article, this Framework Decision does  not go 
beyond what is necessary in order to achieve that objective. 

(20)  This  Framework  Decision  aims  to  strengthen  the  fundamental  rights  and  principles 
recognised by Article 6 of the Treaty on European Union and reflected by the Charter 
of Fundamental Rights of the European Union and in particular its Articles 47 to 50. It 
cannot lead to divergent judicial interpretations of the relevant provisions of the ECHR 
since the reference to fundamental rights in Article 6 TEU is necessarily contingent on 
their interpretation in the European Court of Human Rights case-law. 

HAS ADOPTED THIS FRAMEWORK DECISION 

ON CERTAIN PROCEDURAL RIGHTS IN CRIMINAL PROCEEDINGS THROUGHOUT 
THE EUROPEAN UNION: 

Article 1 

Scope of application of procedural rights 

1. 

2. 

This  Framework  Decision  lays  down  the  following  rules  concerning  procedural 
rights applying in all proceedings taking place within the European Union aiming to 
establish the guilt or innocence of a person suspected of having committed a criminal 
offence, or to decide on the outcome following a guilty plea in respect of a criminal 
charge. It also includes any appeal from these proceedings. 

Such proceedings are referred to hereafter as “criminal proceedings”. 

The rights will apply to any person suspected of having committed a criminal offence 
(“a  suspected  person”)  from  the  time  when  he  is  informed  by  the  competent 
authorities  of  a  Member  State  that  he  is  suspected  of  having  committed  a  criminal 
offence until finally judged.  

Article 2 

The right to legal advice 

1. 

A suspected person has the right to legal advice as soon as possible and throughout 
the criminal proceedings if he wishes to receive it.  

24 

 
 
  
 
2. 

A suspected person has the right to receive legal advice before answering questions 
in relation to the charge.  

Article 3 

Obligation to provide legal advice 

Notwithstanding the right of a suspected person to refuse legal advice or to represent himself 
in any proceedings, it is required that certain suspected persons be offered legal advice so as 
to  safeguard  fairness  of  proceedings.  Accordingly,  Member  States  shall  ensure  that  legal 
advice is available to any suspected person who: 

– 

– 

– 

– 

– 

is remanded in custody prior to the trial, or 

is formally accused of having committed a criminal offence which involves a 
complex factual or legal situation or which is subject to severe punishment, in 
particular where in a Member State, there is a mandatory sentence of more than 
one year’s imprisonment for the offence, or 

is  the  subject  of  a  European  Arrest  Warrant  or  extradition  request  or  other 
surrender procedure, or 

is a minor, or 

appears not to be able to understand or follow the content or the meaning of the 
proceedings owing to his age, mental, physical or emotional condition.  

Article 4 

Obligation to ensure effectiveness of legal advice 

Member  States  shall  ensure  that  only  lawyers  as  described  in  Article  1  (2)  (a)  of 
Directive  98/5/EC47  are  entitled  to  give  legal  advice  in  accordance  with  this 
Framework Decision. 

Member States shall ensure that a mechanism exists to provide a replacement lawyer 
if the legal advice given is found not to be effective. 

Article 5 

The right to free legal advice  

Where Article 3 applies, the costs of legal advice shall be borne in whole or in part 
by  the  Member  States  if  these  costs  would  cause  undue  financial  hardship  to  the 
suspected person or his dependents.  

1. 

2. 

1. 

47 

Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 

25 

 
 
  
 
                                                 
2. 

1. 

2. 

3. 

1. 

2. 

1. 

2. 

Member  States  may  subsequently  carry  out  enquiries  to  ascertain  whether  the 
suspected  person’s  means  allow  him  to  contribute  towards  the  costs  of  the  legal 
advice with a view to recovering all or part of it. 

Article 6 

The right to free interpretation 

Member  States  shall  ensure  that  a  suspected  person  who  does  not  understand  the 
language of the proceedings is provided with free interpretation in order to safeguard 
the fairness of the proceedings. 

Member States shall ensure that, where necessary, a suspected person receives free 
interpretation of legal advice received throughout the criminal proceedings. 

The  right  to  free  interpretation  applies  to  persons  with  hearing  or  speech 
impairments. 

Article 7 

The right to free translation of relevant documents 

Member  States  shall  ensure  that  a  suspected  person  who  does  not  understand  the 
language  of  the  proceedings  is  provided  with  free  translations  of  all  relevant 
documents in order to safeguard the fairness of the proceedings. 

The decision regarding which documents need to be translated shall be taken by the 
competent  authorities.  The  suspected  person’s  lawyer  may  ask  for  translation  of 
further documents.  

Article 8 

Accuracy of the translation and interpretation 

Member  States  shall  ensure  that  the  translators  and  interpreters  employed  are 
sufficiently qualified to provide accurate translation and interpretation.  

Member States shall ensure that if the translation or interpretation is found not to be 
accurate, a mechanism exists to provide a replacement interpreter or translator.  

Article 9 

Recording the proceedings 

Member States shall ensure that, where proceedings are conducted through an interpreter, an 
audio  or  video  recording  is  made  in  order  to  ensure  quality  control.  A  transcript  of  the 
recording shall be provided to any party in the event of a dispute. The transcript may only be 
used for the purposes of verifying the accuracy of the interpretation. 

26 

 
 
  
 
1. 

2. 

3. 

1. 

2. 

3. 

1. 

2. 

1. 

Article 10 

The right to specific attention 

Member States shall ensure that a suspected person who cannot understand or follow 
the content or the meaning of the proceedings owing to his age, mental, physical or 
emotional  condition  is  given  specific  attention  in  order  to  safeguard  the  fairness  of 
the proceedings.  

Member States shall ensure that the competent authorities are obliged to consider and 
record in writing the need for specific attention throughout the proceedings, as soon 
as there is any indication that Article 10(1) applies.  

Member States shall ensure that any step taken as a consequence of this right shall be 
recorded in writing. 

Article 11 

The rights of suspected persons entitled to specific attention 

Member  States  shall  ensure  that  an  audio  or  video  recording  is  made  of  any 
questioning  of  suspected  persons  entitled  to  specific  attention.  A  transcript  of  the 
recording shall be provided to any party in the event of a dispute. 

Member States shall ensure that medical assistance is provided whenever necessary. 

Where  appropriate,  specific  attention  may  include  the  right  to  have  a  third  person 
present during any questioning by police or judicial authorities.  

Article 12 

The right to communicate 

A  suspected  person  remanded  in  custody  has  the  right  have  his  family,  persons 
assimilated  to  his  family  or  his  place  of  employment  informed  of  the  detention  as 
soon as possible.  

The competent authorities may communicate with the persons specified in Article 12 
(1)  by  using  any  appropriate  mechanisms,  including  consular  authorities  if  the 
suspect is a national of another State and if he so wishes.  

Article 13 

The right to communicate with consular authorities  

Member States shall ensure  that a detained suspected person who is a non-national 
shall have the right to have the consular authorities of his home State informed of the 
detention as soon as possible and to communicate with the consular authorities if he 
so wishes. 

27 

 
 
  
 
2. 

3. 

1. 

2. 

3. 

4. 

1. 

2. 

Member States shall ensure that, if a detained suspected person does not wish to have 
assistance  from  the  consular  authorities  of  his  home  State,  the  assistance  of  a 
recognised international humanitarian organisation is offered as an alternative. 

Member States shall ensure that a long-term non-national resident of an EU Member 
State shall be entitled to have the assistance of the consular authorities of that State 
on  the  same  basis  as  its  own  nationals  if  he  has  good  reason  for  not  wanting  the 
assistance of the consular authorities of his State of nationality. 

Article 14 

Duty to inform a suspected person of his rights in writing - Letter of Rights 

Member  States  shall  ensure  that  all  suspected  persons  are  made  aware  of  the 
procedural  rights  that  are  immediately  relevant  to  them  by  written  notification  of 
them. This information shall include, but not be limited to, the rights set out in this 
Framework Decision. 

Member  States  shall  ensure  that  a  standard  translation  exists  of  the  written 
notification  into  all  the  official  Community  languages.  The  translations  should  be 
drawn  up  centrally  and  issued  to  the  competent  authorities  so  as  to  ensure  that  the 
same text is used throughout the Member State. 

Member  States  shall  ensure  that  police  stations  keep  the  text  of  the  written 
notification  in  all  the  official  Community  languages  so  as  to  be  able  to  offer  an 
arrested person a copy in a language he understands. 

Member States shall require that both the law enforcement officer and the suspect, if 
he is willing, sign the Letter of Rights, as evidence that it has been offered, given and 
accepted.  The  Letter  of  Rights  should  be  produced  in  duplicate,  with  one  (signed) 
copy  being  retained  by  the  law  enforcement  officer  and  one  (signed)  copy  being 
retained by the suspect. A note should be made in the record stating that the Letter of 
Rights was offered, and whether or not the suspect agreed to sign it. 

Article 15 

Evaluating and monitoring the effectiveness of the Framework Decision 

Member  States  shall  facilitate  the  collection  of  the  information  necessary  for 
evaluation and monitoring of this Framework Decision. 

Evaluation and monitoring shall be carried out under the supervision of the European 
Commission  which  shall  co-ordinate  reports  on  the  evaluation  and  monitoring 
exercise. Such reports may be published. 

28 

 
 
  
 
Article 16 

Duty to collect data 

1 

In order that evaluation and monitoring of the provisions of this Framework Decision 
may be carried out, Member States shall ensure that data such as relevant statistics 
are kept and made available , inter alia, as regards the following: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

the total number of persons questioned in respect of a criminal charge, 
the number of persons charged with a criminal offence, whether legal 
advice was given and in what percentage of cases it was given free or 
partly free, 

the number of persons questioned in respect of a criminal offence and 
whose understanding of the language of the proceedings was such as 
to  require  the  services  of  an  interpreter  during  police  questioning.  A 
breakdown of the nationalities should also be recorded, together with 
the number of persons requiring sign language interpreting, 

the number of persons questioned in respect of a criminal offence who 
were foreign nationals and in respect of whom consular assistance was 
sought. The number of foreign suspects refusing the offer of consular 
assistance should be recorded. A breakdown of the nationalities of the 
suspects should also be recorded,  

the number of persons charged with a criminal offence and in respect 
of whom the services of an interpreter were requested before trial, at 
trial  and/or  at  any  appeal  proceedings.  A  breakdown  of  the 
nationalities and the languages involved should also be recorded, 

the number of persons charged with a criminal offence and in respect 
of  whom  the  services  of  a  translator  were  requested  in  order  to 
translate  documents  before  trial,  at  trial  or  during  any  appeal 
proceedings.  A  breakdown  of  the  nationalities  and  the  languages 
involved should also be recorded. The number of persons requiring a 
sign language interpreter should be recorded, 

the number of persons questioned and/or charged in connection with a 
criminal  offence  who  were  deemed  not  to  be  able  to  understand  or 
follow  the  content  or  the  meaning  of  the  proceedings  owing  to  age, 
mental, physical or emotional condition, together with statistics about 
the type of any specific attention given, 

(g) 

the number of Letters of Rights issued to suspects and a breakdown of 
the languages in which these were issued. 

2. 

Evaluation and monitoring shall be carried out at regular intervals, by analysis of the 
data  provided  for  that  purpose  and  collected  by  the  Member  States  in  accordance 
with the provisions of this article.  

29 

 
 
  
 
Article 17 

Non-regression clause 

Nothing in this Framework Decision shall be construed as limiting or derogating from any of 
the rights and procedural safeguards that may be ensured under the laws of any Member State 
and which provide a higher level of protection. 

Article 18 

Implementation 

1. 

2. 

3. 

4. 

5. 

Member  States  shall  take  the  necessary  measures  to  comply  with  the  provisions  of 
this Framework Decision by 1 January 2006. 

By  the  same  date  Member  States  shall  transmit  to  the  General  Secretariat  of  the 
Council  and  to  the  Commission  the  text  of  the  provisions  transposing  into  their 
national law the obligations imposed on them under this Framework Decision.  

The Commission shall, by 30 June 2006, submit a report to the European Parliament 
and to the Council, assessing the extent to which the Member States have taken the 
necessary measures in order to comply with this Framework Decision, accompanied, 
if necessary, by legislative proposals. 

On the basis of the Commission’s report the Council shall assess the extent to which 
the  Member  States  have  complied  with  this  Framework  Decision  as  regards 
implementation. 

Regular  evaluation  and  monitoring  of  the  operation  of  the  provisions  of  this 
Framework Decision will be carried out in accordance with Article 15 above. 

Article 19 

Entry into force 

This  Framework  Decision  shall  enter  into  force  on  the  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union.  

Done at Brussels, […] 

For the Council 
The President 
[…] 

30 

 
 
  
 
 
 
 
Annex A 

suspect's copy/custody record copy 

Notification of Rights in the [insert language] language 

You, [insert name], are a suspected person in connection with [X criminal offence]. 

A. Notification of rights pursuant to Council Framework Decision …/…/JAI of … 

European Union law requires all Member States of the Union to guarantee common minimum 

standards in respect of certain rights. These rights are listed below, together with the national 

rules which apply these rights and in some cases guarantee additional protection. 

1. 

2. 

3. 

4. 

5. 

Legal advice [See footnote48] 

Right to an interpreter [See footnote] 

Right to translations of relevant documents [See footnote] 

Specific attention [See footnote]  

Communication [See footnote]  

B. 

Other rights 

The following rights are guaranteed to you under the national law of the Member State where 

you are. 

48 

Member States should insert their own text covering the provisions of their national law on this right, 
including the provisions implementing the common minimum standard under the Framework Decision 
and any provisions going beyond that minimum standard. 

31 

 
 
  
 
                                                 
[This section is for other rights than those set out in Box A. Member States should insert 

their own text in this section] 

Signed: 

date:  

…………………….. the custody officer 

…………………….. arrested person 

This letter is produced in duplicate, one copy is to be given to the suspect and one copy kept 

in the custody record. 

32