COMMISSION STAFF WORKING DOCUMENT  SUMMARY OF THE IMPACT ASSESSMENT   accompanying the Proposal for a   Directive of the European Parliament and of the Council  on the right to information in criminal proceedings    {COM(2010) 392 final} {SEC(2010) 907}
Date: 2010-07-20
Institutions: European Commission
Subjects: criminal procedure, fundamental rights, human rights, judicial cooperation, mutual recognition principle, rights of the defence

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 20.7.2010 
SEC(2010) 908 

COMMISSION STAFF WORKING DOCUMENT 

SUMMARY OF THE IMPACT ASSESSMENT 

accompanying the  

Proposal for a  

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the right to information in criminal proceedings 

{COM(2010) 392 final} 
{SEC(2010) 907} 

EN 

   EN 

 
 
  
 
 
 
 
 
 
 
 
COMMISSION STAFF WORKING DOCUMENT  

SUMMARY OF THE IMPACT ASSESSMENT 

1. 

POLICY CONTEXT AND PROCEDURE 

To increase mutual trust, and thus improve the operation of mutual recognition, in November 
2009 the European Council adopted the Roadmap on Procedural Rights1 setting out a step-by-
step approach to strengthening the rights of suspects and accused persons: 

Measures currently envisaged in the Roadmap: 

Measure A: Translation and Interpretation 

Measure B: Information on Rights and Information about the Charges 

Measure C: Legal Advice and Legal Aid 

Measure D: Communication with Relatives, Employers and Consular Authorities 

Measure E: Special Safeguards for Suspected or Accused Persons who are Vulnerable  

This Impact Assessment covers Measure B which aims to improve the situation of suspects by 
ensuring that they receive information about their rights and the case against them in criminal 
proceedings. 

The  Impact  Assessment  is  broadly  empirical:  stakeholders  were  consulted  on  several 
occasions, such as Justice Forum meetings in 2008 and 2009. Recent academic studies have 
also fed into the IA. 

2. 

2.1. 

THE PROBLEM 

Insufficient information in criminal proceedings  

Access  to  information  for  suspects  and  accused  persons  is  a  key  factor  in  ensuring  fair 
proceedings. Suspects cannot be presumed to have enough knowledge of their rights (such as 
the right to legal advice) at the time of arrest to enable them to make effective use of these 
rights. Provision of information on rights is  the gateway to accessing all rights. An accused 
person also needs to know in detail the case against him and what evidence there is in order to 
prepare his defence. 

Suspects  and  accused  persons  do  not  always  receive  this  information.  Member  States  have 
different  systems  for  transmitting  information;  and  some  is  not  transmitted  at  all  in  some 
Member  States.  For  instance,  in  4  Member  States  there  is  no  legal  obligation  to  inform  a 
suspect of the right to legal advice and only in ten Member States is a suspect informed about 
his  rights  by  means  of  written  notification  (Letter  of  Rights).  Law  and  practice  vary 
considerably  from  one  Member  State  to  another  as  regards  information  about  the  case:  a 
written summary may be given or the accused's lawyer may be granted access to the case-file 

1 

OJ C 295, 4.12.2009, p. 1. 

EN 

2 

   EN 

                                                 
and may take copies of the relevant parts. In 3 Member States there is no access to the case 
file and even in those Member States that provide for such access the stage in proceedings at 
which this is granted varies significantly.  

2.1.1.  Adverse effects on criminal proceedings and judicial cooperation  

Where suspects are not adequately informed, criminal proceedings may be unfair and this can 
lead to unnecessary costs owing to protracted proceedings, appeals and aborted prosecutions 
in the Member State where the proceedings take place.  

Insufficient information can lead to problems and costs in other Member States where a court 
in the Member State in which the original criminal proceedings take place seeks cooperation 
from other Member States. EU instruments to facilitate judicial cooperation between Member 
States (such as European Arrest Warrant – EAW) rely on the principle of mutual recognition, 
i.e. the enforcement of a court decision in another Member State without any further review of 
the  decision.  Such  quasi-automatic  recognition  requires  trust  between  judges  and  courts. 
Where  this  trust  is  wanting,  mutual  recognition  will  not  work;  protracted  proceedings  and 
delays  in  the  execution  of  a  foreign  judicial  decision  with  associated  costs  will  ensue.  In  a 
recent  UK  case  allegations  that  a  suspect  had  been  given  insufficient  information  in 
proceedings in the Member State which had issued an EAW for that person's surrender , are 
likely  to  have  contributed  to  surrender  proceedings  taking  more  than  a  year  and  involving 
several appeals to higher courts and an application to the European Court of Human  Rights 
with significant cost implications. 

2.1.2.  Existing legal standards do not offer adequate protection  

Currently, there are no sufficiently high and adequately enforced standards. Whilst minimum 
rights  are  laid  down  in  the  European  Convention  on  Human  Rights  (ECHR),  stakeholders 
agree  that  the  ECHR  and  its  enforcement  mechanism  do  not,  in  all  cases,  offer  sufficient 
protection  in  relation  to  the  provision  of  adequate  information  on  rights  and  charges  in 
particular. This is due to the fact that rights to information under Arts 5 and 6 ECHR does not 
go far enough and applications to the European Court of Human Rights may take years to be 
decided and only lead to an ex post remedy of limited effectiveness. 

2.2. 

Rebalancing EU justice policy and promotion of free movement of EU citizens through 
strengthening of fundamental rights 

Whilst various measures have been taken at EU level to guarantee a high level of safety for 
citizens (such as the introduction of the EAW), no measures on fair trial standards could be 
agreed  in  the  past.  By  adopting  the  Procedural  Rights  Roadmap  in  November  2009,  the 
Council acknowledged the urgent need to take action to strengthen suspects' procedural rights 
in the EU. The Roadmap paves the way for EU action ensuring fundamental rights protection 
beyond that offered by the ECHR. This would also give a specific EU meaning to the fair trial 
isafeguards enshrined in Arts 47 and 48 of the Charter of Fundamental Rights of the EU and 
also contribute towards removing real or perceived obstacles to free movement of citizens as 
guaranteed by Art 21(2) TFEU. 

2.3. 

Current and prospective scope of the problem 

Whilst data on the number of proceedings in which lack of information is complained about is 
not  available,  stakeholders  report  that  the  problem  of  insufficient  information,  whilst  not 
endemic, is acute and not limited to specific Member States.  Mutual trust between Member 
States' judicial authorities is expected to remain at the current insufficient level as it is likely 

EN 

3 

   EN 

that  instances  of  Member  States'  authorities  failing  to  provide  suspects  or  accused  persons 
with information recur. As increased movement of citizens between Member States will lead 
to a greater need for judicial cooperation and as further EU judicial cooperation measures will 
have to be implemented and applied in the near future, the need to improve mutual trust will 
become even more urgent. 

2.4. 

The EU's power to act 

Under  Art  82(2)(b)  TFEU,  minimum  rules  concerning  the  rights  of  individuals  in  criminal 
proceedings  may  be  adopted  by  means  of  directives  to  the  extent  necessary  to  facilitate 
mutual  recognition  of  judgments  and  judicial  decisions  and  judicial  cooperation  in  criminal 
matters  having  a  cross-border  dimension.  As  there  are  currently  wide  differences  between 
Member  States  in  terms  of  the  provision  of  information,  it  is  unlikely  that  Member  States 
acting  individually  would  be  able  to  establish  a  sufficiently  high  standard  of  provision  of 
information across the EU; this can only be achieved by action taken at EU level. 

3. 

OBJECTIVES  

General: 

To improve judicial cooperation by restoring mutual trust between Member States in the fair operation of 
the criminal justice systems  

To  ensure  a  high  level  of  protection  of  fundamental  rights  in  criminal  proceedings,  thus  fostering  free 
movement of EU citizens throughout the EU 

Specific: 

To  facilitate  execution  and  enforcement  of 
judicial  decisions  in  criminal  matters  by 
ensuring 
that  suspects  receive  sufficient 
information  on  their  rights,  preferably  in 
writing, for them to exercise effectively their 
defence rights  

To  facilitate  execution  and  enforcement  of  judicial 
decisions  in  criminal  matters  by  ensuring  that  accused 
persons  receive  sufficiently  detailed  information  on  the 
case  against  them  in  order  to  enable  them  adequately  to 
prepare their defence or challenge pre-trial decisions  

Operational: 

Information  provided  to  suspects  on  their 
fair trial rights should:  

Information  provided  to  accused  persons  on  the  charge  or 
accusation should: 

•  be  in  clear  language  which  will  be  easily 

•  be  sufficiently  detailed  to  allow  adequate  preparation  of 

understood by the suspect  

the defence or challenge of pre-trial decisions 

•  be provided at first contact with the police 

•  be provided in a timely fashion and in such a way that the 

• 

include  core  rights  under  the  ECHR  and 
CFREU which are applicable on arrest, first 
interrogation and during detention 

•  be provided in such a way that it is possible 
to  verify  that  the  information  has  been 
transmitted 

accused understands the case against him 

•  be provided in such a way that it is possible to verify that 

the information has been transmitted 

EN 

4 

   EN 

4. 

POLICY OPTIONS AND THEIR IMPACT 

•  Retention of the status quo: This option would involve taking no action at EU level.  

•  Policy  options  A  addressing  the  problem  of  suspects  not  always  receiving  adequate 

information about rights: 

Non-legislative action: 

•  Policy option A1: EU-wide information campaign on minimum defence rights 

•  Policy  option  A2:  Council  Recommendation  on  good  practice  on  informing 

suspects and accused persons of their rights 

EU legislative action: 

•  Policy option A3: EU-wide duty to inform suspects about their rights by means of 

Member States' choosing 

•  Policy option A4: EU-wide duty to inform suspects under arrest about their rights 
by  means  of  a  Letter  of  Rights  to  be  drafted  by  Member  States,  containing  a 
common minimum set of rights (ECHR rights and EU law), with Member States to 
add further rights available under their own legislation 

•  Policy option A5: EU-wide duty to inform suspects under arrest about their rights 
by means of a Letter of Rights which includes standard EU-wide formulations of 
minimum rights as set out in an Annex to the Directive 

Policy  options  B  addressing  the  problem  of  accused  persons  not  always  receiving  adequate 
information about the case against them promptly, in detail and in a language they understand: 

Non-legislative action: 

•  Policy  option  B1:  Council  Recommendation  on  good  practice  and  training  on 

informing accused persons of the case against them. 

EU legislative action: 

•  Policy option B2: EU-wide duty to inform accused persons about the case against 

them by means of Member States' choosing 

•  Policy  option  B3:  EU-wide  duty  to  inform  accused  persons  of  the  case  against 

them including granting them (or their lawyer) access to the case-file  

EN 

5 

   EN 

 
 
5. 

COMPARISON OF POLICY OPTIONS 

The tables below set out a comparison of the relative rating of the policy options against the specific 
and  operational  objectives.  The  options  are  classified  according  to  their  potential  to  meet  the 
objectives defined in part 3. Ratings for expected effectiveness in achieving the objectives are given 
equal weight in the final sum.  

Options A5 and B3 demonstrate the highest potential and are therefore preferred options. 

Table 5.1 - Comparison of ratings of policy options A: 

Objectives/cost 

Status quo 

 A1 

 A2  

 A3 

 A4  

 A5  

To ensure that 
suspects receive 
sufficient 
information to be 
able to exercise 
them efficiently 

To provide 
information in 
clear language 
which will be 
easily understood 
by the suspect  

To provide 
information at 
first contact with 
the police and 
include core 
rights under the 
ECHR and the 
CFREU which 
are applicable on 
arrest, first 
interrogation and 
during detention 

To ensure a 
means of 
verifying that the 
information has 
been transmitted 

To improve 
Member States' 
confidence in the 
fair operation of 
the criminal 
justice systems 
throughout the 

0 

0 

√ 

√√ 

√√√ 

√√√√ 

√√√√√ 

√ 

√√ 

√√√ 

√√√√ 

√√√√√ 

0 

√ 

√√ 

√√ 

√√√√ 

√√√√√ 

0 

0 

√ 

√ 

√√ 

√√√√ 

√√√√√ 

√ 

√ 

√√ 

√√√√ 

√√√√√ 

EN 

6 

   EN 

 
Table 5.1 - Comparison of ratings of policy options A: 

Objectives/cost 

Status quo 

 A1 

 A2  

 A3 

 A4  

 A5  

EU 

Total score: 

0 

5 

8 

12 

20 

25 

Financial burden 
per MS2 

Potential costs 
savings in MS in 
which criminal 
proceedings take 
place 

- 

- 

100.000 € - 10 
million € 
(overall costs 
for EU) 

One-off set-up: 
0 € - 2.5 
million € 

One-off set-up: 
0 € - 2.5 
million € 

One-off set-up: 
15,000 € - 2.5 
million € 

One-off set-up: 
5,000 € - 2.5 
million € 

Operational per 
year: 0 € - 4.6 
million €  

Operational per 
year: 5,000 € - 
4.6 million € 

Operational per 
year: 5,000 € - 
4.6 million € 

Operational per 
year: 5,000 € - 
4.6 million € 

low 

low  

low to medium 

medium  

medium to high 

Table 5.2 – Comparison of ratings of policy options B: 

Objectives/cost 

Status quo 

B1  

B2  

B3  

To ensure that the 
accused receives 
sufficiently 
detailed 
information on 
the case to enable 
them adequately 
to prepare their 
defence or 
challenge pre-trial 
decisions  

0 

√√ 

√√√ 

√√√√√ 

2 

Range  based  on  model  calculation  for  those  MS  most  likely  to  incur  implementation  costs  due  to 
current  practice  diverging  from  the  one  envisaged  in  the  option. Due  to  lack  of  available  statistical 
data, figures on operational costs do not take into account the current level of operational costs so 
that  the  added  financial  burden  of  implementation  of  the  option  cannot  be  calculated  with 
precision but can expected to be a fraction of the indicative figure presented here. 

EN 

7 

   EN 

 
 
 
 
 
 
 
                                                 
Table 5.2 – Comparison of ratings of policy options B: 

Objectives/cost 

Status quo 

B1  

B2  

B3  

To provide 
information in a 
timely fashion, in 
such a way that 
the accused 
understands the 
case against him 

To ensure a 
means of 
verifying that the 
information has 
been transmitted 

To improve 
Member States' 
confidence in the 
fair operation of 
the criminal 
justice systems 
throughout the 
EU 

Total score: 

Financial burden 
per MS3 

Potential costs 
savings in MS in 
which criminal 
proceedings take 
place 

0 

0 

0 

0 

- 

- 

√ 

√√√ 

√√√√ 

√ 

√√ 

√√√ 

√ 

√√√ 

√√√√√ 

5 

11 

17 

One-off: 0 € - 
2.6 million € 

One-off: 0 € - 
2.6 million € 

Operational: 
270,000 € - 21 
million € 

Operational: 
1000,000 € - 30 
million € 

One-off: 9,000 
€ - 2.6 million 
€ 

Operational: 
270,000 € - 21 
million € 

low 

low  

medium 

3 

The caveat in footnote 2 applies. 

EN 

8 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
6. 

THE PREFERRED OPTION 

The preferred option is a combination of options A5 and B3: 

Adoption of a Directive which obliges Member States to ensure  

•  that suspects and accused persons under arrest are informed of their rights in the criminal 
proceedings by means of a Letter of Rights in a language they understand as drawn up by 
Member  States  containing  a  standard  EU-wide  formulation  of  the  minimum  fair  trial 
rights as set out in an Annex to the Directive and, where available, further rights pursuant 
to Member States' respective laws, and 

•  that  suspects  and  accused  persons  are  informed  of  the  case  against  them  which  has  to 

include granting them (or their lawyer) access to the case file free of charge. 

6.1. 

EU added value and proportionality of the preferred option 

The  preferred  option  creates  new,  EU-wide  uniform  duties  (use  of  a  Letter  of  Rights  and 
access to the case-file). This harmonising effect marks the preferred option's effectiveness in 
ensuring  the  provision  of  adequate  information  and  in  promoting  trust  in  the  fairness  of 
proceedings in other Member States. Whilst options A5 and B3 create new duties they do so 
only in relation to the core subject-matter of this measure: the right to information. They do 
not create new rights unrelated to the provision of information. 

Both  aspects  of  the  preferred  option  are  proportionate:  although  both  are  likely  to  require  a 
number of Member States to introduce changes to their criminal procedure laws, there is no 
other effective means of ensuring that suspects receive comprehensive information.  

6.2. 

Financial impact on Member States 

The  main  financial  impact  of  option  A5  is  one-off  set-up/inception  costs  incurred  for  the 
introduction of Letter of Rights schemes. These consist primarily of the costs of drafting the 
Letters, translating them and training police officers and, if necessary, prosecutors and judges. 
These  costs  are  likely  to  range  from  10,000  €  to  2.5  million  €  per  Member  State  (model 
calculations for Malta provide a range of 10,600 € - 70,000 € and for France of 655,000 € - 
2.5 million €). It is likely that the actual costs will tend towards the bottom of the costs ranges. 
The  effect  of  option  A5  on  operational  costs  per  Member  State  depends  primarily  what 
information  on  rights  is  already  provided  to  suspects  and  the  time  this  takes.  Budgetary 
implications  on  Member  States  already  operating  Letter  of  Rights  schemes  are  likely  to  be 
minimal. For those that currently inform suspects orally about  their rights, the  effect on  per 
case costs will depend on the level of detail of the oral information currently provided.  

As  for  option  B3  most  Member  States  will  incur  negligible  one-off  costs  only  when 
implementing the Directive, as they already allow access to the case-file. Thus, one-off costs 
for  introducing  access  to  the  case  file  are  expected  only  for  those  3  Member  States  that 
currently do not provide for such a right. These costs are likely to result mainly from training 
police  officers,  prosecutors  and  judges  and  will  range  from  9,000  €  to  2.6  million  €  per 
Member  State.  Whilst  the  precise  impact  of  this  option  on  operational  costs  cannot  be 
predicted, it is likely that even for those 3 Member States that will have to introduce the right, 
the impact on operational costs will very limited.  

EN 

9 

   EN 

7. 

MONITORING AND EVALUATION  

Providing  for  a  robust  monitoring  and  evaluation  mechanism  is  crucial  to  ensure  that  the 
rights  envisaged  are  complied  with  in  practice  as  well  as  in  legislation.  The  Commission 
envisages carrying out a specific empirical study with emphasis on data collection 3-5 years 
into the implementation of the proposal to gain in-depth quantitative and qualitative insights 
into  the  effectiveness  of  the  proposal.  Once  all  Roadmap  Measures  are  in  place,  it  will  be 
essential to evaluate each Measure in context as well as the efficiency of the Roadmap as a 
whole. 

EN 

10 

   EN