COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a directive of the European Parliament and of the Council Proposal for a on procedural safeguards for children suspected or accused in criminal proceedings
Date: 2013-11-27
Institutions: European Commission
Subjects: European arrest warrant, criminal responsibility of minors, infancy, legal aid, medical examination, parental responsibility, penalty, rights of the defence, social integration













EUR-Lex - 52013SC0480 - EN











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52013SC0480

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a directive of the European Parliament and of the Council Proposal for a on procedural safeguards for children suspected or accused in criminal proceedings /* SWD/2013/0480 final */









TABLE OF CONTENTS
Executive Summary Sheet............................................................................................................. 4
COMMISSION STAFF WORKING DOCUMENT IMPACT
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1........... Introduction.................................................................................................................... 6
2........... Policy context................................................................................................................. 7
3........... Procedure and consultation of
interested parties............................................................. 10
3.1........ Consultation of interested
parties................................................................................... 10
3.2........ Studies and publications................................................................................................ 12
3.3........ Internal consultation and
scrutiny of the Impact Assessment........................................... 12
4........... Problem definition......................................................................................................... 12
4.1........ The general problems.................................................................................................... 12
4.1.1..... Insufficient protection of fair
trial rights of children and vulnerable adults......................... 12
4.1.2..... No overarching protection of
children and vulnerable adults by the measures already adopted according to the
Stockholm Programme................................................................................................. 14
4.1.3..... The insufficient protection of
children and vulnerable adults affects mutual trust and hampers the smooth
functioning of mutual recognition..................................................................................................... 15
4.2........ The specific problems................................................................................................... 17
4.2.1..... Specific Problem 1: The
vulnerability of suspected or accused persons is not sufficiently assessed from
the very beginning of the criminal proceedings............................................................................. 18
4.2.2..... Specific Problem 2: Vulnerable
persons, in particular children, are not sufficiently assisted throughout the
criminal proceedings and their access to a lawyer is not ensured................................................. 21
4.2.3..... Specific Problem 3: Vulnerable
persons, in particular children, lack particular safeguards taking into account
their special needs at the various stages of the proceedings.................................................... 25
4.2.4..... Lack of training of professionals
in contact with children and vulnerable adults and lack of specialisation of
judges.................................................................................................................................... 28
4.3........ The scale of the problem............................................................................................... 29
4.4........ Baseline scenario: how would the
problem evolve in the future if no EU action takes place? 30
4.5........ Does the EU have power to act?................................................................................... 31
4.5.1..... The Legal basis............................................................................................................. 31
4.5.2..... Subsidiarity: Why is the EU better
placed to take action than Member States?............... 32
5........... Objectives.................................................................................................................... 33
6........... Policy options............................................................................................................... 34
6.1........ Discarded Options........................................................................................................ 34
6.2........ Overview of the policy options...................................................................................... 35
6.3........ Detailed description of the
options................................................................................. 36
7........... Impact analysis of the options........................................................................................ 43
8........... Comparative assessment of the
policy options............................................................... 61
9........... The preferred option..................................................................................................... 61
9.1........ Children....................................................................................................................... 61
9.2........ Vulnerable Adults......................................................................................................... 63
10......... Transposition, monitoring and
evaluation........................................................................ 66
Annex......................................................................................................................................... 68
Annex I  The Implementation of the Roadmap –
Specific provisions with regard to vulnerable persons    69
Annex II  Overview of stakeholder views on
key elements of the proposed measures................... 72
Annex III  Bibliography of documents and
studies........................................................................ 82
Annex IV   Relevant International Legal
Framework.................................................................... 88
Annex V  Case-law of the ECtHR related to
children and other vulnerable persons...................... 90
Annex VI  Estimates of affected population................................................................................ 105
Annex VII Method for estimating the cost.................................................................................. 110
Annex VIII General Cost calculations........................................................................................ 111
Annex IX Cost assessment per Member State........................................................................... 132
Annex X Number of affected children and
vulnerable persons for each option............................ 135
Annex XI Procedure................................................................................................................. 146
 Executive Summary Sheet 
 Impact assessment on a Proposal for measures on special safeguards for children and vulnerable adults suspected or accused in criminal proceedings 
 A. Need for action 
 Why? What is the problem being addressed? 
 Despite the existence of common principles and minimum standards stemming from the European Union Charter of Fundamental Rights, the European Convention of Human Rights and other international law instruments, the fair trial rights of vulnerable persons (i.e. children as persons below the age of 18 years old and vulnerable adults) throughout the various stages of criminal proceedings are, at present, not sufficiently guaranteed within the EU. This leads to shortcomings with regard to the way in which these principles are applied which may undermine mutual trust between judicial authorities. Mutual recognition of judgments and judical decisions and police and judicial cooperation in criminal matters, which rely on mututal trust, may therefore be affected. The number of children facing criminal justice is approximately 1.086.000 across the EU, i.e. 12% of the European population facing criminal justice each year. Estimates with regard to vulnerable adults range between 358.000 to 719.000 persons. 
 What is this initiative expected to achieve? 
 The main objectives of the proposal are (1) to guarantee an effective minimum standard of protection of fundamental procedural rights for vulnerable persons suspected or accused in criminal proceedings; (2) to enhance mutual trust between Member States thus facilitating mutual recognition of judgments and judicial decisions and improving judicial cooperation in the EU. These general objectives will be achieved by putting in place appropriate assessment mechanisms of vulnerabilities, by ensuring adequate assistance by parents or legal representatives, by providing mandatory access to a lawyer, by ensuring appropriate safeguards taking into account the specific needs of vulnerable persons at all stages of the criminal proceedings. 
 What is the value added of action at the EU level? 
 Action at EU-level would establish common minimum standards of procedural safeguards for children and vulnerable adults suspected or accused in criminal proceedings across Member States. Those common minimum standards are necessary in particular when dealing with the most fragile part of citizens facing criminal justice (e.g. children) mostly because they face a higher risk of discrimination or deprivation of their fundamental rights due to their lack of knowledge, maturity or mental and physical disabilities. Moreover, children and vulnerable adults can be involved in criminal proceedings outside their own Member State. This cross-border dimension constitutes another factor for the need of action at EU-level. 
 B. Solutions 
 What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why? 
 Four main policy options were considered: status quo (Option 1), a soft law option (Option 2) and two policy options which would take the form of a Directive (for children) or a Recommendation for (vulnerable adults) (Options 3 and 4). The status quo would involve taking no action at EU level. Option 2 (non-legislative action/soft-law) would support the protection of the rights of vulnerable persons though, for example, monitoring and evaluation, training and good practice examples dissemination, but its impact would be rather low. Options 3 would set minimum rules applying the ECtHR acquis and pertinent aspects of relevant international provisions on procedural safeguards (e.g. appropriate assistance by parents/legal representatives, mandatory access to a lawyer, protection of privacy rules, proportionality and limitation of detention). Option 4 is the most ambitious and prescriptive option which goes beyond option 3 on certain safeguards such as an "in-depth" assessment of vulnerability, enhanced medical examination (vulnerable adults) audio-video recording of police interviews, specially trained judges, access to educational facilities in detention. It is likely to contribute more effectively to the objectives. However, the costs are higher than the other options (under the assumption that a Recommendation for vulnerable adults would be implemented by Member States). The preferred option is a combination of elements from options 3 and 4, for children in the form of a Directive, and for vulnerable adults in the form of a Recommendation. 
 Who supports which option? 
 Consultations with stakeholders have demonstrated clear support for legislative action related to procedural safeguards for children. Most agree that other forms of action would neither be efficient nor effective enough to address the problems identified. With regard to measures for vulnerable adults the support for legislative action was more mitigated given in particular the difficulties to find a standard definition of vulnerable persons. 
 C. Impacts of the preferred option 
 What are the benefits of the preferred option (if any, otherwise main ones)? 
 By the introduction of procedural safeguards for children and vulnerable adults from the very beginning of the criminal proceedings until the trial stage, the preferred options for children and vulnerable adults will significantly contribute to the achievement of the general objectives set out. In terms of fundamental rights, the preferred options will have an overall very positive impact. The rights to a fair trial, to information and legal advice, protection against ill-treatment and protection of privacy will be significantly enhanced. The social impact will be overall very positive as the individual situations of children and vulnerable adults (including in most cases the situation of family members) will be improved (e.g. assessment, information, assistance). Moreover, limitation of the length of pre-trial detention will reduce costs and facilitate reintegration into society. As regards the proposed Recommendation for vulnerale adults, the impact will depend on its implementation by the EU Memer States. 
 What are the costs of the preferred option (if any, otherwise main ones)? 
 The costs of the different options vary quite considerably. The financial and economic impact of option 2 would be rather limited. The maximum financial costs are estimated to be approximately €20.2 million (including mainly training costs for law enforcement authorities and costs for studies and workshops). For options 3 and 4 total costs are expected to be in the higher range. Option 3 would amount to €100.1 million [children] and to range from €40.3 to 72.8 million [adults], Option 4 (which would be the highest of the four options) would amount to €164.2 million [€182.8 million, training incl.] [children] and to range from €134.4-228.9 million [€153 to 247.5 million, training incl.] [adults]. The total costs of the preferred option for children (Directive) amount to €136.2 million [€154.8 million, training incl]. The total costs of the preferred option for vulnerable adults (Recommendation) range between €70.9 to 133.6 million [€89.5 million to 152.2 million, training incl.] (based on the assumption that all Member States will implement the Recommendation). However, these costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and also to the reduction of custodial measures. In the long term, the financial impact estimated should gradually decrease as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used. 
 How will businesses, SMEs and micro-enterprises be affected? 
 Businesses, SME's and micro-enterprises will not be directly affected by this proposal. 
 Will there be significant impacts on national budgets and administrations? 
 The enhancement of procedural safeguards will lead to an increase in the costs for law enforcement authorities (e.g. assessment mechanisms, medical assistance, access to a lawyer, safeguards during police-interviews, pre-trial detention and court hearings, training costs). Almost all costs will have to be borne by public administration on both national and local level. However, cost savings will be achieved by a reduction of lengthy trials or the frequency of appeals. 
 Will there be other significant impacts? 
 The establishment of common minimum standards for the protection of children and vulnerable adults would enhance confidence in the judicial systems of Member States and the EU in general. 
 D. Follow up 
 When will the policy be reviewed? 
 It is foreseen that Member States should report on the effective implementation of this proposal. The Commission will be monitoring transposition and implementation of the Directive as well as carrying out specific empirical studies with an emphasis on data collection 3-5 years into the application of the proposal. A number of indicators to assess the effectiveness of the proposal have been established. 
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT
Accompanying the document
Proposal for a directive of the
European Parliament and of the Council
Proposal for a
on procedural safeguards for children suspected or accused in criminal
proceedings
1.           Introduction
 This impact assessment concerns a set of measures for special safeguards for children and vulnerable adults suspected or accused[1] in criminal proceedings.[2] These measures aim at setting minimum rules and thereby ensuring an enhanced level of protection within the EU. This will not only strengthen the fair trial rights of children and vulnerable adults suspected or accused in criminal proceedings but it will also ultimately benefit the overall quality of justice within the EU, improve the mutual trust between EU Member States' judicial authorities and thus facilitate judicial cooperation in criminal matters between the Member States. 
The right to an effective remedy and to a
fair trial, presumption of innocence and a right of defence are laid down in
the Charter of Fundamental Rights of the European Union ("the
Charter") in Article 47 and Article 48 and have the same meaning and scope
as the rights guaranteed by Article 6(3) of the European Convention of Human
Rights ("ECHR"). The ability to effectively exercise these rights
largely depends on the ability of the suspect or accused person to follow and
fully participate in the procedure, which may be limited due to age, lack of
maturity or disabilities. This means that for children and vulnerable adults[3] special measures need to be
taken to ensure that they can effectively participate in the proceedings and
benefit from their fair trial rights to the same extent as other suspects or
accused persons.[4] 
 
Despite these common principles, there are insufficient
standards in some Member States with regard to special safeguards for children
and vulnerable adults to ensure the effective exercise of their fair trial
rights, for example regarding the detection of the need for special assistance.
This leads to shortcomings with regard to the way in which these rights are
applied which may hamper the mutual recognition of decisions. Moreover, while
applying to suspects and accused persons who are children and vulnerable
adults, the recent EU Directives adopted according to the Stockholm Programme to
ensure the fair trial rights of suspected and accused persons, do not take
particular account of the specific needs of these two groups to be able to
exercise their fair trial rights and might not be sufficient to achieve mutual
trust on the matter. To this end, the Stockholm Programme
and the Roadmap on Procedural Rights explicitly foresee a specific measure for
the protection of vulnerable persons.[5]

At present, there is no overarching
comprehensive protection for children and other suspects or accused persons who
are vulnerable across the EU. 
This impact assessment accompanies the
Commission's proposal for measures on special safeguards for children and
vulnerable adults suspected or accused in criminal proceedings.
2.           Policy
context
Mutual recognition is
the cornerstone of judicial cooperation. Judicial decisions taken in one Member
State should be considered as equivalent to each other wherever that decision
is taken, and so enforceable anywhere in the EU. Without mutual trust between
authorities of the Member States of the EU, mutual recognition of judgments and
judicial decisions and of police and judicial cooperation in criminal matters
in the EU will be affected. It is recognised that the
perception that the rights of suspects or accused
persons are not respected in every instance has a disproportionately
detrimental effect on mutual trust and, in turn, on judicial cooperation[6]. Thus, Article 82 of the Treaty
on the Functioning of the EU (TFEU) states that the principle of mutual
recognition of judgements and judicial decisions should be facilitated by means
of minimum rules on procedural rights.
In this context, the Stockholm Programme[7]
put a strong focus on the strengthening of the rights of individuals in criminal
proceedings and on the rights of the child. It is specifically
stated that the Commission must show special attention to suspected or accused
persons who are vulnerable (i.e. who cannot understand or follow the context or
the meaning of proceedings, owing, for example, to their age, mental or
physical condition)[8],
in order to safeguard the fairness of proceedings. This measure forms also part of the EU Agenda for the Rights
of the Child[9]
to which the European Parliament, the Committee of the Regions, the
Economic and Social Committee and the Council of Europe as well as key
stakeholders such as UNICEF, the Ombudspersons for children in the Member States, and
civil society have contributed[10].
The European Council also invited the Commission to put
forward proposals contained in the Roadmap on Procedural
Rights[11]
("the Roadmap") adopted by the Council of Ministers in November 2009,
setting out a step by step approach to strengthening the rights of suspects and
accused persons in criminal proceedings. The Roadmap measures deal with
distinct procedural rights or set of rights of suspects or accused persons
which had been identified by Member States and stakeholders alike as needing to
be strengthened by action at EU level, and thus has to be considered as a building-block
for a whole edifice. 
 Roadmap measures: ·        Translation and Interpretation ·        Information on Rights and Information about the Charges ·        Legal Advice and Legal Aid ·        Communication with Relatives, Employers and Consular Authorities ·        Special Safeguards for Suspected or Accused Persons who are Vulnerable ·        Green Paper on Pre-Trial Detention   
A Directive on the right to interpretation
and translation, a Directive on the right to information in criminal
proceedings and a Directive on the right of access to a lawyer and the right to
communicate upon deprivation of liberty in criminal proceedings have been
adopted[12].
Moreover, a Directive establishing minimum standards on the rights,
support and protection of victims of crime has been
adopted in October 2012[13].
However, the instruments that have been
adopted so far relate to procedural rights that apply to all suspects or
accused persons in criminal proceedings. They are based on the assumption that
all suspects are able to understand and to effectively participate in the criminal
proceedings (which is often not the case for vulnerable persons). In fact,
during the negotiations of these measures, specific rules with regard to
vulnerable persons were left aside by the European Parliament and the Council
as it was intended to foresee specific safeguards for vulnerable persons, in
particular children, in a separate, overarching legal instrument[14]. Therefore these instruments
provide for some limited and general  provisions dedicated to children and
vulnerable adults (such as persons with disabilities, for further details,
see Annex I) and do not intend to address all their specific needs
and guarantees to ensure that vulnerable persons can effectively exercise their
rights. It results that without additional measures, specifically dedicated to
the protection of children and vulnerable adults, the present legal situation
would leave the weakest and most sensitive suspected persons without
appropriate safeguards in criminal proceedings. 
Finally, without specific measures for
vulnerable persons, the objectives of the Roadmap in its entirety will be weakened
as the already adopted measures do not provide sufficient protection for
vulnerable persons. Only if all envisaged initiatives on procedural rights in
criminal proceedings are implemented, an environment of enhanced mututal trust
between judicial authorities will be in place.
 Who are vulnerable suspected or accused persons? Jurisprudence of the European Court of Human Rights (ECtHR) defines a vulnerable suspected and accused person as an individual who cannot effectively participate in criminal proceedings, i.e.: “A suspected or accused that does not have a broad understanding of the nature of the accusation or the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed”[15]. There are two main categories of vulnerable persons in criminal proceedings: children and vulnerable adults. The treatment of those two categories varies considerably which is why throughout this Impact Assessment these two categories will be treated separately. While there is no standard definition of who is a vulnerable adult in criminal proceedings in the EU Member States, there is a common definition for children and all Member States do regard children as being vulnerable in criminal proceedings. Children[16] Children are considered by definition vulnerable in criminal proceedings and special safeguards are in place to ensure their fair treatment primarily for three reasons: - Children are vulnerable due to their young age and their unfinished physical and psychological development and emotional and educational immaturity. Because of their immaturity, children face difficulties in understanding what is at stake in a criminal proceeding, in understanding the law and their rights and to defend themselves and to effectively exercise their rights provided by law. - Children are also vulnerable because of a general imbalance that exists when they face adults with special authority in criminal matters and might have limited and often incorrect knowledge or understanding of criminal courts and their rights in criminal procedures. - Finally, children are further disadvantaged as a large number of them are not only vulnerable due to their young age but also due to mental health problems, learning disabilities, learning difficulties and communication difficulties. Vulnerable adults Vulnerable adults are not defined in any international or European legal instrument. Based on the ECtHR case law and legislation in Member States, vulnerable adults are "individuals who cannot understand or effectively exercise their legal rights because of, for instance, a disability, mental impairment, a physical or psychological weakness". Although vulnerable adults are not easy to define, it is generally recognised by stakeholders[17] that they need special safeguards in criminal proceedings in order to ensure that these persons understand their rights and can exercise them. If people do not understand the proceedings or the consequences of their actions in the proceedings, such as confessing, because their vulnerability is not identified or because special safeguards are not in place, this leads to inequality of arms, undermining the chances of receiving a fair trial and threatens the integrity of the judicial process. It is the objective of this initiative to ensure that the procedural rights of vulnerable adults are adequately respected in the EU by ensuring that their vulnerabilities are identified and matched with relevant necessary safeguards. In the case Vaudelle v. France[18], the applicant who had a mental impairment was under the supervision of his son who was responsible for his affairs. The applicant was charged with sexual offences against minors and was sent a summons to attend the trial. He did not appear at trial and was convicted in this absence. The applicant claimed that the fact the summons to attend the trial and notification of the judgment were sent to him only and not to his supervisor had prevented him from exercising his defence rights under Article 6(1) ECHR (right to a fair trial) and Article 6(3) (right to be informed in detail of the nature of the accusation) ECHR. The ECtHR ruled that the French authorities had indeed violated Article 6 ECHR in that they had failed to ensure that the applicant could understand the criminal proceedings, inform him in an appropriate manner of the accusation against him and grant a fair trial[19]. The absence of definition of vulnerable persons can be overcome by a modulated response in the form of a less prescriptive measure such as a Recommendation and by focussing on ensuring that there are procedures in place in the Member States that help identify vulnerabilities early on, in order to grant access to the necessary additional assistance. 
3.           Procedure
and consultation of interested parties
3.1.        Consultation
of interested parties
General principles and minimum standards
for consultation of interested parties have been followed in relation to this
initiative. The views of all major stakeholders and Member States were sought
on several occasions[20].
Vulnerable persons have been consulted
through NGOs and professionals in contact or dealing with them.
This impact assessment relies on previous
consultations of children made in the context of the EU Agenda for the Rights
of the Child, for the Council of Europe, consultations made by the contractor
in its external study, several meetings with experts and stakeholders and
relevant studies (for more details, see Annex II and III)[21].

 Member States and stakeholders (such as bar associations, family associations, NGO's specialised in the protection of children) clearly underlined the need for specific safeguards for vulnerable persons, in particular for children. In this context, stakeholders highlighted the insufficient and patchy implementation of international standards and the absolute need to establish common minimum rules among EU Member States. Stakeholders suggested to provide safeguards for children in a specific measure, preferably a directive. All safeguards set out in this Impact Assessment were largely supported by stakeholders, in particular mandatory access to a lawyer was considered as a key measure. Despite the similarity of problems faced by vulnerable adults in criminal proceedings, stakeholders suggested to deal separately with vulnerable adults given the absence of a common definition and the need to avoid any form of discrimination or stigmatisation by naming certain categories of person as vulnerable. An appropriate solution should be found to overcome the lack of definition. This could be done by a less prescriptive legal instrument, such as a Recommendation. (For more details see overview on stakeholder views, Annex II). 
(a) A meeting with experts was held on 23
September 2011. Representatives of 18 Member States as well as a panel of
experts from the Council of Europe, International Association of Youth and
Family Judges and Magistrates, the United Nations, medical and legal
practitioners specialising in children cases were gathered. A reflection paper
outlining the current legislative framework concerning suspected and accused
children and vulnerable persons was issued to which all Member States replied.
(b) A workshop was held by the contractor
of the external study ICF - GHK on 13 January 2012 to evaluate the problem
definition and policy options[22].
(c) A further experts' meeting was held on
26 April 2012, bringing together experts from NGOs active in the field of
protecting the rights of defendants, children and persons with disabilities,
bar associations and organisations of magistrates. The experts discussed
legislative and non-legislative measures that could be taken at an EU level to
increase protection for children and vulnerable adult suspects and accused
persons. 
(d) A third experts' meeting was held on 11
December 2012 hosting representatives of 18 Member States as well as experts
from the International Association of Youth and Family Judges and Magistrates,
the European Parliament and legal practitioners specialising in children cases.
This meeting offered the opportunity to collect reactions from the experts
regarding the introduction at EU level of certain safeguards for vulnerable
person. (e) Also, the 2003 Green Paper Procedural Safeguards for Suspects and
Defendants in Criminal Proceedings throughout the European Union and the
discussions with stakeholders in this context have been a valuable starting
point and guide in the development of this Impact Assessment. 
It resulted from the meetings and written
replies that Member States agreed on the need for action on EU level,
especially in relation to children. Any proposal should take into account
existing international rules and standards. Mandatory access to a lawyer for
children and those vulnerable adults who cannot understand the proceedings was
considered as the core issue, also the assistance and presence of parents or
legal representatives, the need for a proper assessment of vulnerabilities,
safeguards for police interviews, court hearings and detention were generally
acknowledged. Finally, also the need for appropriate training of professionals
in contact with children and vulnerable adults was highlighted (for more
details, see Annex II).
3.2.        Studies
and publications
Given the comprehensiveness of this area of
criminal procedural law, the Impact Assessment relies on a number of studies
and publications. Bearing in mind length constraints, the most central studies
for this Impact Assessment are indicated in Annex III. 
An external study (hereafter referred to as
"external study") to gather evidence for this Impact Assessment was
commissioned on 14 September 2011. The external study, carried out by the
consultant company ICF-GHK, focused on the problem definition, policy options
and costs of the various options. 
3.3.        Internal
consultation and scrutiny of the Impact Assessment 
An Inter-service Impact Assessment Steering
Group (IASG) was created in September 2011 involving representatives from DGT,
SCIC, COMP, MARKT, RELEX, ELARG, OLAF, HOME, CNECT, the Legal Service and the
Secretariat-General. The competency of this IASG was extended to the
presumption of innocence. A second and third meeting were held on 15 January
and 30 April 2013 both on vulnerable persons and presumption of innocence. The
feedback received at these meetings has been largely taken into account
throughout this Impact Assessment. Participants had the opportunity to express
their views on the previously submitted text of the draft Impact Assessment (for
more details, see Annex II).    
The European Commission's Impact Assessment
Board (IAB) examined this report and issued an opinion on 5 July 2013 in which
it was requested to resubmit the report to the IAB, together with a number of
suggested improvements.
A revised report submitted to the IAB on 31
July 2013 took on board the recommendations of the IAB and introduced a number
of modifications and clarifications (set out in detail in Annex XI). On
6 September 2013 the IAB issued a positive opinion on the revised report,
together with some recommendations which are taken into account in the present
final version of the report (modifications are set out in Annex XI).
4.           Problem
definition
4.1.        The
general problems
An analysis of the legislation in place in the Member States, shows
that the procedural safeguards granted by the Member States to both children
and vulnerable adults are insufficient to guarantee their effective
participation in criminal proceedings. This is further supported by the
case-law of the ECtHR (for more details see Annex V). The problem of
insufficient protection of the fair trial rights of children and vulnerable
adults (see Section 4.1.1) is not sufficiently addressed by the already
adopted measures on procedural rights (see section 4.1.2) and thus, at
present the legal framework does not sufficiently foster mutual trust at a
level which will ensure the smooth functioning of the mutual recognition
instruments in criminal proceedings (see section 4.1.3). 
4.1.1.     Insufficient
protection of fair trial rights of children and vulnerable adults 
The current national,[23] international and European legal
framework for the protection of the rights of suspected or accused vulnerable
persons in criminal proceedings in Europe is insufficient. 
On an international level, the rights of
vulnerable persons in criminal proceedings are primarily governed by the UN
Convention of the Rights of the Child (UN CRC)[24] and the UN
Convention on the Rights of Persons with Disabilities (UN CRPD)[25]. However, the provisions
are very general and relate only to a limited extent to criminal proceedings[26]. Moreover, international
treaties are rarely directly applicable and - to benefit from these rights -  individuals
must rely on national implementing legislation  – a step which EU Member States
have not always taken or, if legislation is adopted, it may insufficiently
capture the international law provisions. Censures of Member States by
international monitoring bodies such as the UN Committee on the Rights of the
Child (CRT) and the Council of Europe's Committee for the Prevention of Torture
(CPT), in case of non-compliance, have not been able to change the practice of
Member States[27].
Moreover, a number of other international
standards are not binding upon Member States but foresee recommendations or
guidelines (e.g. Guidelines of the Council of Europe on child-friendly justice,
UN Beijing, Riyadh and Havana Rules for the Administration of Juvenile
Justice). 
While the international instruments should
be considered as a starting point (for more details, see Annex IV),
action at EU level will ensure more effective minimum rules for vulnerable
persons, in particular for children. In the European legal framework, the
Charter and the ECHR provide specific safeguards[28] and fair trials rights in
criminal proceedings,[29]
applicable for all suspects and accused persons. In ECtHR case-law[30],
these articles have been interpreted in relation to children and vulnerable
adults (for more details see Annex V on ECHR case-law): 
 The principle of "effective participation" The guiding principle of the European Court of Human Rights when assessing a potential breach of Article 6 ECHR with regard to suspects or accused persons who may be said to be vulnerable has been to focus on whether or not the person was able to "effectively participate" in their trial. The European Court of Human Rights highlights that in the case of a child, it is essential that he/she will be dealt with in a manner which takes full account of his/her age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his/her ability to understand and participate in the proceedings, including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition (ECtHR, S.C v the United Kingdom, N°60958/00, judgment of 15.6.2004). 
In addition, Article 24 of the Charter
specifically provides for the need of the EU to promote and safeguard the
rights of the children and to take the best interests of the child into account
in all actions[31].
However, in many cases the application of
the ECHR and the related jurisprudence is developed in a piecemeal and ad hoc way
and results in diverging interpretations in the Member States[32]. Therefore, the
standards and rights that vulnerable adults and children have in criminal
proceedings remain legally uncertain and difficult to access. As regards the
interpretation of the Charter, there is currently very limited case-law
interpreting the relevant rights. 
Moreover, even if there is case-law
from the ECtHR on how to interpret the relevant rights in relation to
vulnerables, such rulings are not always implemented. The insufficient
protection of procedural safeguards is, to a certain extent, due to the absence
of any effective enforcement mechanism to oblige and encourage States to change
their national laws in the case of breaches of ECtHR decisions. Moreover, as
rulings are given in a specific case, it is difficult to generalise and extract
the exact meaning of the ruling. This is one reason for the high ratio of
‘repetitive decisions’ before the ECtHR in relation to fair trial issues (around 70 per cent of the Court's judgments in 2011[33]). This indeed suggests that the concerned Member State, or even less
other Member States, are not reforming their national legislation after a
breach of Article 6 ECHR. There are also limitations for individuals wishing to
bring a case before the ECtHR, and the reparations to
remedy a violation generally consist of declaratory judgments, coupled with,
depending on the circumstances, damages[34]. Moreover,
experience shows that vulnerable persons often do not understand that their
procedural rights have been breached and introduce therefore only very rarely
remedies in accordance with national law or an appeal to the ECtHR.
This shortage of strong enforcement powers
in the ECHR system, coupled with the perennial ECtHR backlog that poses a
serious risk to the effectiveness of the whole ECHR system,[35] also adds to the
insufficiency of relying only on the ECtHR to ensure sufficient protection of
vulnerable persons in the EU criminal justice area as being developed under the
Roadmap.
4.1.2.     No
overarching protection of children and vulnerable adults by the measures
already adopted according to the Stockholm Programme
The measures relating to procedural rights
which have already been adopted in the EU according to the Stockholm Programme
do not foresee a sufficient protection of vulnerable persons, in particular
children (for more details see Annex I). 
Whereas it is considered that the Directive
on the right to interpretation and translation and the Directive on the right
to information, once they are implemented by Member States[36], will ensure a
certain level of protection within the EU with regard to the right of
interpretation and translation[37]
and the right of information of vulnerable persons on their procedural rights
and about the accusation, the Directive 2013/48/EU on the right of access to a
lawyer and to communicate upon arrest[38]
does not foresee any specific safeguards for vulnerable persons with regard to
legal assistance, especially with regard to children. 
In addition, although these measures of the
Roadmap foresee safeguards with regard to certain specific rights of vulnerable
persons, they do not take account of all problems suspected and accused
vulnerable persons may face in the various stages of criminal proceedings (e.g.
need for appropriate assessment mechanisms of vulnerabilities, medical
assistance, mandatory access to a lawyer, specific safeguards with regard to
police questioning, need for protection against abuse and ill-treatment in
detention etc.). In fact, the Stockholm programme and the ensuing Commission
Action Plan[39]
explicitly forsee that a specific measure should be adopted to provide common
minimum rules for vulnerable persons in addition to the other procedural rights
measures. Without such an instrument, the protection of suspects or accused
persons in criminal proceedings would not be complete and and the objectives of
the Stockholm Programme and the Roadmap could not be fully achieved[40]. 
4.1.3.     The
insufficient protection of children and vulnerable adults affects mutual trust
and hampers the smooth functioning of mutual recognition 
Mutual recognition and judicial cooperation
in criminal matters presupposes that there is mutual trust in the legal systems
of other Member States. The underlying idea of the mutual recognition
instruments is to ensure fast-track and simple procedures for cross-border law
enforcement and cooperation. Such cross-border instruments build on the assumption
that each Member State provides a system of justice which guarantees fair trial
rights to a fairly similar degree; something that is not the case in practice. The grounds for refusal for the executing Member State in the EU mutual
recognition instruments, including the European Arrest Warrant Framework
Decision[41]
and the Transfer of Prisoners Framework Decision[42], were built to verify the
compatibility of the measure sought with the "public policy" of the executing
Member State, but not to help ensure respect for human rights in the main
criminal proceedings taking place in the issuing Member State. The European
Arrest Warrant (EAW) is also applicable to children and vulnerable adults. In
addition, several mutual recognition instruments (e.g.
Framework Decision on Probation Measures and Alternative Sanctions[43], Framework Decision on
Custodial Sentences[44],
Framework Decision on supervision measures[45])
foresee specific provisions with regard to children in order to strengthen the
control of the executing State when it comes to the recognition of judicial
decisions or judgments[46].

If judicial authorities doubt the compliance with fair trial rights
by another jurisdiction and believe that a suspect or accused person might not
get, or has not got sufficient protection, requests for judicial cooperation
from that jurisdiction can be denied or systematically challenged, in the
latter case leading to delays in the judicial cooperation. This means that a
person is not to be surrendered under the EAW, that a court might refuse to
collect evidence requested by judicial authorities in another Member State and
that a transfer of a prisoner request is denied as the receiving Member State
has doubts as to the fairness of the trial underlying the conviction. 
In practice, the system of mutual recognition often works
sub-optimally as the swift operation is hampered by challenges and appeals,
resulting in additional costs and delays, partially due to complex and drawn-out
investigations into the systems of other Member States in such situations. The
insufficient protection of fair trial rights that results from the lack of
adequate protection of procedural safeguards for children and vulnerable
adults, as has been set out in the previous section 4.1.1, may affect
mutual trust negatively. This has the potential to undermine confidence in
cross-border instruments such as the European Arrest Warrant. 
There is limited statistical quantifiable
evidence on insufficient mutual trust between the Member States. Member States
do not collect data on the number of judicial cooperation requests that are
challenged or refused. Therefore, it is also difficult to quantify the problem.
However, the execution of an estimated 4 to 8% of EAWs is refused. This means
that up to 1 in 12 EAW requests are unsuccessful; added to the number that are
delayed, this points to a degree of strain in the confidence and trust that
Member States and their citizens place in each other's criminal justice systems,
and shows that judicial cooperation does not run smoothly. There is wide
support from stakeholders on how fostering mutual trust, by laying down common
minimum standards, will help the system work more smoothly, and avoid delays
and refusals. 
Indeed, stakeholder interviews conducted by
ICF GHK with NGOs representing children (e.g. EJJO[47] and DEI[48])
as well as professionals involved in criminal proceedings (e.g. ECBA[49]
and IAYFJM[50])
- in the context of the external study – confirmed that there could be a clear
link between lack of minimum standards for fair trial rights at EU level and
the suboptimal functioning of judicial cooperation in the EU. Perceptions of
potential unfair treatment in the trial rights afforded to defendants in other
Member States could lead to delays in certain cases and in a few instances to failure
of European Arrest Warrant requests and other judicial agreements[51].
Stakeholder interviews suggested that delays in recognition proceedings have
taken place on account of concerns about the procedural rights available to
children or other vulnerable persons in the Member States. 
There is therefore a need to foster and
reinforce mutual trust by setting some common minimum standards with respect to
a set of procedural safeguards. This will establish a climate of mutual trust
that also ensures the proper working of upcoming mutual recognition instrument
such as the European Investigation Order.
By ensuring that fair trial rights are respected from the outset of
proceedings, by enacting common minimum standards, one can avoid costs in the
administrative and judicial system, costs which are usually not that visible.[52] By respecting fair trial
rights and operating a system where there is trust in the respect of such
rights, there are fewer appeals, fewer claims for retrial and one avoids
appeals to and condemnations by the ECtHR. By having sufficient safeguards for
fair trial rights, one also avoids challenges that obtained evidence is
inadmissible. In mutual recognition proceedings, one avoids delays and costs
arising therefrom, e.g. costs of providing pre-trial detention in EAW cases, or
having more lengthy proceedings and more judicial and legal costs in case of
non-consent in EAW cases.
As the principle of mutual recognition is the cornerstone of the
area of justice, it is necessary to enhance mutual trust for the effective
functioning of the area of Freedom, Security and Justice. To establish this
climate of mutual trust, the Member States have in the Roadmap indicated the
measures that are considered necessary to achieve these minimum standards of
mutual trust, and specific safeguards for vulnerable persons is one of these necessary
measures. An enhancement of procedural safeguards for children (and other
vulnerable persons) by the existing and foreseen measures of the Roadmap and by
the present initiative will contribute to the reinforcement of mutual trust and
thereby to a more optimal functioning of mutual recognition mechanisms between
Member States. 
4.2.        The
specific problems
In this context, seven specific problems
need to be addressed by this initiative which are relevant for both children
and vulnerable adults, but to a varying degree. The problems and possible
safeguards have been discussed in several meetings with Member States and
stakeholders. They interact with each other and need to to be addressed in
order to provide an overall protection of children and vulnerable persons in
all stages of criminal proceedings.
 Examples for interaction of problems: Parents who are not duly informed are neither in a position to explain to their child what is at stake nor assist the child in the exercise of his or her rights of defence nor provide moral support. Moreover, they cannot inform the police about any specific vulnerabilities of their child. In the absence of a lawyer a child may make wrong confessions without understanding the consequences of such action. Moreover, possible ill-treatment of the child during interviews may happen more easily. A child left on its own might not ask for necessary medical examination which might have been requested by a lawyer who is present. In the absence of an individual assessment of the child, specific needs with regard to detention conditions might be overlooked (e.g. level of maturity, educational needs)[53]. 
4.2.1.     Specific
Problem 1: The vulnerability of suspected or accused persons is not
sufficiently assessed from the very beginning of the criminal proceedings
There is currently no legal definition of
vulnerable persons, neither at International or European level. The notion of
"vulnerability" is very broad. Based on ECtHR case-law, potential
categories of vulnerable persons include children, foreign nationals, persons
with mental health problems, disabilities and persons affected by chronic
illness. Traditionally, two main categories of vulnerable persons can be distinguished:
(1) Children and (2) Vulnerable adults.
- Children
 In the case of S.C. v. The United Kingdom[54] which concerned an 11 year old boy convicted for an attempted theft, the Court held that "effective participation" requires that the accused has a "broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court". 
Children are considered, per se,
vulnerable persons in criminal proccedings due inter alia to their insufficient
maturity and/or mental capacity. It is commonly accepted in international law
instruments (Article 1 of UN CRC), that in criminal matters any individual
below the age of 18 should be considered as a child[55]. 
 The foreseen measures will not deal with the age of criminal responsibility for children. This is the age when a child becomes criminally responsible for his/her actions. Although the age of criminal responsibility varies considerably between Member States, it became clear from the discussions in the expert meetings that there would be no consensus to legislate in this area. In addition, this is a matter of substantive criminal law which would go beyond the current legal basis of Article 82(2) (b) TFEU (relating to criminal procedural law) (See below, Section 6.1 lit.b). 
The determination of the exact age of a
child is important to determine the criminal responsibility of the child and
triggers his or her specific rights in the criminal proceedings which may vary
according to the age (e.g. the nature of sanctions and level of sanctions may
be different). In certain circumstances the age assessment may be more
complicated (e.g. the birth certificate or identity card is unobtainable, has
been destroyed or falsified or documents need to be required from other Member
States). One international standard[56]
recommends that if there is no proof of age of children, they should be
entitled to a reliable medical (or social) investigation that may establish
his/her age; in the case of conflict or inconclusive evidence, the child shall
have the right to the rule of the benefit of the doubt. 
The determination of the exact age of a
child suspected or accused in criminal proceedings is essential to determine
the criminal responsibility of the child and the procedural rights which result
from it, and research evidence shows that all Member States foresee already such
an age assessment. Given that no particular problems have been identified in
this respect and taking into account the principle of subsidiarity, this
confirmed that there is no need for EU action.
All international and European standards
emphasises that the child's best interests should be a primary consideration in
all cases involving children within justice systems[57]. It derives from that fundamental
principle that the assessement of the personal situation of the children
confronted to criminal justice needs to be undertaken appropriately. 
In addition to their age, a significant
proportion of children in conflict with criminal law may face vulnerabilities
such as mental disorders or multiple addictions. Studies demonstrate that a
high proportion of children entering the criminal justice system have mental
health problems, learning disabilities and communication difficulties[58]. Despite the prevalance of
multiple vulnerability among suspected or accused children, in many cases the
vulnerability of children on grounds other than their age is not systematically
identified[59].
At present, certain Member States do not foresee any specific assessment
mechanisms (e.g. LT), others only provide for a one-off screening on a
case-by-case basis, usually at the beginning of the proceedings (e.g. BE, CY,
ES, SK). Currently, only the NL and LV foresee a systematic assessment
mechanism conducted on all children. The absence of any systematic and regular
assessment mechanism or procedure in a large majority of Member States bears
the risk that the detection of potential vulnerabilities of children remains
random.
In addition, the
mental state of a child, his or her maturity and economic, social and cultural
situation may differ substantially. In order to take into account the best
interests of the child and to adapt the proceedings in an appropriate manner to
the child's intellectual capacities and social background, an individual
assessment of the child should be ensured. The extent of such an assessment may
be adapted according to the severity of the offence and the damage caused. This
would also comply with the fact that traditional objectives
of criminal justice, such as repression or retribution, must give way to
rehabilitation and restorative justice objectives, when dealing with child
offenders[60].
- Vulnerable Adults
 As explained above, vulnerable adults are
individuals who cannot understand or effectively exercise their legal rights
because of, for instance, a mental impairment, a physical or psychological
weakness. These vulnerabilities might be of permanent or temporary nature.
Permanent vulnerabilities include, for instance, mental, physical, or sensorial
disabilities, chronic illness and illiteracy. Temporary vulnerabilities
include, for instance, intoxication through alcohol or drugs, or injury or
short-term illness requiring medical treatment. An additional challenge that
vulnerable adults face is that they often suffer from more than one
vulnerability.
Stakeholders and Member States have
indicated at various occasions that it is very difficult if not impossible to
find a definition for vulnerability[61].
Nevertheless, they have acknowledged the need of protection of vulnerable
persons and the need to ensure minimum safeguards in criminal proceedings[62]. Research evidence suggests
that a high proportion of the persons who enter the criminal justice system are
potentially vulnerable. However, there is limited reliable data on the exact
percentage of vulnerable adults among the arrested and accused population but
it is commonly accepted that vulnerabilities are prevalent[63]. It is
increasingly acknowledged that these additional disadvantages act as
multipliers of difficulty[64].

 In the case Standford v. UK[65], an adult defendant was involved who was convicted of sexual offences against a 15 year old girl. He claimed that during the trial he was unable to hear and to check for himself which matters of evidence where consistent or inconsistent. The ECtHR recalled that Article 6 ECHR, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial. In general this includes, inter alia, not only his right to be present but also to hear and follow the proceedings. 
Against this background, it is essential that
vulnerabilities are carefully assessed at an early stage of the proceedings.
Otherwise, if the existence and nature of the impairments are unknown, special
safeguards assisting vulnerable adults cannot be put in place. This may breach
Article 6 ECHR and potentially hamper Member States' trust in their respective
judicial systems.
At present, international
and European legal instruments do not require a standardised assessment
procedure with regard to vulnerabilities. Although relevant provisions exist in
the Council of Europe Recommendation[66]
(2004) 10, these are not binding. In most Member States the assessment which is
conducted in relation to vulnerable adults is rather basic[67]. Medical expert
advice is sought only if the suspected persons have "obvious" signs
of vulnerability. This means that often vulnerabilities remain unrecognised at
an early stage of the proceedings and "less obvious" are not at all
detected. Thus, vulnerable adults facing criminal charges who are not able to
understand the nature of the allegations against them, or to effectively
participate in the proceedings, may experience a number of potential
disadvantages and breaches of their fair trial rights. An appropriate
assessment of the vulnerability of suspected or accused persons in criminal
proceedings in the form of a screening by police officers and, if indicated, by
medical expertise is therefore key to detect the vulnerability of persons at an
early stage of the proceedings and to ensure that they will get adequate
safeguards.
Member States generally agreed on the need
to detect and assess potential vulnerabilities of suspects or accused persons,
if needed by an expert (see Annex II).
4.2.2.     Specific
Problem 2: Vulnerable persons, in particular children, are not sufficiently
assisted throughout the criminal proceedings and their access to a lawyer is
not ensured 
In order to ensure that children and
vulnerable adults can fully understand and follow the criminal proceedings,
procedural safeguards for the following key aspects need to be ensured: 
–              
(a) Assistance by parents/legal representative
or a person of trust[68];
–              
(b) Medical assistance;
–              
(c) Mandatory access to a lawyer. 
(a) Need
to ensure assistance by parents/legal representative
- Children
The role of the parents[69] is important to ensure moral
and psychological support and adequate guidance to the suspected or accused
child. Parents are better placed to protect the rights
of defense of the suspected person (e.g. to appoint a lawyer or to decide to
appeal of a decision). Moreover, the parents are also
legally responsible and can be held civilly liable for the behaviour of the
child. 
The provision of appropriate information of
parents as well as their assistance during the proceedings is recommended by
international rules, such as the Guidelines of the Committee of Ministers of
the Council of Europe on child-friendly justice, the Beijing Rules and the 2007
UN CRC General Comment N°10 on the Children's rights in juvenile justice. Moreover,
it is generally acknowledged by Member States and stakeholders (for more
details, see Annex II). 
Whereas Directive 2013/48/EU on the right
of access to a lawyer foresees specific rules on the notification of custody of
children to parents, it does not foresee the provision of appropriate
information on the procedural rights and charges concerning children to parents
or a person of trust. Also the Directive 2012/13/EU on the right to information
in criminal proceedings does not foresee such a right. 
Moreover, the subsequent presence of
parents at the police station and court – where they could actually assist and
guide the child – is not covered by these measures[70]. In this respect,
the situation varies across Member States. In several Member States the
presence of parents at the police station is currently not foreseen (e.g. BE,
BG, EE, ES, FR, HU, NL, PT, SE). 
However, the issue whether parents should
be present at interrogations is discussed controversially[71] and will therefore
not be covered by this initiative[72].
This does not affect any existing legislation in Member States or prevent
Member States from adopting rules in this respect.
- Vulnerable Adults
The information of the legal representative
or a person of trust is important if a vulnerable adult is involved in criminal
proceedings because they provide any necessary support to the vulnerable
suspected or accused person and facilitate communication between the vulnerable
person on the one hand and any lawyer and the police on the other. If
appropriate adults are not informed on how they can assist vulnerable adults
when they are notified of the vulnerable person's custody they might not be
able to assist them in the course of the proceedings and this increases their
risk to be subject to ill-treatment.
Neither the Directive 2013/48/EU on the
right of access to a lawyer nor the Directive 2012/13/EU on the right to
information foresee the provision of appropriate information on the procedural
rights and charges concerning the vulnerable adult to their legal
representative or a person of trust.
Also the review of national legislation
demonstrates that with the exception of England and Wales, the right to
notification for vulnerable adults does not go beyond what is accorded to
non-vulnerable adults. 
(b) Need to ensure appropriate
medical assistance
- Children
International standards require that law
enforcement authorities respect the dignity and personal rights of all children,
having regard to their vulnerability. Children, due to their young age and
physical and mental immaturity, are more strongly exposed to ill-treatment and
health problems than other suspects or accused persons. Often they are not able
to properly express their health problems. Particular care is needed to ensure
their integrity, in particular in detention (e.g. the health of children with
learning disabilities is often poorer than for the general offender population,
particularly with regard to mental health[73]).
The right to medical examination by a
physician and adequate medical care throughout a child's stay in detention is
recommended, for instance, by the 2007 UN General Comment N°10 on the
Children's rights in juvenile justice[74].
The CPT has repeatedly stressed the importance of prompt and thorough medical
screening of persons in detention. CPT country reports demonstrate that the
right to medical assistance for children is not ensured in certain Member
States (EE[75],
IT[76], LT[77]). 
- Vulnerable Adults
Insufficient protection of the right to
medical assistance has significant implications for vulnerable adults as the
general health of such persons is often poorer than for the general population,
particularly with regard to mentally ill persons[78]. The need to ensure an access
of a vulnerable person to a doctor, and to receive medical care adapted to his needs,
in particular in the case of deprivation of liberty, is important. Similar to
children, the right to medical assistance for vulnerable adults is not ensured
in certain Member States (EE, IT, LT). 
(c ) Need to ensure appropriate
access to a lawyer 
Article 6 (3) lit.c) ECHR and Articles 47
and 48 of the Charter guarantee the right of an individual to have access to a
lawyer. The Directive 2013/48/EU on the right of access to a lawyer lays down
general rules on such a right for all suspects and accused persons in criminal
proceedings. However, this Directive allows suspects and accused persons to
renounce to their right to be assisted by a lawyer. No specific safeguards are
foreseen for children or vulnerable adults. There is a high risk that children
and vulnerable adults renounce to their right to a lawyer without fully
understanding the consequences of their action.[79] 
- Children
Although there is no specific ECtHR
jurisprudence requiring mandatory defence for vulnerable persons, the ECtHR has
repeatedly underlined the importance of assistance by a lawyer for children
from the outset of the proceedings and during police questioning thereby
suggesting that a waiver can represent significant risks for them. The
importance of access to a lawyer for children is also recognised by all relevant
international rules, such as the Guidelines of the Committee of Ministers of
the Council of Europe on child-friendly justice[80], the Beijing Rules[81] and the 2007 UN 2007 General
Comment N°10 on the Children's rights in juvenile justice[82].
 Examples of case-law by the ECtHR concerning violations of the right to legal assistance with regard to children: In the case Panovits v. Cyprus where a 17 year old boy was sentenced in May 2001 for manslaughter and robbery, the Court ruled that the absence of a lawyer during police questions had been particularly detrimental for his defence given that he was a minor at the time."[83] In the case Adamkiewicz v. Poland where a 16 year old boy had been arrested for the murder of a 12 year old boy, the Court held that the fact that the applicant was questioned without the presence of a lawyer and was not informed of his right to remain silent and not incriminate himself had amounted to a violation of Article 6 § 3 c) in conjunction with Article 6 §1 ECHR[84]. 
Access to a lawyer throughout the
proceedings is particularly important for children, as evidence suggests that
they find the trial experience "intimidating", "stressful"
and "confusing"[85].
The common problems they encounter are as follows: they have even more limited
and often incorrect knowledge of criminal proceedings and courts; they fail to
foresee the long-term consequences of their action; they tend to consider legal
rights as "conditional", i.e. that they can be withdrawn or waived. 
The need to ensure mandatory access to a lawyer for children has been generally
acknowledged by stakeholders[86]
and Member States and is considered as the "core measure" of any
initiative with regard to vulnerable persons. (for more details see Annex II).

At present, there are significant differences
between EU Member States in terms of when access to a lawyer is mandatory. As
regards children, some Member States do not at all provide for mandatory
defence (CY, IE, LU, UK), others provide for a mandatory defence at court but
not at police stations (FR, NL, SI). Again others foresee mandatory defence
upon decision by the competent judge (DE, FI, SE)[87]. 
The costs for mandatory access to a lawyer
are governed by national law, including national legal aid schemes. The
analysis of legal measures related to legal aid will be subject of a separate
impact assessment on legal aid. 
- Vulnerable Adults
Access to a lawyer throughout the
proceedings is particularly important for vulnerable adults who are unable to
understand and follow the proceedings. Research evidence has shown that this
concerns in particular persons with mental problems but also with learning
disabilities and communication problems as evidence suggests that it is
difficult for them to communicate and effectively defend themselves[88]. The ECtHR has underlined,
when applicants have mental health problems, the importance of presence of a
lawyer in a number of cases suggesting that a waiver of this right can present
significant risks for them. However, there is no specific ECtHR jurisprudence requiring
mandatory defence for vulnerable adults. 
 Example of violation of the right to legal assistance with regard to vulnerable adults In the case Megyeri v. Germany[89] the applicant was arrested and detained in a psychiatric hospital after he had committed criminal acts for which he could not been held responsible due to mental health problems. The applicant requested the reopening of criminal proceedings in which he was not represented by a legal counsel. The ECtHR ruled that the applicant’s deteriorated mental condition and need for guardianship had been known to the court and that he would have been unable to represent himself in the review proceedings. 
The legal situation with regard to
mandatory access to a lawyer varies within the EU. Several Member States do not
foresee mandatory access to a lawyer (e.g. BE, CY, DK, IE, UK) and would
therefore be affected by the proposed measure. 
4.2.3.     Specific
Problem 3: Vulnerable persons, in particular children, lack particular
safeguards taking into account their special needs at the various stages of the
proceedings
Vulnerable persons are more susceptible to
ill-treatment or discrimination by law-enforcement officers than other
suspected and accused persons. Because of their lack of capacity to fully
understand and participate in the criminal proceedings, there is a higher risk
for vulnerable persons to be deprived of their fundamental rights, to see the
available safeguards denied and even more to suffer from discrimination or
ill-treatment. 
In several cases relating to children, the
ECtHR has found a violation of Article 3 ECHR which prohibits torture or
inhuman or degrading treatment or punishment.
 Example for violations of Article 3 ECHR in connection with children: In the case of Darraj v. France[90], where a 16-year-old boy sustained serious injuries in the hands of police officers, the ECtHR rejected the police's version of events, whereby force had been used against the applicant, a child at the time of the incident, because of his violent behaviour when they attempted to handcuff him. Instead, the ECtHR found that handcuffing a child who was not visibly violent prior to his arrival at the police station could not be justified.[91] 
In order to ensure that vulnerable persons
are treated with adequate respect and dignity, appropriate procedural
safeguards for the following key steps of criminal proceedings should be
ensured: police interviews, pre-trial detention, hearings.
(a) Need to ensure appropriate
safeguards during police interviews
The arrest and questioning of children and vulnerable
adults are potentially risky situations where their personal rights and dignity
may not always be respected and their vulnerability may not be duly taken into
account. Moreover, police interviews may be lengthy and the pace is not always
adapted to their capacities.
- Children
 Example for ill-treatment of children during police questioning: Mr. Wall was 17 years old when he was held at the young offenders unit in Bridgend in the UK. Mr. Wall alleged that the police gave him cigarettes and alcohol, took him on a drive and questioned him about burglaries. Later on, the police asked him to admit to some of these offences. Although Mr. Wall asked repeatedly for a lawyer, no access to a lawyer was granted. It appeared later on that Mr. Wall admitted to crimes that occurred when he was in custody awaiting sentence for other burglaries. Following the revelation that Mr. Wall had admitted to crimes he could not have committed, the police officers were found guilty of misconduct[92]. Mr. James Milton (not his real name) was 16 years old and had recently moved from the UK to Malta when he was arrested. He was taken to the police station when he was questioned aggressively for several hours without a lawyer or any appropriate adult present. During police questioning, James was not informed about any details of the allegations or of any charges against him or informed of his legal rights. He was interrogated from 9.30 pm until 2.30 am the following morning without receiving anything to eat or to drink. His passport was taken pending trial, so that from June 2009 until the trial in June 2010 he was unable to visit his family in the UK. At the trial, James Milton was acquitted of all charges[93]. 
One significant element to protect children
against ill-treatment (in addition to other safeguards like appropriate
information, assistance by parents and access to a lawyer) is the recording of
police interviews. According to the CPT[94], the electronic
(i.e. audio and/or video) recording of police interviews represents an
important additional safeguard against the ill-treatment of detainees. It
provides a complete and authentic record of the interview process, thereby also
greatly facilitating the investigation of any potential allegations of
ill-treatment. This would be in the interest of both persons who have been
ill-treated by the police and of police officers confronted with unfounded
allegations that they have been engaged in physical ill-treatment or
psychological pressure.
At present, there are no legally binding
standards within the EU on how interviews with children should be conducted.
Only in eight Member States police interviews are systematically audio or video
recorded: BE, FI, FR, IT, IE, LV, NL and UK (England and Wales). 
The use of video or audio recording has
been recommended by the Guidelines of the Committee of Ministers of the Council
of Europe on child-friendly justice. During the expert meetings, several Member
States were in favour of video or audio recording (see Annex II)[95]. 
- Vulnerable Adults
With regard to vulnerable adults there are
certain Member States where standardised procedures on how the police interview
should be conducted do not exist. Moreover, even when there is clear guidance,
this is often not systematically followed in practice.[96] Research evidence
shows that the majority of Member States do not systematically tape or video
record the interviews with vulnerable adults[97]. 
(b) Need
to ensure appropriate measures with regard to detention
-
Children 
Children held in detention, given their
young age and physical and mental immaturity, are often subject to
ill-treatment. They are at heightened risk of abuse from prison officials and
other detainees. Lack of privacy, frustration, overcrowding and failure to
segregate detainees according to their age and the gravity of the alleged
offence are all factors that can exacerbate violence. There exist other less
obviously brutal risks as well. Contacts with parents and friends are reduced
and decrease moral and social support. A child who is detained is more likely
to drop out of school.  
 Recent example of abuse of a child in pre-trial detention: In Austria, a fourteen years old boy, showing signs of multiple vulnerability, was raped in pre-trial detention in May 2013. He was not held separately from adult inmates[98]. 
Such cases underline the urgent need to
detain children separately from adult inmates. It is the responsibility of
public authorities to protect children in detention and to avoid their
victimisation. 
The Committee of Ministers of the Council
of Europe has recommended that pre-trial detention for children, in whatever
form, needs to be avoided as much as possible and should only be a measure of
last resort, used for the shortest time possible and restricted to serious cases[99].
International children's rights bodies are very critical about the use of
pre-trial detention and are seeking to reduce it[100].
In order to avoid pre-trial detention for
children, all measures alternative to the deprivation of liberty should be
taken by the competent authorities whenever this is in the best interests of
the child. Such measures should include for instance reporting obligations to
the competent authorities, restrictions on contacts with specific persons or
participation in therapeutic treatment or educational measures.
Nevertheless, in certain cases pre-trial
detention might be necessary, for example, to avoid the risk of tampering with
evidence, influencing witnesses, when there is a risk of collusion or flight,
etc. In such cases, particular attention should be paid to the way detained
vulnerable persons are treated and relevant alternatives to detention that can
achieve similar aims should be envisaged. Whereas international standards[101]
provide that children should not be detained together with adults, this is not
the situation in all EU Member States. Separate detention of children does not
exist in several Member States (e.g. BG, CY, CZ, EL) and even where Member
States, in principle foresee separate detention it is not always implemented in
practice[102].
Such practical measures for the detention of children are suggested in the
above-mentioned Council of Europe instruments which are, however, not binding
upon Member States and certain variations with regard to the application of
safeguards exist. However, the measures foreseen in this report do not require
the creation of detention centers or prisons specifically designed for
children, although this would be the most effective solution implementing the
international standards, but only that children should be held separately from
adults and that detention should be the last resort for them. 
- Vulnerable Adults
Vulnerable adults, in particular the
mentally impaired or persons with reduced mental or physical capacities, are
particularly exposed to abuse and ill-treatment in detention. Moreover,
separation from family, friends and their social environment may have dramatic
consequences on their mental and physical condition.
Most Member States do not foresee any
separation between vulnerable and non-vulnerable adults in detention[103].
Some have specific provisions for mentally impaired persons (e.g. detention in
hospital or psychiatric unit)[104].
(c)    Need to ensure safeguards with regard to Court hearings
- Children
Their involvement in criminal proceedings
stigmatises children and may have a detrimental impact on their chances for
reintegration into society and their future professional and social life. All
international standards, notably the UN CRC, the ECHR  and the ECtHR's case-law
underline the importance to respect the right of privacy for children, including
when involved in criminal proceedings, as a critical component of their
rehabilitation.
In its General Comment N°10 on Children's
Rights in Juvenile Justice, the UN CRC recommends, among others, proceedings
'in camera', preserving confidentiality in records, delivering judgments which
will not reveal the child's identity, etc. However, according to research
evidence, in several Member States court hearings relating to children are open
to the public[105]
(AT, DK, EE, FI, LV, LT, MT, SK, SE)[106]. In Italy, the
public is always to be excluded in cases of defendants under 16 years old but
not for those between 16 and 18 years old. Moreover, in Austria and in Portugal
judgments related to children are rendered public. 
- Vulnerable
Adults
With regard to vulnerable adults, several
Member States foresee that medical expertise is kept confidential[107].
However, most Member States indicated that no other specific safeguards with
regard to the protection of privacy of vulnerable adults are available[108].
4.2.4.     Lack
of training of professionals in contact with children and vulnerable adults and
lack of specialisation of judges
- Children
International requirements[109] recommend that
all professionals working with children should receive necessary training on
the rights and needs of children. 
Judicial authorities (i.e. judges and
prosecutors) and law enforcement authorities (e.g. police officers) are often
not sufficiently aware of the particular problems that children face in
criminal proceedings and of the special safeguards that exist to ensure their
fair treatment. Due to a lack of specialised training, competent authorities do
not always adequately assess their particular needs.
Stakeholders confirmed that the lack of training
is a key factor contributing to insufficient protection of the rights of
suspected and accused children[110].
An enhanced need for training of judges and law enforcement authorities on the
specific needs of children in all Member States results from the external
study.
Research evidence suggests that judges are
not required to be specialised to deal with juvenile cases in a number of
Member States. A certain number of Member States (EE, FI, LV, LT, RO, SK, SE)
do not have specific youth courts. Three further Member States (BG, UK partly -
England and Wales, IE) do not require judges to be specialised[111]. In the remaining
Member States in principle there are certain requirements for specialisation of
judges. However, these provisions are not systematically implemented in
practice.[112]
Similar problems of insufficient specialisation exist to varying degrees in the
Member States in relation to prosecutors, police officers and lawyers. For
reasons of proportionality and subsidiarity, this initiative will not, however,
foresee any changes to the organisation of judicial systems in the Member
States with regard to juvenile justice, but rather contemplate the
strengthening of the specialisation of practitioners confronted with children
during the criminal proceeding by better training.
- Vulnerable Adults
Several Member States do not foresee any
specific training of judges for the treatment of vulnerable adults (e.g. DE,
ES, IT, LT, LU, MT, SK, SE). Due to lack of training[113], judges are not always aware
of the specific needs of vulnerable persons. 
 Conclusion: Despite the existence of common principles and minimum standards stemming from the ECHR, the EU Charter, and other international law instruments, the fair trial rights of children and vulnerable adults throughout the various stages of criminal proceedings are, at present, not sufficiently guaranteed within the EU with regard to their specific needs and vary from one Member State to another. The criminal proceedings and practices of a certain number of Member States have serious shortcomings when measured against these minimum criteria. This lack of adequate standards affects the overall quality of justice within the EU and consequently undermines mutual trust between judicial authorities. Mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters, which rely on mutual trust, may therefore be affected. 
4.3.        The
scale of the problem
Data suggest that the number of children
facing criminal justice is approximately 1.086.000[114] across the EU,
i.e. 12% of the total of the European population facing criminal justice each
year. About 1.6% of the total prison population within the EU are children[115].
When it comes to other vulnerable persons it is assessed that 4 to 8%[116]
of the total population facing criminal justice could face some kind of
impairment that prevents them to fully participate or to fully understand and
therefore to properly exercise their rights. These figures are unlikely to
decrease by any significant amount in the coming years.
In terms of cross-border cases, there is no
precise information with regard to vulnerable persons being arrested or
prosecuted outside their own Member State. Data suggest that a 1% figure can be
retained as representative of the cross-border cases concerning vulnerable
defendants[117].

Nevertheless, the number of cross-border
cases is likely to rise. Available statistics compiled for the years 2005 to
2010 record 68580 issued EAWs and 15923 executed EAWs in that time. Taking into
account provisional figures for 2011 (as at 15/01/2013, 8 MS have not yet
supplied figures), the total number is 78364 issued EAWs and 19076 executed
EAWs. The rise of cross-border cases can also concern prison sentences and
requests for mutual legal assistance. This will lead to a greater need for
judicial cooperation in criminal proceedings, including also cases relating to
children and vulnerable adults.
4.4.        Baseline
scenario: how would the problem evolve in the future if no EU action takes
place?
Whilst a range of international standards
on children and vulnerable adults’ rights have been established in the past
years, these have not led to a significant improvement in the manner that
vulnerable persons suspected or accused in criminal proceedings are treated.
These provisions are often very general and only very few relate to criminal
proceedings. They are rarely directly applicable and require national
implementing legislation which is not always adopted.
At EU level, the Directives on procedural
rights that have been adopted provide certain specific provisions with regard
to children and vulnerable adults but do not take account of all problems
suspected or accused children and vulnerable persons may face in the various
stages of criminal proceedings. They do not provide an overarching protection
for the specific needs of these persons. This is not a flaw of the already
adopted measures but inherent to the Stockholm Programme which left explicitly
the protection of vulnerable persons for a separate legal instrument (for
more details, see above, Section 4.1.2). 
Without further action, it is unlikely that
there will be a sufficient development in national legislation and action to
ensure that vulnerable persons receive treatment which fully respects their
rights to a fair trial, no matter where in the EU they find themselves, in
particular during custody, interrogations by police services or during hearings
at courts. This may in turn affect mutual trust in judicial systems in the
European Union and undermine the effective application of the Treaty-endorsed
principle of mutual recognition.
At Member State level, Finland and Belgium
are the only Member States where forthcoming initiatives addressing the needs
of vulnerable defendants have been identified[118]. In the near future,
there is no indication that all Member States will tackle deficits with regard
to the protection of vulnerable persons in their legislation and practice.
Consequently, in the absence of major legislative developments in the
protection of procedural rights of the vulnerable defendants, it is anticipated
that these rights will remain at the current insufficient level. 
4.5.        Does
the EU have power to act?
4.5.1.     The
Legal basis
The power to act and, where necessary,
propose EU legislation in the area of civil and criminal law is conferred,
inter alia, by two articles of the Treaty on the Functioning of the European
Union (TFEU). The EU's legislative competence for a Directive laying down
minimum rights in criminal proceedings is set out in Art 82(2) (b) TFEU.
Minimum rules concerning the rights of individuals in criminal proceedings may
be adopted by means of directives, to the extent necessary to facilitate mutual
recognition of judgments and judicial decisions and police and judicial
cooperation in criminal matters having a cross-border dimension. While Article
82 (2) (b) TFEU makes explicit reference to directives, this legal basis would
indeed also allow for adopting any less intrusive measures according to the
principle the larger contains the lesser[119]. Art 82(2) (b)
TFEU provides the legal basis for legislation applicable not only to
cross-border criminal proceedings (i.e. proceedings with a link to another MS
or a third country) but also to domestic cases as a precise, ex ante
categorisation of criminal proceedings as cross-border or domestic is
impossible in relation to a significant number of cases.
This initiative will apply to all criminal
proceedings irrespective of whether they present a cross-border element or not.
The reason for this is that both the policy objectives as described below can
only be met if minimum rules apply to all criminal proceedings. In order to
improve mutual trust and thus judicial cooperation, judicial authorities need
to be aware that sufficiently high standards apply across the board in the
jurisdictions of other Member States. If Member States were at liberty to apply
lower standards to purely domestic proceedings, the requisite of mutual trust
between judicial authorities could not be boosted.
As concerns the need to safeguard the
fundamental rights of citizens, the enactment of minimum rules for cross-border
proceedings only, far from addressing the problem, would create two different
classes of defendants in criminal proceedings, one with more rights than the
other; this distinction, made on the basis of the cross-border nature of the
procedure, would lead to unreasonable differentiation and would eventually be
detrimental to the protection of fundamental rights. In addition, when the
matter is linked to EU law, the Charter guarantees rights to everyone suspected
of a criminal offence, whether involved in cross-border or purely national
proceedings.
Additionally, it must be noted that the
cross-border nature of any given proceedings is difficult to define and can
appear at any point of time throughout the various stages of criminal
proceedings, at which stage the application of specific provisions dealing with
cross-border situations might not be possible anymore or would make the
proceedings much more complex. Moreover, even after criminal proceedings have
concluded with a final judgment imposing a sentence on the defendant by the
courts of his Member State of nationality, such a case could still turn into a
cross-border case necessitating judicial cooperation between Member States
where the convicted person moves (or flees) to another Member State prior to
having served his sentence in full. An EAW might thus have to be issued for
achieving the return of that person (or the enforcement of a financial penalty
sought by the court which had imposed the penalty). Thus, it is essential for
the promotion of mutual trust to ensure that measures strengthening minimum
fair trial rights apply to suspects and accused persons in all criminal
proceedings throughout the EU and not just those proceedings which present a
cross-border aspect at their outset. 
4.5.2.     Subsidiarity:
Why is the EU better placed to take action than Member States?
It is considered that there is a need for
EU action based on the following factors:
(1) The EU is establishing its own, unique
system of judicial cooperation based on the principle of mutual recognition
throughout the EU. Such a system calls for a guarantee of uniform standards of
fundamental procedural rights protection in the EU. A lack of common standards
reduces confidence in the judicial systems of the Member States, which in turn
impedes the effective operation and application of the principle of mutual
recognition of judicial decisions and consequently the strengthening of the
European area of freedom, security and justice. Given the current diversity of
existing national legislation in this area and Member State action based
primarily on varying internal priorities, it is unlikely that Member States
acting individually would be able to establish common standards of rights with
regard to children/vulnerable persons. 
(2) Those common standards have to be
implemented in particular when dealing with the most fragile part of citizens
facing criminal justice (i.e. children) mostly because they face a higher risk
of discrimination or deprivation of their fundamental rights due to their lack
of knowledge or ability to act with freewill. Vulnerable persons have specific
needs that need to be respected and a comprehensive level of protection across
Member States can only be ensured by action at EU level.
(3) In the EU people are constantly
travelling and moving across borders. Around 11.3 million Europeans reside
permanently outside their home country, 10% of Europeans have lived and worked
abroad during a period of their lives and 13% have gone abroad for education
and training. These numbers show the importance of ensuring proper, effective
action on the rights of those who get involved in criminal proceedings, in
their own country of while travelling or living abroad. The EU must ensure that
suspects and accused persons, although they may not be fully aware of various
specific aspects of the procedure, should be protected by minimum safeguards
across the EU. 
(4) Also, children and other vulnerable
persons can be involved (as any other offender) in criminal proceedings outside
their own Member State. Situations occur where they are prosecuted during a
stay, journey or after returning home and subject to pre-trial detention
following the issuance of a European Arrest Warrant. In addition to the
complexity of criminal proceedings and the differences with regard to the legal
culture, languages and other elements, the vulnerability of such persons is
increased when they are separated from their natural surroundings. This
cross-border dimension constitutes another factor for the need to tackle
procedural safeguards of these suspects or accused persons at EU level. 
(5) The ECHR already sets European-wide
fair trial standards but due to the absence of any effective enforcement
mechanisms a sufficient and consistent level of compliance by its signatory
States, including EU Member States, cannot be guaranteed. Moreover, the lack of
enforceability of International Conventions addressing children and disabled
persons, which the Union has ratified, render a coherent EU wide application of
such standards unlikely. 
(6) The Directives 2010/64/EU of 20 October
2010 on the right to interpretation and 2012/13/EU of 22 May 2013 on the right
to information in criminal proceedings as well as Directive 2013/48/EU of 22
October 2013 on the right of access to a lawyer provide provisions dedicated to
some vulnerable persons. Following their adoption, it is essential to achieve
an overall protection of children and vulnerable adults with a specifically
dedicated instrument in order to complete the acquis.
5.           Objectives
The policy objectives of introducing
special safeguards for children and vulnerable adults suspected and accused in
criminal proceedings in the EU are as follows:
 Objectives: 
 General: || §         An effective standard of protection of fundamental procedural rights for vulnerable persons suspected or accused in criminal proceedings will be guaranteed. §         Mutual trust will be enhanced thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU. 
 Specific: || §         A: The vulnerability of persons suspected or accused in criminal proceedings is adequately assessed at the very beginning and throughout the criminal proceedings. §         B: Vulnerable suspected or accused persons are duly assisted in criminal proceedings and have access to a lawyer in order to allow them to understand and effectively participate in the criminal proceedings. §         C: Vulnerable persons, in particular children, have a set of adequate procedural safeguards taking into account their special needs at all stages of the criminal proceedings (e.g. police interviews, detention, court hearings). 
 Operational: || §         A.1: Appropriate assessment mechanisms for children and vulnerable adults are put in place from the very beginning of the criminal proceedings starting with their first contact with law enforcement or judicial authorities. §         B.1: Children and vulnerable adults will be duly assisted by parents, legal representatives or a person of trust during the proceedings. §         B.2: Children and vulnerable adults will benefit from mandatory access to a lawyer from the very beginning of the criminal proceedings in order to enable them to effectively participate in the proceedings. §         C.1: Children and vulnerable adults will receive appropriate safeguards taking into account their specific needs at the various stages of criminal proceedings (e.g. medical examination, police interviews, detention and court hearings). 
The present initiative forms part of a
package of measures for improving mutual trust and enhancing the level of
protection of suspects or accused persons in criminal proceedings. Only once
all the measures envisaged in the Stockholm Programme are in place, it will be
possible to achieve the general objective. The following options are assessed
against the specific and operational objectives.
6.           Policy
options
The policy options for addressing the problems as defined in
Section 6.2 of
this Impact Assessment, in line with the objectives as established in Section 5, are set out below. In accordance with
the Communication from the Commission on the Strategy for the effective
implementation of the Charter of Fundamental Rights by the European Union[120],
this impact assessment examines the impact on fundamental rights of the options
proposed. 
All the policy options are intended to operate in the
framework of the Roadmap measures and have the same scope of application. In
previous measures, suspected or accused persons have consistently been
used as the category of persons falling within the personal scope of the
action. This encompasses all people (including children) who are involved in
criminal proceedings, against whom a suspicion that they have committed a
criminal offence exists, irrespective of the terms used in domestic law. The
personal scope also covers persons subject to EAW proceedings. The temporal
scope for the other fair trial instruments is "from the time a person
is made aware that he is suspected or accused of having committed a criminal
offence until the conclusion of the proceedings", the latter term
being understood to mean the final determination of the question whether they
have committed the offence, including, where applicable, sentencing and the
resolution of any appeal.
6.1.        Discarded
Options
Certain policy options were discarded at an
early stage of the proceedings. In particular:
(a) To define vulnerable adults:
The introduction of a definition of vulnerable adults was discarded as not
feasible. As set out already above, stakeholders have indicated at various
occasions that it is very difficult, if not impossible, to find an overall
definition of vulnerability. Such a definition would necessarily be very broad
(in order to cover all potential groups of vulnerable persons[121]) and could
therefore turn out to be a "catch-all" provision with little
substance and without real added value. Moreover, stakeholders have stressed
the risk of stigmatisation resulting from such a definition.
(b) To harmonise rules on the age of
criminal responsibility: Rules on the age of criminal responsibility
for children were discarded. This is the age when a child becomes criminally
responsible for his/her actions. From this age onwards, a child can be
prosecuted for any criminal offence. Below this age a child is deemed incapable
of having committed a criminal offence. Although the age of criminal
responsibility varies considerably between Member States[122], it became clear
from the discussions in the expert meetings that there would be no consensus to
legislate in this area. In addition, this is a matter of substantive criminal
law which would go beyond the current legal basis of Article 82(2) (b) TFEU
(relating to criminal procedural law).
(c) To establish harmonised rules on
juvenile justice systems: Measures aimed at achieving full
harmonisation were discarded. Such measures (e.g. the establishment of youth
courts, rules on diversion[123],
specific sanctions for children which exist in several Member States) would
lead to substantial changes of criminal systems in Member States and go clearly
beyond the setting of minimum rules. They would not be covered by the legal
basis of Article 82(2) (b) TFEU. 
(d) To establish a specific age
assessment mechanism: Although the determination of the exact age of a
child is essential in criminal law, research evidence shows that all Member
States foresee already that determination. Given that no particular problems
have been identified in this respect and taking into account the principle of
subsidiarity, no EU action is needed. A separate screening mechanism at the
police station to assess the general mental and physical condition of the child
and the appropriateness of any measures taken or envisaged against the child
was discarded as disproportionate.
6.2.        Overview
of the policy options
We have considered four main policy
options: retention of the status quo (Option 1) and three other policy
options. The retention of status quo would involve taking no action at
EU level, while the other three policy options will improve, to a different
extent, the protection of vulnerable persons that are suspected or accused in
criminal proceedings across Europe. The three options range from
low-medium-high level of obligation.
 Options 3 and 4 could take the form of either a directive or a recommendation. Elements of both options may be combined. 
 Option 1 Status quo || Retention of the status quo. No action taken at EU level. 
 Option 2 Low level of obligation || Non-legislative action (soft law) that supports the protection of the rights of vulnerable persons suspected or accused in criminal proceedings through, for example, monitoring and evaluation, training and good practice examples dissemination. 
 Option 3 Medium level of obligation || Option 3 sets minimum rules applying the ECtHR acquis and pertinent aspects of relevant international provisions on procedural safeguards for the protection of vulnerable persons suspected or accused in criminal proceedings.   
 Option 4 High level of obligation || Option 4 is the most ambitious and prescriptive option which goes beyond Option 3 with regard to certain safeguards such as the assessment of vulnerability, medical examination for vulnerable adults, police interviews, court hearings and detention. 
 
Figure: Relation between problems,
objectives and policy options 
6.3.        Detailed
description of the options
(1) Policy Option 1, the status quo, has been presented in the baseline scenario
(see above, Section 4.4). 
(2) Policy Option 2 (non-legislative action) consists of
three elements: 
a) Monitoring and
evaluation of the treatment of children and vulnerable adults 
The European Commission
would collect information on the existing rules and their practical application
concerning the rights of vulnerable suspected or accused persons in criminal
proceedings. This would be done either by a future EU monitoring and evaluation
body (e.g. in the style of the European Juvenile Justice Observatory[124]),
charged with monitoring the implementation of procedural rights in criminal
proceedings for all vulnerable groups in criminal proceedings or through the
commissioning of independent studies. This policy option could be based on
Article 70 TFEU which calls for a further strengthening of the evaluation of
the implementation of EU policies, in particular in order to facilitate full
application of the principle of mutual recognition. The monitoring and
evaluation activities would primarily focus, for instance, on mapping existing
provisions and practices, measuring the "efficiency" of national
rules and procedures and analysing their strengths and weaknesses. The
information collected though one or more of the above routes would be used to
prepare periodic national and EU level evaluation reports. These reports could
also contain "general lessons learned". They would be disseminated to
stakeholders involved at policy and implementation level and would also be
published on the Commission's website.
b) Support the training
of law enforcement and judicial authorities
European agencies such
as the Fundamental Rights Agency would collect, analyse and disseminate tools
and methods on training in relation to the fair treatment of vulnerable
suspects or accused persons in criminal proceedings. This could be done through
a network of experts that would collect relevant material in each Member State
or would commission studies in this area. The Information collected would be
widely disseminated on a dedicated website of the European Commission and
through existing networks and EU dedicated agencies including the European
Judicial Network, European Judicial Training Network and the European Policy
College, human rights organisations and defence lawyers' representatives.
Workshops and seminars would be organised and coordinated and peer review
meetings with Ministries of Justice would be held. The delivery of training
would remain the responsibility of Member States.
c) Dissemination of
good practice examples
An expert group would
be instructed to draft guidelines on good practices in relation to the
protection of vulnerable persons (based on a study on good practices of EU
Member States and international standards). Including non-binding policy
recommendations could encourage Member States to change their rules, procedures
and practices. This would involve a review of available evidence gathered
through the monitoring and evaluation observatory or any other data collection
and awareness raising intervention and dissemination measure established as
part of this policy option. Such guidelines would then be disseminated by the
European Commission.
(3) Policy Options 3 and 4 (legal instruments): Option 3 goes further than Option 2 by
setting minimum rules applying the ECtHR acquis and relevant
international, European and Member State legislation. Option 3 foresees a
certain number of procedural safeguards for the protection of children and
vulnerable adults suspected or accused in criminal proceedings and proposes a
"medium" level of obligation on Member States. 
Policy Option 4 imposes more ambitious
rules and a "higher" level of obligation on Member States than Option
3 on certain safeguards such as the assessment of vulnerability, medical examination
(for vulnerable adults), police interviews, court hearings and detention. 
Options 3 and 4 correspond to relevant
international standards laid down in the UN CRC and UN CRPD as well as
(non-binding) recommendations and guidelines, such as the Guidelines of the
Committee of Ministers of the Council of Europe on child-friendly justice, the 2007
UN General Comment N°10 on children's rights in juvenile justice, the UN
Standard Minimum Rules for the Administration of Juvenile Justice
("Beijing Rules"), the UN Rules for the Protection of Juveniles
deprived of their liberty ("Havana Rules") and the UN Guidelines for the
Prevention of Juvenile Delinquency (Riyadh Guidelines") (A correlation
table is included in Annex IV). 
 The foreseen safeguards have been carefully chosen taking into account the main problems identified above (for more details, see above, Section 4.2 on specific problems). They have been discussed in several expert meetings with Member States and stakeholders and recognised as the most important minimum rules to ensure the right to a fair trial of children and vulnerable adults within the EU. They interact with each other (e.g. the parents/legal representatives who will be informed and present at the police station or the lawyer who will be mandatory have the right to ask for medical examination of the child or vulnerable adult) and are necessary to provide an overall protection of vulnerable persons throughout the various stages of the criminal proceedings (from the stage of police interview until court hearing and possible detention). 
The following two tables provide a
comparison and detailed description of the different measures proposed in
Options 3 and 4. A distinction is made between children (Table 1) and vulnerable
adults (Table 2) suspected and accused in criminal proceedings.
Training for professionals (including law enforcement and judicial authorities, not however,
lawyers) is considered as a flanking measure. It is not
explicitly set out in the tables below. The expected impact of training and, in
particular, the costs of training are taken into account in the impact analysis
of the different options (for more details see Section 7).
Table 1: Special
safeguards for Children 
 Measure (+ operational objectives)[125] || Policy Option 3 Medium level || Policy Option 4 High level 
 1. Assessment of vulnerability (corresponds to operational objective A 1) || MS required to put a specific and more systematic procedure or screening mechanism in place to ascertain the basic needs of the suspected or accused child (at the beginning but possibly also at the later stages of the proceedings if needed). || Idem + In-depth assessment of the level of the child's maturity and ability to effectively participate in criminal proceedings. Indivudal assessment of economic and social background. The extent of assessment would depend on the gravity of the alleged offence. 
 2. Assistance by the child's parents or a person of trust (corresponds to operational objective B 1) || MS required to ensure information of the parents or person of trust on the rights[126] and charges concerning the suspected or accused child and their adequate assistance. MS required to request the physical presence of the child's parents or person of trust at the police station (but not during police interviews) and in court unless it would be contrary to the best interests of the child. ||  Idem 
 3. Medical Assistance (operat. obj. A 1 and C 1) || MS required to provide medical assistance to children upon request by the child, parents, person of trust of the lawyer. || Idem 
 4. Access to a lawyer (corresponds to operational objective B 2) ||  MS required to ensure mandatory access to a lawyer for all children during the entire proceeding (subject to national legal aid schemes – cost of compulsory assistance will not be dealt with by this measure). || Idem 
 5. Special provisions on conducting police interviews (corresponds to operational objective C 1) || MS to ensure that interviews are conducted by specially trained professionnals. || Idem + MS required to audio-video record police interviews. MS to ensure protection of privacy rules. 
 6. Special provisions on court hearings (corresponds to operat. object. C 1) || MS required to ensure that appropriate privacy protection rules for children are respected in court (including the protection of the name and the image of the child, possiility of 'in camera' hearings). || MS required to ensure that court hearings are conducted by specially trained judges, with respect of appropriate privacy protection rules. ) 
 7. Specific rules related to detention (corresponds to operational objectives C 1 ) || MS required to ensure that pre-trial detention may only be imposed on children as a measure of last resort and after having considered all alternatives measures to detention (limited in time, exceptional and reviewed on a regular basis). Limitation with regard to age and maximum length should be envisaged. MS to ensure that minors are kept separately from adults[127]. || Idem + The placement of the minor would be ordered by a specialized judge. Access to educational facilities should be provided. 
Table 2 – Special
safeguards for vulnerable adults
 Measure (+ operational objective) || Policy option 3 Medium Level || Policy Option 4 High level 
 1. Assessment of vulnerable persons (corresponds to operational objective A 1) || MS required to introduce a specific and more systematic screening procedure to identify persons that cannot sufficiently understand or follow the criminal procedure. MS required to ensure that law enforcement authorities in contact with potentially vulnerable persons check and assess the vulnerability and the needs of the person (at the beginning but also possibly at later stages of the proceedings if needed). || Idem + MS required to ensure in-depth assessment of vulnerable persons by an independent medical professional and to identify the needs of the vulnerable persons. MS required to consider as vulnerable persons individuals who cannot understand or follow the criminal procedure due to mental impairment or physical disabilities (presumption of vulnerability). 
 2. Assistance by legal representative or a person of trust (corresponds to operational objective B.1) || MS required to ensure information of the legal representative or a person of trust on the rights and charges and adequate assistance unless it would be contrary to the best interest of the vulnerable person. MS required to request the physical presence of the legal representative/person of trust, unless it would be contrary to the best interest of the vulnerable person. || Idem 
 3. Medical assistance (corresponds to operational objectives A 1 and C1) || MS are required to provide medical and other relevant professional assistance to vulnerable persons. The type of assistance is left to the discretion of MS (mostly by generalist practitioners). || MS required to provide medical and other relevant professional assistance to vulnerable persons (by a specialised expert) upon request of the person, legal representative or other appropriate adult from the outset of the deprivation of liberty and as deemed necessary at later stages. 
 4. Access to a lawyer (corresponds to operational objective B 2) || Mandatory access to a lawyer for all persons declared vulnerable during the entire proceeding. || Idem 
 5. Special provision on conducting police interviews (corresponds to operational objective C 1) || MS required to ensure that interviews are conducted by specially trained professionals. || Idem + MS required to audio-video record police interviews. MS are required to respect the protection of privacy rules. 
 6. Special provision on court hearing (corresponds to operational objective C1) || MS required to ensure that appropriate privacy protection rules for vulnerable adults are respected in court (including the protection of the name and the image of the person, prevention of public dissemination of information). || MS required to ensure that hearings are conducted by specially trained judges, with respect of appropriate privacy protection rules. 
 7. Special rules related to detention (corresponds to operational objective C1) || MS required to ensure that the detention is proportionate, that vulnerable persons receive medical attention when necessary and that they are detained separately from other detainees[128]. || Idem 
7.           Impact
analysis of the options
The impact analysis relies on in-depth
analysis of the respective national legislation in EU Member States in order to
assess the consequences of each parameter of each option. 
 At an early stage of the analysis it was concluded that, although the need to ensure a sufficient protection of vulnerable adults involved in criminal proceedings has been clearly demonstrated in this Impact Assessment (see above, Section 4) and is also recognised by stakeholders (for more details see Annex II), the difficulty to determine an overarching definition, and therefore the scope of application of the initiative (ratione personae), as well as the existence of fewer relevant international standards and provisions, ruled out taking legally-binding action in relation to safeguards for vulnerable adults. The assessment below in relation to vulnerable adults therefore assumes that action under options 3 and 4 would take the form of a Recommendation. For children, however, no such difficulties in reaching a satisfactory definition arise, and so the assessment of options 3 and 4 assumes that intervention would take the form of a legally-binding Directive. 
Unit costs for phone calls, medical
examination, police officer wages, social worker wages are estimated on the
basis of EUROSTAT data, when available, or estimations made in the External
Study. Whereas it was originally intended to base the estimates on the costs of
safeguards on the use of national data on population affected and the relative
costs per Member State (taking into account national wages), this approach has not
been followed (except legal aid) because of certain incoherencies and gaps of
national data. The reasons are set out in detail (in Annex VII).
As mandatory access to a lawyer has the
most important cost implications, detailed calculations per Member States
taking into account the exact figures of the affected population have been
carried out to provide the most accurate figures. The assumptions made in the
context of this Impact Assessment are in line with the Impact Assessment on
legal aid (for costs of emergency defence and legal aid by case of each
affected Member State). It takes also into account the level of legal aid in
those Member States and assumes the impact of the future Directive on access to
a lawyer to estimate precisely the potentially affected population (for more
details on costs see Annex VII). 
The options are therefore assessed on the
basis of extrapolations and on the basis of effectiveness in achieving the
specific and operational objectives in largely qualitative terms using input
from stakeholders and in terms of potential cost savings and efficiency gains
in criminal proceedings. 
Policy option 1 – Retention of the status quo
 Expected Impact 
 Effectiveness in meeting objectives || None: As international instruments are not uniformly implemented by Member States, the level of protection of vulnerable suspects or accused persons, resulting from the substantially diverging standards, remains inadequate at present, although it may improve in the long term as a result of progressive compliance with the ECtHR relevant jurisprudence by an increasing number of Member States. 
 Political Feasibility || N/A 
 Impact on fundamental rights || Low: Under this option, access of vulnerable suspects or accused persons to specific safeguards designed to meet their needs will continue to be protected at the Member States level. Their fundamental rights will continue to be protected in a different manner according to each national system. The Charter of Fundamental Rights will be applied only when EU law is involved, for example under the regime of the European Arrest Warrant. 
 Financial and economic impact || Low: There are no immediate new financial burdens associated with this option. However, this option will not lead to a reduction of the costs to Member States' law enforcement budget and costs to individual suspects or accused persons incurred by appeals, aborted prosecutions and protracted judicial litigation in Member States where vulnerable suspects or accused persons have not been provided with adequate safeguards at a decisive stage of criminal proceedings. Given the increase in applications to the ECtHR, costs for Member States linked with damages awarded to individuals are likely to augment. 
 Social Impact || Very limited: The social impact of this option will be very limited. It is rather expected that in many Member States vulnerable persons suspected or accused in criminal proceedings will continue to suffer from insufficient safeguards granted to them. 
 Impact on domestic justice systems || Very limited: Domestic justice systems may naturally evolve towards more convergence in the light of ECtHR jurisprudence but there is no guarantee that this will happen in the short to medium term. In fact, the need to implement certain ECtHR rulings may even increase the existing divergence, as Member States tend to interpret ECtHR pronouncements in different ways. 
Policy
Option 2: Non-legislative measures that support the protection of children and
other vulnerable suspected or accused persons through monitoring and
evaluation, training and good practice examples disseminated
 Expected Impact 
 Effectiveness in meeting objectives || Low: Member States are not obliged to implement non-binding guidelines. The risk is high that in particular those Member States which currently do not comply with minimum international and ECtHR standards will not fully implement the guidelines. Moreover, the added value of these measures to the existing system of CPT (European Committee for the Prevention of Torture) or CRC (Committee on the rights of the child) visits and reports at least where arrested or detained suspects are concerned, is rather limited. 
 Political Feasibility || High: Member States will have no particular obligations except certain reporting tasks. This option should therefore not experience significant objections. 
 Impact on fundamental rights || Limited: The impact of this option will depend to a large extent on how Member States would implement the non-binding guidelines or recommendations. However, consisting mainly of soft-law measures and given the overall situation as regards the lack of possibilities to enforce those rights, this positive impact will remain limited. 
 Financial and economic impact || Low/Medium: The financial or administrative burden resulting from this option will depend on the level of Member States' implementation of the guidelines and recommendations. The total maximum financial costs are estimated to be approximately €20.2 million. These costs include the amount of €18.6 million for the training of police officers and judges in the EU. They have been established on the basis that 12.5% of the police and judge population would be trained in the first year. They are based on the costs of external legal experts providing the training and of the opportunity costs of attendance for police officers and judges/prosecutors. Other costs (e.g. travel and other mission expenses) are not included. This amount corresponds to the training costs foreseen in Option 4. The additional amount of €1.6 million has been taken into account to cover the costs of a study on best practices, guidelines, cost of online platforms, workshops, seminars, and peer review meetings (based on lump sums; for more details see Annex VIII). 
 Social Impact || Limited: The social impact will be positive but limited. Regular monitoring, evaluation and training activities would improve on a long-term the protection of vulnerable persons suspected and accused in criminal proceedings. 
 Impact on domestic justice systems || Limited: The overall impact on domestic justice systems will be limited since the non-binding nature of this policy option may not yield significant results. Legislative reforms will not be imposed when needed, but left to national legislators. Guidelines and recommendations may help the judiciary to interpret domestic provisions in compliance with the ECHR, but it is unlikely that the effect would be more significant than the effect of ECtHR rulings alone. 
Policy
Option 3: Medium level of obligation
(1) Children (Directive)
 Expected Impact 
 Effectiveness in meeting objectives || Medium: Policy Option 3 will introduce safeguards which incorporate ECtHR jurisprudence and pertinent aspects of relevant international provisions for children into the EU legislative framework. This policy option is therefore likely to have a positive impact with regard to the achievement of the general objectives of the measure(s) covering special safeguards for children. By setting minimum standards in compliance with international law in relation to the assistance by parents or persons of trust, access to a lawyer, medical assistance, police interviews, pre-trial detention as well as at the hearing, variations in the application of the existing legal framework will be reduced and mutual trust improved. More specifically, areas where policy option 3 would have a clear impact are: - With regard to the assessment and assistance of children by parents, safeguards would be made more specific and cater for the lack of precision of international and European law in this area. They would forsee a specific and more systematic check and assessment of potential vulnerabilities of children at the beginning of criminal proceedings (and possibly at later stages of the proceedings). Moreover, the holder of parental responsibility would be informed about the rights and charges related to the child and asked to be present at the police station to better assist and support the child. - Medical assistance would be available upon request by the child, parent, a person of trust or the lawyer. - Access to a lawyer: going beyond the measures foreseen by the Draft Directive on access to lawyer, this policy option would make legal defence mandatory from the beginning of the proceedings without any possibility for the child to waive this right; - Detention in accordance with international recommendations on juvenile justice, children  would be kept separately from adult detainees. Detention would be limited in time and considered as a measure of last resort; - The protection of rules on privacy (including the name and image of the child, prevention of public dissemination of information, possibility of 'in camera' hearings) should be ensured; - MS would be encouraged to ensure training for professionals in contact with vulnerable persons, including police officers and judicial authorities.  The foreseen safeguards will significantly improve mutual trust and cooperation. However, this policy option will have a limited impact with regard to the strengthening of certain measures for children and thereby achieving the specific and operational objectives for these measures. The most telling example concerns the assessment of children which would ensure a first assessment or screening mechanism by law enforcement officers but no in-depth assessment of the child's maturity and capacity to effectively participate in criminal proceedings would be ensured. Other examples relate to the conducting of police interviews (no recording of the interview foreseen) or court hearings where the safeguards provided for by option 3 are much more limited than the safeguards provided for by option 4. 
 Political Feasibility || Medium: Given that this policy option foresees certain obligations on Member States and involves corresponding costs, negotiation and implementation will entail discussions, in particular with those Member States which have the lowest standards in place. 
 Impact on fundamental rights || Positive Impact: This policy option will have positive impact on fundamental rights - More specifically, the obligation of Member States to ensure adequate information and assistance by parents or a person of trust will contribute to the right to a fair trial. - Mandatory access to a lawyer will have a significant impact on the rights of defence of children. It will be the most effective safeguard to ensure that children’s rights to a fair trial will be respected. - Certain limited safeguards with regard to police interviews, court hearings and detention would enhance the fair trial rights, the right to liberty and security and the right to non-discrimination. They would also provide protection against ill-treatment. 
 Financial and economic impact (For more details on cost calculations, see Annex VIII +IX) || Medium: Total costs are expected to be in the medium range of the four options. Almost all costs will have to be borne by public administrations on both national and local level. Costs on measures foreseen in Option 3 which are negligible or amount to 0 are not set out in further detail below[129]. The costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, or aborted prosecutions due to breaches of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and also to the reduction of custodial measures. In the long term, the financial impact estimated below should gradually decrease as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used.   || Total EU cost (Min. / Millions of Euros) 
 Information/Assistance by parents/person of trust || 3.6 
 Medical assistance || 2.3 
 Mandatory access to a lawyer || 93 
 Detention || 1.2 
 Total || 100.1 
 Information/Assistance by parents or persons of trust The costs are estimated to be €3.6 million. 
Member States
  would be required to bear the cost of information (i.e. the cost of police
  officers arranging telephone calls at arrest stage for the population of
  children under consideration). All Member States affected.
 Medical assistance The costs are estimated to be €2.3 million. 
The costs include
  the health care costs provided throughout the criminal proceedings. This
  policy proposal would only generate additional costs to those Member States
  which do not formally guarantee the right to medical assistance for suspected
  and accused persons: EE, IT, LT.
 Mandatory access to a lawyer The costs are estimated to be €93 million. 
The costs for
  mandatory access to a lawyer are calculated on the basis of the national
  average cost of legal aid in each affected Member State from the beginning of
  criminal proceedings until its end[130] (with regard to
  the vulnerable population in the countries affected). The costs for mandatory access to a
  lawyer are governed by national law, including legal aid schemes. If mandatory access to a lawyer is
  introduced in a Member State that does not foresee this measure, it is
  assumed that the costs will be borne by the national legal aid budget, which
  however could be subject to a means test. A detailed analysis of legal
  measures and costs related to legal aid is subject to a separate Impact
  Assessment on legal aid.
The following MS
  do not provide for mandatory legal defence for children: CY, IE, LU, UK. Some
  MS provide for mandatory legal defence upon decision by the competent judge:
  DE, FI, SE. In SI, NL and FR mandatory defence is foreseen for the
  proceedings before the court but not before the police. In AT mandatory
  access to a lawyer is foreseen except minor offences.
 Detention The costs are estimated to be €1.2 million. 
These costs
  include the re-organisation of detention facilities to allow separate
  detention of children and adult detainees. Member States affected: BG, CY,
  CZ, EL.
The amount does
  not account for the cost savings with regard to alternative measures to
  detention (e.g. release and monitoring). There should not be additional costs
  with regard to alternative measures (such as reporting obligations to
  competent authorities, restrictions of contacts with specific persons,
  undergoing of therapeutic treatment or participation in educational measures)
  as such measures should already by available in Member States in accordance
  with the Council Framework Decision 2009/829/JHA of 23 October 2009 on the
  application, between Member States of the European Union, of the principle of
  mutual recognition to decisions on supervision measures as an alternative to
  provisional detention[131].
  
 Social Impact || Positive impact: This policy option will ensure a minimum level of protection of the procedural rights of children suspected and accused and thereby improve their individual situation as well as the situation of family members, thus contributing to their integration into society, labour market and the economy. Certain minimum safeguards with regard to the identification, assessment, and legal advice will strengthen the individual's rights in criminal proceedings. Moreover, the obligation that children would be detained separately from other detainees would have a positive impact on the protection against ill-treatment or abuse. It could also help to reduce some of the socioeconomic impact of excessive pre-trial detention by thoroughly examining alternatives to detention and making pre-trial detention only a measure of last resort. It will also avoid possible desocialisation and in some cases victimisation. 
 Impact on domestic justice systems || This policy option would have positive impact on Member States judicial systems as it would increase legal certainty by introducing commonly agreed minimum standards as regards the protection of vulnerable suspects and accused persons in all EU Member States. In addition, it would have some positive impact on domestic justice in the sense that better assistance, mandatory access to a lawyer and training of professionals would lead to a reduction of lengthy trials or the frequency of appeals. It leaves room for flexibility as it sets out generally worded obligations and thus ensures respect for legal tradition and culture as provided for in Article 82 TFEU. 
2)
Adults (Recommendation)
 Expected Impact 
 Effectiveness in meeting objectives || Medium: Policy Option 3 will introduce safeguards which incorporate ECtHR jurisprudence and pertinent aspects of relevant international provisions into the EU legislative framework for vulnerable adults. Assuming Member States will implement the Recommendation, this policy option is likely to have a positive impact with regard to the achievement of the general objectives of the measure(s) covering special safeguards for vulnerable adults. By setting minimum standards in compliance with international law in relation to the assistance by legal representatives or a person of trust, access to a lawyer, medical assistance, police interviews, pre-trial detention as well as during the hearing, variations in the application of the existing legal framework will be reduced and mutual trust improved. More specifically, areas where policy option 3 would have a clear impact are: - Assessment of vulnerable adults: Member States would need to ensure that law enforcement authorities in contact with vulnerable persons assess the vulnerability and the needs of the person (a specific and more systematic procedure or screening mechanism should be put into place). This should be done at the beginning of the criminal proceedings (and at later stages of the proceedings if necessary). - Assistance of vulnerable adults: the legal representative or a person of trust would be informed on the rights and charges concerning the vulnerable adult and could adequately assist the vulnerable person. Moreover, their presence at the police station or court hearing should be ensured.  - Access to a lawyer: going beyond the measures foreseen by the Draft Directive on access to lawyer, this policy option would make the access to a lawyer  mandatory from the beginning of the proceedings without any possibility to waive this right. - MS would be encouraged to ensure training for professionals in contact with vulnerable adults; - Detention: vulnerable adults should be kept separately from other detainees. Detention would be limited in time and considered as a measure of last resort. Moreover, a vulnerable adult should have access to medical assistance when necessary. -  The protection of rules on privacy (including the name and image of the person, prevention of public dissemination of information) should be ensured. - The foreseen safeguards will significantly improve mutual trust and cooperation. However, this policy option will have a limited impact with regard to the strengthening of certain measures for vulnerable adults and thereby achieving the specific and operational objectives for these measures. The most telling example concerns the assessment of vulnerable adults which would ensure a first assessment or screening mechanism of vulnerable persons by law enforcement officers but no in-depth assessment of the person's capacity to effectively participate in criminal proceedings would be ensured. Other examples relate to the conducting of police interviews (no recording of the interview foreseen) or court hearings where the safeguards provided for by option 3 are much more limited than the safeguards provided for by option 4. Finally it should be highlighted that the fact that no common definition of vulnerale adults will be introduced, the definition of vulnerable groups will continue to vary between Member States and will have a certain negative impact on the efficiency of such a measure. 
 Political Feasibility || Medium: Given that this policy option seeks to establish minimum standards above the levels currently applicable in Member States, it will involve corresponding costs for a number of them. Negotiation and implementation will entail discussions, in particular with those Member States which have lower standards in place. 
 Impact on fundamental rights || Positive Impact: This policy option will have positive impact on fundamental rights - More specifically, the recommendation to Member States to ensure adequate information and assistance by legal representatives or a person of trust will contribute to the right to a fair trial. - Mandatory access to a lawyer will have a significant impact on the rights of defence of vulnerable adults. It will be the most effective safeguard to ensure that vulnerable persons are not subject to coercion by police or investigating authorities. - Certain safeguards with regard to police interviews, court hearings and detention would enhance the fair trial rights, the right to liberty and security and the right to non-discrimination. They would also provide protection against ill-treatment. However, the impact of this option will depend on how Member States implement the Recommendation. Certain improvements to the rights of defence and the right to a fair trial are cumulative, but the absence of any method of enforcement might result in only a variable improvement in the Member States. 
 Financial and economic impact (For more details on cost calculations, see Annex VIII +IX) || Medium: The financial or administrative burden resulting from this option will depend on the level of Member States' implementation of all or some of the provisions of the Recommendation. Should all Member States comply with the Recommendation, total costs are expected to be in the medium range of the four options. Almost all costs will have to be borne by public administrations on both national and local level. Costs on measures which are negligible or amount to 0 are not set out in further detail below[132]. The costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and also to the reduction of custodial measures. In the long term, the financial impact estimated below should gradually decrease as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used.   || Total EU cost (Min.) (Millions of Euros) || Total EU cost (Max.) (Millions of Euros) 
 Information/Assistance by legal representatives/persons of trust || 0.3 || 0.6 
 Medical assistance || 1.5 || 3 
 Mandatory access to a lawyer || 22.7 || 45.5 
 Detention || 15.8 || 23.7 
 Total || 40.3 || 72.8 
 Information/Assistance by legal representative or a person of trust The costs are estimated to range from €0.3 million to 0.6 million. 
Member States
  would be required to bear the cost of information (i.e. the cost of police
  officers arranging telephone calls at arrest stage for the population of 
  vulnerable adults under consideration. All Member States affected.
 Medical assistance The costs are estimated to range from €1.5 million to 3 million. 
The costs
  include the health care costs provided throughout the criminal proceedings.
  This policy proposal would only generate additional costs to those Member
  States which do not formally guarantee the right to medical assistance for
  suspected and accused persons: EE, IT, LT.
 Mandatory access to a lawyer The costs are estimated to range from €22.7 million to 45.5 million. 
The costs for
  mandatory access to a lawyer are calculated on the basis of the national
  average cost of legal aid in each affected Member State from the beginning of
  criminal proceedings until its end[133] (with regard to
  the vulnerable population in the countries affected). The costs for mandatory access to a
  lawyer are governed by national law, including legal aid schemes. If mandatory access to a lawyer is
  introduced in a Member State that does not foresee this measure, it is
  assumed that the costs will be borne by the national legal aid budget, which
  however could be subject to a means test. A detailed analysis of legal
  measures and costs related to legal aid is subject to a separate Impact
  Assessment on legal aid. Affected MS: BE, DK, IE, UK.
 Detention The costs are estimated to range from €15.8 to 23.7 million. 
These costs
  include the re-organisation of detention facilities to allow separate
  detention of vulnerable adults from other detainees. The amount does not
  account for the cost savings with regard to alternative measures to detention
  (e.g. release and monitoring). The costs mainly include the provision of separate
  detention and health-care costs. The amount does not account for potential
  cost savings with regard to alternative measures to detention. Member States
  affected: all.
 Social Impact || Positive impact: If properly implemented by Member States, this policy option will ensure a minimum level of protection of the procedural rights of vulnerable persons suspected or accused and thereby improve their individual situation as well as the situation of family members, thus contributing to their integration into society, labour market and the economy. Certain minimum safeguards with regard to the identification, assessment, medical assistance and legal advice will strengthen the individual's right in criminal proceedings. Moreover, the recommendation that vulnerable adults should be detained separately from other detainees would have a positive impact on the protection against ill-treatment or abuse. It could also help to reduce some of the socioeconomic impact of excessive pre-trial detention by thoroughly examining alternatives to detention and making pre-trial detention only a measure of last resort. 
 Impact on domestic justice systems || This policy option would have positive impact on Member States judicial systems as it would increase legal certainty by introducing commonly agreed minimum standards as regards the protection of vulnerable adults in all EU Member States. In addition, it would have some positive impact on domestic justice in the sense that better assessment, assistance, mandatory access to a lawyer would lead to a reduction of lengthy trials or the frequency of appeals. 
Policy
Option 4: High level of obligation
(1)
Children (Directive)
 Expected Impact 
 Effectiveness in meeting objectives || High: Policy Option 4 imposes more ambitious rules and a "higher" level of obligation on Member States than Option 3 on certain safeguards such as the assessment of vulnerability, police interviews, court hearings and detention. Thereby, policy option 4 is likely to: ·         Have the highest possible impact with regard to the attainment of the general and specific objectives of the measures covering special safeguards for children  suspected or accused in criminal proceedings; ·         Ensure an optimum level of protection of the procedural rights in criminal proceedings of children through the establishment of highest standards on necessary and sufficient safeguards; ·         Significantly improve mutual trust and cooperation. This will be achieved by (1) strengthening the existing legal framework in line with non-binding provisions and good practices in EU Member States and (2) by introducing more specific safeguards for children in cases where international and European standards are not sufficiently prescriptive (e.g. police interviews, court hearings, pre-trial detention and remedies). More specifically, in addition to the safeguards already foreseen by option 3, policy option 4 would have a significant higher impact on the procedural safeguards with regard to the following areas: - An in-depth assessment of vulnerability: an in-depth assessment of the level of the child's maturity and ability to effectively participate in criminal proceedings, his or her mental and physical disabilities would help to detect appropriately children's vulnerabilities. Moreover, a situational analysis would be obligatory. The extent of assessment would of course depend on the severity of the crime. - Police questioning, the interview will be audio and video-recorded. This is very likely to ensure that the procedural rights of children will be respected and that they are not subject to ill-treatment or abuse. - The placement of a child in pre-trial detention should be ordered by a specialised judge. Access to educational facilities for children should be provided. - Court hearings should be conducted by specialised judges. Appropriate privacy protection rules need to be ensured. 
 Political Feasibility || Low - Medium: Given the number of obligations imposed on Member States and the costs involved, negotiation and implementation will entail severe discussion, in particular with those Member States which have the lowest standards in place and on the issue of discarding evidence obtained in breach of rights. Nevertheless, Member States overall supported this initiative during the experts meetings. 
 Impact on fundamental rights || Positive: This policy option would have a very positive impact on the fundamental rights of children according to the Charter, especially the right to a fair trial (Article 47) and the right to liberty (Article 6). It sets out a common high standard and would lead to a significant improvement of a number of rights set out above: ·         An in-depth assessment of vulnerability of children and medical assistance would allow to address their specific needs. ·         The rights of defence of the child will be considerably strengthened by several specific safeguards with regard to police interviews, detention and court hearings. ·        The right to human dignity and right to the integrity of the person would be strengthened by obligatory rules on training for all professionals in contact with vulnerable persons. 
 Financial and economic impact (For more details on cost calculations, see Annex VIII + IX) || High: Total costs are expected to be the highest of the four options. Almost all costs will have to be borne by public administrations on both a national and local level. Costs on measures foreseen in Option 4 which are negligible or amount to 0 are not set out in further detail below[134]. The costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and reduction of custodial measures. In the long term, the financial impact estimated below should gradually reduce as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used.   || Minimum Total EU cost (Millions of Euros) 
 Assessment of vulnerability || 34.8 
 Assistance by parents or a person of trust (The costs are identical with option 3). || 3.6 
 Medical assistance (The costs are identical with option 3). || 2.3 
 Mandatory access to a lawyer The costs are identical with option 3). || 93 
 Police Interviews || 1.3 
 Detention || 29.2 
 Training || 18.6 
 Total || 164.2 182.8 (training costs incl.) 
 Assessment of vulnerability and situational analysis The costs are estimated to be €34.8 
The calculation
  of the costs is based on in-depth assessment and situational analysis by
  various stakeholders (e.g. police, prosecutors, social experts, medical
  experts). 
All Member
  States would be at least partly affected as they foresee only a case-by-case
  assessment (LT does not foresee any assessment mechanism). 
 Medical assistance The costs are estimated to be €2.3 million. 
The costs
  include the health care costs provided throughout the proceedings. The Member
  States affected are EE, IT, LT. 
 Police Interviews The costs are estimated to be €1.3 million. 
The additional
  costs introduced by this policy proposal consist of the usage costs of the
  video and audio recording equipment (It is assumed that 24 MS have video
  recording facilities in place following the implementation of the Victims'
  Directive)[135].
  It would affect a majority of MS: AT, BG, CY, CZ, DE, DK, EE, ES, EL, HU, IE,
  LI, LU, MT, PL, PT, RO, SK, SI, SE and UK (partly). During the expert meetings, several
  Member States were in favour of video or audio recording. However, some
  raised, cost issues. In this respect, it should be noted, that the Directive
  2012/29/EU on the protection of victims of crime[136] provides such a
  safeguard for all interviews with a child victim[137]. It can be
  assumed that the same recording facilities at police stations which need to
  be installed in the course of the implementation of this Directive[138] could be also
  used for interviewing suspects and accused children. The financial impact of
  this safeguard will therefore be limited.
 Detention The costs are estimated to be to €29.2 million. 
The costs
  consist in particular of enhanced prison facilities for children to cater for
  educational needs. Enhancing prison facilities to cater for educational needs
  of children would affect the following Member States: BG, CY, CZ, FR, LV, PL,
  RO.
 Training The costs are estimated to be €18.6 million. 
These costs
  include the training of police officers and judges in the EU. They have been
  established on the basis that 12.5% of the police and judge population would
  be trained in the first year. They are based on the costs of external legal
  experts providing the training and of the opportunity costs of attendance for
  police officers and judges/prosecutors. Other costs (e.g. travel and other
  mission expenses are not included). 
They are the same
  as the training costs of policy option 2[139]. Cost
  savings will be possible because of synergies with training foreseen
  in the context of the proposed measures on Legal Aid and the implementation
  of the Directives 2010/64/EU on the right to interpretation and translation
  and Directive 2012/13/EU on the right to information. 
 Social Impact || Positive: Clearly enhanced standards as regards the procedural safeguards for children would prevent discrimination and promote fair conditions in judicial proceedings, thus significantly improving their individual situation (including in most cases the situation of family members). According to the UNDP, pre-trial detention affects not just the individuals detained, but their families, communities and even countries in general. Regulating conditions of pre-trial detention and, most importantly, providing access to educational facilities would lead to a better (re-) integration of children into society, labour market and economy. This policy proposal is also likely to have a positive impact on social security systems (e.g. reduced costs to welfare state) as it could help reducing some of the socio-economic impact of excessive pre-trial detention. 
 Impact on domestic justice systems || This policy option will have a very significant impact on Member States judicial systems as all Member States would be obliged to introduce certain changes to their national criminal procedural laws. It would have positive impact on domestic justice in the sense that specific training of professionals would lead to a reduction of lengthy trials or the frequency of appeals. Finally, this option will also significantly enhance judicial cooperation as variations between Member States in the way certain rights are conveyed to children will decrease. 
 (2) Vulnerable Adults (Recommendation)
 Expected Impact 
 Effectiveness in meeting objectives || High: Policy Option 4 imposes more ambitious rules and a "higher" level of obligation on Member States than Option 3 on certain safeguards such as the assessment of vulnerability, police interviews, court hearings and detention. Assuming that Member States will implement the Recommendation, policy option 4 is likely to: ·         Have the highest possible impact with regard to the attainment of the general and specific objectives of the measures covering special safeguards for vulnerable adults suspected or accused in criminal proceedings; ·         Ensure an optimum level of protection of the procedural rights in criminal proceedings of vulnerable adults through the establishment of highest standards on necessary and sufficient safeguards; ·         Significantly improve mutual trust and cooperation. This will be achieved by (1) strengthening the existing legal framework in line with non-binding provisions and good practices in EU Member States and (2) by introducing more specific safeguards for vulnerable adults in cases where international and European standards are not sufficiently prescriptive (e.g. police interviews, court hearings, pre-trial detention and remedies). More specifically, certain areas where this policy option would have a significant impact on the procedural safeguards: ·         An in-depth assessment of vulnerability: specific safeguards such as the expertise by an independent medical expert would be introduced to assess the vulnerability of adults and to identify the specific needs of such a person. These safeguards should be in place from the outset of the proceedings.  ·         Medical assistance: Vulnerable adults would receive medical assistance adapted to their particular needs and their vulnerability from the outset of deprivation of liberty and as deemed necessary in later stages. This proposal would ensure that vulnerable adults would receive assistance in line with their vulnerability. ·         During police questioning, the interview will be audio and video-recorded. This is very likely to ensure that the rights of vulnerable persons will be respected and that they are not subject to ill-treatment or abuse. ·         The placement of vulnerable adults in pre-trial detention should be proportionate. Vulnerable adults should be held separately from other detainees and should have access to recreational activities. ·         Court hearings should be conducted by specialised judges and in a manner which takes into account the specific needs of the vulnerable person. Appropriate privacy protection rules need to be ensured. However, it should be highlighted that the fact that no common definition of vulnerale adults will be introduced, the definition of vulnerable groups will continue to vary between Member States and will have a certain negative impact on the efficiency of such a measure. 
 Political Feasibility || Medium: Given that this policy option seeks to establish more ambitious rules above the level currently applicable in Member States, it will involve corresponding costs for them. The implementation may entail discussions, in particular with those Member States which have the lowest standards in place. 
 Impact on fundamental rights || Positive: If implemented by Member States, this policy option will have a very positive impact on the fundamental rights of vulnerable adults according to the Charter, especially the right to a fair trial (Article 47) and the right to liberty (Article 6). It sets out a common high standard and would lead to a significant improvement of a number of rights set out above: ·         An in-depth assessment and medical assistance to suspected and accused vulnerable adults would allow to address their specific needs. ·         The rights of people with disabilities will be considerably strengthened by several specific safeguards with regard to police interviews, detention and court hearings. ·         The right to human dignity and the right to the integrity of the person would be strengthened by obligatory rules on training for all professionals in contact with vulnerable persons. 
 Financial and economic impact (For more details on cost calculations, see Annex VIII + IX) || High: The financial or administrative burden resulting from this option will depend on the level of Member States' implementation of all or some of the provisions of the Recommendation. Should all Member States comply with the Recommendation, total costs are expected to be the highest of the four options. Almost all costs will have to be borne by public administrations on both a national and local level. Costs on measures foreseen in Option 4 which are negligible or amount to 0 are not set out in further detail below[140]. The costs do not take into account possible cost savings resulting from a reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects' fair trial rights. In particular, mandatory access to a lawyer will lead to improved legal defence thereby reducing the repetition of interrogations and contributing to the streamlining of investigations and hearings and reduction of custodial measures. In the long term, the financial impact estimated below should gradually reduce as procedural safeguards for vulnerable persons would be improved and remedies for breaches of fair trial rights would be less used.   || Minimum Total EU cost (Millions of Euros) || Maximum Total EU cost (Millions of Euros) 
 In-depth assessment of vulnerability || 23.8 || 47.2 
 Assistance by legal representatives/person of trust (The costs are identical with option 3) || 0.3 || 0.6 
 Medical assistance || 7.7 || 15.4 
 Mandatory access to a lawyer (The costs are identical with option 3) || 22.7 || 45.5 
 Police Interviews || 0.6 || 1.2 || 
 Detention || 79.3 || 119 || 
 Training || 18.6 || 18.6 || 
 Total || 134.4 153 [training costs incl.] || 228.9 247.5 [training incl.] || 
 Assessment of vulnerability The costs are estimated to range from €23.8 million to 47.2 million. 
The calculation
  of the costs is based on screening mechanisms, in-depth assessment and
  situational analysis by various stakeholders (e.g. police, prosecutors,
  social experts, medical experts). All Member States  would be at least partly
  affected as they foresee only a case-by-case assessment (LT does not foresee
  any assessment mechanism). 
 Medical assistance The costs are estimated to range from €7.7 million to 15.4 million. 
The medical
  assistance would be adapted to the particular needs and the vulnerability of
  the person concerned. The additional costs include the costs of medical
  experts in the Member States under consideration (i.e. all Member States
  except FI, NL, PL, SE). Medical assistance would be provided at arrest and
  trial stage.
 Police Interviews The costs are estimated to range from €0.6 million to 1.2 million. 
The additional
  costs introduced by this policy proposal consist of the usage costs of the
  video and audio recording equipment (It is assumed that 24 MS have video
  recording facilities in place following the implementation of the Victims'
  Directive)[141].
  It would affect a majority of MS: AT, BG, CY, CZ, DE, DK, EE, ES, EL, HU, IE,
  LI, LU, MT, PL, PT, RO, SK, SI, SE and UK (partly).
 Detention The costs are estimated to range from €79.3 million to 119 million. 
Costs include
  medical expertise and recreational activities for the vulnerable population.
  Diverting vulnerable adults out of the judicial system is considered cost
  neutral for Member States. This policy proposal would affect all Member
  States.
 Training The costs are estimated to be €18.6 million. 
These costs
  include the training of police officers and judges in the EU. They have been
  established on the basis that 12.5% of the police and judge population would
  be trained in the first year. They are based on the costs of external legal
  experts providing the training and of the opportunity costs of attendance for
  police officers and judges/prosecutors. Other costs (e.g. travel and other
  mission expenses are not included). 
They are the
  same as the training costs of policy option 2[142]. Cost savings
  might be possible because of synergies with training foreseen in the context
  of the proposed measures on Legal Aid and the implementation of the
  Directives 2010/64/EU on the right to interpretation and translation and
  Directive 2012/13/EU on the right to information.
 Social Impact || Positive: Clearly enhanced standards as regards the procedural safeguards for vulnerable adults would prevent discrimination and promote fair conditions in judicial proceedings, thus significantly improving their individual situation (including in most cases the situation of family members). According to the UNDP, pre-trial detention affects not just the individuals detained, but their families, communities and even countries in general. Regulating conditions of pre-trial detention and providing access to educational facilities would lead to a better (re-) integration of children into society, labour market and economy. If implemented by Member States, this policy proposal is also likely to have a positive impact on social security systems (e.g. reduced costs to welfare state) as it could help reducing some of the socio-economic impact of excessive pre-trial detention. 
 Impact on domestic justice systems || If properly implemented by Member States, this policy option will have a very significant impact on Member States judicial systems as all Member States would need to introduce certain changes to their national criminal procedural laws. It would have positive impact on domestic justice in the sense that specific training of professionals would lead to a reduction of lengthy trials or the frequency of appeals. Finally, this option will also significantly enhance judicial cooperation as variations between Member States in the way certain rights are conveyed to vulnerable suspects and accused persons will decrease. 
8.           Comparative
assessment of the policy options 
If Policy Option 1 (status quo)
is pursued the risk of children and vulnerable adults not being granted
adequate safeguards to properly exercise their procedural rights would
continue. Although highly feasible, Policy option 1 (status quo) does
not meet the identified objectives and is therefore not further considered. 
The measures envisaged within Policy Option
2 are likely to contribute to the objectives of an EU intervention in the
field, but only to a limited extent. They are likely to have an impact on
raising the awareness of stakeholders on the specific needs of vulnerable
suspects and offenders. However, Policy Option 2 is unlikely to markedly affect
the application and enforcement of existing common standards, nor to improve
the coherence of national legislation and consistency between Member States. In
these circumstances mutual trust cannot be assured. Therefore Policy Option 2
does not fulfil all the objectives.
The legislative actions within Policy
Options 3 and 4 are likely to contribute more effectively to the objectives of
an EU intervention in the field. They would contribute (to varying degrees) to
the identification of the need for protection of children and vulnerable
suspected or accused adults: the creation of minimum standards for the
protection of children and vulnerable adults in cases where international and
European standards are not sufficiently prescriptive; the reduction of the
variation in the application of international and EU legislation at Member
States level. 
Overall, Policy Option 4 is the most likely
to meet all the objectives and to meet them to the greatest extent. However, it
is the most ambitious and costly one providing Member States with the least
amount of flexibility. 
9.           The
preferred option
9.1.        Children
The assessment has led to the selection of
a preferred option for children in the form of a Directive which combines
elements from Option 3 and Option 4. 
By the introduction of safeguards for
children from the very beginning of the proceedings until the trial stage, the
preferred option will significantly contribute to the achievement of the
general objectives. More specifically, the implementation of the preferred
option would help achieving the following results:
 Adoption of a Directive (operational objectives referred to in brackets): 1. Assessment of vulnerability: Option 4[143] By ensuring that children would be subject to an enhanced vulnerability assessment ("in-depth assessment"), it is likely that vulnerabilities will be adequately identified in the course of the proceedings. Cases related to minor offences would be excluded (A 1). 2. Assistance by the parents: Option 3[144] The obligation that the parentsare informed about rights and charges in an appropriate manner and that they are asked to be present at the police station, will ensure due information and assistance of the child throughout the proceedings (B 1). 3. Medical Assistance: Option 3[145] The provision of medical assistance (upon request) from the very beginning of the proceedings will contribute to ensure a proper assessment of vulnerabilities as well as protection from ill-treatment or abuse (A 1 and C 1). 4. Mandatory access to a lawyer: Option 3[146] Mandatory access to a lawyer from the very beginning and throughout the proceedings will ensure appropriate legal assistance from the very beginning of the proceedings without the possibility of children to waive this right ignoring or underestimating the consequences of such a waiver (B 2). 5. Police interviews: Option 4[147] The obligation to record police interviews will ensure appropriate safeguards against any ill-treatment, coercion or other possible abuse. (C 1). 6. Court hearings: Option 4[148] Special provisions with regard to court hearings (e.g. judges specially trained, appropriate rules on the protection of privacy) will ensure that the specific needs of children will be taken into account. (C 1). 7. Detention: Option 3[149] All alternative measures to pre-trial detention will be taken whenever it's in the best interests of the child. (Pre-trial) Detention will be considered as a measure of last resort and for the shortest possible time. Separate detention from adult detainees will enhance the level of protection. (C 1). As a flanking measure, high level of training of professionals in contact with children and vulnerable adults will ensure an appropriate knowledge of specific needs and vulnerabilities of children. 
   || Total annual costs (Millions of Euros) 
 Assessment of vulnerability || 34.8 
 Assistance by parents or a person of trust || 3.6 
 Medical Assistance || 2.3 
 Mandatory access to a lawyer || 93 
 Police Interviews || 1.3 
 Detention || 1.2 
 Training || 18.6 
 Total || 136.2 154.8 [training costs incl] 
In terms of fundamental rights, the
preferred policy option will have an overall very positive impact. The rights
to a fair trial, to information and legal advice, protection against
ill-treatment will be significantly enhanced (for more details see above,
Impact analysis of Policy Options 3 and 4, Section 7). The social impact
will be overall very positive as the individual situations (including in most
cases the situation of family members) will be improved (e.g. assessment,
information, assistance). Moreover, limitation of pre-trial detention will
reduce costs and facilitate reintegration into society. 
The preferred option has a clear EU added
value. It builds on and reinforces minimum standards based on the ECtHR acquis
and international standards with regard to procedural safeguards of children. It
will lead to more ambitious standards in several areas (e.g. mandatory access
to a lawyer, assessment of vulneraility and medical assistance, police
interviews, court hearings, detention). It will thereby raise the standards on
procedural rights of children involved in criminal proceedings in the Member
States and will ensure a level playing field across the EU. This will also have
a positive impact on mutual trust between judicial authorities and strengthen
the functioning of mutual recognition instruments in the EU.
9.2.        Vulnerable
Adults
The assessment has led to the selection of
a preferred option which will take the form of a Recommendation and which
combines elements from Option 3 and Option 4. 
By the introduction of safeguards for
vulnerable adults from the very beginning of the proceedings until the trial
stage, the preferred option will significantly contribute to the achievement of
the general objectives (under the assumption that the Recommendation is
implemented by Member States). 
 Adoption of a Recommendation (operational objectives referred to in brackets): 1. Assessment of vulnerability: Option 4 By ensuring that potentially vulnerable adults will be subject to an in-depth vulnerability assessment by an independent medical expert upon arrest and at later stages, it is likely that vulnerabilities will be identified at the beginning (or at least early stage) of the proceedings (A 1). 2. Assistance by legal representative or a person of trust: Option 3[150] The obligation that the legal representative or a person of trust or an appropriate third person are informed about rights and charges in an appropriate manner and that they are asked to be present at the police station, will ensure due information and assistance of the vulnerable adult throughout the proceedings (B 1). 3 Medical Assistance: Option 4 The provision of medical assistance for vulnerable adults (upon request and adapted to the needs of the person concerned) will contribute to ensure proper medical care of the person as well as protection from ill-treatment or abuse (A 1 and C 1). 4. Mandatory access to a lawyer: Option 3[151] Mandatory access to a lawyer for a vulnerable adult who is unable to understand and follow the proceedings will ensure appropriate legal assistance from the very beginning of the proceedings until its end without the possibility of the vulnerable adult to waive this right ignoring or underestimating the consequences of such a waiver (B 2). 5. Police interviews: Option 4[152] The obligation to record police interviews will ensure appropriate safeguards against any ill-treatment, coercion or other possible abuse. (C 1). 6. Court hearings: Option 3[153] Special provisions with regard to court hearings and the protection of privacy rules will ensure that the specific needs of vulnerable persons will be taken into account. (C 1) 7. Detention: Option 3[154] (Pre-trial) Detention should be considered as a measure of last resort, proportionate and taking place under conditions suited to the needs of the vulnerable adult (C 1). As a flanking measure, high level of training of professionals in contact with children and vulnerable adults will ensure an appropriate knowledge of specific needs and vulnerabilities of children. 
   || Total annual costs (Min.) (Millions of Euros) || Total annual costs (Max.) (Millions of Euros) 
 Assessment of vulnerability || 23.8 || 47.2 
 Assistance by a legal representative or a person of trust || 0.3 || 0.6 
 Medical Assistance || 7.7 || 15.4 
 Mandatory access to a lawyer || 22.7 || 45.5 
 Police Interviews || 0.6 || 1.2 
 Detention || 15.8 || 23.7 
 Training || 18.6 || 18.6 
 Total || 70.9 89.5 [training incl.] || 133.6 152.2 [training incl.] 
In terms of fundamental rights, the
preferred policy option will have an overall very positive impact. The rights
to a fair trial, to information and legal advice, protection against
ill-treatment will be significantly enhanced (for more details see above,
Impact analysis of Policy Options 3 and 4, Section 7). The social impact
will be overall very positive as the individual situations (including in most
cases the situation of family members) will be improved (e.g. assessment,
information, assistance). Moreover, limitation of pre-trial detention will
reduce costs and facilitate reintegration into society. 
The preferred option has a clear EU added
value. If the Recommendation is implemented by Member States, it will reinforce
minimum standards based on the ECtHR acquis and international standards with
regard to procedural safeguards of vulnerable adults. Going beyond, it will
lead to more ambitious standards in several areas (e.g. access to a lawyer,
assessment and medical assistance, protection of privacy rules, detention;
etc.). It will thereby raise the standards on procedural rights of vulnerable
adults involved in criminal proceedings in the Member States and will ensure a
level playing field across the EU. This will also enhance mutual trust between
judicial authorities and strengthen the functioning of mutual recognition
instruments in the EU.
10.         Transposition,
monitoring and evaluation
In relation to children, the
timeframe for transposition of the Directive by Member States will be two years
from its entry into force. As the Directive would create only a comparatively
limited number of obligations on Member States (taking into account the
assessment of political feasibility above) which, to some extent, mirror
existing obligations resulting from the ECHR, the case-law of the ECtHR and
international standards or already exist in a number of Member States, it is
expected that a two-year deadline would provide Member States with sufficient
time to effect necessary changes to their respective national laws and practice[155].
The Commission will assist Member States and competent
national authorities in the transposition of the Directive. Planned measures
taken by the Commission aimed at countering any potential risks to
implementation in time would be identified in an Implementation Plan
accompanying the proposal for the Directives.
Providing for a robust monitoring and
evaluation mechanism is crucial to ensure that the rights envisaged in the
Directive are complied with in practice as well as in legislation. The
Directive would stipulate that Member States should report on the effective
implementation of legislative or non-legislative measures based on the nature of
the proposed changes. 
A legislative instrument (Directive) opens
the possibility of EU enforcement mechanisms under Articles 258 and 259 of the
TFEU and also of preliminary rulings under Article 267 of the TFEU. This is
also an important element to be taken into account as it ensures the effective
transposition and implementation of the provisions laid down in that
legislative instrument, if necessary with the intervention of the Court of
Justice of the European Union. This represents an important stepforward
compared to the protection offered by the ECtHR.
As regards vulnerable adults, the
Commission would assess the implementation of the Recommendation 3 to 4 years
from the publication at the latest[156].
In this context, the Commission should assess also whether further measures to
strengthen the procedural safeguards foreseen in the Recommendation should be
proposed. 
Data provided by Eurostat, Eurobarometer
and the Council of Europe will enable the formation of
a useful baseline for monitoring the situation. Besides quantitative data
provided by Member States, other possible sources of qualitative information on
legislative and practical compliance will be gathered from the Justice Forum,
the CPT[157],
the ECtHR, the European Network of Councils for the Judiciary and national and
European Bar Associations. The EC is also monitoring a project on collecting
information on children and justice. Such instrument would provide a large
series of data.
Member States should be encouraged to
collect relevant data to assist in this process as there is currently a lack of
reliable empirical data.
Moreover, the Commission envisages carrying
out a specific empirical study with emphasis on data collection 3-5 years into
the application of each instrument of the Roadmap. In order to gain in-depth
quantitative and qualitative insights into the effectiveness of the proposal on
children, such a study will analyse the following indicators:
·     
The number of children benefitting from an
in-depth assessment of vulnerability in comparison to the total number of
children suspected or accused in criminal proceedings;
·     
The number of children benefitting from medical
assistance in police custody compared with the total number of children in
detention; 
·     
The number of children questioned by police
where audio-visual recording was used in comparison to the total number of
children questioned by police; 
·     
The number of children placed in pre-trial
detention in comparison with the total number of children suspected or accused
in criminal proceedings.
As regards the envisaged Recommendation for
vulnerable adults, the following indicators could be used:
·       
The number of vulnerable adults benefitting from
an in-depth assessment of vulnerability in comparison to the total number of
suspected or accused persons in criminal proceedings;
·       
The number of vulnerable adults benefitting from
medical assistance in police custody compared with the total number of adults
questioned by police;
·       
The number of vulnerable adults questioned by
police where audio-visual recording was used in comparison to the total number
of all suspected or accused persons questioned by police; 
·       
The number of vulnerable adults placed in
pre-trial detention in comparison with the total number of all suspected or
accused persons in criminal proceedings.
These monitoring indicators would be used
to evaluate the progress made towards the achievement of the special and
operational objectives of each of the envisaged measures (as set out above in Section
5). The higher the numbers of children or vulnerable adults concerned, the
higher would be the impact of the measures.
As regards indicators for quality,
complaints by suspected or accused children and vulnerable adults regarding
insufficient assessment of age and vulnerability, insufficient medical assistance,
no or late access to a lawyer, insufficient information of parents or persons
of trust, no audio or video recording of police interviews, non-respect of
privacy rules, ill-treatment in detention should be used.
All the data collected would enable the
Commission to evaluate the actual compliance in Member States more robustly
than using the means hitherto available. With this current procedural rights
package the Commission has achieved the main Roadmap Measures and it will be
essential to evaluate the efficiency of the Roadmap as a whole.
Annex
Annex I
The Implementation of
the Roadmap – Specific provisions with regard to vulnerable persons
As called for in the 2009 Roadmap for
strengthening procedural rights of suspected or accused persons in criminal
proceedings, it is important that special attention is shown to suspected or
accused persons who are vulnerable (i.e. who cannot understand or follow the
context or the meaning of proceedings, owing, for example, to their age, mental
or physical condition), in order to safeguard the fairness of proceedings. 
A number of measures have already been
adopted or are under negotiation, which are related to the Roadmap and provide
specific provisions dedicated to vulnerable persons (such as persons with
disabilities). 
In particular, Directive 2010/64/EU of 20
October 2010 on the right to interpretation and translation in criminal
proceedings provides in Article 2.3 that: "The right to interpretation (…)
includes appropriate assistance for persons with hearing or speech
impediments" and in Article 2.4 that: “Member States shall ensure that a
procedure or mechanism is in place to ascertain whether suspected or accused
persons speak and understand the language of the criminal proceedings and whether
they need the assistance of an interpreter.” Recital 27 of this Directive
outlines that: “The duty of care towards suspected or accused persons who are
in a potentially weak position, in particular because of any physical
impairment which affect their ability to communicate effectively, underpins a
fair administration of justice. The prosecution, law enforcement and judicial
authorities should therefore ensure that such persons are able to exercise
effectively the rights provided for in this Directive, for example by taking
into account any potential vulnerability that affects their ability to follow
the proceedings and to make themselves understood, and by taking appropriate
steps to ensure those rights are guaranteed.”
Directive 2012/13/EU of 22 May 2012 on the
right to information in criminal proceedings provides in Article 3.2 that:
"Member States shall ensure that the information provided (…) shall be
given orally or in writing, in simple and accessible language, taking into
account any particular needs of vulnerable suspects or vulnerable accused
persons." Recital 26 explains that: “When providing suspects or accused
persons with information in accordance with this Directive, competent
authorities should pay particular attention to persons who cannot understand
the content or meaning of the information, for example because of their youth
or their mental or physical condition.”
Directive 2013/48/EU of 22 October 2013 on
the right of access to a lawyer in criminal proceedings and in European arrest
warrant proceedings, and on the right to havea third party informed upon
deprivation of liberty and to communicate with third persons and with consular
authorities while deprived of liberty contains a number of relevant provisions.
In relation to children Article 5.2 of the
Directive states that: “If the suspect or accused person is a child, Member
States shall ensure that the holder of the parental responsibility of the child
is informed as soon as possible of the deprivation of liberty and of the
reasons pertaining thereto, unless it would be contrary to the best interests
of the child, in which case another appropriate adult shall be informed. For
the purposes of this paragraph, a person below the age of 18 years shall be
considered to be a child.” Even though temporal derogations may be foreseen in
Member States’ legislation when this is justified, in the light of the
particular circumstances of the case, for compelling reasons (an urgent need to
avert serious adverse consequences for the life, liberty or physical integrity
of a person or an urgent need to prevent a situation where there could be a
substantial jeopardy to criminal proceedings, Article 5.3), Article 5.4
clarifies that “when Member States temporarily derogate from the application of
the right set out in paragraph 2, they shall ensure that an authority
responsible for the protection or welfare of children is informed without undue
delay of the deprivation of liberty of the child.” Article 6 contains a right
of the suspect or accused person to communicate, while deprived of liberty,
with third persons. Recital 55 outlines in relation to children that: “This
Directive promotes the rights of children and takes into account the Guidelines
of the Council of Europe on child friendly justice, in particular its
provisions on information and advice to be given to children. The Directive
ensures that suspects and accused persons, including children, should be
provided with adequate information to understand the consequences of waiving a
right under this Directive and that the waiver should be given voluntarily and
unequivocally. The holder of the parental responsibility of a suspect or
accused child should be notified as soon as possible of his deprivation of
liberty and the reasons pertaining thereto. If providing such information to
the holder of the parental responsibility of the child is contrary to the best
interests of the child, another suitable adult such as a relative should be
informed instead. This should be without prejudice to provisions of national law
which require that any specified authorities, institutions or individuals, in
particular those which are responsible for the protection or welfare of
children, should be informed of the deprivation of liberty of a child. Member
States should refrain from limiting or deferring the exercise of the right to
communicate with a third party in respect of suspected or accused children, who
are deprived of liberty, save in the most exceptional circumstances. Where a
deferral is applied the child should nonetheless not be held incommunicado, but
be permitted to communicate with, for example, an institution or individual
responsible for the protection or welfare of children.”
Concerning vulnerable persons in general
the Directive foresees in its Article 13 (vulnerable persons) that: “Member
States shall ensure that in the application of this Directive the particular
needs of vulnerable suspects and vulnerable accused persons are taken into
account.” The related Recital 51 outlines: “The duty of care towards suspected or
accused persons who are in a potentially weak position underpins a fair
administration of justice. The prosecution, law enforcement and judicial
authorities should therefore facilitate that such persons are able to exercise
effectively the rights provided for in this Directive, for example by taking
into account any potential vulnerability that affects their ability to exercise
the right of access to a lawyer and to communicate with a third party, and by
taking appropriate steps to ensure those rights are guaranteed.”
The Directive foresees in its Article 9 the
possibility to waive the right of access to a lawyer under certain conditions.
In this context Recital 39 explains that: “Suspects or accused person should be
able to waive a right granted under this Directive provided that they have been
given information about the content of the right concerned and the possible
consequences of waiving it. When providing such information, the specific
conditions of the suspects or accused persons concerned should be taken into
account, including their age and their mental and physical condition.”
More generally Recital 52 outlines that:
“This Directive upholds the fundamental rights and principles recognised by the
Charter, including the prohibition of torture and inhuman and degrading
treatment, the right to liberty and security, respect for private and family
life, the right to the integrity of the person, the rights of the child,
integration of persons with disabilities, the right to an effective remedy and
to a fair trial, the presumption of innocence and the right of defence. This
Directive should be implemented according to these rights and principles.”
All these provisions in EU legislation
which is already adopted or in the course of being agreed will undoubtedly have
the effect of strengthening the rights of suspects and accused persons who are
vulnerable. However they will not address all their specific needs and do not
provide sufficient guarantees to ensure that vulnerable persons can effectively
exercise their rights.
Annex II
Overview of stakeholder views on key elements of the proposed measures
This
Overview has been established on the basis of several expert meetings which
have taken place and on the basis of written statements or reports by
stakeholders[158]
1.
Children
 General support for measures on children || Member States: Member States generally supported specific measures for children. Most Member States consider that children should be dealt with separately from adults (ES, FR, SK, EE, FI, IT, LV, LT); some underlined nevertheless that the protection needs are similar (UK). Several Member States suggested that the Council of Europe Recommendations, the Beijing Rules and other relevant standards should be used as a basis for any proposed measures (DE). Stakeholders: Strong support for specific measures on children from stakeholders: e.g. ECBA, Fair Trials International, Council of Europe; International Association of Youth and Family. 
 Age || Member States: General agreement by Member States that children are vulnerable "per se" Whereas some Member States argued in favour of setting an age for criminal responsibility of children, several other MS were concerned with this issue and considered that this should not be dealt with in the context of this initiative (e.g. DE, NL, EE). Stakeholders: Stakeholders underlined that children should be defined as persons under the age of 18 in accordance with the UN CRC. All children should be considered as vulnerable (e.g. ECBA). 
 Medical assistance || Medical assistance should be available upon request or ordered if certain indications. The eExtent of this measure should be reflected upon (FR). 
 Information and assistance by parents or a person of trust || Member States: Several Member States underlined the importance of appropriate and rapid information of parents (AT, CZ, DE, MT, SI, SK). The issue of whether parents should be present at police interviews was considered as controversial (e.g. FR against, IE in favour). Stakeholders: Strong support of appropriate information by Council of Europe and stakeholders, e.g. ECBA[159] 
 Mandatory access to a lawyer || Member States: Many Member States support idea of mandatory access to a lawyer (AT, FI, NL, SE, EE, IT, LV). Some Member States raised the issue of minor offences and that these should be exempted (AT, DE). Most Member States agreed that legal aid should be dealt with in the context of a separate measure. Stakeholders: Strong support by Council of Europe and considered as one of the "core measures" for the protection of children and vulnerable adults by stakeholders, e.g. ECBA[160]. It should be provided at the earliest opportunity and right at the start of the investigation.   
 Police interviews   || Member States: Strong support from certain Member States (FR, IE, UK), other Member States consider it as a possible solution (IT, EE, PL). One Member State expressed itself against (DE). Stakeholders: Stakeholders consider the recording of interviews as an additional safeguard. Yet, other measures as mandatory access to a lawyer or information of parents is considered as a priority. 
 Detention || Member States: Several Member States underlined that they have separate prisons for children (EE, FR, LV, PL). Member States generally felt that children should be kept separately from adults in detention centres, prisons, court rooms (CZ). Stakeholders: Stakeholders underlined that children are seldom taken into custody in most jurisdictions. However, special efforts must be undertaken to avoid pre-trial detention for children. Separate detention from adults should be foreseen in accordance with international recommendations. 
 Courts || Member States: Whereas some Member States are in favour of specialised courts and judges (DE, FR, UK), other Member States are opposed to the idea of setting up special courts (FI, SE). Certain raised the financial and organisational effort (SI). The idea of having specially trained judges was considered as a possible solution (AT, BE, PL, CZ, SE). Some Member States underlined the importance of the protection of privacy rules (BE, FR) and in camera rulings (DE, IE, SI). Stakeholders: The need of specialised judges was underlined (e.gg. IAYF). The Council of Europe underlined the importance of specialised courts. Proceedings should be adapted to the needs of children. They should be able to understand what's going on in front of the court. 
 Training || Member States: Many Member States stressed the importance of specialist training for legal professionals, including judges, magistrates and lawyers on how to deal with children. Stakeholders: Stakeholders stronlgy supported specialised training for judges, prosetutors and police. They also underlined the need for regular updates (e.g. IAYF). 
2.
Vulnerable adults
 General support for measures on vulnerable adults || Member States: Generally supported by Member States (but more limited than with regard to measures for children given in particular the lack of definition). Stakeholders: Support from stakeholders: e.g. ECBA[161]: "We wish to make it clear that procedural safeguards adapted to the different needs of other vulnerable suspects are no less important than those of children and minors. […] The ECBA is of the opinion that procedural safeguards in addition to those existing are necessary to protect all vulnerable people (not just minors and children) so as to satisfy the standards set in the Stockholm Programme". Fair Trials International[162]: "The application of special safeguards for vulnerable suspects at the earliest stage of criminal proceedings is essential to ensure that these suspects understand what their rights are and how to exercise them. 
 Definition of vulnerable persons - Assessment of vulnerability || Member States: Many Member States do not have a definition of vulnerable persons in their national law and argued that a standard definition would be difficult to agree on (EL, FR, IE, PL, SE). The risk of stigmatisation should be avoided (DE). MS generally agreed on the need to assess vulnerability (by expert) who should establish whether the person can understand and follow the proceedings or not (FR); it should be judges to decide on the basis of medical expertise who is vulnerable (MT). Competent authorities should check whether assessment is required (DE). Stakeholders: Stakeholders referred to the difficulty to define vulnerable persons. Certain groups of vulnerables could be rather easily defined whereas for others it would not be obvious. It was underlined that it would be very difficult to come up with an overall definition (e.g. ECBA). 
 Medical assistance || Member States: Some Member States consider that the medical assistance differs according to the individual situation of the person concerned (FR). Medical care should be provided if needed. Stakeholders: Stakeholders underlined the need for an appropriate assessment and assistance by medical or social experts (e.g. ECBA). 
 Information and Assistance by legal representative || Member States: Vulnerable adults should have the right to assistance by legal representative (CZ, ES, FR). Stakeholders: The need for adequate information of the legal representative or a person of trust was recognised. 
 Access to a lawyer || Member States: Member States see need for mandatory access to a lawyer for vulnerable persons if they are unable to understand and follow the proceedings (FI, NL, LV, PL). Stakeholders: Access to a lawyer was considered as one of the "core measures" by stakeholders for the protection of vulnerable adults, e.g. ECBA[163]. 
 Police interviews || Member States: Several Member States foresee already audio-video recording of interviews (e.g. FR, IT, UK), in other MS it may be ordered if necessary (CZ, FI, HU, LV). Stakeholders: Similar as with regard to children, stakeholders consider the recording of interviews as an additional safeguard. Yet, other measures as mandatory access to a lawyer are considered as a priority. 
 Courts || Member States: Several Member States were not in favour of having specialised courts for vulnerable adults (BE, CZ; PL). Stakeholders: Stakeholders did not communicate to the Commission any particular views on this issue. 
 Training || Member States: Specific training for judges or specialisation of judges dealing with vulnerable adults should be considered (BE, PL). Stakeholders: Stakeholders supported specialised training for judges, prosetutors and police (e.g. IAYF). 
EUROPEAN CRIMINAL BAR ASSOCIATION - MEASURE
E [164]
1. The ECBA has become the pre-eminent
independent organisation of specialist defence practitioners in all Council of
Europe Countries. Its aim is to promote the fundamental rights of persons under
investigation, suspects, accused and convicted persons in criminal proceedings
throughout Europe, and ensure that those rights are considered and respected.
You will find more information on the ECBA on www.ecba.org. 
2. The ECBA is not a political body, but an
institution of legal practitioners who are able to provide legal expertise and
practical experience nationally and transnationally on most issues of criminal
and procedural law throughout Europe. 
3. This draft paper contains the ECBA’s
main recommendations to the Commission on Measure E of the Stockholm programme
for the appropriate rights and treatment of vulnerable Suspects. 
4. As the ECBA pointed out in its News
Letter (Issue 26) on Measure E: “The idea is to draft the ECBA’s Cornerstones
of special safeguards for suspected or accused persons who are vulnerable. This
would support the the political EU decision makers at EC, EP and the Council to
come to appropriate conclusions on how to protect vulnerable suspects in
addition to the general rights and safeguards in criminal proceedings”. 
5. In this draft the ECBA wishes to
concentrate on the most obvious group to be defined as vulnerable and that is
persons not of full age, i.e. Children and Minors. When discussing Measure E we
take it for granted that Measures A to D and F will form part of the EU
Directives to the Member States. None of them can work effectively without the
others. 
6. We wish to make it clear that procedural
safeguards adapted to the different needs of other vulnerable suspects are no
less important than those of Children and Minors. Within the ECBA there is
considerable experience of criminal cases throughout Europe. It is clear from
that experience that vulnerable suspects who have reached full age also run the
risk of mistakes being made in the early phases of an investigation which can
undermine a fair trial. The ECBA is of the opinion that procedural safeguards
in addition to those covered by Measures A to D and F are necessary to protect
all vulnerable people (not just Minors and Children) so as to satisfy the
standards set in the Stockholm Programme. 
7. Unfortunately, in the time allowed, it
has not yet been possible for our organisation specifically to analyse or
define the safeguards necessary for other vulnerable persons apart from
Children and Minors. And even in regard to suspects who are Children and Minors
our proposals set out herein are only examples, rather than a full list of
procedural safeguards. 
8. Of
course, all suspects, vulnerable or not, should have such rights as the right
to an interpreter, a lawyer, legal aid, to communicate with a friend or
relative, right of waiver of a lawyer in some circumstances, right of silence,
right to information and to be cautioned, right to legal privilege and confidentiality,
etc. These Cornerstones are part of the criminal procedure in the jurisdiction
of the EU. They are also part of the ECHR and the jurisprudence of the ECtHR.
They present an essential part of the legal base for the work on EU Directives
to the Member States in accordance with the Stockholm Programme. All
Cornerstones are part of an integral whole. One cannot abandon one without risk
to the others.
9. However, suspects who are not ordinary
but are vulnerable demand special treatment, and it is that with which Measure
E is concerned and which the ECBA wishes to address. 
10. It is very difficult to define
“vulnerable” except in relation to Children and Minors who can be identified by
their age. 
A. Children and Minors. 
11. We define persons under the age of 18
as children or minors, which is almost universally accepted for this group in
Europe and in the UN Convention. 
12. Members of the ECBA are practitioners
who as defenders certainly meet children and minors as suspects in many cases.
There is no doubt that there are problems concerning such suspects in the
criminal process from the beginning of the pre-trial investigation through all
the procedural stages. These problems can endanger a fair trial if not dealt
with in a well- informed manner. 
13. We wish to highlight certain principles
within the cornerstones which specifically apply to Children and Minors. 
(a) On arrest they must be able to
understand what is happening. 
(b) They must be able to contact a parent,
member of their family or friend, or some appropriate adult, such as a
Probation Officer or Social Worker, who is allowed to be present during any
police interview from the start of the proceedings and be able at any time to
interpret or explain anything not understood. 
(c) There must be a mandatory right to a
lawyer from the start of proceedings. They must not be able to waive that right
unless their waiver is verified by an appropriate adult who is present and able
to confirm the waiver as genuine. (N.B. in some petty cases (where custody is
not at risk) there may be teenagers who do not want anyone to know of their
arrest, and perhaps they should be allowed waiver without assistance). 
(d) They must have the right to legal aid
good enough to enable them to prepare and implement their defence. 
(e) They must be cautioned as to their
rights, including the right to silence. 
(f) In
communication with their lawyer they must have the right to the privilege of
confidentiality and non-disclosure. 
14. These principles are already a part of
criminal procedure in many EU jurisdictions. Nevertheless, it is the experience
of the ECBA that mistakes are made which sometimes lead to catastrophic
miscarriages of justice. These experiences demonstrate the need to strengthen
the safeguards in question. 
B. Examples of what causes mistakes to be
made in the pre-trial situation with Children or Minor Suspects. 
15. It is clear that a person under the age
of 18 generally has not yet a complete education in the modern school-systems
in Europe. It is also clear that a child is still maturing through most of his
years as a teenager. Most minors are dependent on their families - economically
and in many other respects - to such an extent that it must be taken into
consideration if he embarks on anti-social behaviour leading him to become a
suspect in a criminal investigation. 
16. The ECBA has experience of several
cases in most of the European jurisdictions where a minor is under pressure
from, for example, his parents or other older relatives to own up to crimes for
which he is not fully responsible. The motive may have been that there would be
perceived a better outcome if the minor takes the legal blame instead of the
grown-ups in his family. (Hogsby - Case in Sweden recently). 
17. There are also cases where a minor
falsely takes all the responsibility when it comes to organised crimes or
persons in or around gangs. The child might believe he will gain some advantage
within the organisation or is under such pressure or even extortion to help older
criminals mislead the police. 
18. In most jurisdictions a minor suspect
is seldom taken into custody and restricted from contact with his family and/or
friends. That is, of course, the practice in most, if not all, jurisdictions.
However, it may make it easier for somebody who wants to exercise unlawful
power over the Child or Minor. 
C. Additional safeguards needed 
19. A Child or Minor who is a suspect in a
police investigation must be assured of receiving legal advice before any
questioning by the police. By appointing an experienced lawyer early to defend
the suspect, he will probably be more able to answer questions during the
course of the investigation in a more meaningful way. 
He can then possibly work out for himself
whether or not he has been involved in the commission of a criminal offence,
once he understands the limits of the law. 
He can also learn to differentiate between
what he has done and what the police suspect, in the sense that what they
suspect he has done would amount to a crime, but what he has in fact done would
not, or would amount to a lesser crime. 
He will then be able to consider whether he
should use his right not to incriminate himself and, if so, how he should act.
It must be said that it can be intellectually highly demanding for any suspect
to make the right decision in this regard. 
He can then consider what stance he should
take on whether to exercise his right to remain silent and what consequences
might follow. 
He can analyse with his lawyer the
consequences of the steps he decides to take during the investigation. For a
child, as for an adult, who is under investigation it is of the utmost
importance to have adequate time and the facilities for the preparation of his
defence. 
20. Looked at in the way expressed above it
is of great importance that every child is given the opportunity, the time, the
resources etc. to have personal contact with his defender/lawyer at the same
time as he is presented by the police with the information that he is suspected
of a crime. 
21. European lawyers with most experience
in defending suspects under the age of 18 say that such clients, after having
spoken to their lawyer, whose advice they might value higher than that of the
inquiring policeman, often come to the conclusion that they should accept the
situation and recognise what they have done. In many of those cases, the advice
of the lawyer has simplified and shortened the investigative procedure, often
making it possible not to keep the youngster under arrest. Obviously good legal
advice differs from case to case according to its merits. The age and
vulnerability of the client is obviously of paramount importance. 
22. Thus, it should be mandatory that a
defence lawyer is provided at the earliest opportunity and right at the start
of the investigation. Obviously, the defender may have to be paid by the State
under its Legal Aid Rules and there have to be the resources to meet the Child
or Minor’s needs in each investigation. 
23. For a lawyer to take on a new case at
short notice should be a lawyer’s responsibility in every jurisdiction. Bar
Associations in all Jurisdictions will probably have to organise a list of
lawyers willing to take that responsibility. There are already such regional
“lists” in many European Member States. 
D. Other vulnerable Suspects 
24. Of course, apart from Children and
Minors, there are very many vulnerable suspects who deserve special safeguards,
and those suspects are not always easy to identify. It is obvious that those
suspects are very difficult to define and the ECBA’s work on that is only just
starting. Accordingly we have dealt specifically so far with those who can be
defined by their date of birth, i.e Children and Minors. 
25. We agree with what Fair Trials
International concluded in paragraph 38 of their August 2012 Report on
Vulnerable Suspects, that “The application of Special Safeguards for vulnerable
suspects at the earliest stage of criminal proceedings is essential to ensure
that these suspects understand what their rights are and how to exercise them.
If people do not understand the proceedings because their vulnerability is not
identified or because special safeguards are not in place, then this leads to a
serious inequality of arms, undermining the chances of receiving a fair trial”.

26. Other vulnerable suspects, apart from
Children and Minors, may be just as vulnerable, if not more so. For example, a
25-year old with a mental age of a 14 year-old. 
27. It is obvious that, if someone who is
not yet 18 warrants special safeguards, so then does a person over 18 who is
just as vulnerable in fact, if not in age. This demonstrates just how difficult
it is to define a vulnerable person, so as to decide who deserves special
safeguards. 
28. Of course, apart from minors, others can
easily be identified as vulnerable, such as illiterates, the visually impaired,
the deaf, the dumb, some addicts, those conspicuously physically disabled , or
those who cannot speak the language of or understand an interviewer. 
29. Other groups are also vulnerable for
physical or mental reasons which are not obvious, and would not be recognised
as vulnerable without expert medical or sociological assistance, nor by the
police, unless highly trained. 
30. The ECBA would suggest that the only
way to be able to get anywhere near the task of identifying all vulnerable
suspects as soon as possible after arrest, is to ensure that all suspects are
provided with a competent lawyer (with legal aid if necessary) at the very
outset of the investigation, who would be sufficiently competent to address
what is necessary to be done in relation to obtaining expert advice or
intervention relating to his client’s physical or mental condition. 
31. Of course, lawyers can be fooled, but
it would be a start. 
32. Several ECBA members, for example, have
had the experience of representing “serial confessors”, who confess to serious
crimes which they have not committed, in order to please or to seek attention,
or many other causes. In many of these cases, the Police and Courts have been
fooled, leading to, sometimes sensational, miscarriages of justice. 
33. The above is just a brief summary of a
very real problem in relation to genuinely vulnerable suspects, whom it is
difficult to define. The ECBA is eager to research this further, but time
constraints have made it impossible to deal with it as yet. We have simply
presented starting points. 
34. Everyone who has had experience in
criminal investigation knows of vulnerable suspects who, even if not Children
or Minors, have some deviation in their personality or in the way they live
which causes the police to check them more often than others as suspects of
crime. It is clear from experience that there are characters and personalities
of huge diversity, making it even more difficult to define who might need
special safeguards under Measure E. That, however, should not prevent us from
trying to find a solution which could result in an Equality of Arms. 
If you have any further questions, please
do not hesitate to contact us: 
Prof Dr Holger Matt, ECBA Chair: 
Kanzlei@dr-matt.de 
Robin Grey QC, ECBA Honorary Advisory Board
Member: Robin.Grey@qebhw.co.uk 
Bertil Dahl, ECBA Advisory Board Committee
Member: 
bertil@advokatdahl.se 
ECBA Secretariat Marie Anne Sarlet: secretariat@ecba.org

Annex III
Bibliography of documents and studies
(1)         
Main Legal Instruments
·                        
UN Declaration of the Rights of the Child,
Proclaimed by General Assembly Resolution 1386(XIV), 1959
·                        
UN Convention on the Rights of the Child, 1989
·                        
Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution and child
pornography, 2000
·                        
Un Convention on the Rights of persons with
Disabilities, 2008
·                        
Directive 2010/64/EU on the right of translation
and interpretation
·                        
Directive 2012/13/EU on the right of information
·                        
Proposal for a Directive on the right to access
to a lawyer and to communicate upon arrest COM (2011)328 final
(2)         
(Other) Rules
·                        
Communication from the Commission "An EU
Agenda for the Rights of the Child" COM(2011) 60 final[165]; 
·                        
UN Standard Minimum Rules for the Administration
of Juvenile Justice (“Beijing Rules”, UNGA Res. 14/33 of 29 November 1985);
·                        
UN Standard Minimum Rules for Non-custodial
Measures (“Tokyo-Rules”, UNGA Res. 45/110 of 14 December 1990);
·                        
UN Guidelines for the Prevention of Juvenile
Delinquency of 1990 (”Riyadh-Guidelines”, UNGA Res. 45/112 of 14 December
1990);
·                        
UN Rules for the Protection of Juveniles
Deprived of their Liberty (“Havana Rules”, UNGA Res 45/113 of 14 December
1990);
·                        
Council of Europe Recommendation on Social
Reactions to Juvenile Delinquency of 1987, Rec. (87) 20; 
·                        
Council of Europe Recommendation “New Ways of
Dealing with Juvenile Delinquency and the Role of Juvenile Justice” Rec 2003
(20);
·                        
Council of Europe Recommendation “European Rules
for Juvenile Offenders subject to Sanctions or Measures” (Rec (2008) 11).
·                        
Council of Europe Recommendation concerning the
protection of the human rights and dignity of persons with mental disorder
Rec(2004)10, Adopted by the Committee of Ministers on 22 September 2004 at the
896th meeting of the Ministers' Deputies 
·                        
Council of Europe – Guidelines of the Committee
of Ministers on Child Friendly Justice and Explanatory Memorandum, 17.11.2010
·                        
UN Committee on the Rights of the Child, General
Comment N°10, Children's rights in juvenile justice, 2007
(3)         
Resolutions
·                        
European Parliament Resolution of 13 December
2012 on the Annual Report on Human Rights and Democracy in the World 2011 and
the European Union's policy on the matter (2012/2145(INI)
(4) Reports
·                        
Implementation Handbook for the Convention on
the Rights of the Child, fully revised third Edition September 2007
·                        
Reports of the Committee on the Rights of the
Child to the General Assembly of the UN[166]
·                        
Children's rights and the European Committee for
the Prevention of Torture, Council of Europe
·                        
Marcelo F. Aebi, Bruno Aubusson de Cavarlay,
Gordon Barclay, Beata Gruszczyńska, Stefan Harrendorf, Markku Heiskanen,
Vasilika Hysi, Véronique Jaquier, Jörg-Martin Jehle, Martin Killias, Olena
Shostko, Paul Smit, Rannveig Þórisdóttir, "European Sourcebook of Crime
and Criminal Justice Statistics" – 2010, Fourth Edition, (NL) Ministry of
Justice, Research and Documentation Centre (WODC) - http://www.europeansourcebook.org/ob285_full.pdf
. 
·                        
"Judicial Implementation of Article 3 of
the Convention on the Rights of the Child in Europe - The case of migrant
children including unaccompanied children", UNICEF, Regional Office for
Europe, June 2012,
·                        
"Mental Health Resources and Young
Offenders: State of art, challenges and good practices – MHYO Project Results
Volume I", International Juvenil Justice Observatory (IJJO), 2011 (http://www.ipjj.org/fileadmin/data/documents/reports_monitoring_evaluation/IJJO_MentalHealthResourcesForYoungOffendersVol1_2011_EN.pdf)

·                        
"MHYO Manual for improving professional
knowledge and skills, and developing advocacy programme – MHYO Project Results
Volume II", International Juvenile Justice Observatory (IJJO),06.2012, (http://www.ipjj.org/fileadmin/data/documents/tools_handbooks_training_manuals/IJJO_MentalHealthResourcesForYoungOffendersVol2_2011_EN.pdf)

·                        
States lowering the minimum age of criminal
responsibility" Child Rights International Network 05.03.2012 (http://crin.org/resources/infodetail.asp?id=27826)
·                        
"Les Chiffres clés de la Justice 2012"
Ministère de la Justice (FR), Secrétariat général 2012 (http://www.justice.gouv.fr/art_pix/chiffres_cles_2012_20121108.pdf) 
·                        
Rapport relatif aux mises en isolement des
enfants, Droits de l'enfant, Février 2012
·                        
Justice Policy Institute Report by Barry Holman
and Jason Ziedenberg: The Dangers of Detention: The Impact of Incarcerating
Youth in Detention and other Secure Facilities, www.justicepolicy.org
·                        
Policy Report by the Youth Justice Working
Group, "The Rules of engagement: Changing the heart of youth
justice", published by the Centre for Social Justice, January 2012; www.centreforsocialjustice.org.uk
·                        
Report on Vulnerable Suspects, Fair Trials
International, August 2012
·                        
Committee on the Rights of the Children, General
comment No. 14 (2013) on the right of the child to have his or her best
interests taken as a primary consideration (art. 3, para. 1), 29 May 2013.
(5) Studies and other relevant publications
·                        
An external study to gather evidence for this IA
was commissioned on 14 September 2011. The study, carried out by the consultant
company ICF-GHK, focused on the problem definition, policy options and costs of
the various options.
·                        
"Procedural rights in Criminal Proceedings:
Existing levels of safeguards in the European Union", an analysis funded
under the JPEN Programme (need to check) by Taru Spronken and Marelle Attinger
of the University of Maastricht in December 2005[167]. 
·                        
Gert Vermeulen, Wendy de Bondt, Charlotte
Ryckman "Rethinking international cooperation in criminal matters in the
EU" IRCP research series, Volume 42, 2012
·                        
"Juvenile Justice Systems in Europe -
Current situation, reform developments and good practices", a study funded
under the JPEN Programme in conjunction with the University of Griefswald, the
Diagrama Foundation and the Don Calabria Institute[168].
·                        
Study on "Analysis of the future mutual
recognition in criminal matters in the European Union", G. Vernimmen – Van
Tiggelen and Laura Surano, Final Report, 20 November 2008
·                        
Laurens van Puyenbroeck, 'Towards minimum
procedural safeguards for the defence in criminal proceedings in the EU"
ICLQ Vol 60, October 2011
·                        
"Effective Criminal Defence Rights in
Europe", a study funded under the JPEN Programme, is a joint initiative of
JUSTICE, the University of the West of England, the Open Society Justice
Initiative and Maastricht University[169].
·                        
European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment, 1 August 2010 to 31 July
2010, 21st General Report of the CPT, http://www.cpt.coe.int/en/annual/rep-21.pdf
·                        
"Vulnerable Defendants in the Criminal
Courts: a review of provision for adults and children", Prison Reform
Trust, 2009 by Jessica Jacobson with Jenny Talbot;
·                        
"No One Knows - Police responses to
suspects learning disabilities and learning difficulties: a review of policy
and practice", Jessica Jacobson, Prison Reform Trust, 2008;
·                        
"The Bradley Report: Lord Bradley's review
of people with mental health problems or learning difficulties in the criminal
justice system", April 2009;
·                        
"An Area of Freedom, Security and Justice –
Reviewing Extradition within the EU", Summary of the International Law
Discussion Group meeting held at Chatham House, 20 January 2011
·                        
"The Carloway Review: Report and
Recommendations", November 2011[170]; 
·                        
"Persons at Risk During Interview in Police
Custody: The Identification of Vulnerabilities", The Royal Commission on
Criminal Justice, by Gisli Gudjonsson, Isabel Clare, Susan Rutter and John
Pearse.
·                        
"La justice des mineurs en Europe"
Yann Favier, Frédérique Ferrand, Stämpfli Editions SA Berne, 2011
·                        
Droit des enfants - international (Belgique)
"Contenu de la convention internationale relative aux droits de
l'enfant", Recueil des outils pédagogiques 2008, module n° 4 (www.dei-belgique.be )
·                        
Druant F. "Intérêt supérieur de l'enfant et
dignité humaine, question de définitions", D.E.I. Bulletin n°6 avril 2000,
pp. 8-9
·                        
Gudjonsson et al (1993), Persons at risk during
interviews in police custody. The identification of vulnerabilities. The Royal
Commission on Criminal Justice. Research StudyN°12, p.26
·                        
Gensing, A. ‘Jurisdiction and characteristics of
juvenile criminal procedure in Europe’, in Juvenile Justice Systems in Europe
(2011), ed. by F. Dunkel et al., pp. 1607-1648 (pp. 1615-1616)
·                        
Cipriani, Don (2009). "Minors’ Rights and
the Minimum Age of Criminal Responsibility: A Global Perspective",
Ashgate: Surrey
·                        
Weaver T. et al (2003). Comorbidity of substance
misuse and mental illness in community mental health and substance misuse
services. The British Journal of Psychiatry, vol. 183, pp. 304-313
·                        
Clare, I. C. H. and Gudjonsson, G. H. (1991)
“Recall and understanding of the caution and rights in police detention among
persons of average intellectual ability and persons with a mental handicap.”
Proceedings of the First DCLP Annual Conference 1, 34-42. Leicester: British
Psychological Society
·                        
Criminological and Legal Psychology Series, No.
17); Murphy, G. and Mason, J. (2005) “People with Intellectual Disabilities who
are At Risk of Offending.” In N. Bouras, ed. Cambridge: Cambridge University
Press
·                        
Rickford, R and Edgar, K (2005) “Troubled
Inside: Responding to the Mental Health Needs of Men in Prison.” London: Prison
Reform Trust, p. 101.
·                        
Christine Lazerges "De l'irresponsabilité à
la responsabilité pénale des mineurs délinquants ou relecture des articles 1 et
2 de l'ordonnance du 2 février 1945" RSC 1995 p. 149,
·                        
J. Castaignède "La loi n°2002-1138 du 9 septembre
2002: un nouveau regard porté sur le droit pénal des mineurs" Dalloz 2003
p. 779
·                        
Ph. Bonfils, A. Gouttenoire "Droit des
mineurs" Dalloz 2008 n° 1244
·                        
Christine Lazerges "La mutation du modèle
protectionniste de justice des mineurs" RSC 2008 p. 200.D. Blanc
"peines plancher, quelques éléments de droit comparé" AJ Pénal 2007
p. 352.
·                        
A. Gouttenoire "Pour une formulation des
principes fondamentaux de la justice pénale des mineurs" AJ Pénal 2009 p.
13
·                        
Inspection de la Protection judiciaire de la
jeunesse, "Aspects de l'ordonnance du 2 février 1945 vue par 331
mineurs" 18 avril 2008.
·                        
André Varinard Rapport au Garde des Sceaux
"Adapter la justice pénale des mineurs" La documentation française,
2008
·                        
Sébastien Delarre "Des discours aux
chiffres: les effets d'une décennie de lois réformatrices en matière de justice
des mineurs", Revue internationale de criminologie, Vol.IX, 2012, http://champpenal.revues.org/8235 
·                        
"La justice des mineurs: une nouvelle
ère?" Les cahiers de la justice, ENM-Dalloz, 2011/3
·                        
Benoit Bastard et Christian Louhanna,
"L'avenir du juge des enfants; éduquer ou punir?" Toulouse, Erès,
coll. Trajets, 2010
·                        
Michel Foucault "Surveiller et punir",
Gallimard, 1975
·                        
Jérôme Roux "La reconnaissance par le
Conseil constitutionnel du principe fondamental reconnu par les lois de la
République relatif à la justice des mineurs (à propos de la décision n°
2002-4612 DC du 29 août 2002)", revue de droit public, 2002, p. 1495.
·                        
F. Baileau et Y Cartuyvels, D. De Fraene
"Youth justice system in Europe, actual trends in criminalisation"
Editions ASP-Vulpress, Bruxelles, 2010
·                        
Dolz Lago, Manuel Jesús "Comentarios a la
Legislación Penal de Menores. Incorpora las últimas reformas de la LO
8/2006", Tirant lo blanch, Valencia 2007.
·                        
Ornosa Fernández, Maria Rosario "Derecho penal
de menores" Bosch, Barcelona, 2001. 
·                        
Tomé García, José Antonio "El procedimiento
penal del menor. Tras la Ley 38/2002, de Reforma Parcial de la Ley de
Enjuiciamiento Criminal" Thomson-Aranzadi, Cizur Menor (Navarra), 2003.
·                        
Díaz Martínez, Manuel "La instrucción en el
proceso penal de menores" Colex, Madrid, 2003. 
·                        
Isabel Lázaro González "Los menores en el
Derecho español" Technos, Madrid, 2002. 
·                        
López López, Alberto Manuel "Ley orgánica
reguladora de la responsabilidad penal de los menores (comentarios,
concordancias y jurisprudencia) Comares, Granada, 2004. 
·                        
Polo Rodríguez, José Javier & Huélamo Buendía,
Antonio Jesús "La nueva Ley penal del menor" Colex, Madrid, 3°
edición, 2007. 
·                        
Garcia Perez, Octavio, Diez Ripollés, José Luis,
Pérez Jiménez, Fatima y Garcia Ruiz, Susana "La delincuencia juvenil ante
los Juzgados de Menores, IAIC, Tirant lo Blanch, Valencia, 2008.
·                        
Sharon Detrick, Gilles Abel, Maartje Berger,
Aurore Delon, Rosie Meek: "Violence against children in conflict with the
law", A Study on Indicators and Data Collection in Belgium, England and
Wales, France and the Netherlands, Defence for Children International, 2008
·                        
Eisenberg "Jugendgerichtsgesetz" 13°
Edition München, 2009.
·                        
Streng "Jugendstrafrecht" 2° Edition;
München, 2008.
·                        
Albrecht/Kilchling "Jugendstrafrecht in
Europa" Freiburg 2002
·                        
Ostendorf "Jugendstrafrecht" 5° Edition,
Baden-Baden 2007.
·                        
Defence for children,"Spending a couple of
nights in a police cell, 2011
·                        
The Howard League for Penal Reform,
"Keeping girls out of the penal system"
·                        
Children's rights, as they see them, European
Union, 2011 (http://ec.europa.eu/justice/fundamental-rights/files/rights-of-the-child_en.pdf)

Annex IV 
Relevant International
Legal Framework
1. General Rules
Relevant provisions of the Charter of
Fundamental Rights of the European Union are Article 47 (Right to a fair
trial), Article 3 (Right to the integrity of the
person), Article 4 (Prohibition of torture and inhuman or degrading treatment
or punishment), Article 7 (Respect for private and family life), Article 21
(Non-discrimination based on ground of disability), Article 24 (The rights of
the child) and Article 27 (Integration of persons with disabilities). 
The most relevant Articles of the European
Convention on Human Rights (ECHR) are Article 3 on the prohibition of inhuman
or degrading treatment and Article 6 on the right to a fair trial. 
2. Specific rules with regard to
children
The UN Convention on the Rights of the
Child (UN CRC), which entered into force on 2 September 1990 and is binding
upon Member States, has developed into a world-wide legal framework for the
enhancement of the rights of minors in general. 
Two Articles are relevant with regard to
children suspected in criminal proceedings: Article 1, which provides a
definition of a child ("A child means every human being below the age of
18 years unless under the law applicable to the child, majority is attained
earlier.") and Article 40, which focuses on juvenile justice. The latter
article provides minors suspected or accused of a criminal offence, with the
right to “fair treatment” in the criminal justice system, including a series of
minimum procedural safeguards (e.g. right to information, right to a fair
hearing, right to appeal, right to interpretation and right to have privacy
rules respected).
Other instruments with regard to children
suspected in criminal proceedings provide useful guidance but are non-binding
upon Member States. The Council of Europe guidelines on child friendly justice
refer to the participation of children, including the right of all children to
be informed their rights (III. A. 1.), the best interest of the child, which should
be a primary consideration in all matters involving and affecting children
(III. B.), and to the absence of torture or inhuman or degrading treatment or
punishment (III. C. 2.). The right of the child and of its parents to be
informed and advised is outlined in guideline IV.A. 1. Furthermore there are
guidelines on privacy, training, a multidisciplinary approach, deprivation of
liberty, children and police and child-friendly justice during judicial
proceedings.
The Beijing Rules for the Administration of
Juvenile Justice adopted on 29 November 1985 also underline the importance of
the well-being and best interest of the juvenile. They provide with guidance in
relation to the information of parents and guardians within the shortest time
possible and their participation (rule 10 and 15.2), legal advice (rule 15.1),
privacy (rule 8), specialisation and training of police and other personnel
dealing with juvenile cases (rule 12 and 22), and in relation to detention
(rule 13).
3. Specific rules with regard to
vulnerable adults
The framework for the protection of
vulnerable adults is primarily governed by the 2008 UN Convention on the Rights
of Persons with Disabilities. The EU became party to this Convention in January
2011. All Member States signed it, not all Member States have ratified it by
now. The provisions in relation to the protection of vulnerable adults are
quite general concerning the rights of these persons in criminal proceedings.
Articles 12 and 13 related to equal recognition before the law and access to
justice contain principles concerning the effective role of persons with
disabilities in legal proceedings and support they may require in exercising
their legal capacity.
 Proposed Measures for children and vulnerable adultsCorresponding EU and international legal instruments (binding and non-binding) || 
 1. Assessment of age and vulnerability || Pt.39 UN CRC Comment N°10 
 2. Assistance by the child's parents or a person of trust || Article 3 Directive 2012/13/EU; Article 5(2) Draft Directive on access to a lawyer; Article 40.2.b ii UN CRC; Pt.14 CoE Rec(2008)11;Pts. 7.1, 10.1, 15 Beijing Rules; Pt. 1-5, Pt. 58 GL of the CoE on child-friendly justice; Pt.53 UN CRC Comment N°10 
 3. Medical Assistance || Article 4(2) c Directive 2012/13/EU Article 19 UN CRC, Pts.11-13 GL of the CoE on child-friendly justice 
 4. Access to a lawyer || Article 3 of Draft Directive on access to a lawyer; Pt.120 CoE Rec.(2008)11; Article 40.2 b iii UN CRC; Pts. 7.1, 15 Beijing Rules; Pts. 37-43 GL of the CoE on child-friendly justice; Pt.49 UN CRC Comment N°10 
 5.Special provisions on conducting police interviews || Pts.27-33 and 54-59 GL of the CoE on child-friendly justice 
 6. Special provisions on court hearings || Article 40.2.iii, v and vii UN CRC; Pt.16 CoE Rec(2008)11; Pts. 6-10, 61-63 GL of the CoE on child-friendly justice; Pts.64-65 UN CRC Comment N°10 
 7. Specific rules related to detention || Article 40.3b UN CRC, Pts.10, 108-113 CoE Rec(2008)11; Pts.13, 26.5 Beijing Rules; Pt.46 Riyadh Guidelines; Pt.19-20, 31-32 GL of the CoE on child-friendly justice; Pt. 81 UN CRC Comment N°10 
Proposed Measures for vulnerable adults: mainly relating to Articles 12 and 13 of UN Convention on the rights
of persons with disabilities providing rather general provisions on the rights
of persons with disabilities in criminal proceedings.
Annex V
Case-law of the ECtHR
related to children and other vulnerable persons
Effective participation in
criminal proceedings
Adults
Stanford v UK, ECtHR
23 February 1994, App No. 16757/90
The applicant complained that he could not
hear the proceedings at his trial for sexual assault of a young girl due to the
acoustics in the courtroom. He claimed a violation of
Article 6 (1) of the ECHR (fair trial) on the grounds that he was unable hear
and to check for himself which matters of evidence were consistent or
inconsistent with written statements against him. The Court recalled that Article
6 ECHR, read as a whole, guarantees the right of an accused to participate
effectively in a criminal trial. In general this includes, inter alia, not only
his right to be present, but also to hear and follow the proceedings. However, neither the applicant nor his legal representatives sought to bring his hearing difficulties to the attention
of the trial judge and tests found the acoustics in the courtroom to be
satisfactory. The applicant was also represented by counsel who could have
brought to his attention any points which arose out of the evidence. The Court
concluded that there had been no breach of Article 6. 
Timergaliyev v. Russia, ECtHR 14 October
2008, App. No. 40631/0
The applicant was convicted and sentenced
to 18 years in prison for murder following an arson attack on his mother's
apartment. He appealed, complaining that he had been ill-treated by the police,
that he was not adequately represented by his lawyer at trial and had not been able to hear the proceedings as he was
half-deaf, which he had indicated during the proceedings. The applicant claimed a violation of Article 6.1 (right to a fair
trial) and 6.3(c) (right to legal assistance), arguing that he had not been
provided with a hearing aid, that his State-appointed counsel had been
ineffective and that he had had no legal assistance at his appeal hearing. 
Article 6.1 and 6.3(c): The ECtHR recalled
that the right of an accused under Article 6 to effective participation in his
or her criminal trial generally includes not only the right to be present, but
also to hear and follow the proceedings. “Effective participation” in this
context presupposes that the accused has a broad understanding of the nature of
the trial process and of what is at stake for him or her, including the
significance of any penalty which may be imposed. The defendant should be able,
inter alia, to explain to his own lawyers his version of events, point
out any statements with which he disagrees and make them aware of any facts
which should be put forward in his defence. The Court held that the appeal
court was put on clear notice that the applicant had hearing difficulties. It
also noted that the applicant had received an 18 year prison sentence and that
his appeal was based on points of fact and of law. In such circumstances the
appeal court was bound out of fairness to take additional steps, before
examining the case, to reassure itself that the applicant's hearing impairment
would not prejudice his effective participation in the appeal hearing. The
court did not take any such steps and proceeded with the hearing without
requesting a medical opinion as to whether the applicant's impairment allowed him
to hear the proceedings or considering the possibility of providing a hearing
aid. Furthermore, given that the applicant's hearing impairment undermined his
ability to participate effectively in the proceedings, the interests of justice
demanded that he should have had the benefit of legal representation during the
proceedings before the appeal court. In this case, the ultimate guardian of the
fairness of the proceedings was the judge, who, when confronted with the
lawyers' failure to appear, was required under domestic law to appoint counsel
for an accused who was incapable of defending himself on account of a physical
impairment. There had therefore been a violation of Article 6.1 taken in
conjunction with Article 6.3(c) ECHR
Children
S.C. v. The United Kingdom, ECtHR 10
November 2004, App No. 60958/00
The applicant was
an 11-year-old boy who was convicted of attempted robbery. The boy had a low IQ
for his age and his social worker, who was present at the trial, stated that he
seemed confused by the proceedings of the court and was unable to understand
his subsequent conviction and sentencing. The applicant claimed that, due to
his youth and low intellectual ability, he was unable to participate
effectively in his trial, contrary to Article 6.1 (fair hearing). The ECtHR specified that “effective participation” presupposes that
the accused has a broad understanding of the nature of the trial process and of
what is at stake for him or her, including the significance of any penalty
which may be imposed. It means that he or she, if necessary with the assistance
of, for example, an interpreter, lawyer, social worker or friend, should be
able to understand the general thrust of what is said in court. The defendant
should be able to follow what is said by the prosecution witnesses and, if
represented, to explain to his own lawyers his version of events, point out any
statements with which he disagrees and make them aware of any facts which
should be put forward in his defence. The Court held that the applicant had not
understood the proceedings or the consequences of being convicted and therefore
had not been able to participate effectively in his trial. The Court considered
that, when the decision is taken to deal with a child, such as the applicant,
who risks not being able to participate effectively because of his young age
and limited intellectual capacity, by way of criminal proceedings, it is
essential that he be tried by a specialist tribunal which is able to give full
consideration to, and make proper allowance for, the handicaps under which he
labours, and adapt its procedure accordingly. It ruled
that there had been a violation of Article 6 (1).
T. v. The
United Kingdom ECtHR 16 December 1999, App. No 24724/94
The applicants were accused of the
abduction and murder of a two-year-old boy. They were ten years old at the time
of the offence, and eleven at the time of their trial, which took place in
public in the Crown Court and attracted high levels of press and public
interest. They complained of breaches of Article 6.1 (fair hearing) as the
conduct of their trial was not suited to their young age and had prevented them
from participating effectively in it. The ECtHR held that it was essential that
a child charged with an offence is dealt with in a manner which takes full
account of his age, level of maturity and intellectual and emotional
capacities, and that steps are taken to promote his ability to understand and
participate in the proceedings. In respect of a young child charged with a
grave offence attracting high levels of media and public interest, this can
mean that it is necessary to conduct the hearing in private, so as to reduce as
far as possible the child's feelings of intimidation and inhibition. It was not
sufficient for the purposes of Article 6.1 that the applicants were represented
by skilled lawyers in view of the circumstances of the trial and the children's
immaturity and disturbed emotional state. There had therefore been a violation
of Article 6.1. 
Panovits v. Cyprus, ECtHR 11 March 2009,
App no. 4268/04
The applicant,
aged 17, was accused of murder and robbery. He complained of violations of
Articles 6 (1) (fair hearing) and 6 (3)(c) ECHR (legal assistance) as he had
been questioned without the presence of a lawyer or parent despite his young
age and the confession he made without legal advice was accepted by the trial
court. The ECtHR noted that the right of an
accused minor to effective participation in his criminal trial requires that he
be dealt with due regard to his vulnerability and capacities from the first
stages of his involvement in a criminal investigation and, in particular,
during any questioning by the police. The authorities must take steps to reduce
as far as possible his feelings of intimidation and inhibition and ensure that
the accused minor has a broad understanding of the nature of the investigation,
of what is at stake for him or
her, including the significance of any penalty which may be imposed as well as
of his rights of defence and, in particular, of his right to remain silent.
This means that he or she, if necessary with the assistance of, for example, an
interpreter, lawyer, social worker or friend, should be able to understand the
general thrust of what is said by the arresting officer and during his
questioning by the police. 
Guvec v. Turkey, ECtHR , 20 January 2009,
App. No. 70337/01
The applicant was a 15 year old boy
detained in an adult prison for five years for his alleged membership of an
illegal association. He was arrested and questioned without the presence of a
lawyer, charged with a crime carrying the death penalty and tried by the State Security Courts rather than the Juvenile Courts. He was
remanded in custody and could not have open visits with his family. Neither the
applicant nor his lawyer were present at half of his trial hearings and
attended none of his appeal hearings. The court was informed that the applicant
was suffering from psychiatric illness, had attempted suicide and had been
transferred to a psychiatric hospital, but it still refused to release him for
medical treatment. He was subsequently convicted of a lesser charge and sentenced to 8 years and 4 months imprisonment. The applicant
alleged a violation of Article 3 (prohibition of inhuman or degrading
treatment), Articles 5 (right to liberty and security) and 6 (right to a fair
trial). On Article 6, the ECtHR considered that the applicant’s young age, the seriousness of the
offences with which he was charged, the seemingly contradictory allegations
levelled against him by the police and a prosecution witness, the manifest
failure of his lawyer to represent him properly and, finally, his many absences
from the hearings, should have led the trial court to consider that the
applicant urgently required adequate legal representation. Indeed, an accused
is entitled to have a lawyer assigned by the court of its own motion “when the
interests of justice so require”. The
shortcomings highlighted above, including in particular the de
facto lack of legal assistance for most of the proceedings, exacerbated
the consequences of the applicant’s inability to participate effectively in his
trial and infringed his right to due process. There was thus a violation of Article 6. 
Right to be informed on rights and
charges
Adults
Vaudelle
v. France, ECtHR 30 January 2001, App. No. 35683/97
The application concerned an alleged
violation of defence rights in criminal proceedings brought against the
applicant for sexual assault of minors. Owing to a medically certified mental
impairment, the applicant had been placed under his son’s supervision as he
required representation and assistance in the conduct of civil matters. The
applicant was sent a summons to attend the trial by registered letter. Even
though the applicant did not appear at his trial, he was later sentenced by the
court to imprisonment and probation, and ordered to pay damages to the victims.
The applicant claimed that the fact the summons to attend the trial and
notification of the judgment were sent to him only and not to his supervisor
had prevented him from exercising his defence rights under Article 6.1 (right
to a fair hearing) and Art. 6.3(a) (right to be informed in detail of the
nature of the accusation) ECHR.
Article 6.1 and 6.3: The ECtHR held that,
in view of the seriousness of the allegations against he applicant, the fact
that he was liable for a custodial sentence, that the Criminal
Court had been informed he was under supervision, that
sentence had been passed in his absence and without his legal representation
and that the psychiatric report ordered by the prosecution had never been
presented, it was bound out of fairness to take
additional steps before trying the case to ensure that the applicant
effectively enjoyed the rights guaranteed to him by Article 6 of the
Convention. Furthermore, the Court held that it is important for the accused to
be present in person at first instance, and pointed out that under Article
6.3(c) ECHR the accused is entitled to have a lawyer assigned by the court of its own motion “when the
interests of justice so
require”. In addition, special procedural safeguards may prove called for in
order to protect the interests of persons who, on account of their mental
disabilities, are not fully capable of acting for themselves. The Court ruled that the French authorities had indeed violated Article 6 of
the Convention in that they had failed to ensure that the applicant could
understand the criminal proceedings, inform him in an appropriate manner of the
accusation against him, and grant him a fair trial. 
Children
Panovits v.
Cyprus, ECtHR 11 March 2009, App no. 4268/04
(See above)
The applicant, aged 17, was accused of
murder and robbery offences. He complained that he had not been informed of his
right to a lawyer prior to being questioned by police and had not had adequate
opportunity to find a lawyer before submitting his statement. This had been particularly detrimental because he was a
minor at the time and questioned without a parent in the room. He also claimed
that he had not been given a fair trial by the court, given their acceptance of
the confession he gave without legal advice. He argued that this violated
Articles 6 (1) and 6 (3)(c) ECHR (right to a fair trial).
Article 6.1 and 6.3(c): The ECtHR noted
that the right of an accused minor to effective
participation in his or her criminal trial requires that he be dealt with due
regard to his vulnerability and capacities from the first stages of his
involvement in a criminal investigation and, in particular, during any
questioning by the police. The authorities must take steps to reduce as far as
possible his feelings of intimidation and inhibition and ensure that the
accused minor has a broad understanding of the nature of the investigation, of
what is at stake for him or her, including the significance of any penalty
which may be imposed as well as of his rights of defence and, in particular, of
his right to remain silent. This means that he or she, if necessary with the
assistance of, for example, an interpreter, lawyer, social worker or friend,
should be able to understand the general thrust of what is said by the
arresting officer and during his questioning by the police. On the subject of
waiver of the applicant's right to a lawyer, the Court further considered that
given the vulnerability of an accused minor and the imbalance of power to which
he is subjected by the very nature of criminal proceedings, a waiver by him or
on his behalf of an important right under Article 6 can only be accepted where
it is expressed in an unequivocal manner after the authorities have taken all
reasonable steps to ensure that he or she is fully aware of his rights of
defence and can appreciate, as far as possible, the consequence of his conduct.
The Court considered that it was unlikely, given the applicant’s age, that he
was aware that he was entitled to legal representation before making any
statement to the police. Moreover, given the lack of assistance by a lawyer or
his guardian, it was also unlikely that he could reasonably appreciate the
consequences of his proceeding
to be questioned without the assistance of a lawyer in criminal proceedings
concerning the investigation of a murder. The Court concluded that there had
been a violation of Article 6.3 (c) in conjunction with Article 6.1 of the
Convention on account of the lack of legal assistance to the applicant in the
initial stages of police questioning.
Adamkiewicz v. Poland, ECtHR, 02 March
2010, 54729/00
The applicant, then a minor aged 10, was
arrested at home and taken to a police station for questioning in connection with
the murder of another boy. He was questioned for 5 hours in the presence of a
psychologist and confessed to the murder. Relying on Article 6, the applicant
complained of the restrictions placed on the exercise of his defence rights
during the investigation and of the fact that the statements he had made then
to the police had been admitted at the trial. 
Article 6: The ECtHR reiterated the rule
that where the case concerned a minor, the courts were required to act in
accordance with the principle that the best interests of the child should be
protected, having regard to his or her age, level of maturity and intellectual
and emotional capacities, and taking steps to promote the child's ability to
participate in the proceedings. The applicant had not been informed by his
lawyer of his right to remain silent until six weeks after the proceedings had
begun and he had been placed in a children's home, after several unsuccessful
attempts by his lawyer to meet him. The authorities had therefore obtained his
incriminating admissions before he had even been informed of that right. Given
his age, it could not be asserted that Mr Adamkiewicz knew of his right to seek
legal representation and of the consequences of his failure to do so, whereas
it was crucial for him, isolated in a children's home as he had been during the
decisive period of the investigation, to have broad access to a lawyer from the
very beginning of the proceedings. The Court therefore held that the
considerable restrictions on the applicant's defence rights had amounted to a
violation of Article 6.3(c) taken in conjunction with Article 6.1.
Legal assistance
Adults
Todorov v Ukraine, ECtHR 12 January 2012, App. No. 16717/05
The applicant, a police officer, was
accused of armed robbery and participation in a criminal association. He signed
a waiver of his right to legal representation and confessed while being
interviewed in custody. The applicant suffered from a skin disease and eye
cataracts and requested several times during his detention awaiting trial to be
allowed access to treatment, which was denied. He was convicted and sentenced
to seven years' imprisonment. While in prison, his condition deteriorated and
doctors on several occasions recommended that he be operated on. However, due
to a lack of facilities at the prison the applicant did not receive adequate
medical care and lost his eyesight completely.  He complained to the ECtHR of
violations of Article 3 (inhuman and degrading treatment), Article 5.3 (trial
within a reasonable time), Article 6.1, 6.2 and 6.3(c) (fair trial, legal
assistance).  
Article 3: The ECtHR found that the
authorities did not do what could reasonably be expected of them to address the
deterioration of the applicant’s health and his loss of eyesight. As a result
he was subjected to inhuman and degrading treatment and there was a violation
of Article 3 of the Convention. 
Article 5.3: The Court held that the applicant's pre-trial
detention had been too long and that this had violated Article 5.3 of the
Convention. Due to the particularly long period of the applicant’s detention
and the deterioration in his health, the Court considered that exceptionally
compelling reasons were needed to justify keeping him detained. The Court could not accept that the general
complexity of the case and seriousness of charges against the applicant could
be regarded as “sufficient” reasons for holding him in custody for over five
years. 
Article 6.1, 6.2
and 6.3(c): The Court also held that the
criminal proceedings against the applicant were unreasonably long and had been
unfair due to a lack of legal representation at the initial stage of
police questioning, in violation of Article 6.1, 6.2 and 6.3(c). 
Vaudelle v. France, ECtHR 30 January
2001, App. No. 35683/97
(See above)
The applicant, who
had a mental impairment, was under the supervision of his son who was
responsible for his affairs. The applicant was charged with sexual offences
against minors and was sent a summons to attend trial. He did not appear at
trial and was convicted in his absence. He complained that the fact the summons
to attend the trial and notification of the judgment were sent to him only and
not to his supervisor had prevented him from exercising his defence rights
under Article 6.1 (right to a fair hearing) and Art. 6.3(a) (right to be
informed in detail of the nature of the accusation) ECHR. The ECtHR held that,
in view of the seriousness of the allegations against the applicant, the fact
that he was liable for a custodial sentence, that the Criminal
Court had been informed he was under supervision, that
sentence had been passed in his absence and without his legal representation
and that the psychiatric report ordered by the prosecution had never been
presented, it was bound out of fairness to take
additional steps before trying the case to ensure that the applicant
effectively enjoyed the rights guaranteed to him by Article 6 of the
Convention. Furthermore, the Court held that it is important for the accused to
be present in person at first instance, and pointed out that under Article
6.3(c) ECHR the accused is entitled to have a lawyer assigned by the court of
its own motion “when the interests of justice so require”.
Megyeri v. Germany, ECtHR 12 May 1992,
App No. 13770/88
The applicant was arrested for criminal acts but was not held
responsible on mental health grounds and was detained in a psychiatric
hospital. He requested that criminal proceedings against him be reopened. The
applicant was not represented at the detention review proceedings and there was
no legal provision for counsel to be assigned to detainees during such
proceedings. The court declined to release him as it could not be sure that he
would not continue to commit criminal acts. The applicant alleged that the
failure to provide him with a lawyer constituted a violation of his rights
under Article 5.4 to take proceedings challenging the lawfulness of his detention. The ECtHR held that where a person is confined in a
psychiatric institution for criminal acts for which he was not responsible on
account of mental illness, he should - unless there are special circumstances -
receive legal assistance in subsequent review proceedings. Furthermore, it was
held that persons of unsound mind were not required to seek legal
representation themselves before coming before the court. 
Winterwerp v. the Netherlands (1979), 24
October 1979, App. No. 6301/73
The applicant was
confined to a psychiatric hospital following criminal acts.  He continued to be
detained at the request of his wife and doctor following yearly reviews. The
applicant complained that he was never heard by the various courts or notified
of the orders, that he did not receive any legal assistance and that he had no
opportunity of challenging the medical reports. He claimed that this violated
Article 5.4 ECHR (right to have the lawfulness of detention determined by a
court). The ECtHR held that, while the judicial proceedings referred to in
Article 5.4 need not always be attended by the same guarantees as those
required under Article 6.1 for civil or criminal litigation, it is nonetheless
is essential that the person concerned should have access to a court and the
opportunity to be heard either in person or, where necessary, through some form
of representation. Mental illness may entail restricting or modifying the
manner of exercise of such a right, but it cannot justify impairing the very
essence of the right. Indeed, special procedural safeguards may prove called
for in order to protect the interests of persons who, on account of their
mental disabilities, are not fully capable of acting for themselves. As the
applicant had not been able to take proceedings before a court, there had been
a violation of Article 5.4 ECHR. 
Children
Salduz v Turkey, ECtHR, 27 November
2008, App. No. 36391/02
The applicant, who was a minor, was
taken into police custody on suspicion of having participated in an unlawful
demonstration in support of an illegal organisation. He was denied legal
assistance while in police custody, during which time he made a confession
which he later claimed was made under duress. He was tried and found guilty by
the State Security Court and sentenced to two and a half years imprisonment. He
complained under Article 6 (fair trial).
Article 6: The ECtHR noted that Article
6 requires that, as a rule, access to a lawyer should be provided as from the
first interrogation of a suspect by the police, unless it is demonstrated in
the light of the particular circumstances of each case that there were
compelling reasons to restrict this right. Even when compelling reasons may
exceptionally justify denial of access to a lawyer, such restriction- whatever
its justification – must not unduly prejudice the rights of the accused under
Article 6. The rights of the defence will in principle be irretrievably prejudiced
when incriminating statements made during police interrogation without access
to a lawyer are used for a conviction.
The Court also noted that one of the
specific elements of the case was the applicant's age. Having regard to a
significant number of relevant international law materials concerning legal
assistance to minors in police custody, the Court stressed the fundamental
importance of providing access to a lawyer where the person in custody is a
minor. In the present case, the restriction imposed on the right of access to a
lawyer was systematic and applied to anyone held in police custody, regardless
of his or her age, in connection with an offence falling under the jurisdiction
of the State Security Courts. In sum, even though the applicant had the
opportunity to challenge the evidence against him at the trial and subsequently
on appeal, the absence of a lawyer while he was in police custody irretrievably
affected his defence rights. The Court further recalled that neither the letter
nor the spirit of Article 6 of the Convention prevents a person from waiving of
his own free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial. However, if it is to be effective for Convention
purposes, a waiver of the right to take part in the trial must be established
in an unequivocal manner and be attended by minimum safeguards commensurate to
its importance
Therefore there had been a violation of
Article 6.3 (c) of the Convention in conjunction with Article 6.1 in this
case.
Okkali v.
Turkey (application no. 52067/99) 
The applicant
was 12 years old and working as an apprentice in a garage when he was accused
of theft and taken by his employer to the police station. He was interrogated
by police officers and badly beaten. The police officers were charged with
obtaining a confession by means of torture and the applicant joined as a civil
party. Following their conviction, the applicant applied for damages but was
refused, and he appealed to the ECtHR, relying on Article 3 of the Convention.
Article 3: The ECtHR noted first that,
in spite of the legal obligations incumbent on the authorities when young
offenders are arrested, the applicant was neither assigned a lawyer nor
questioned by the public prosecutor. The Court further noted with regret that
the domestic decisions and the Government’s observations made no mention of the
particular seriousness of the impugned acts, considering the victim’s age, or
of any domestic provisions relating to the protection of minors. In the light
of the Court’s case-law according to which children, who are particularly
vulnerable to various forms of violence, are entitled to State protection, in
the form of effective deterrence, against such serious breaches of personal
integrity, the authorities could have been expected to lend a certain weight to
the question of the applicant’s vulnerability. The Court observed, however,
that not only was concern to provide extra protection to the minor in question
sorely lacking throughout the proceedings, but the impunity which ensued was
enough to shed doubt on the ability of the judicial machinery set in motion in
this case to produce a sufficiently deterrent effect to protect anybody at all,
minor or otherwise, from breaches of the absolute prohibition enshrined in Article
3.
S.C. v. The United Kingdom, ECtHR 10
November 2004, App No. 60958/00
(See above)
Effective
participation includes the right to be able to follow and understand
proceedings, if necessary with assistance from, for example, an interpreter,
lawyer, social worker or friend.
Waiver of the right to be assisted
by a lawyer
Salduz v Turkey, ECtHR, 27 November
2008, App. No. 36391/02
(See above)
The applicant, a
minor, was taken into police custody on suspicion of having participated in an
unlawful demonstration in support of an illegal organisation. He was denied
legal assistance while in police custody, during which time he made a
confession which he later claimed was made under duress. He was tried and found
guilty by the State Security Court and sentenced to two and a half years
imprisonment. He complained of violations of Article 6 (fair trial). The ECtHR
noted that Article 6 requires that, as a rule, access to a lawyer should be
provided as from the first interrogation of a suspect by the police, unless it
is demonstrated in the light of the particular circumstances of each case that
there were compelling reasons to restrict this right. Even when compelling
reasons may exceptionally justify denial of access to a lawyer, such
restriction- whatever its justification – must not unduly prejudice the rights
of the accused under Article 6. The Court stressed the fundamental importance
of providing minors with access to a lawyer. The Court further recalled that
neither the letter nor the spirit of Article 6 of the Convention prevents a
person from waiving of his own free will, either expressly or tacitly, the
entitlement to the guarantees of a fair trial. However, if it is to be
effective for Convention purposes, a waiver of the right to take part in the
trial must be established in an unequivocal manner and be attended by minimum
safeguards commensurate to its importance. Therefore there had been a violation
of Article 6.3 (c) of the Convention in conjunction with Article 6.1 in
this case.
Panovits v. Cyprus, ECtHR 11 March 2009,
App no. 4268/04 
(See above)
The Court
considered that given the vulnerability of an accused minor and the imbalance
of power to which he is subjected by the very nature of criminal proceedings, a
waiver by him or on his behalf of an important right under Article 6, such as
the right to legal assistance, can only be accepted where it is expressed in an
unequivocal manner after the authorities have taken all reasonable steps to
ensure that he is fully aware of his rights of defence and can appreciate, as
far as possible, the consequences of his conduct. The Court considered that it
was unlikely, given the applicant’s age, that he was aware that he was entitled
to legal representation before making any statement to the police. Moreover, given
the lack of assistance by a lawyer or his guardian, it was also unlikely that
he could reasonably appreciate the consequences of his being questioned without
the assistance of a lawyer in criminal proceedings concerning the investigation
of a murder. The Court concluded that there had been a violation of Article 6.3
(c) in conjunction with Article 6.1 of the Convention on account of the lack of
legal assistance to the applicant in the initial stages of police questioning.
Free Legal Representation
Quaranta v. Switzerland, ECtHR 24 May
1991, App. No. 12744/87
The applicant was
a young Italian from an underprivileged background with a criminal record who
was convicted for drugs offences. He was denied free legal assistance
repeatedly during the investigation and trial, and was subsequently sentenced
to 6 months imprisonment. He alleged a violation of Article 6.3(c) of the
Convention (right to free legal assistance). The ECtHR Court held that there
had been a violation of Article 6.3(c) for the following reasons: i) lack of
sufficient means to pay for legal assistance (the applicant was on social
security assistance), ii) the seriousness of the offence and related punishment
(in this case up to 3 years imprisonment), iii) the complexity of the case, and
iv) the personal situation of the accused (a foreigner from an underprivileged
background and living on social security, without any occupational training,
and with a long criminal record). 
Detention Adapted to Vulnerability
and medical assistance
Adults
Megyeri v. Germany, ECtHR 12 May 1992,
App No. 13770/88
(See above)
The applicant
had been arrested after committing criminal acts, for which he could not be
held responsible on mental health grounds, and was detained in a psychiatric
hospital.  He requested that criminal proceedings against him be reopened and
asked the court to replace the lawyer who had previously represented him.  The
court informed the applicant that there was no legal provision for counsel to
be assigned to detainees during review proceedings.  The court declined to
release him as it could not be sure that he would not continue to commit
criminal acts.  The applicant was not represented by counsel at the
proceedings.  He was later placed under guardianship and subsequent requests to have his legal
capacity restored were rejected because his condition had not changed.  The
applicant alleged that the failure to provide him with a lawyer constituted a
violation of his rights under Article 5.4 to take proceedings challenging the
lawfulness of his detention.  
Article 5.4: The ECtHR recalled that a person of
unsound mind who is compulsorily confined in a psychiatric institution for an
indefinite or lengthy period is in principle entitled to take proceedings
"at reasonable intervals" before a court to challenge the
"lawfulness" of his detention. Article 5.4 requires that the
procedure followed have a judicial character and provide safeguards appropriate
to the kind of deprivation of liberty in question, although proceedings need
not always be attended by the same guarantees as those required under Article
6.1 for civil or criminal litigation. The Court held that where a person is
confined in a psychiatric institution on the ground of the commission of acts
which constituted criminal offences but for which he could not be held
responsible on account of mental illness, he should - unless there are special
circumstances - receive legal assistance in subsequent proceedings relating to
the continuation, suspension or termination of his detention. The importance of
what is at stake for him - personal liberty - taken together with the very
nature of his affliction - diminished mental capacity - compelled this
conclusion. 
McGlinchey v. UK, ECtHR 29 April 2003,
App. No. 50390/99
The applicants
were the relatives of a female prisoner who died in hospital after suffering
from severe withdrawal symptoms from heroine. They claimed violations of
Article 3 (prohibition on inhuman and degrading punishment) on the grounds that
she did not receive adequate medical care while in prison. The ECtHR recalled
that ill-treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 and that the assessment of this minimum is
relative: it depends on all the circumstances of the case, such as the duration
of the treatment, its physical and/or mental effects and, in some cases, the
sex, age and state of health of the victim. Under this provision the State must
ensure that a person is detained in conditions which are compatible with
respect for her human dignity, that the manner and method of the execution of
the measure do not subject her to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that,
given the practical demands of imprisonment, her health and well-being are
adequately secured by, among other things, providing her with the requisite
medical assistance. The ECtHR found that the prison authorities had failed to
adequately monitor the prisoner's weight and to take more effective steps to
treat her condition. Thus, they had violated their responsibility to provide
the requisite medical care for detained persons and had failed to meet the
standards imposed by Article 3 of the Convention. 
Price v. United Kingdom, ECtHR 10 July 2001, App. No. 33394/96
The applicant was a
four-limb deficient British woman suffering from kidney problems who was
detained in police custody and prison for a week for contempt of court. She
complained her detention conditions were not adapted to her disability and that
she was subjected to inhuman and degrading treatment in contravention of
Article 3 ECHR. The ECtHR found that, although there
was no evidence of any positive intention to humiliate or debase the applicant,
the Court considered that to detain a severely disabled person in conditions
where she is dangerously cold, risks developing sores because her bed is too
hard or unreachable, and is unable to go to the toilet or keep clean without
the greatest of difficulty, constituted degrading treatment contrary to Article
3 of the Convention.
Vincent v.
France, ECtHR 24 October 2006, App no. 6253/03
The application
concerned a paraplegic prisoner who claimed that his prison accommodation was
not suited to a wheelchair and that these conditions constituted degrading or
inhuman treatment or punishment, contrary to Article 3 of the ECHR. The ECtHR
confirmed the right of every prisoner to detention conditions in conformity
with human dignity, such as to ensure that the means of execution of the
measures taken do not subject the person to distress or hardship of an
intensity exceeding the inevitable level of suffering inherent in detention. It
added that, in addition to the health of the prisoner, his or her well-being
must be adequately ensured, with due regard to the practical demands of
imprisonment. Thus, a lack of medical treatment and the detention of an ill
person in inadequate conditions can constitute a violation of Article 3.  The
Court found that although there was no positive intention to debase or
humiliate the applicant, nevertheless the decision to hold him in a prison
without disabled facilities that allowed him to get around independently
constituted degrading treatment and a violation of Article 3.  
Florea v. Romania,
14 September 2010, App. No. 37186/03
The applicant suffered
from chronic hepatitis and arterial
hypertension at the time of his imprisonment. He was detained for 2 or 3 years
in overcrowded cells shared with other prisoners who were smokers, despite his
doctor's advice to avoid smoke, and his health deteriorated as a result. The
applicant complained of a violation of Article 3. The ECtHR observed
that, far from depriving persons of their rights under the Convention,
imprisonment in some cases called for enhanced protection of vulnerable individuals.
The State has to ensure that all prisoners were detained in conditions which
respected their human dignity, that they were not subjected to distress or
hardship of an intensity exceeding the unavoidable level of suffering inherent
in detention and that their health was not compromised. The Court held that the
applicant's detention with smokers despite his illness and the advice of his
doctor, in addition to the levels of overcrowding and poor hygiene in the
prison, reached the level of gravity required for a breach of Article 3. 
Raffray Taddei v. France, 21 December
2010, App. No. 36435/07
A prisoner with anorexia,
Munchausen's syndrome and respiratory conditions complained of the prison
authorities' failure to provide her with appropriate treatment for her health
problems or to release her from prison for treatment despite medical advice.
The ECtHR held that there was no breach of Article 3 in relation to the
applicant's respiratory problems as these had been adequately addressed by her
medical care. However, the Court noted that none of the recommendations for the
treatment of her anorexia and related Munchausen's syndrome had been followed.
The Court concluded that the failure by the national authorities sufficiently
to take into account the need for specialised care in an adapted facility, as
required by the applicant's state of health, combined with her transfers,
despite her particular vulnerability, and with the prolonged uncertainty
following her requests for deferment, were capable of causing her distress that
exceeded the unavoidable level of suffering inherent in detention. The Court
therefore found a violation of Article 3.
Renolde v. France, ECtHR 16 October
2008, App No. 5608/05
The applicant’s brother, who suffered from mental illness and had
attempted suicide, was put in solitary confinement for assault on a prison
officer.  He was given psychiatric medication but there was no supervision as
to whether he actually took it. He eventually committed suicide. The applicant
claimed violations of Article 2 (right to life) and Article 3 (degrading or
inhuman treatment or punishment) ECHR in respect of her brother's treatment. On
Article 2, the ECtHR emphasised that persons in custody are in a
vulnerable position and that the authorities are under a duty to protect them.
In the case of mentally ill persons, regard must be had to their particular
vulnerability. The Court held that in the present case there was a real risk
that Mr Renolde would attempt suicide and the authorities, who were aware of that
risk, should have taken steps to prevent it through proper medical provision.
Furthermore, he should not have been held in solitary confinement in view of
his mental state and suicide attempts. There had thus been a violation of
Article 2. Regarding Article 3, The Court held that the assessment of whether
the treatment or punishment concerned is incompatible with the standards of
Article 3 has, in the case of mentally ill persons, to take into consideration
their vulnerability and their inability, in some cases, to complain coherently
or at all about how they are being affected by any particular treatment.
Treatment of a mentally ill person may be incompatible with the standards
imposed by Article 3 in the protection of human dignity, even though that person
may not be able or in a position to point to any specific ill-effects. The
Court considered that the penalty of solitary confinement was not compatible
with the standard of treatment required in respect of a mentally ill person and
constituted inhuman and degrading treatment and punishment, violating Article
3.
Keenan v. UK,
ECtHR 3 April 2001, App. No. 27229/95
The applicant was
the mother of a young man with psychiatric problems who committed suicide in
prison after being placed in solitary confinement for
assault on two prison officers. The applicant complained of violations
of Article 2 (right to life) and Article 3 (inhuman and degrading treatment or
punishment). On Article 2, the ECtHR found that Mr Keenan had not been
diagnosed with schizophrenia and was therefore not a manifest suicide risk and
that the authorities made a reasonable response to his conduct. He was subject
to daily medical supervision by the prison doctors, who found him fit for
segregation. There was no reason to alert the authorities on the day of his
death that he was in a disturbed state of mind rendering an attempt at suicide
likely. There had therefore been no breach of Article 2. On Article 3, The
Court found that there had been a lack of effective monitoring of Mr Keenan’s condition
and a lack of informed psychiatric input into his assessment and treatment,
despite the fact he was mentally ill and at risk of suicide. The imposition on
him in those circumstances of a serious disciplinary punishment was not
compatible with the standard of treatment required in respect of a mentally-ill
person. There had therefore been a violation of Article 3. 
De Donder and De Clippel v. Belgium, 6
December 2011, App. No. 8595/06
The
applicants were the parents of a young man with psychiatric problems who
committed suicide in prison. There was an order to detain Mr De Clippel on the
psychiatric wing of Ghent prison but he was in fact detained in an ordinary
cell with others and then placed in segregation for punishment. A few days
later he committed suicide. On Article 2, the Court observed that the
applicant's son was doubly vulnerable to the risk of suicide as there is an
elevated instance of suicide in prison and he was suffering from diagnosed
schizophrenia, a mental disorder entailing a high risk of suicide. Furthermore,
Mr De Clippel's violent and disturbed behaviour before and after his arrival at
the prison should have aroused the authorities' attention. Furthermore, although he had not given any warning signs, the authorities should
have been aware that there was a real risk that a young man suffering from
mental disorders might attempt suicide while in an ordinary prison environment.
Therefore there had been a violation of Article 2, and the Court held that
there was no need to determine whether there had also been a violation of
Article 3.  
M.S. v. UK,
ECtHR 3 May 2012, App. No. 24527/08
The applicant, who
was suspected of assaulting his aunt, was mentally ill and detained in a police
cell for over 3 days awaiting transfer to a
psychiatric hospital. His mental condition rapidly deteriorated in the absence
of treatment. He complained of violations of Article 3 (inhuman and degrading
treatment). The ECtHR held that the applicant's initial detention was necessary
in view of the danger he posed to himself and others and that the authorities
had not intended to treat the applicant in a manner incompatible with Article
3. However, the applicant had been in a state of great vulnerability throughout
his detention at the police station as was in dire need of appropriate
psychiatric treatment. The situation had diminished excessively his fundamental
human dignity and had breached Article 3. 
Aerts v. Belgium, ECtHR 30 July 1998, App. No. 61/1997/845/1051
The applicant was
convicted of seriously assaulting his ex-wife. He was found to be mentally ill
and the Mental Health Board ordered that he be held in a social protection
centre. He was kept on the psychiatric wing of an ordinary prison for 7 months
pending transfer to the centre. The ECtHR held that Article 5.1 (right to
liberty and security) had been breached as the prison
psychiatric wing could not be regarded as an institution appropriate for the
detention of persons of unsound mind in the absence of regular medical
attention and a therapeutic environment. The applicant's detention was
therefore unlawful. However, the Court held that the living conditions
on the psychiatric wing did not seem to have had such serious effects on the
applicant's mental health as would bring them within the scope of Article 3.
The Court admitted that it is unreasonable to expect a severely mentally
disturbed person to give a detailed or coherent description of what he has
suffered during his detention. However, even in view of this, it had still not
been conclusively established that the applicant suffered treatment that could
be classified as inhuman or degrading in breach of Article 3.
Rupa v.
Romania, ECtHR 16 December 2008, App. No. 58478/00
The applicant
suffered from long-term mental illness and was registered as disabled. He
alleged that he had been ill-treated by police and held in inhuman and
degrading conditions in police cells on several occasions, in violation of
Article 3 (inhuman and degrading treatment or punishment). The ECtHR observed
that on the occasions that the applicant was arrested, he had been physically
mistreated, no efforts were made to have him medically examined despite his
mental disorders and no special measures had been envisaged to avoid the risks
inherent in the arrest of a person with behavioural disorders. The Court
further noted that the applicant's detention in a police holding room furnished
only with metal benches was manifestly unsuitable for the detention of a person
with the applicant’s medical problems, and that he had not undergone a medical
examination. The authorities had been under an obligation to have him examined
by a psychiatrist as soon as possible in order to determine whether his
psychological condition was compatible with detention, and what therapeutic
measures should be taken. There had therefore been a violation of Article 3.
Rivière v.
France,  ECtHR 11 July 1996, App. No. 33834/03
The applicant was
serving a life prison sentence without parole for 15 years for murder. He
applicant complained about his continued detention in prison despite his mental
illness, which required treatment outside. The ECtHR noted that although the
ECHR does not contain any provision specific to detained persons who are ill,
this does not exclude the possibility of the detention of an ill person falling
under Article 3. A lack of appropriate medical care and, more generally, the
detention of an ill person in inadequate conditions, can in principle
constitute treatment contrary to Article 3. The applicant's detention without
appropriate medical care constituted a particularly painful experience that
subjected him to a level of distress exceeding the inevitable level of
suffering inherent in detention. Thus there had been a breach of Article 3.    
Dybeku v. Albania, 18 December  2007,
App. No. 41153/06 
The applicant, a
schizophrenic, was serving a life sentence for murder. He was treated as an
ordinary prisoner despite his mental health problems and was not provided with
the medical treatment he needed. His applications for release or transfer for
treatment were denied. The applicant complained of breaches of Article 3
(inhuman or degrading treatment or punishment) and Article 6 (right to a fair
trial). The ECtHR held that the applicant's treatment as an ordinary prisoner
despite his mental health problems and vulnerability breached Article 3. 
Papon v. France, ECtHR 7 June 2001, App.
No. 64666/01
The applicant was a 90 year old man sentenced to 10 years
imprisonment. He submitted that the combination of his extreme old age and his
state of health meant that his detention was in breach of Article 3 of the
Convention. The ECtHR noted that, while none of the provisions of the
Convention expressly prohibits imprisonment beyond a certain age, under certain
circumstances, the detention of an elderly person over a lengthy period might
raise an issue under Article 3. Nonetheless, regard is to be had to the
particular circumstances of each specific case. The Court noted that a doctor
had described the applicant's overall condition as "good", his
detention conditions were satisfactory and he had regular contact with friends
and family. While he was not enjoying the same quality of life as he would if
he were still at liberty, the Court noted that the national authorities had
made as much allowance as possible for the applicant's state of health and his
age. The Court concluded that, having assessed the facts as a whole, the
applicant’s situation did not attain a sufficient level of severity to come
within the scope of Article 3 of the Convention. Therefore there was no
violation of Article 3.
Children
Guvec v. Turkey, ECtHR , 20 January 2009,
App. No. 70337/01
The applicant was a 15 year old boy detained in
an adult prison for five years for his alleged membership of an illegal
association. He complained of violations of Article 3 (prohibition on inhuman
and degrading treatment). The ECtHR held that the
applicant's treatment reached the minimum level of severity to fall within the
scope of Article 3 of the Convention. His detention in adult prison, coupled with
a lack of legal advice and legal representation and the fact he was being tried
for an offence carrying the death penalty undoubtedly caused the applicant’s
psychological problems, which led to his repeated attempts to take his own
life. The Court considered that the national authorities were not only directly
responsible for the applicant’s problems, but also manifestly failed to provide
adequate medical care for him and took no steps to prevent the applicant's
repeated attempts to commit suicide. The Court thus held there was a violation
of Article 3 of the Convention.
Nart v. Turkey, ECtHR  6 May 2008, App. No.
20817/04
The case concerned
a 17 year old Turkish national arrested for armed robbery. The applicant denied
the charges when questioned but was remanded in custody. He was sent to Buca
prison, where he was detained with adults for 48 days
pending trial. He was convicted by the Juvenile Court of robbery and sentenced
to one year and 8 months imprisonment. The judgment was quashed by the Court of
Cassation and sent back to the Juvenile Court for review, where it was still
pending at the time of the case before the ECtHR. The applicant invoked
violations of Article 5.3 and 5.4, complaining that his detention on remand
exceeded the reasonable time requirement and that he had no effective remedy to
challenge the lawfulness of his detention on remand. 
Article 5.3 and
5.4: The ECtHR recalled that the pre-trial detention of minors should be used
only as a measure of last resort; it should be as short as possible and, where
detention is strictly necessary, minors should be kept apart from adults. The
Court found that the length of the applicant's detention was not justified.
Furthermore, the Court noted that he was a minor and was held with adults. In
view of this, it was found that the length of the applicant’s pre-trial
detention contravened Article 5.3 of the Convention. There was also a violation
of Article 5.4 as the applicant's objection to his detention was not properly
considered by the domestic courts.
Bouamar v Belgium, ECtHR 29 February
1988, App. No. 9106/80
This case
concerned the detention of a Moroccan national, a minor at the material time,
living in Belgium. He had a disturbed personality and was placed in various
care homes. Suspected of certain offences, the applicant was provisionally
detained in Lantin remand prison on nine different occasions for up to 15 days
each between January and November 1980, coming to a total of 119 days. Between
these short periods of detention, the applicant was put under the supervision
of his family. The authorities justified each period of detention on the
grounds that no juvenile reformatory could accept the applicant due to his
behaviour. The applicant submitted that the orders
detaining him in the remand prison at Lantin on nine successive occasions in
1980 were contrary to Article 5.1 ECHR (right to liberty and security).
Furthermore, he alleged a violation of Article 5.4 as he had not been
represented by a lawyer at his trial in the Juvenile Court.
Article 5.1: The
ECHR considered the detention of a minor pending the making of a court order
placing the child in care permissible as long as it “furthered an educational
aim” (Art 5.1(d)). At the time of the events in issue, Belgium
did not have any closed institution able to accommodate highly disturbed
juveniles. The detention of a young man in a remand prison in conditions of
virtual isolation and without the assistance of staff with educational training
could not be regarded as furthering any educational aim. The Court accordingly concluded that the
nine placement orders, taken together, were not compatible with Article 5.1(d).
Their fruitless repetition had the effect of making them less and less
"lawful", especially as Crown Counsel never instituted criminal
proceedings against the applicant in respect of the offences alleged against
him.
Article 5.4: The
Court further held that the applicant should have been represented by his
lawyers at the hearings before the Juvenile Court. The mere fact that the
applicant - who was very young at the time - appeared in person before the
court did not, in the circumstances of the case, afford him the necessary
safeguards. Furthermore, the applicant's appeals to domestic courts had no
practical effect. Thus, there had been a breach of Article 5.4.
Annex VI
Estimates of affected
population
Table A1.1 Estimates
of affected population: (Estimated) numbers of
suspected and accused children through specific stages of the criminal
proceedings in the EU 27 in 2008
 EU jurisdiction  || (Estimated) numbers of children in formal contact with the police in 2008 || Estimated numbers of children detained pre- trial in 2008 || Estimated numbers of children on trial in 2008 
 Austria || 35,912 || 200 || 12,000 
 Belgium || 20,000 || 300 || 15,000 
 Bulgaria || 6,316 || 200 || 11,000* 
 Cyprus || 1,500 || 0 || 1,000 
 Czech Republic || 8,737 || 300 || 15,000* 
 Denmark || 10,000 || 200 || 8,000 
 Estonia || 2,227 || 0 || 2,000 
 Finland || 38,574 || 200 || 8,000 
 France || 207,821 || 1,900 || 92,000 
 Germany || 265,771 || 2,400 || 119,000 
 Greece || 7,748 || 300 || 16,000* 
 Hungary || 13,511 || 300 || 15,000* 
 Ireland || 8,000 || 100 || 6,000 
 Italy || 31,826 || 1700 || 86,000* 
 Latvia || 2,257 || 100 || 3,000 
 Lithuania || 3,418 || 100 || 5,000* 
 Luxembourg || 2,145 || 0 || 700 
 Malta || 282 || 0 || 600* 
 Netherlands || 84,115 || 500 || 24,000 
 Poland || 52,081 || 1,100 || 55,000* 
 Portugal || 3,619 || 300 || 15,000* 
 Romania || 13,831 || 600 || 31,000* 
 Slovakia || 6,196 || 200 || 8,000* 
 Slovenia || 1,474 || 0 || 3,000* 
 Spain || 18,749 || 1,300 || 65,000* 
 Sweden || 30,286 || 300 || 13,000 
 United Kingdom || 210,660 || 1,800 || 88,000 
 EU total || 1,086,000 || 14,000 || 719,000 
Source: UNODC, Eurostat and ICF GHK
estimates
Note 1 explaining estimates reported in the column “(Estimated)
numbers of children in formal contact with the police”: 
·                        
Numbers in bold are the numbers of
children in formal contact with the police as reported by Member States to the
UNODC for the year 2008. UK data come from the Office of National statistics
and refer to England and Wales only for the year 2010-2011. 
·                        
UNODC data are provided by Member States. They
rely on the acceptation by Member states of the terminology used for the
collection of data. As a matter of example, “in formal contact with police” has
a different meaning or consequences in national criminal procedure from one
State to another one.
·                        
2008 data has been used as Member States do not
provide every year all data. 2008 is supposed to be the year with the highest
number of data. In addition, trends in criminal statistics between 2008 and
2011 are not significant, except for UK where a significant decrease of
juvenile offender has been recorded.
·                        
Estimated numbers in italics have been
calculated on the basis that 1.8 persons for every 1000 persons in the general
population are children in formal contact with the police. This estimate has
been calculated on the basis of statistics reported by 22 Member States to the
UNDOC in 2008 on the number of children in formal contact with the police (i.e.
all member States but BE, CY, DK, IE and UK).
·                        
Estimates have been rounded up to the nearest
thousand. 
Note 2 explaining estimates reported in the column “Estimated
numbers of children detained pre- trial in 2008”: 
·                        
The estimates in these columns have been
calculated on the basis that 0.029 persons per 1000 persons in the general
population are children in pre-trial detention. These estimates have been
calculated: 
·                        
on the basis of statistics reported by 23 Member
States to the UNDOC in 2008 on the number of overall persons in pre-trial
detention (i.e. all member States but BE, DK, LU and UK), and 
·                        
following the rationale that the proportion of
children detained pre-trial mirrors the proportion of children in contact with
the police. Hence, the basis for these estimates are the proportion of children
in the overall offender population in formal contact with the police (i.e. 10%)
using statistics reported by 23 Member States to the UNDOC in 2008 on the
number of children in formal contact with the police (i.e. all member States
but BE, CY,  LU and UK).
·                        
Estimates have been rounded up to the nearest
hundred. 
Note 3 explaining estimates reported in the column “Estimated
numbers of children on trial in 2008”: 
·                        
The estimates in these columns have been
calculated on the basis that 1.4 persons for every 1000 persons in the general
population are children on trial. These estimates have been calculated : 
·                        
On the basis of statistics reported by 18 Member
States to the UNDOC in 2008 on the number of overall persons on trial (i.e. all
member States but BE, CY, EE, EL, IE, IT, LU, ES and SE) 
·                        
following the rationale that the proportion of
children on trial mirrors the proportion of children in formal contact with the
police.  Hence, the basis for these estimates are the proportion of children in
the overall offender population in formal contact with the police (i.e. 10%)
using statistics reported by 22 Member States to the UNDOC in 2008 on the
number of children in formal contact with the police (i.e. all Member States
but BE, CY, DK, IE and UK).
·                        
Estimates have been rounded up to the nearest
thousand.
·                        
Note that the estimates marked with a star “*”
do lead to a higher estimates of the number of children on trial than of the
numbers of children in formal contact with the police. The numbers of the
children in formal contact with the police as reported by the Member States to
the UNODC in 2008 – see Note 1 – have been used. However, due to probable
difference in definition of data collection, in several cases the numbers in
contact with the police are less than the numbers prosecuted and convicted
persons on a specific year. The explanation is that a child might be on trial
without coming in formal contact with the police (understood as a formal arrest
by police). 
Table
A1.2  Minimum and maximum estimates of the overall number of suspected and
accused vulnerable adults through specific stages of the criminal proceedings
in the EU 27 in 2008
 EU jurisdiction  || Estimated minimum numbers of vulnerable adults in contact with the police in 2008 || Estimated maximum numbers of vulnerable adults in contact with the police in 2008 || Estimated minimum numbers of vulnerable adults detained pre-trial in 2008 || Estimated maximum numbers of Vulnerable adults detained pre-trial in 2008 || Estimated minimum numbers of Vulnerable adults on  trial in 2008 || Estimated maximum numbers of Vulnerable adults on trial in 2008 
 Austria || 6,000 || 12,000 || 500 || 700 || 5,000 || 10,000 
 Belgium || 8,000 || 15,000 || 600 || 900 || 6,000 || 12,000 
 Bulgaria || 6,000 || 11,000 || 400 || 700 || 4,000 || 9,000 
 Cyprus || 0 || 1,000 || 0 || 100 || 0 || 1,000 
 Czech Republic || 7,000 || 15,000 || 600 || 900 || 6,000 || 12,000 
 Denmark || 4,000 || 8,000 || 300 || 500 || 3,000 || 6,000 
 Estonia || 1,000 || 2,000 || 100 || 200 || 1,000 || 2,000 
 Finland || 4,000 || 8,000 || 300 || 500 || 3,000 || 6,000 
 France || 46,000 || 92,000 || 3,700 || 5,500 || 37,000 || 74,000 
 Germany || 59,000 || 119,000 || 4,700 || 7,100 || 47,000 || 95,000 
 Greece || 8,000 || 16,000 || 600 || 1,000 || 6,000 || 13,000 
 Hungary || 7,000 || 15,000 || 600 || 900 || 6,000 || 12,000 
 Ireland || 3,000 || 6,000 || 300 || 400 || 3,000 || 5,000 
 Italy || 43,000 || 86,000 || 3,400 || 5,200 || 34,000 || 69,000 
 Latvia || 2,000 || 3,000 || 100 || 200 || 1,000 || 3,000 
 Lithuania || 2,000 || 5,000 || 200 || 300 || 2,000 || 4,000 
 Luxembourg || 0 || 1,000 || 0 || 0 || 0 || 1,000 
 Malta || 0 || 1,000 || 0 || 0 || 0 || 1000 
 Netherlands || 12,000 || 24,000 || 900 || 1,400 || 9,000 || 19,000 
 Poland || 28,000 || 55,000 || 2,200 || 3,300 || 22,000 || 44,000 
 Portugal || 8,000 || 15,000 || 600 || 900 || 6,000 || 12,000 
 Romania || 16,000 || 31,000 || 1,200 || 1,900 || 12,000 || 25,000 
 Slovakia || 4,000 || 8,000 || 300 || 500 || 3,000 || 6,000 
 Slovenia || 1,000 || 3,000 || 100 || 200 || 1,000 || 2,000 
 Spain || 33,000 || 65,000 || 2,600 || 3,900 || 26,000 || 52,000 
 Sweden || 7,000 || 13,000 || 500 || 800 || 5,000 || 11,000 
 United Kingdom || 44,000 || 88,000 || 3,500 || 5,300 || 35,000 || 71,000 
 EU total || 358,000 || 719,000 || 29,000 || 43,000 || 287,000 || 575,000 
Source: UNODC, Eurostat and ICF GHK
estimates
Note 4 explaining estimates reported on overall number of vulnerable
adults in formal contact with the police: 
·                        
The estimates in the first two columns have been
calculated on the basis that from 0.7 to 1.4 persons for every 1000 persons in
the general population are vulnerable adults in contact with the police. These
estimates have been calculated: 
·              
On the basis of statistics reported by 22 Member
States to the UNDOC in 2008 on the number of overall persons on in contact with
the police (i.e. all Member States but BE, CY, DK, IE and UK), and, 
·              
On minimum and maximum estimates of the
proportion of vulnerable adults in contact with the police in the overall
offender population ranging from 4% to 8%. These minimum and maximum estimates
have been calculated on the basis of the prevalence rate of mental and physical
disabilities in the general population as reported by the Eurostat Labour Force
Survey. It is reasonable to assume that the proportion of vulnerable adults in
the offender population is slightly higher than for the general population. The
minimum proportion of adults suffering from one of those two disabilities was
in Luxembourg (1.5%) and the maximum in France (6.4%). 
Note 5 explaining estimates reported on overall number of vulnerable
adults in pre-trial detention: 
·                        
The estimates in the third and fourth columns
have been calculated on the basis that from 3.6 to 5.4 persons for every 1000
persons in the general population are vulnerable adults in pre-trial detention.
These estimates have been calculated: 
·              
on the basis of statistics reported by 23 Member
States to the UNDOC in 2008 on the number of overall persons in pre-trial
detention (i.e. all member States but BE, CY, LU and UK), and 
·              
On minimum and maximum estimates of the
proportion of vulnerable adults in the overall offender population in pre-trial
detention ranging from 20% to 30%. This estimated range from 20% to 30% of the
overall offender population detained at pre-trial stage has been assumed as
representative of the vulnerable adult population in pre-trial detention. The
estimates have been derived from available research in the UK showing a higher
likelihood of vulnerable defendants to be detained pre-trial than the average
offender population.
Note 6 explaining estimates reported on overall number of vulnerable
adults on trial: 
·                        
The estimates in the last two columns have been
calculated on the basis that from 0.6 to 1.2 persons for every 1000 persons in
the general population are vulnerable adults on trial. These estimates have
been calculated: 
·              
On the basis of statistics reported by 18 Member
States to the UNDOC in 2008 on the number of overall persons on trial (i.e. all
member States but BE, CY, EE, EL, IE, IT, LU, ES and SE) and, 
·              
On minimum and maximum estimates of the
proportion of vulnerable adults on trial in the overall offender population
from ranging from 4% to 8%. These minimum and maximum ranges have been
estimated on the basis of the prevalence rate of mental and physical
disabilities in the general population as reported by the Labour Force Survey.
It has been assumed that the proportion of vulnerable adults in the offender
population is slightly higher than for the general population. The minimum
proportion of adults suffering from one of those two disabilities was in
Luxembourg (1.5%) and the maximum in France (6.4%). 
Annex VII
Method for estimating
the cost
1. Limitations of estimating the
economic costs of the safeguards using national data[171] 
It was originally intended to base the
estimates on the costs of safeguards on the use of national data on populations
affected and the relative costs per Member State (taking into account national
wages). However, this approach had to modified for the following reasons:
·       
The data on population did not appear to be
coherent at Member State level.
·       
In some cases data as reported by Member States
to the UNODC are missing.
·       
According to the data available,there are very
marked variations in the rates per thousand of (potentially) affected
population in each country. This is probably due to different collection
methods in Member States.
·       
The absolute unit costs of the safeguards at
national level reflect the wage rates and wealth of the respective countries.
The "affordability" of the safeguards (costs relative to national
wealth) will be similar unless there are very marked differences in the numbers
coming into contact with the judicial process and the national dataare not a
good basis for cross national comparisons. 
2. Approach to estimating the
economic costs of the respective safeguards:
The approach to estimating the economic
costs involved 6 steps:
·       
The UNODC (and other) datawere used to generate
EU averages (rates per thousand population) for the estimated 'max' and 'min'
population saffected by each safeguard.
·       
An average EU level unit cost (per vulnerable
person) has been estimated for each safeguard taking intco account of the time
inputs of professional and the costs of this.
·       
Where appropriate, one-off costs have been
specified for each safeguard at EU and/or national level.
·       
Countries which are affected by the safeguar
have been identified.
·       
To estimate the costs of each policy option, the
estimates (min and max.) of the affected population have been multiplied by the
unit costs.
·       
Where data at the national level are considered
reliable, the relevant national level estimates may be refined.
Annex VIII
General Cost calculations
Policy proposal 3.1 (children and vulnerable adults) to require the
assessment of vulnerability 
Policy
proposal 3.1 (children and vulnerable adults) has no additional costs to the
baseline; all Member States meet the standard.
Policy proposal 4.1 (children and vulnerable adults) to require the
assessment of vulnerability
Table B1.1
Estimated cost of policy proposal 4.1 to require the systematic assessment of
vulnerability for children and vulnerable adults
 EU jurisdiction || Policy proposal 4.1 
 Costs of assessments of  children  (000’s euro) || Minimum costs of assessment of vulnerable persons (000’s euro)  || Maximum costs of assessments of vulnerable persons (000’s euro) 
 Austria ||            825 ||            412 ||            819 
 Belgium ||            689 ||            529 ||         1,050 
 Bulgaria ||            391 ||            379 ||            752 
 Cyprus ||               51 ||               39 ||               78 
 Czech Republic ||            533 ||            515 ||         1,022 
 Denmark ||            354 ||            272 ||            539 
 Estonia ||               84 ||               66 ||            132 
 Finland ||            741 ||            263 ||            522 
 France ||         5,406 ||         3,174 ||         6,301 
 Germany ||         6,928 ||         4,077 ||         8,094 
 Greece ||            553 ||            556 ||         1,104 
 Hungary ||            586 ||            498 ||            989 
 Ireland ||            284 ||            218 ||            433 
 Italy ||         2,811 ||         2,956 ||         5,869 
 Latvia ||            121 ||            113 ||            224 
 Lithuania ||            181 ||            167 ||            331 
 Luxembourg ||               49 ||               24 ||               48 
 Malta ||               20 ||               20 ||               40 
 Netherlands ||         1,810 ||            813 ||         1,615 
 Poland ||         2,234 ||         1,890 ||         3,752 
 Portugal ||            473 ||            526 ||         1,045 
 Romania ||         1,047 ||         1,067 ||         2,119 
 Slovakia ||            300 ||            268 ||            532 
 Slovenia ||            100 ||            100 ||            198 
 Spain ||         2,061 ||         2,245 ||         4,458 
 Sweden ||            782 ||            455 ||            904 
 United Kingdom ||         5,333 ||         2,100 ||         4,175 
 EU sub-total ||      34,749 ||      23,742 ||      47,146 
 EU total 4.1 (min) || 58,491 
 EU total 4.1 (max) || 81,895 
Assumptions
underpinning estimates of the costs of policy proposals 4.1 for children and
vulnerable adults 
The
costs incurred as a result of policy proposal 4.1 are due to the costs of
screening mechanisms, in-depth assessments and situational analysis conducted
by various stakeholders (e.g. police, prosecutors, social workers and medical
experts).
The
estimates of the costs of policy proposal 4.1 (children) is based on the
following assumptions:
(b)                   
All Member States are in scope and would be
affected by the proposal as they currently conduct only a case by case
assessment of vulnerability.
(c)                   
In-depth assessment would be conducted at three
points in time (arrest, pre-trial detention and trial). The repeat in-depth
assessment would be to ensure that the circumstances of the suspected or
accused child have not changed.  
(d)                   
It is assumed that 50% of children need an
in-depth assessment of their vulnerability. The assumption cannot be based on
evidence since no evidence is available due to the relative novelty of the measure.
It is estimated that only the 10% of children who commit serious crimes would
necessitate a full situational analysis when charged. 
(e)                   
The cost of each in-depth assessment is assumed
to be € 27.5 comprising 30 minutes of medical/criminal expert with hourly rate
of €55.
(f)                     
The cost of each situational analysis is assumed
to be €135 comprising 1 hour of social worker (€18/h), 30 minutes of a medical
expert (€55/h) and 1 hour of legal aid lawyer (€90/h).
The
estimate of the costs of policy proposal 4.1 (vulnerable adults) is
based on the following assumptions:
(a)                   
All Member States are in scope and would be
affected by the proposal as they currently conduct only a case by case
assessment of vulnerability.
(b)                   
In-depth assessments would be conducted at three
points in time (arrest, pre-trial detention and trial). The repeat in-depth
assessment would be to ensure that the circumstances of the suspected or
accused vulnerable adults have not changed.  
(c)                   
It is assumed that 100% of vulnerable adults
would be screened; 50% would be subject to an in-depth assessment and 20% would
be subject to a situational analysis. The latter would only be conducted at the
trial stage for persons who are accused of committing a serious crime.
(d)                   
The cost of each screening is assumed to be
€11.25 comprising of 5 minutes of police officer (15€/h); 5 minutes of
prosecutor (30€/h) and 5 minutes of legal aid lawyer (90€/h). 
The 5 minutes
comprise the time needed by a police officer, prosecutor or a lawyer for a
first screening of the vulnerable person and communication that the person
suspected or accused shows signs of vulnerability. These costs cover only the first
screening. They need to be distinguished from the costs for mandatory
defense which are indicated below, see tables B 1.5 and B 1.6. 
The cost of each
in-depth assessment is estimated to be €27.5 comprising 30 minutes of
medical/criminal expert with hourly rate of €55. The cost of each situational
analysis is estimated to be €135 comprising 1 hour of social worker (18€/h), 30
minutes of a medical expert (55€/h) and 1 hour of legal aid lawyer (90 €/h).
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to estimate the costs of the policy proposal 4.1
(children) are as follows:
(a)                   
Cost of in-depth assessment:  Medical expert fee  (€55) X 30 mins  [50% (all suspected and
arrested children  at arrest, pre-trial detention and trial stages of Member
States in scope] 
(b)                   
Cost of situational analysis: Cost of situational analysis (€135) X 10% of all suspected and
arrested children on trial of Member States in scope
The formulae used to estimate the costs of the policy proposal 4.1
(vulnerable adults) are as follows:
(a)                   
Cost of screening: Unit cost of screening one suspected and accused vulnerable adult
(€11.25) X Population of suspected and accused vulnerable adults at arrest,
pre-trial detention and trial stage in those Member states concerned 
(b)                   
Cost of in-depth assessment:  Medical expert fee  (€27.5) X  [50% (all suspected and arrested
vulnerable adults at arrest, pre-trial detention and trial stages of Member
States in scope] 
(c)                   
Cost of situational analysis: Unit cost of situational analysis (€135) X 20% of all suspected and
arrested vulnerable adults at trial stage of Member States in scope
Policy proposal 3.2 (children and vulnerable adults) to require
special safeguards in relation to the assistance by parents or a person of
trust 
Table B1.2
Estimated cost of policy proposal 3.2 to require special safeguards in relation
to the assistance by parents or a person of trust 
 EU jurisdiction ||  Policy proposal 3.2 
 Costs of assistance of  children  (000’s euro) || Minimum costs of assistance of vulnerable adults (000’s euro)  || Maximum costs of assistance of vulnerable adults (000’s euro) 
 Austria || 118 || 6 || 11 
 Belgium || 63 || 7 || 14 
 Bulgaria || 21 || 5 || 10 
 Cyprus || 5 || 1 || 1 
 Czech Republic || 29 || 7 || 14 
 Denmark || 32 || 4 || 7 
 Estonia || 7 || 1 || 2 
 Finland || 127 || 4 || 7 
 France || 682 || 43 || 87 
 Germany || 872 || 56 || 111 
 Greece || 25 || 8 || 15 
 Hungary || 44 || 7 || 14 
 Ireland || 26 || 3 || 6 
 Italy || 104 || 40 || 81 
 Latvia || 7 || 2 || 3 
 Lithuania || 11 || 2 || 5 
 Luxembourg || 7 || 0 || 1 
 Malta || 1 || 0 || 1 
 Netherlands || 276 || 11 || 22 
 Poland || 171 || 26 || 52 
 Portugal || 12 || 7 || 14 
 Romania || 45 || 15 || 29 
 Slovakia || 20 || 4 || 7 
 Slovenia || 5 || 1 || 3 
 Spain || 62 || 31 || 61 
 Sweden || 99 || 6 || 12 
 United Kingdom || 691 || 0 || 0 
 EU sub-total || 3,564 || 295 || 591 
 EU total 3.2 (min) || 3,859 
 EU total 3.2 (max) || 4,155 
Assumption
underpinning estimates of the costs of policy proposal 3.2 for children and
vulnerable adults 
The
costs of policy proposal 3.2 mainly comprise the cost of custody officers
arranging the phone calls and asking the legal representatives or appropriate
third person to come to the police station immediately.
The
estimates of the costs of policy proposal 3.2 (children) are based on
the following assumptions:
(a)                   
All Member States are in scope and would be
affected at least in part by the proposal.
(b)                   
It is assumed that 62.5% of all minors at the
arrest stage would make 1 call and 12.5% of all children in long custody would
make two calls
(c)                   
The cost of arranging one call is €3.75
comprising of 15 minutes of a police officer (15€/h)
The
estimate of the costs of policy proposal 3.2 (vulnerable adults) is
based on the following assumptions:
(a)                   
All Member States but the UK are in scope and
would be affected at least in part by the proposal.
(b)                   
25% of all vulnerable adults at arrest stage would
make 1 call 
(c)                   
The cost of arranging one call is €3.75
comprising of 15 minutes of a police officer (15 € hourly cost)
Detailed
calculations for estimating the costs implications of the legislative policy
proposal 3.2 
The formulae used to estimate policy proposal 3.2 (children) are as
follows:
(a)                   
Cost of arranging one call = Police officer hourly wage (€15/h) x 15 mins X 62.5% of all children
at arrest stage in the Member States concerned + Police officer hourly wage
(€15/h) x 15 mins X 2 calls X 12.5% of all minors at arrest stage in the Member
States concerned (i.e. long custody)
The formulae used to calculate policy proposal 3.2 (vulnerable
adults) are as follows:
(b)                   
Cost of arranging one call = Police officer hourly wage (€15/h) x 15 mins X 25% of all
vulnerable adults in the Member States concerned
Policy
proposal 3.3 (children and vulnerable adults) to require medical assistance for
children and vulnerable adults
Table B1.3
Estimated cost of policy proposals 3.3 to require medical assistance for
children and vulnerable adults
 EU jurisdiction   || Policy proposal 3.3 
 Costs of medical assistance for  children  (000’s euro) || Minimum costs of medical assistance for vulnerable adults (000’s euro)  || Maximum costs of medical assistance for vulnerable adults (000’s euro) 
 Austria || 0 || 0 || 0 
 Belgium || 0 || 0 || 0 
 Bulgaria || 0 || 0 || 0 
 Cyprus || 0 || 0 || 0 
 Czech Republic || 0 || 0 || 0 
 Denmark || 0 || 0 || 0 
 Estonia || 73 || 30 || 61 
 Finland || 0 || 0 || 0 
 France || 0 || 0 || 0 
 Germany || 0 || 0 || 0 
 Greece || 0 || 0 || 0 
 Hungary || 0 || 0 || 0 
 Ireland || 0 || 0 || 0 
 Italy || 2,063 || 1,356 || 2,712 
 Latvia || 0 || 0 || 0 
 Lithuania || 145 || 77 || 153 
 Luxembourg || 0 || 0 || 0 
 Malta || 0 || 0 || 0 
 Netherlands || 0 || 0 || 0 
 Poland || 0 || 0 || 0 
 Portugal || 0 || 0 || 0 
 Romania || 0 || 0 || 0 
 Slovakia || 0 || 0 || 0 
 Slovenia || 0 || 0 || 0 
 Spain || 0 || 0 || 0 
 Sweden || 0 || 0 || 0 
 United Kingdom || 0 || 0 || 0 
 EU sub-total || 2,281 || 1,463 || 2,926 
 EU total 3.2 (min) || 3,744 
 EU total 3.2 (max) || 5,207 
Assumption
underpinning estimates of the costs of policy proposals 3.3 for children and
vulnerable adults 
The
costs brought by policy proposals 3.3 and 4.3 include the medical assistance (upon request by children and
vulnerable adults or their legal representatives.
The
estimate of the costs of policy proposal 3.3 (children) is based on the
following assumptions:
(a)                   
Estonia, Italy and Lithuania are in scope; all
other Member States meet the standard.
(b)                   
The costs brought by this policy proposal
include the provision of medical assistance to 50% of children upon request by
them and/or their parents or a person of trust. Medical assistance could be
provided at arrest and trial stage[172].
(c)                   
The cost of medical assistance per person is
estimated to be €35 lump sum fee corresponding to a non-specialised general
practitioner[173].
The
estimate of the costs of policy proposal 3.3 (vulnerable adults) is
based on the following assumptions:
(a)                   
Estonia, Italy and Lithuania are in scope; all
other Member States meet the standard.
(b)                   
The costs brought by this policy proposal
include the provision of medical assistance upon request to 50% of vulnerable
adults. Medical assistance could be provided in two points in time (arrest and
trial stage).
(c)                   
The cost of medical assistance per person is
estimated to be €35 lump sum fee corresponding to a non-specialised general
practitioner[174].
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 3.3 (children) are as
follows:
(a)                   
Cost of medical assistance: €35 lump sum fee for a non-specialised general practitioner or
doctor X 50% of all minors at arrest and trial stage in the Member States
concerned
The formulae used to calculate policy proposal 3.3 (vulnerable
adults) are as follows:
(a)                     
Cost of medical assistance: €35 lump sum fee for a non-specialised general practitioner or
doctor X 50% of overall number of vulnerable adults benefit from safeguard at
arrest stage, prosecution stage and trial stage in the Member States concerned  
Policy
proposal 4.3 (vulnerable adults) to require medical assistance 
Table B1.4
Estimated cost of policy proposal 4.3 to require medical assistance for
vulnerable adults
 EU jurisdiction   || Policy proposal 4.3 
 Minimum costs of medical assistance for vulnerable adults (000’s euro)  || Maximum costs of medical assistance for  vulnerable adults (000’s euro) 
 Austria || 149 || 297 
 Belgium || 191 || 381 
 Bulgaria || 137 || 273 
 Cyprus || 14 || 28 
 Czech Republic || 185 || 371 
 Denmark || 98 || 196 
 Estonia || 24 || 48 
 Finland || - || - 
 France || 1,144 || 2,287 
 Germany || 1,469 || 2,938 
 Greece || 200 || 401 
 Hungary || 179 || 359 
 Ireland || 79 || 157 
 Italy || 1,065 || 2,131 
 Latvia || 41 || 81 
 Lithuania || 60 || 120 
 Luxembourg || 9 || 17 
 Malta || 7 || 15 
 Netherlands || - || - 
 Poland || - || - 
 Portugal || 190 || 379 
 Romania || 385 || 769 
 Slovakia || 97 || 193 
 Slovenia || 36 || 72 
 Spain || 809 || 1,618 
 Sweden || - || - 
 United Kingdom || 1,093 || 2,187 
 EU total 3.2 || 7,660 || 15,320 
Assumption
underpinning estimates of the costs of policy proposal 4.3 for vulnerable
adults 
The
costs brought by policy proposal 4.3 include the medical assistance (upon request by children and
vulnerable adults or their legal representatives.
The
estimate of the costs of policy proposal 4.3 (vulnerable adults) is
based on the following assumptions:
(a)                   
All Member States but Finland, Netherland,
Poland, and Sweden are in scope.
(b)                   
The costs brought by this policy proposal
include the provision of medical assistance upon request to 50% of vulnerable
adults. Medical assistance could be provided in two points in time (arrest and
trial stage)[175].
(c)                   
The cost of medical assistance per person is
estimated to be €27.5 comprising 30 mins of a medical expert (€55/h). 
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 4.3 (vulnerable
adults) are as follows:
(a)                   
Cost of medical assistance: €27.5 fee for 30 mins of a medical expert X 50% of overall number
of vulnerable adults benefit from safeguard at arrest stage, prosecution stage
and trial stage in the Member States concerned[176].  
Policy
proposal 3.4 (children and vulnerable adults) to require access to a lawyer 
Table B1.5
Estimated cost of policy proposals 3.4 to require access to a lawyer for
children 
 EU jurisdiction || Policy proposal 3.4 
 Costs of mandatory access to a lawyer for children  (000’s euro) 
 Austria || 2,522 
 Belgium || 0 
 Bulgaria || 0 
 Cyprus || 3 
 Czech Republic || 0 
 Denmark || 0 
 Estonia || 0 
 Finland || 2.677 
 France || 11,862 
 Germany || 27.451 
 Greece || 0 
 Hungary || 0 
 Ireland || 0.977 
 Italy || 0 
 Latvia || 0 
 Lithuania || 0 
 Luxembourg || 110 
 Malta || 0 
 Netherlands || 1,139 
 Poland || 0 
 Portugal || 0 
 Romania || 0 
 Slovakia || 0 
 Slovenia || 3 
 Spain || 0 
 Sweden || 6.366 
 United Kingdom || 39.883 
 EU sub-total || 92.996 
 EU total 3.4 || 92.996 
Assumption
underpinning estimates of the costs of policy proposal 3.4 for children 
The
costs brought by this policy proposal include the provision of legal aid to
eligible minors and vulnerable adults if defence became mandatory.
The
estimate of the costs of policy proposal 3.4 (children) is based on the
following assumptions:
(a)                   
Austria, Cyprus, Finland, France, Germany, Ireland,
Luxembourg, Netherlands Slovenia, Sweden and the United Kingdom are totally or
partly in scope; all other Member States meet the standard.
(b)                   
In France, Netherlands and Slovenia additional
costs apply only at the arrest stage. In France, additional costs would apply
to only 16 and 17 year olds upon arrest who are estimated to be 60% of all
arrested children. 
(c)                   
The percentages of children that receive legal
aid in those countries are provided in the legal aid Impact Assessment and are
based on figures provided in the CEPEJ report. The percentages of children
eligible to receive benefit from this option are assumed to be 50% of all the
children that do not have already access to a lawyer due to the impact foreseen
by the implementation of the draft Directive on access to a lawyer. The maximum
of children that not receive already legal assistance is the difference between
the total population and the population of children that receive legal aid.
(d)                   
The costs of emergency legal aid at the
arrest stage and of legal aid at trial stage are provided in the legal aid
Impact Assessment.
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 3.4 (children and
vulnerable adults) are as follows:
(a)                   
Cost of legal aid: ((number of children in formal contact with the police – number of
children on trial) X emergency legal aid cost (100% - number of children
subject to legal aid) / 2 + (number of children on trial X legal aid cost)) X
(100% - % of suspected and accused persons receiving legal aid in the Member
State)/2
Policy proposal 3.4 (vulnerable adults) to require access to a
lawyer 
Table B1.6
Estimated cost of policy proposal 3.4 to require access to a lawyer for
vulnerable adults
 EU jurisdiction || Policy proposal 3.4 
 Minimum costs of mandatory access to a lawyer for vulnerable adults (000’s euro)  || Maximum costs of mandatory access to a lawyer for  vulnerable adults (000’s euro) 
 Austria || 0 || 0 
 Belgium || 74 || 296 
 Bulgaria || 0 || 0 
 Cyprus || 1 || 2 
 Czech Republic || 0 || 0 
 Denmark || 3,897 || 7,794 
 Estonia || 0 || 0 
 Finland || 0 || 0 
 France || 0 || 0 
 Germany || 0 || 0 
 Greece || 0 || 0 
 Hungary || 0 || 0 
 Ireland || 391 || 782 
 Italy || 0 || 0 
 Latvia || 0 || 0 
 Lithuania || 0 || 0 
 Luxembourg || 0 || 0 
 Malta || 0 || 0 
 Netherlands || 0 || 0 
 Poland || 0 || 0 
 Portugal || 0 || 0 
 Romania || 0 || 0 
 Slovakia || 0 || 0 
 Slovenia || 0 || 0 
 Spain || 0 || 0 
 Sweden || 0 || 0 
 United Kingdom || 18.303 || 36.606 
 EU total 3.4 || 22.666 || 45.481 
Assumption
underpinning estimates of the costs of policy proposal 3.4 for vulnerable
adults 
The
costs brought by this policy proposal include the provision of legal aid to
eligible minors and vulnerable adults if defence became mandatory.
The
estimate of the costs of policy proposal 3.4 (vulnerable adults) is
based on the following assumptions:
(a)                   
Belgium, Cyprus, Denmark, Ireland and the United
Kingdom are in scope; all other Member States meet the standard.
(b)                   
In Belgium additional costs apply only at the
arrest stage. In the other four countries, additional costs would apply both
upon arrest and at trial.
(c)                   
The percentages of vulnerable adults that receive
legal aid in those countries are provided in the legal aid Impact Assessment
and are based on figures provided in the CEPEJ report. In Belgium and Denmark
where data were not available an assumption was made that 50% of vulnerable
adults would be eligible to receive legal aid. The percentages of vulnerable
persons eligible to receive benefit from this option are assumed to be 50% of
all the children that do not have already access to a lawyer due to the impact
foreseen by the implementation of the draft Directive on access to a lawyer.
The maximum of vulnerable persons that not receive already legal assistance is
the difference between the total population and the population of children that
receive legal aid.
(d)                   
The costs of emergency legal aid at arrest
stage and of legal aid at trial stage are provided in the Impact Assessment on
Legal Aid. [These costs represent the cost of providing emergency legal aid
for suspected and accused persons deprived of liberty in countries where it
does not exist and in a number of countries where there is evidence that it is
not properly working or where the first interrogation can take place before
there is access to legal aid minus the costs savings because of an
appreciated fall in pre-trial detention with 20 %. The sum has also been
deducted with the sums which will be recovered from the suspected and accused
persons who to ultimately not fulfil the eligibility test.]
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 3.4 (vulnerable
adults) are as follows:
·                        
Cost of legal aid: ((number of vulnerable adults in formal contact with the police –
number of vulnerable adults on trial) X (100% - number of vulnerable persons
subject to legal aid) / 2 X emergency legal aid cost + (number of vulnerable
adults on trial X legal aid cost)) X (100% - % of suspected and accused persons
receiving legal aid in the Member State)/2%.
Policy
proposal 3.5 to require special safeguards for children and vulnerable adults
during police interviews
Policy proposal
3.5 does not have additional costs; for training costs see below Table B1.8.
Policy
proposal 4.5 to require special safeguards for children and vulnerable adults
during police interviews
Table B1.7 Estimated
cost of policy proposal 4.5 to require special safeguards for children and
vulnerable adults during police interviews 
 EU jurisdiction ||  Policy proposal 4.5 
 Costs for children  (000’s euro) || Minimum costs of for vulnerable adults  (000’s euro)  || Maximum costs for vulnerable adultss (000’s euro) 
 Austria || 99 || 17 || 33 
 Belgium || 53 || 21 || 42 
 Bulgaria || 0 || 0 || 0 
 Cyprus || 4 || 2 || 3 
 Czech Republic || 24 || 21 || 41 
 Denmark || 27 || 11 || 22 
 Estonia || 6 || 3 || 5 
 Finland || 0 || 0 || 0 
 France || 0 || 0 || 0 
 Germany || 731 || 163 || 326 
 Greece || 21 || 22 || 45 
 Hungary || 37 || 20 || 40 
 Ireland || 22 || 9 || 17 
 Italy || 0 || 0 || 0 
 Latvia || 6 || 5 || 9 
 Lithuania || 9 || 7 || 13 
 Luxembourg || 6 || 1 || 2 
 Malta || 1 || 1 || 2 
 Netherlands || 0 || 0 || 0 
 Poland || 143 || 76 || 151 
 Portugal || 10 || 21 || 42 
 Romania || 38 || 43 || 85 
 Slovakia || 17 || 11 || 21 
 Slovenia || 4 || 4 || 8 
 Spain || 52 || 90 || 180 
 Sweden || 83 || 18 || 36 
 United Kingdom || 0 || 0 || 0 
 EU sub-total || 1394 || 563 || 1126 
 EU total 3.2 (min) || 1,957 
 EU total 3.2 (max) || 2,520 
Assumption
underpinning estimates of the costs of policy proposal 4.5 for children and
vulnerable adults 
The
additional costs introduced by policy proposal 4.5 (children and vulnerable
adults) consist of usage cost of the video and audio recording equipment.
The
estimate of the costs of policy proposal 4.5 (children and vulnerable
adults) is based on the following assumptions:
(a)                   
All Member States but Bulgaria, Finland, France,
Italy, Netherlands and United Kingdom are in scope.
(b)                   
All Member States but 3 have already audio-video
hardware for collecting testimony of victims (source IA on victims). The
implementation of the Directive on the rights of victims will ensure that all
Member States will make available and in use of the required hardware.
(c)                   
Member State will only have to ensure that
hardware is available both for victims and suspects and accused persons that
are vulnerable.
(d)                   
All children at arrest stage would be affected by
the policy proposal.
(e)                   
The cost of video recording is estimated to
be €2.75 per session comprising of 10 mins of a police officer (for set up,
recording and archiving) and 10% of additional cost to reflect usage costs of
the equipment.
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 4.5 (children) are as
follows:
(a)                   
Cost of video recording: €2.75 per recording session X all minors at arrest stage in the
Member States in scope
The formulae used to calculate policy proposal 4.5 (vulnerable
adults) are as follows:
(a)                   
Cost of video recording: €2.75 per recording session X all vulnerable adults at arrest stage
in the Member States in scope
Policy
proposal 3.6 and 4.6 to require special safeguards for children and vulnerable
adults during the trial
These
policy proposals do not have additional costs to the baseline for children or
vulnerable adults.
Policy
proposal 3.7 to require special safeguards in pre-trial detention for children
and vulnerable adults
Table B1.9
Estimated cost of policy proposal 3.7 to require special safeguards in
pre-trial detention for children and vulnerable adults
 EU jurisdiction ||  Policy proposal 3.7 
 Costs for children  (000’s euro) || Minimum costs for vulnerable adults(000’s euro)  || Maximum costs for vulnerable adults (000’s euro) 
 Austria || 0 || 263 || 394 
 Belgium || 0 || 337 || 506 
 Bulgaria || 302 || 241 || 362 
 Cyprus || 31 || 25 || 37 
 Czech Republic || 410 || 328 || 492 
 Denmark || 0 || 173 || 260 
 Estonia || 0 || 42 || 64 
 Finland || 0 || 168 || 251 
 France || 0 || 2,023 || 3,034 
 Germany || 0 || 2,598 || 3,898 
 Greece || 443 || 366 || 549 
 Hungary || 0 || 317 || 476 
 Ireland || 0 || 139 || 209 
 Italy || 0 || 1,944 || 2,917 
 Latvia || 0 || 72 || 108 
 Lithuania || 0 || 110 || 165 
 Luxembourg || 0 || 15 || 23 
 Malta || 0 || 13 || 19 
 Netherlands || 0 || 518 || 778 
 Poland || 0 || 1,205 || 1,807 
 Portugal || 0 || 336 || 503 
 Romania || 0 || 680 || 1,021 
 Slovakia || 0 || 171 || 256 
 Slovenia || 0 || 64 || 95 
 Spain || 0 || 1,431 || 2,147 
 Sweden || 0 || 290 || 435 
 United Kingdom || 0 || 1,934 || 2,901 
 EU sub-total || 1,186 || 15,803 || 23,705 
 EU total 3.2 (min) || 16,989 
 EU total 3.2 (max) || 24,891 
Assumption
underpinning estimates of the costs of policy proposal 3.8 for children and
vulnerable adults 
The
costs of policy proposal 3.7 (children) refer to the re-organisation of
detention facilities to ensure separate detention of children from adult
detainees in EU Member States.
The
calculation of the costs of policy proposal 3.7 (children) is based on
the following assumptions:
(a)                   
Bulgaria, Cyprus, Czech Republic and Greece are
in scope.
(b)                   
All children in pre-trial detention are affected
by the measure.
(c)                   
The cost does not take into account potential
cost savings with regard to alternative measures of detention (e.g. release and
monitoring). Evidence of cost savings related to alternatives show that the
potential costs savings from such measures can represent up to 80% of the costs
of pre-trial detention.
The
costs of policy proposal 3.7 (vulnerable adults) mainly include the
re-organisation pof detention facilities to ensure separate detention of
vulnerable adults from other detaineeds. The amount does not account for
potential cost savings with regard to alternative measures to detention. 
The
estimate of the costs of policy proposal 3.7 (vulnerable adults) is
based on the following assumptions:
(a)                   
All Member States are affected when calculating
costs for separate detention facilities for vulnerable adults 
(b)                   
Italy, Greece and Lithuania are in scope when
calculating costs for medical assistance from a GP in pre-trial detention.
(c)                   
All vulnerable adults in pre-trial detention are
affected by the safeguard of separate detention and 50% by medical assistance.
(d)                   
Additional costs of separate detention
facilities are estimated to be €5479 per inmate per year. The assumption is
that vulnerable adults spend an average of a year in pre-trial detention.
Separate detention facilities for vulnerable adults cost 12.5% than normal
detention facilities. The costs are calculated pro-rata of the annual costs and
pro-rata of the additional costs of accommodating vulnerable person.
(e)                   
Cost of medical assistance is estimated to be
€35 lump sum fee per vulnerable adult corresponding to a non-specialised
general practitioner / doctor.
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 3.7 (children) are as
follows:
(a)                   
Additional cost of separate detention
facilities: €5479 per inmate per year X 3 months X
100% of children in pre-trial detention in the Member States concerned.
The formulae used to calculate policy proposal 3.7 (vulnerable
adults) are as follows:
(a)                   
Additional cost of separate i detention
facilities: €5479 per inmate per year X a year in
pre-trial detention X 10% of vulnerable adults in pre-trial detention 
(suffering for multiple vulnerabilities)  in the Member States concerned 
(b)                   
Cost of medical assistance: €35 lump sum fee per vulnerable adult corresponding to a
non-specialised general practitioner or doctor X 50% of the vulnerable adult
population detained at pre-trial stage
Policy
proposal 4.7 to require special safeguards in pre-trial detention for children
and vulnerable adults
Table B1.10
Estimated cost of policy proposal 4.7 to require special safeguards in
pre-trial detention for children and vulnerable adults
 EU jurisdiction ||  Policy proposal 4.7 
 Costs for children (000’s euro) || Minimum costs for vulnerable adults (000’s euro)  || Maximum costs for vulnerable adults (000’s euro) 
 Austria || 0 || 1,328 || 1,991 
 Belgium || 0 || 1,702 || 2,554 
 Bulgaria || 2,415 || 1,219 || 1,829 
 Cyprus || 249 || 126 || 189 
 Czech Republic || 3,281 || 1,657 || 2,485 
 Denmark || 0 || 874 || 1,311 
 Estonia || 0 || 214 || 321 
 Finland || 0 || 838 || 1,256 
 France || 0 || 10,216 || 15,324 
 Germany || 0 || 13,122 || 19,683 
 Greece || 3,544 || 1,790 || 2,685 
 Hungary || 0 || 1,603 || 2,405 
 Ireland || 0 || 702 || 1,054 
 Italy || 0 || 9,515 || 14,273 
 Latvia || 718 || 362 || 544 
 Lithuania || 0 || 537 || 806 
 Luxembourg || 0 || 77 || 116 
 Malta || 130 || 65 || 98 
 Netherlands || 0 || 2,592 || 3,888 
 Poland || 12,046 || 6,023 || 9,034 
 Portugal || 0 || 1,695 || 2,542 
 Romania || 6,804 || 3,436 || 5,154 
 Slovakia || 0 || 862 || 1,293 
 Slovenia || 0 || 321 || 481 
 Spain || 0 || 7,227 || 10,841 
 Sweden || 0 || 1,451 || 2,177 
 United Kingdom || 0 || 9,766 || 14,650 
 EU sub-total || 29,186 || 79,322 || 118,983 
 EU total 3.2 (min) || 108,508 
 EU total 3.2 (max) || 148,169 
Assumption underpinning
estimates of the costs of policy proposal 4.7 for children and vulnerable
adults 
The
costs of policy proposal 4.7 (children) consist in particular of
enhanced prison facilities for children to cater for educational needs.
The
estimate of the costs of policy proposal 4.7 (children) is based on the
following assumptions:
(a)                   
Bulgaria, Cyprus, Czech Republic, Greece, Latvia,
Malta, Poland, Romania are in scope.
(b)                   
The affected population includes all children in
pre-trial detention.
(c)                   
Additional costs of enhanced facilities consist
of €43,835 per inmate per year. The assumption is that children spend an
average of 3 months in pre-trial detention. Enhanced facilities for children
cost 100% more than normal prisoner quarters. The costs are calculated pro-rata
of the annual costs and pro-rata of the additional costs of accommodating
children. 
The
costs of policy proposal 4.7 (vulnerable adults) include medical expertise and recreational activities for the
vulnerable population. Diverting vulnerable adults out of the judicial system
is considered cost neutral for Member States.
The
estimate of the costs of policy proposal 4.7 (vulnerable adults) is
based on the following assumptions:
(a)                   
All Member States but Finland, Netherland,
Poland and Sweden for safeguard on medical expert only.
(b)                   
The affected population includes all vulnerable
in pre-trial detention and 50% benefiting from medical assistance in detention
twice during the detention period.
(c)                   
Additional costs of enhanced facilities are
estimated to be €10,959 per inmate per year. The first assumption is that
vulnerable adults spend an average of 12 months in pre-trial detention. The
second assumption is that enhanced facilities for vulnerable adults cost 25%
more than normal prisoner quarters. The costs are calculated pro-rata of the
annual costs and pro-rata of the additional costs of accommodating vulnerable
persons.  
Detailed
calculations for estimating the costs implications of the legislative policy
proposals 
The formulae used to calculate policy proposal 4.7 (children) are as
follows:
(a)                   
Additional cost of enhanced facilities: €43,835 per inmate per year X 3 months X 100% of children in
pre-trial detention in the Member States concerned.  
The formulae used to calculate policy proposal 4.7 (vulnerable
adults) are as follows:
(a)                   
Additional cost of separate detention
facilities: €10,959 per inmate per year X a year in
pre-trial detention X 25% of vulnerable adults in pre-trial detention 
(suffering for multiple vulnerabilities)  in the Member States concerned 
(b)                   
Cost of medical assistance: €27.5 hourly fee of a medical expert X 30 min X 50% of the
vulnerable adult population detained at pre-trial stage in the Member States
concerned
Specific training for professionals in contact with children and
vulnerable adults (training considered as a
flanking measure)
Table B1.11
Estimated cost of specific training for professionals in contact with children
and vulnerable adults 
 EU jurisdiction ||  Policy proposal 
 Total Cost per Member State (000's euro)   
  Austria ||  222 
  Belgium || 318 
  Bulgaria || 282 
  Cyprus ||  44 
  Czech Republic || 351 
  Denmark || 90 
  Estonia || 27 
  Finland || 69 
  France (metropolitan) || 1,904 
  Germany || 2.064 
  Greece ||  424 
  Hungary || 281 
  Ireland || 121 
  Italy || 2,703 
  Latvia || 71 
  Lithuania || 92 
  Luxembourg || 13 
  Malta || 16 
  Netherlands || 296 
  Poland || 839 
  Portugal || 430 
  Romania || 420 
  Slovakia || 118 
  Slovenia || 65 
  Spain || 1,868 
  Sweden || 153 
  UK Total  || 1,372 
 EU Total || € 18,617 
Assumption
underpinning estimates of the costs for children and vulnerable adults 
The estimate of the costs of (children and vulnerable adults)
is based on the following assumptions:
(a)                   
All Member States are in scope.
(b)                   
The costs have been established on the basis
that 12.5% of police officers, judges and prosecutors would be trained in the first
year.
(c)                   
The external legal experts providing the
training would receive 100 EUR per hour of training. In this framework, it is
assumed that each training package would involve 15 police officers, judges and
prosecutors for 12 hours maximum in Member States that do not have specialised
training around the need of vulnerable defendant.
(d)                   
To calculate the eligible population of
policeman 2008 Eurostat data were used for all countries but for Italy where
2006 data were used.
(e)                   
To calculate the eligible population of
judges and prosecutors CEPEJ data were used for all Member States but Germany
(for judges) and Cyprus and Germany (for prosecutors). The Cypriot and German
data were extrapolated from the average number of prosecutors per 1000 of
population in the EU and rounded up to the next 10th for Cyprus and 1000 for
Germany.
Detailed calculations for estimating the costs
implications of the legislative policy proposals 
The formulae used to calculate this proposal (children and
vulnerable adults) are as follows:
(a)                   
Cost of The external legal experts providing
the training outside their working time = 12 hours  X 1 legal expert hourly
wage (€100) X number of training session
(b)                   
Number of training sessions for policemen
= Number of policemen in Member States X 12.5% / 15
(15 attendees per training session) 
(c)                   
Number of training sessions for judges
and prosecutors = Number of judges and prosecutors
in Member States X 12.5% / 15 (15 attendees per training session)
Annex IX Cost assessment per Member State 
 Total Costs per Member State (Euro) || Option 3 || 
   || children || adult 
 4% || 8% 
 Austria ||  2.640.000 ||  269.000 ||  406.000 
 Belgium ||  63.000 ||  418.000 ||  816.000 
 Bulgaria ||  323.000 ||  247.000 ||  373.000 
 Cyprus ||  39.000 ||  27.000 ||  41.000 
 Czech Republic ||  439.000 ||  335.000 ||  506.000 
 Denmark ||  32.000 ||  4.074.000 ||  8.061.000 
 Estonia ||  80.000 ||  74.000 ||  126.000 
 Finland ||  2.804.000 ||  171.000 ||  258.000 
 France ||  12.544.000 ||  2.066.000 ||  3.121.000 
 Germany ||  28.324.000 ||  2.654.000 ||  4.009.000 
 Greece ||  468.000 ||  373.000 ||  564.000 
 Hungary ||  44.000 ||  324.000 ||  490.000 
 Ireland ||  1.004.000 ||  533.000 ||  997.000 
 Italy ||  2.168.000 ||  3.341.000 ||  5.709.000 
 Latvia ||  7.000 ||  73.000 ||  111.000 
 Lithuania ||  156.000 ||  189.000 ||  322.000 
 Luxembourg ||  117.000 ||  16.000 ||  24.000 
 Malta ||  1.000 ||  13.000 ||  20.000 
 Netherlands ||  1.415.000 ||  530.000 ||  800.000 
 Poland ||  171.000 ||  1.230.000 ||  1.858.000 
 Portugal ||  12.000 ||  343.000 ||  518.000 
 Romania ||  45.000 ||  695.000 ||  1.050.000 
 Slovakia ||  20.000 ||  174.000 ||  263.000 
 Slovenia ||  8.000 ||  65.000 ||  98.000 
 Spain ||  62.000 ||  1.462.000 ||  2.208.000 
 Sweden ||  6.465.000 ||  296.000 ||  448.000 
 United Kingdom ||  40.575.000 ||  20.237.000 ||  39.508.000 
 Total ||  100.027.000 ||  40.229.000 ||  72.703.000 
   ||   ||   ||   
 Total costs per Member State[177] (Euro)   || Option 4 || 
 children || adults || 
 4% || 8% || 
 Austria ||  3.564.000 ||  1.911.000 ||  3.152.000 || 
 Belgium ||  805.000 ||  2.524.000 ||  4.338.000 || 
 Bulgaria ||  2.826.000 ||  1.740.000 ||  2.865.000 || 
 Cyprus ||  312.000 ||  182.000 ||  301.000 || 
 Czech Republic ||  3.867.000 ||  2.385.000 ||  3.934.000 || 
 Denmark ||  413.000 ||  5.155.000 ||  9.869.000 || 
 Estonia ||  170.000 ||  308.000 ||  508.000 || 
 Finland ||  3.546.000 ||  1.104.000 ||  1.785.000 || 
 France ||  17.949.000 ||  14.576.000 ||  23.999.000 || 
 Germany ||  35.982.000 ||  18.887.000 ||  31.153.000 || 
 Greece ||  4.143.000 ||  2.576.000 ||  4.249.000 || 
 Hungary ||  667.000 ||  2.308.000 ||  3.806.000 || 
 Ireland ||  1.310.000 ||  1.402.000 ||  2.450.000 || 
 Italy ||  4.979.000 ||  13.577.000 ||  22.354.000 || 
 Latvia ||  852.000 ||  522.000 ||  860.000 || 
 Lithuania ||  346.000 ||  773.000 ||  1.276.000 || 
 Luxembourg ||  172.000 ||  111.000 ||  183.000 || 
 Malta ||  152.000 ||  94.000 ||  155.000 || 
 Netherlands ||  3.225.000 ||  3.417.000 ||  5.526.000 || 
 Poland ||  14.594.000 ||  8.014.000 ||  12.990.000 || 
 Portugal || 494.000 ||  2.439.000 ||  4.023.000 || 
 Romania ||  7.934.000 ||  4.945.000 ||  8.157.000 || 
 Slovakia ||  337.000 ||  1.241.000 ||  2.046.000 || 
 Slovenia ||  112.000 ||  462.000 ||  762.000 || 
 Spain ||  2.174.000 ||  10.402.000 ||  17.158.000 || 
 Sweden ||  7.330.000 ||  1.931.000 ||  3.129.000 || 
 United Kingdom ||  45.907.000 ||  31.263.000 ||  57.618.000 || 
 Total ||  164.162.000 ||  134.250.000 ||  228.648.000 || 
   ||   ||   ||   
 Total costs per Member State[178] (Euro)   || Preferred option || 
 children || adults || 
 4% || 8% || 
 Austria ||  3.564.000 ||  847.000 || 1.397.000 || 
 Belgium ||  802.000 ||  1.159.000 ||  2.289.000 || 
 Bulgaria || 714.000 ||  762.000 ||  1.554.000 || 
 Cyprus || 94.000 ||  82.000 ||  149.000 || 
 Czech Republic ||  996.000 || 1.056.000 ||  1.940.000 || 
 Denmark ||  413.000 ||  4.455.000 ||  8.818.000 || 
 Estonia ||  170.000 ||  136.000 ||  251.000 || 
 Finland ||  3.545.000 ||  435.000 ||  780.000 || 
 France ||  17.950.000 ||  6.384.000 ||  11.709.000 || 
 Germany ||  35.982.000 ||  8.363.000 ||  15.367.000 || 
 Greece || 1.042.000 ||  1.152.000 ||  2.114.000 || 
 Hungary ||  667.000 ||  1.021.000 ||  1.878.000 || 
 Ireland ||  1.309.000 ||  839.000 ||  1.424.000 || 
 Italy ||  4.978.000 || 6.005.000 ||  10.998.000 || 
 Latvia ||  134.000 ||  233.000 ||  425.000 || 
 Lithuania ||  346.000 ||  346.000 ||  634.000 || 
 Luxembourg ||  172.000 ||  49.000 ||  91.000 || 
 Malta ||  22.000 ||  41.000 ||  77.000 || 
 Netherlands ||  3.225.000 ||  1.342.000 ||  2415.000 || 
 Poland ||  2.548.000 ||  3.197.000 ||  5.762.000 || 
 Portugal || 495.000 ||  1.080.000 ||  1.983.000 || 
 Romania ||  1.130.000 ||  2.190.000 ||  4.023.000 || 
 Slovakia ||  337.000 ||  551.000 ||  1.009.000 || 
 Slovenia ||  112.000 ||  205.000 ||  376.000 || 
 Spain ||  2.175.000 ||  4.606.000 ||  8.464.000 || 
 Sweden ||  7.330.000 ||  769.000 ||  1.387.000 || 
 United Kingdom ||  45.907.000 ||  23.430.000 ||  45.869.000 || 
 Total ||  136.170.000 ||  70.729.000 ||  133.369.000 || 
Annex X Number of
affected children and vulnerable persons for each option
 EU jurisdiction || Option 3 – number of children affected 
 Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 0 || 35,912 || 0 || 35,912 || 0 || 0 || 0 
 Belgium || 0 || 20,000 || 0 || 0 || 0 || 0 || 0 
 Bulgaria || 0 || 6,316 || 0 || 0 || 0 || 0 || 200 
 Cyprus || 0 || 1,500 || 0 || 1,500 || 0 || 0 || 0 
 Czech Republic || 0 || 8,737 || 0 || 0 || 0 || 0 || 300 
 Denmark || 0 || 10,000 || 0 || 0 || 0 || 0 || 0 
 Estonia || 0 || 2,227 || 2,227 || 0 || 0 || 0 || 0 
 Finland || 0 || 38,574 || 0 || 38,574 || 0 || 0 || 0 
 France || 0 || 207,821 || 0 || 207,821 || 0 || 0 || 0 
 Germany || 0 || 265,771 || 0 || 265,771 || 0 || 0 || 0 
 Greece || 0 || 7,748 || 0 || 0 || 0 || 0 || 300 
 Hungary || 0 || 13,511 || 0 || 0 || 0 || 0 || 0 
 Ireland || 0 || 8,000 || 0 || 8,000 || 0 || 0 || 0 
 Italy || 0 || 31,826 || 31,826 || 0 || 0 || 0 || 0 
 Latvia || 0 || 2,257 || 0 || 0 || 0 || 0 || 0 
 Lithuania || 0 || 3,418 || 3,418 || 0 || 0 || 0 || 0 
 Luxembourg || 0 || 2,145 || 0 || 2,145 || 0 || 0 || 0 
 Malta || 0 || 282 || 0 || 0 || 0 || 0 || 0 
 Netherlands || 0 || 84,115 || 0 || 84,115 || 0 || 0 || 0 
 Poland || 0 || 52,081 || 0 || 0 || 0 || 0 || 0 
 Portugal || 0 || 3,619 || 0 || 0 || 0 || 0 || 0 
 Romania || 0 || 13,831 || 0 || 0 || 0 || 0 || 0 
 Slovakia || 0 || 6,196 || 0 || 0 || 0 || 0 || 0 
 Slovenia || 0 || 1,474 || 0 || 1,474 || 0 || 0 || 0 
 Spain || 0 || 18,749 || 0 || 0 || 0 || 0 || 0 
 Sweden || 0 || 30,286 || 0 || 30,286 || 0 || 0 || 0 
 United Kingdom || 0 || 210,660 || 0 || 210,660 || 0 || 0 || 0 
 EU total || 0 || 1,086,000 || 37,471 || 88,6258 || 0 || 0 || 800 
                                                                                                                                                                                    
   || Option 3 – costs (000's euros) / children 
 EU jurisdiction || Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 0 || 118 || 0 || 2,522 || 0 || 0 || 0 
 Belgium || 0 || 63 || 0 || 0 || 0 || 0 || 0 
 Bulgaria || 0 || 21 || 0 || 0 || 0 || 0 || 302 
 Cyprus || 0 || 5 || 0 || 3 || 0 || 0 || 31 
 Czech Republic || 0 || 29 || 0 || 0 || 0 || 0 || 410 
 Denmark || 0 || 32 || 0 || 0 || 0 || 0 || 0 
 Estonia || 0 || 7 || 73 || 0 || 0 || 0 || 0 
 Finland || 0 || 127 || 0 || 2.677 || 0 || 0 || 0 
 France || 0 || 682 || 0 || 11,862 || 0 || 0 || 0 
 Germany || 0 || 872 || 0 || 27.451 || 0 || 0 || 0 
 Greece || 0 || 25 || 0 || 0 || 0 || 0 || 443 
 Hungary || 0 || 44 || 0 || 0 || 0 || 0 || 0 
 Ireland || 0 || 26 || 0 || 0.977 || 0 || 0 || 0 
 Italy || 0 || 104 || 2,063 || 0 || 0 || 0 || 0 
 Latvia || 0 || 7 || 0 || 0 || 0 || 0 || 0 
 Lithuania || 0 || 11 || 145 || 0 || 0 || 0 || 0 
 Luxembourg || 0 || 7 || 0 || 110 || 0 || 0 || 0 
 Malta || 0 || 1 || 0 || 0 || 0 || 0 || 0 
 Netherlands || 0 || 276 || 0 || 1,139 || 0 || 0 || 0 
 Poland || 0 || 171 || 0 || 0 || 0 || 0 || 0 
 Portugal || 0 || 12 || 0 || 0 || 0 || 0 || 0 
 Romania || 0 || 45 || 0 || 0 || 0 || 0 || 0 
 Slovakia || 0 || 20 || 0 || 0 || 0 || 0 || 0 
 Slovenia || 0 || 5 || 0 || 3 || 0 || 0 || 0 
 Spain || 0 || 62 || 0 || 0 || 0 || 0 || 0 
 Sweden || 0 || 99 || 0 || 6.366 || 0 || 0 || 0 
 United Kingdom || 0 || 691 || 0 || 39.883 || 0 || 0 || 0 
 EU total || 0 || 3,564 || 2,281 || 92.996 || 0 || 0 || 1,186 
 EU jurisdiction   || Option 3 – costs (000’s euros)/ vulnerable adults 
 Assessment of vulnerability || Assistance by legal representative or person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 0 || 6-11 || 0 || 0 || 0 || 0 || 263-394 
 Belgium || 0 || 714 || 0 || 74-296 || 0 || 0 || 337-506 
 Bulgaria || 0 || 5-10 || 0 || 0 || 0 || 0 || 241-362 
 Cyprus || 0 || 1 || 0 || 1-2 || 0 || 0 || 25-37 
 Czech Republic || 0 || 7-14 || 0 || 0 || 0 || 0 || 328-492 
 Denmark || 0 || 4-7 || 0 || 3,897-7,794 || 0 || 0 || 173-260 
 Estonia || 0 || 1-2 || 30-61 || 0 || 0 || 0 || 42-64 
 Finland || 0 || 4-7 || 0 || 0 || 0 || 0 || 168-251 
 France || 0 || 43-87 || 0 || 0 || 0 || 0 || 2,023-3,034 
 Germany || 0 || 56-111 || 0 || 0 || 0 || 0 || 2,598-3,898 
 Greece || 0 || 8-15 || 0 || 0 || 0 || 0 || 366-549 
 Hungary || 0 || 7-14 || 0 || 0 || 0 || 0 || 317-476 
 Ireland || 0 || 3-6 || 0 || 391-782 || 0 || 0 || 139-209 
 Italy || 0 || 40-81 || 1,356-2,712 || 0 || 0 || 0 || 1,944-2,917 
 Latvia || 0 || 2-3 || 0 || 0 || 0 || 0 || 72-108 
 Lithuania || 0 || 2-5 || 77-153 || 0 || 0 || 0 || 110-165 
 Luxembourg || 0 || 0-1 || 0 || 0 || 0 || 0 || 15-23 
 Malta || 0 || 0-1 || 0 || 0 || 0 || 0 || 13-19 
 Netherlands || 0 || 11-22 || 0 || 0 || 0 || 0 || 518-778 
 Poland || 0 || 26-52 || 0 || 0 || 0 || 0 || 1,205-1,807 
 Portugal || 0 || 7-14 || 0 || 0 || 0 || 0 || 336-503 
 Romania || 0 || 15-29 || 0 || 0 || 0 || 0 || 680-1,021 
 Slovakia || 0 || 4-7 || 0 || 0 || 0 || 0 || 171-256 
 Slovenia || 0 || 1-3 || 0 || 0 || 0 || 0 || 64-95 
 Spain || 0 || 31-61 || 0 || 0 || 0 || 0 || 1,431-2,147 
 Sweden || 0 || 6-12 || 0 || 0 || 0 || 0 || 290-435 
 United Kingdom || 0 || 0 || 0 || 18.303-36.606 || 0 || 0 || 1,934-2,901 
 EU total || 0 || 295-591 || 1,463-2,926 || 22,666-45,481 || 0 || 0 || 15,803-23,705 
 EU jurisdiction   || Option 4 – number of children affected 
 Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 35,912 || 35,912 || 0 || 35,912 || 35,912 || 12,000 || 0 
 Belgium || 20,000 || 20,000 || 0 || 0 || 20,000 || 0 || 0 
 Bulgaria || 6,316 || 6,316 || 0 || 0 || 0 || 0 || 200 
 Cyprus || 1,500 || 1,500 || 0 || 1,500 || 1,500 || 0 || 0 
 Czech Republic || 8,737 || 8,737 || 0 || 0 || 8,737 || 0 || 300 
 Denmark || 10,000 || 10,000 || 0 || 0 || 10,000 || 8,000 || 0 
 Estonia || 2,227 || 2,227 || 2,227 || 0 || 2,227 || 2,000 || 0 
 Finland || 38,574 || 38,574 || 0 || 38,574 || 0 || 8,000 || 0 
 France || 207,821 || 207,821 || 0 || 207,821 || 0 || 0 || 0 
 Germany || 265,771 || 265,771 || 0 || 265,771 || 265,771 || 0 || 0 
 Greece || 7,748 || 7,748 || 0 || 0 || 7,748 || 0 || 300 
 Hungary || 13,511 || 13,511 || 0 || 0 || 13,511 || 0 || 0 
 Ireland || 8,000 || 8,000 || 0 || 8,000 || 8,000 || 0 || 0 
 Italy || 31,826 || 31,826 || 31,826 || 0 || 0 || 0 || 0 
 Latvia || 2,257 || 2,257 || 0 || 0 || 2,257 || 3,000 || 100 
 Lithuania || 3,418 || 3,418 || 3,418 || 0 || 3,418 || 5,000 || 0 
 Luxembourg || 2,145 || 2,145 || 0 || 2,145 || 2,145 || 0 || 0 
 Malta || 282 || 282 || 0 || 0 || 282 || 600 || 0 
 Netherlands || 84,115 || 84,115 || 0 || 84,115 || 0 || 0 || 0 
 Poland || 52,081 || 52,081 || 0 || 0 || 52,081 || 0 || 1,100 
 Portugal || 3,619 || 3,619 || 0 || 0 || 3,619 || 0 || 0 
 Romania || 13,831 || 13,831 || 0 || 0 || 13,831 || 0 || 600 
 Slovakia || 6,196 || 6,196 || 0 || 0 || 6,196 || 8,000 || 0 
 Slovenia || 1,474 || 1,474 || 0 || 1,474 || 1,474 || 0 || 0 
 Spain || 18,749 || 18,749 || 0 || 0 || 18,749 || 0 || 0 
 Sweden || 30,286 || 30,286 || 0 || 30,286 || 30,286 || 13,000 || 0 
 United Kingdom || 210,660 || 210,660 || 0 || 210,660 || 0 || 0 || 0 
 EU total || 1,086,000 || 1,086,000 || 37,471 || 886,258 || 506,688 || 59,600 || 26,000 
 EU jurisdiction   || Option 4 – costs (000’s euros) / children 
 Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria ||            825 || 118 || 0 || 2,522 || 99 || 0 || 0 
 Belgium ||            689 || 63 || 0 || 0 || 53 || 0 || 0 
 Bulgaria ||            391 || 21 || 0 || 0 || 0 || 0 || 2,415 
 Cyprus ||               51 || 5 || 0 || 3 || 4 || 0 || 249 
 Czech Republic ||            533 || 29 || 0 || 0 || 24 || 0 || 3,281 
 Denmark ||            354 || 32 || 0 || 0 || 27 || 0 || 0 
 Estonia ||               84 || 7 || 73 || 0 || 6 || 0 || 0 
 Finland ||            741 || 127 || 0 || 2.677 || 0 || 0 || 0 
 France ||         5,406 || 682 || 0 || 11,862 || 0 || 0 || 0 
 Germany ||         6,928 || 872 || 0 || 27.451 || 731 || 0 || 0 
 Greece ||            553 || 25 || 0 || 0 || 21 || 0 || 3,544 
 Hungary ||            586 || 44 || 0 || 0 || 37 || 0 || 0 
 Ireland ||            284 || 26 || 0 || 0.977 || 22 || 0 || 0 
 Italy ||         2,811 || 104 || 2,063 || 0 || 0 || 0 || 0 
 Latvia ||            121 || 7 || 0 || 0 || 6 || 0 || 718 
 Lithuania ||            181 || 11 || 145 || 0 || 9 || 0 || 0 
 Luxembourg ||               49 || 7 || 0 || 110 || 6 || 0 || 0 
 Malta ||               20 || 1 || 0 || 0 || 1 || 0 || 130 
 Netherlands ||         1,810 || 276 || 0 || 1,139 || 0 || 0 || 0 
 Poland ||         2,234 || 171 || 0 || 0 || 143 || 0 || 12,046 
 Portugal ||            473 || 12 || 0 || 0 || 10 || 0 || 0 
 Romania ||         1,047 || 45 || 0 || 0 || 38 || 0 || 6,804 
 Slovakia ||            300 || 20 || 0 || 0 || 17 || 0 || 0 
 Slovenia ||            100 || 5 || 0 || 3 || 4 || 0 || 0 
 Spain ||         2,061 || 62 || 0 || 0 || 52 || 0 || 0 
 Sweden ||            782 || 99 || 0 || 6.366 || 83 || 0 || 0 
 United Kingdom ||         5,333 || 691 || 0 || 39.883 || 0 || 0 || 0 
 EU total ||      34,749 || 3,564 || 2,281 || 92.996 || 1394 || 0 || 29,186 
 EU jurisdiction   || Option 4 – number / vulnerable persons 
 Assessment of vulnerability || Assistance by legal representative or person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 6,000-12,000 || 6,000-12,000 || 6,000-12,000 || 0 || 6,000-12,000 || 0 || 500-700 
 Belgium || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 0 || 600-900 
 Bulgaria || 6,000-11,000 || 6,000-11,000 || 6,000-11,000 || 0 || 0 || 0 || 400-700 
 Cyprus || 0-1,000 || 0-1,000 || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-100 
 Czech Republic || 7,000-15,000 || 7,000-15,000 || 7,000-15,000 || 0 || 7,000-15,000 || 0 || 600-900 
 Denmark || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 0 || 300-500 
 Estonia || 1,000-2,000 || 1,000-2,000 || 1,000-2,000 || 0 || 1,000-2,000 || 0 || 100-200 
 Finland || 4,000-8,000 || 4,000-8,000 || 0 || 0 || 0 || 0 || 300-500 
 France || 46,000-92,000 || 46,000-92,000 || 46,000-92,000 || 0 || 0 || 0 || 3,700-5,500 
 Germany || 59,000-119,000 || 59,000-119,000 || 59,000-119,000 || 0 || 59,000-119,000 || 0 || 4,700-7,100 
 Greece || 8,000-16,000 || 8,000-16,000 || 8,000-16,000 || 0 || 8,000-16,000 || 0 || 600-1,000 
 Hungary || 7,000-15,000 || 7,000-15,000 || 7,000-15,000 || 0 || 7,000-15,000 || 0 || 600-900 
 Ireland || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 0 || 300-400 
 Italy || 43,000-86,000 || 43,000-86,000 || 43,000-86,000 || 0 || 0 || 0 || 3,400-5,200 
 Latvia || 2,000-3,000 || 2,000-3,000 || 2,000-3,000 || 0 || 2,000-3,000 || 0 || 100-200 
 Lithuania || 2,000-5,000 || 2,000-5,000 || 2,000-5,000 || 0 || 2,000-5,000 || 0 || 200-300 
 Luxembourg || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-1,000 || 0 || 0 
 Malta || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-1,000 || 0 || 0 
 Netherlands || 12,000-24,000 || 12,000-24,000 || 0 || 0 || 0 || 0 || 900-1,400 
 Poland || 28,000-55,000 || 28,000-55,000 || 0 || 0 || 28,000-55,000 || 0 || 2,200-3,300 
 Portugal || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 0 || 8,000-15,000 || 0 || 600-900 
 Romania || 16,000-31,000 || 16,000-31,000 || 16,000-31,000 || 0 || 16,000-31,000 || 0 || 1,200-1,900 
 Slovakia || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 0 || 4,000-8,000 || 0 || 300-500 
 Slovenia || 1,000-3,000 || 1,000-3,000 || 1,000-3,000 || 0 || 1,000-3,000 || 0 || 100-200 
 Spain || 33,000-65,000 || 33,000-65,000 || 33,000-65,000 || 0 || 33,000-65,000 || 0 || 2,600-3,900 
 Sweden || 7,000-13,000 || 7,000-13,000 || 0 || 0 || 7,000-13,000 || 0 || 500-800 
 United Kingdom || 44.000-88.000 || 0 || 44.000-88.000 || 44,000-88,000 || 0 || 0 || 3,500-5,300 
 EU total || 358,000-719,000 || 314,000-631,000 || 307,000-619,000 || 59,000-118,000 || 203,000-410,000 || 0 || 29,000-43,000 
 EU jurisdiction   || Option 4 – costs (000’s euros)/ vulnerable persons 
 Assessment of vulnerability || Assistance by legal representative or person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 412- 819 || 6-11 || 149-297 || 0 || 17-33 || 0 || 1,328-1,991 
 Belgium ||  529-1,050 || 7-14 || 191-381 || 74-296 || 21-42 || 0 || 1,702-2,554 
 Bulgaria || 379-752 || 5-10 || 137-273 || 0 || 0 || 0 || 1,219-1,829 
 Cyprus ||   39-78 || 1 || 14-28 || 1-2 || 2-3 || 0 || 126-189 
 Czech Republic ||   515-1,022 || 7-14 || 185-371 || 0 || 21-41 || 0 || 1,657-2,485 
 Denmark ||   272-539 || 4-7 || 98-196 || 3,897-7,794 || 11-22 || 0 || 874-1,311 
 Estonia ||   66-132 || 1-2 || 24-48 || 0 || 3-5 || 0 || 214-321 
 Finland ||   263-522 || 4-7 || - || 0 || 0 || 0 || 838-1,256 
 France ||   3,174-6,301 || 43-87 || 1,144-2,287 || 0 || 0 || 0 || 10,216-15,324 
 Germany ||   4,077-8,094 || 56-111 || 1,469-2,938 || 0 || 163-326 || 0 || 13,122-19,683 
 Greece ||   556-1,104 || 8-15 || 200-401 || 0 || 22-45 || 0 || 1,790-2,685 
 Hungary ||   498-989 || 7-14 || 179-359 || 0 || 20-40 || 0 || 1,603-2,405 
 Ireland ||   218-433 || 3-6 || 79-157 || 391-782 || 9-17 || 0 || 702-1,054 
 Italy ||   2,956-5,869 || 40-81 || 1,065-2,131 || 0 || 0 || 0 || 9,515-14,273 
 Latvia ||   113-224 || 2-3 || 41-81 || 0 || 5-9 || 0 || 362-544 
 Lithuania ||   167-331 || 2-5 || 60-120 || 0 || 7-13 || 0 || 537-806 
 Luxembourg ||   24-48 || 0-1 || 9-17 || 0 || 1-2 || 0 || 77-116 
 Malta ||   20-40 || 0-1 || 7-15 || 0 || 1-2 || 0 || 65-98 
 Netherlands ||   813-1,615 || 11-22 || - || 0 || 0 || 0 || 2,592-3,888 
 Poland ||   1,890-3,752 || 26-52 || - || 0 || 76-151 || 0 || 6,023-9,034 
 Portugal ||   526-1,045 || 7-14 || 190-379 || 0 || 21-42 || 0 || 1,695-2,542 
 Romania ||   1,067-2,119 || 15-29 || 385-769 || 0 || 43-85 || 0 || 3,436-5,154 
 Slovakia ||   268-532 || 4-7 || 97-193 || 0 || 11-21 || 0 || 862-1,293 
 Slovenia ||   100-198 || 1-3 || 36-72 || 0 || 4-8 || 0 || 321-481 
 Spain ||   2,245-4,458 || 31-61 || 809-1,618 || 0 || 90-180 || 0 || 7,227-10,841 
 Sweden ||   455-904 || 6-12 || - || 0 || 18-36 || 0 || 1,451-2,177 
 United Kingdom ||   2,100-4,175 || 0 || 1,093-2,187 || 18.303-36.606 || 0 || 0 || 9,766-14,650 
 EU total ||  23,742-47,146 || 295-591 || 7,660-15,320 || 22,666-45,481 || 563-1,126 || 0 || 79,322-118,983 
 EU jurisdiction   || Preferred Option – number children affected 
 Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 35,912 || 35,912 || 0 || 35,912 || 35,912 || 0 || 0 
 Belgium || 20,000 || 20,000 || 0 || 0 || 20,000 || 0 || 0 
 Bulgaria || 6,316 || 6,316 || 0 || 0 || 0 || 0 || 200 
 Cyprus || 1,500 || 1,500 || 0 || 1,500 || 1,500 || 0 || 0 
 Czech Republic || 8,737 || 8,737 || 0 || 0 || 8,737 || 0 || 300 
 Denmark || 10,000 || 10,000 || 0 || 0 || 10,000 || 0 || 0 
 Estonia || 2,227 || 2,227 || 2,227 || 0 || 2,227 || 0 || 0 
 Finland || 38,574 || 38,574 || 0 || 38,574 || 0 || 0 || 0 
 France || 207,821 || 207,821 || 0 || 207,821 || 0 || 0 || 0 
 Germany || 265,771 || 265,771 || 0 || 265,771 || 265,771 || 0 || 0 
 Greece || 7,748 || 7,748 || 0 || 0 || 7,748 || 0 || 300 
 Hungary || 13,511 || 13,511 || 0 || 0 || 13,511 || 0 || 0 
 Ireland || 8,000 || 8,000 || 0 || 8,000 || 8,000 || 0 || 0 
 Italy || 31,826 || 31,826 || 31,826 || 0 || 0 || 0 || 0 
 Latvia || 2,257 || 2,257 || 0 || 0 || 2,257 || 0 || 0 
 Lithuania || 3,418 || 3,418 || 3,418 || 0 || 3,418 || 0 || 0 
 Luxembourg || 2,145 || 2,145 || 0 || 2,145 || 2,145 || 0 || 0 
 Malta || 282 || 282 || 0 || 0 || 282 || 0 || 0 
 Netherlands || 84,115 || 84,115 || 0 || 84,115 || 0 || 0 || 0 
 Poland || 52,081 || 52,081 || 0 || 0 || 52,081 || 0 || 0 
 Portugal || 3,619 || 3,619 || 0 || 0 || 3,619 || 0 || 0 
 Romania || 13,831 || 13,831 || 0 || 0 || 13,831 || 0 || 0 
 Slovakia || 6,196 || 6,196 || 0 || 0 || 6,196 || 0 || 0 
 Slovenia || 1,474 || 1,474 || 0 || 1,474 || 1,474 || 0 || 0 
 Spain || 18,749 || 18,749 || 0 || 0 || 18,749 || 0 || 0 
 Sweden || 30,286 || 30,286 || 0 || 30,286 || 30,286 || 0 || 0 
 United Kingdom || 210,660 || 210,660 || 0 || 210,660 || 0 || 0 || 0 
 EU total || 1,086,000 || 1,086,000 || 37,471 || 88,6258 || 506,688 || 0 || 800 
 EU jurisdiction   || Preferred option – costs (000’s euros) / children 
 Assessment of vulnerability || Assistance by parents or a person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria ||            825 || 118 || 0 || 2,522 || 99 || 0 || 0 
 Belgium ||            689 || 63 || 0 || 0 || 53 || 0 || 0 
 Bulgaria ||            391 || 21 || 0 || 0 || 0 || 0 || 302 
 Cyprus ||               51 || 5 || 0 || 3 || 4 || 0 || 31 
 Czech Republic ||            533 || 29 || 0 || 0 || 24 || 0 || 410 
 Denmark ||            354 || 32 || 0 || 0 || 27 || 0 || 0 
 Estonia ||               84 || 7 || 73 || 0 || 6 || 0 || 0 
 Finland ||            741 || 127 || 0 || 2.677 || 0 || 0 || 0 
 France ||         5,406 || 682 || 0 || 11,862 || 0 || 0 || 0 
 Germany ||         6,928 || 872 || 0 || 27.451 || 731 || 0 || 0 
 Greece ||            553 || 25 || 0 || 0 || 21 || 0 || 443 
 Hungary ||            586 || 44 || 0 || 0 || 37 || 0 || 0 
 Ireland ||            284 || 26 || 0 || 0.977 || 22 || 0 || 0 
 Italy ||         2,811 || 104 || 2,063 || 0 || 0 || 0 || 0 
 Latvia ||            121 || 7 || 0 || 0 || 6 || 0 || 0 
 Lithuania ||            181 || 11 || 145 || 0 || 9 || 0 || 0 
 Luxembourg ||               49 || 7 || 0 || 110 || 6 || 0 || 0 
 Malta ||               20 || 1 || 0 || 0 || 1 || 0 || 0 
 Netherlands ||         1,810 || 276 || 0 || 1,139 || 0 || 0 || 0 
 Poland ||         2,234 || 171 || 0 || 0 || 143 || 0 || 0 
 Portugal ||            473 || 12 || 0 || 0 || 10 || 0 || 0 
 Romania ||         1,047 || 45 || 0 || 0 || 38 || 0 || 0 
 Slovakia ||            300 || 20 || 0 || 0 || 17 || 0 || 0 
 Slovenia ||            100 || 5 || 0 || 3 || 4 || 0 || 0 
 Spain ||         2,061 || 62 || 0 || 0 || 52 || 0 || 0 
 Sweden ||            782 || 99 || 0 || 6.366 || 83 || 0 || 0 
 United Kingdom ||         5,333 || 691 || 0 || 39.883 || 0 || 0 || 0 
 EU total ||      34,749 || 3,564 || 2,281 || 92.996 || 1,394 || 0 || 1,186 
 EU jurisdiction   || Preferred Option – number / vulnerable persons 
 Assessment of vulnerability || Assistance by legal representative or person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria || 6,000-12,000 || 6,000-12,000 || 6,000-12,000 || 0 || 6,000-12,000 || 0 || 500-700 
 Belgium || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 0 || 600-900 
 Bulgaria || 6,000-11,000 || 6,000-11,000 || 6,000-11,000 || 0 || 0 || 0 || 400-700 
 Cyprus || 0-1,000 || 0-1,000 || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-100 
 Czech Republic || 7,000-15,000 || 7,000-15,000 || 7,000-15,000 || 0 || 7,000-15,000 || 0 || 600-900 
 Denmark || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 0 || 300-500 
 Estonia || 1,000-2,000 || 1,000-2,000 || 1,000-2,000 || 0 || 1,000-2,000 || 0 || 100-200 
 Finland || 4,000-8,000 || 4,000-8,000 || 0 || 0 || 0 || 0 || 300-500 
 France || 46,000-92,000 || 46,000-92,000 || 46,000-92,000 || 0 || 0 || 0 || 3,700-5,500 
 Germany || 59,000-119,000 || 59,000-119,000 || 59,000-119,000 || 0 || 59,000-119,000 || 0 || 4,700-7,100 
 Greece || 8,000-16,000 || 8,000-16,000 || 8,000-16,000 || 0 || 8,000-16,000 || 0 || 600-1,000 
 Hungary || 7,000-15,000 || 7,000-15,000 || 7,000-15,000 || 0 || 7,000-15,000 || 0 || 600-900 
 Ireland || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 3,000-6,000 || 0 || 300-400 
 Italy || 43,000-86,000 || 43,000-86,000 || 43,000-86,000 || 0 || 0 || 0 || 3,400-5,200 
 Latvia || 2,000-3,000 || 2,000-3,000 || 2,000-3,000 || 0 || 2,000-3,000 || 0 || 100-200 
 Lithuania || 2,000-5,000 || 2,000-5,000 || 2,000-5,000 || 0 || 2,000-5,000 || 0 || 200-300 
 Luxembourg || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-1,000 || 0 || 0 
 Malta || 0-1,000 || 0-1,000 || 0-1,000 || 0 || 0-1,000 || 0 || 0 
 Netherlands || 12,000-24,000 || 12,000-24,000 || 0 || 0 || 0 || 0 || 900-1,400 
 Poland || 28,000-55,000 || 28,000-55,000 || 0 || 0 || 28,000-55,000 || 0 || 2,200-3,300 
 Portugal || 8,000-15,000 || 8,000-15,000 || 8,000-15,000 || 0 || 8,000-15,000 || 0 || 600-900 
 Romania || 16,000-31,000 || 16,000-31,000 || 16,000-31,000 || 0 || 16,000-31,000 || 0 || 1,200-1,900 
 Slovakia || 4,000-8,000 || 4,000-8,000 || 4,000-8,000 || 0 || 4,000-8,000 || 0 || 300-500 
 Slovenia || 1,000-3,000 || 1,000-3,000 || 1,000-3,000 || 0 || 1,000-3,000 || 0 || 100-200 
 Spain || 33,000-65,000 || 33,000-65,000 || 33,000-65,000 || 0 || 33,000-65,000 || 0 || 2,600-3,900 
 Sweden || 7,000-13,000 || 7,000-13,000 || 0 || 0 || 7,000-13,000 || 0 || 500-800 
 United Kingdom || 44.000-88.000 || 0 || 44.000-88.000 || 44,000-88,000 || 0 || 0 || 3,500-5,300 
 EU sub-total || 358,000-719,000 || 314,000-631,000 || 307,000-619,000 || 59,000-118,000 || 203,000-410,000 || 0 || 29,000-43,000 
 EU jurisdiction   || Preferred option – costs (000’s euros)/ vulnerable persons 
 Assessment of vulnerability || Assistance by legal representative or person of trust || Medical assistance || Mandatory access to a lawyer || Police interview || Court hearings || Detention 
 Austria ||   412- 819 || 6-11 || 149-297 || 0 || 17-33 || 0 || 263-394 
 Belgium ||   529-1,050 || 7-14 || 191-381 || 74-296 || 21-42 || 0 || 337-506 
 Bulgaria ||   379-752 || 5-10 || 137-273 || 0 || 0 || 0 || 241-362 
 Cyprus ||   39-78 || 1 || 14-28 || 1-2 || 2-3 || 0 || 25-37 
 Czech Republic ||   515-1,022 || 7-14 || 185-371 || 0 || 21-41 || 0 || 328-492 
 Denmark ||   272-539 || 4-7 || 98-196 || 3,897-7,794 || 11-22 || 0 || 173-260 
 Estonia ||   66-132 || 1-2 || 24-48 || 0 || 3-5 || 0 || 42-64 
 Finland ||   263-522 || 4-7 || - || 0 || 0 || 0 || 168-251 
 France ||   3,174-6,301 || 43-87 || 1,144-2,287 || 0 || 0 || 0 || 2,023-3,034 
 Germany ||   4,077-8,094 || 56-111 || 1,469-2,938 || 0 || 163-326 || 0 || 2,598-3,898 
 Greece ||   556-1,104 || 8-15 || 200-401 || 0 || 22-45 || 0 || 366-549 
 Hungary ||   498-989 || 7-14 || 179-359 || 0 || 20-40 || 0 || 317-476 
 Ireland ||   218-433 || 3-6 || 79-157 || 391-782 || 9-17 || 0 || 139-209 
 Italy ||   2,956-5,869 || 40-81 || 1,065-2,131 || 0 || 0 || 0 || 1,944-2,917 
 Latvia ||   113-224 || 2-3 || 41-81 || 0 || 5-9 || 0 || 72-108 
 Lithuania ||   167-331 || 2-5 || 60-120 || 0 || 7-13 || 0 || 110-165 
 Luxembourg ||   24-48 || 0-1 || 9-17 || 0 || 1-2 || 0 || 15-23 
 Malta ||   20-40 || 0-1 || 7-15 || 0 || 1-2 || 0 || 13-19 
 Netherlands ||   813-1,615 || 11-22 || - || 0 || 0 || 0 || 518-778 
 Poland ||   1,890-3,752 || 26-52 || - || 0 || 76-151 || 0 || 1,205-1,807 
 Portugal ||   526-1,045 || 7-14 || 190-379 || 0 || 21-42 || 0 || 336-503 
 Romania ||   1,067-2,119 || 15-29 || 385-769 || 0 || 43-85 || 0 || 680-1,021 
 Slovakia ||   268-532 || 4-7 || 97-193 || 0 || 11-21 || 0 || 171-256 
 Slovenia ||   100-198 || 1-3 || 36-72 || 0 || 4-8 || 0 || 64-95 
 Spain ||   2,245-4,458 || 31-61 || 809-1,618 || 0 || 90-180 || 0 || 1,431-2,147 
 Sweden ||   455-904 || 6-12 || - || 0 || 18-36 || 0 || 290-435 
 United Kingdom ||   2,100-4,175 || 0 || 1,093-2,187 || 18.303-36.606 || 0 || 0 || 1,934-2,901 
 EU total || 23,742-47,146 || 295-591 || 7,660-15,320 || 22.666-45.481 || 563-1,126 || 0 || 15,803-23,705 
Annex XI Procedure
The European Commission's Impact Assessment
Board (IAB) examined this report and issued an opinion on 5 July 2013. The
revised report takes on board the recommendations of the IAB and introduced the
following main modifications and clarifications:
·       
The problem definition has been generally
revised by better explaining the general and specific problems. In this
context, particular attention has been given to the section on mutual trust and
mutual recognition (Section 4, in particular 4.1.3)
·       
A clear separation of the two categories of
vulnerable persons, children and vulnerable adults, has been introduced
throughout the Impact Assessment, including in particular the problem
definition, options and impact analysis. 
·       
A preferred option has been developed for
children and vulnerable adults separately, clearly setting out the proposed
safeguards, their impacts and costs (Section 9).
·       
The proposed safeguards for children and
vulnerale adults have been clarified, their necessity and interplay with each
other have been better explained. Age assessment has been discarded taking into
account that it exists already in all Member States (Section 6).
·       
The comparison of the proposed safeguards with
international standards has been further developed and enhanced (Sections 4.1
and 4.2 and Annex IV).
·       
The relationship between these safeguards and
the other instruments of the Roadmap has been further developped and clarified
in sections 2 and 4.1 and 4.2. The Baseline scenario has been adapted (Section
4.4).
·       
Training measures have been presented separately
from proposed safeguards as flanking measures (Section 6).
·       
Measures aimed at achieving full harmonisation
have been explicitly discarded (Section 6).
·       
An overview of implementation costs across
Member States and the envisaged measures has been prepared for options 3 and 4
and the preferred option (separately for children and for vulnerable adults).
·       
Estimates on the affected population have been
prepared for options 3 and 4 and the preferred option (separately for children
and for vulnerable adults).
·       
The method for estimating the cost and
limitations of the use of national data have been explained and clarified in
Annex VII. Clarifications have also been introduced in Annex VII with regard to
the costs of screening of vulnerability.
·       
The timeframe for the transposition and
implementation of the envisagaged measures has been clarified. A number of
possible monitoring indicators has been identified (Section 10).
·       
Finally, the views of different categories of
stakeholders, including Member States, have been more extensively referred to
throughout the Impact Assessment. An overview table of stakeholder views has
been included in Annex II.
The revised report was resubmitted on 31
July 2013 and approved by the IAB in its opinion of 20 September 2013. Following
this latter opinion, changes were introduced to present the problems related to
mutual trust in a more balanced manner. The interaction of specific problems
and the scope and scale of specific problems were clarified. 
Moreover, clarifications were made to the
proportionality of certain options and their impacts.
Finally, stakeholders' views were summarised
in more detail in an annex. For streamlining reasons, certain tables and parts
of the texts were moved to Annex X and Annex XI. 
[1]               A suspect is an individual who is suspected of having
committed a criminal offence but has not yet been formally charged. An accused
person is someone who has been formally charged with an offence. Their rights
are different according to their status. 
[2]               See further Section 7.
[3]               For the definition of children and vulnerable adults
see below section 2
[4]               The guiding principle of the European Court of Human
Rights when assessing a potential breach of Article 6 ECHR with regard to
suspects or accused persons who may be said to be vulnerable has been to focus
on whether or not the person was able to "effectively participate" in
their trial; For more details, see below, Section 4
[5]               OJ C 1158, 5.4.2010, p.1 and OJ C 295, 4.12.2009, p.1
[6]               Study on "Analysis of the future mutual
recognition in criminal matters in the European Union", G. Vernimmen –
Van Tiggelen and Laura Surano, Final Report, 20 November 2008, para 18.
[7]               OJ C 115, 4.5.2010, p. 1.
[8]               The definition of what is vulnerable is in itself an
important item for discussion in this Impact Assessment. This is discussed in
greater detail in Section 4.
[9]               Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions, 15.2.2011, COM(2011) 60 final
[10]             See EU Agenda for the Rights of the Child, p.4
[11]             OJ C 295, 4.12.2009, p. 1.
[12]             Directive 2010/64/EU of the European Parliament and of
the Council on the right to interpretation and translation in criminal
proceedings (OJ l 280, 26.10.2010, p.1); Directive 2012/13/EU of the European
Parliament and of the Council on the right to information in criminal
proceedings (OJ L 142, 1.6.2012, p.1). Directive 2013/48/EU of the European
Parliament and of the Council on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to
have a third party informed upon deprivation of liberty and to communicate with
third persons and with consular authorities while deprived of liberty (OJ L
294, 6.11.2013, p.1). The measure on the protection of vulnerable persons
suspected or accused in criminal proceedings, the measure on legal aid (the
part of the third measure not included in the above mentioned proposal) and
presumption of innocence are presented as a package together. As regards the
last measure, the Commission published on 14 June 2011 a Green Paper on the
application of EU criminal justice legislation in the field of detention to
reflect on ways to strengthen mutual trust and the application of the principle
of mutual recognition in the area of detention, in accordance with and within
the limits of the EU's competence; COM(2011)327 final, published on:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0327:FIN:EN:PDF.
[13]             Directive 2012/29/EU of 25 October 2012, OJ L 315,
14.11.2012, p.57
[14]             See for example in the context of the negotiations of
the (future) Directive on access to a lawyer where further amendments had been
proposed by the EP:  EP legislative Observatory A2L (see EP page 37 of Report
by Ms. Antonescu and her amendments 24.35 plus amendments 82, 102, 131 by other
MEPs); http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?id=592050
[15]             ECtHR, Judgment of 10 November 2004, SC v. UK,
Appl.N°60958/00
[16]             The preamble of the 1959 Declaration of the Rights of the Child
(which has been taken as basis and further expanded by the UN Convention of the
rights of the child (UN CRC, Article 40) reads: ‘The child, by reason of his
physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection’: See also ECtHR,
Judgment of 10 November 2004, S.C. v. UK, Appl.N°60958/00.
[17]             See ECBA Statement, Annex II; Report of Fair Trials
Internationals on vulnerable suspects, August 2012, point 38.
[18]             ECtHR 30 January 2001, Application N°35683/97
[19]             For more details, see Annex V
[20]              Given that Member States and stakeholders were
consulted in several expert meetings and workshops, a public consultation was
not held. 
[21]             See Article 24 of the Charter and the European
Commission's Communication "An Agenda for the Rights of the Child".

[22]             Three experts were present at the workshop: Professor
Ed Cape of the University of the Westof England who was a former criminal
defence practitioner and who is also author of leading criminal practitioner
and academic studies such as "Effective Criminal Defence Rights in
Europe"; Panayotis Voyatzis is a legal officer of the European
Court of Human Rights; and Professor Agnès Cerf-Hollender, of the University
of Caen – Basse Normandie, who is specialised in fundamental rights in the
context of criminal law and procedure. 
[23]             See Section 4.2.
[24]             Entry into force on 2 September 1990
[25]             Entry into force in March 2008
[26]             The UN CRC covers civil, administrative and criminal
issues and only one article of the UN CRC - Article 40 - addresses the rights
of children in criminal proceedings.
[27]             See CPT, 21st General Report, 1 August 2010 to 31 July
2011, § 19 (with regard to access to a lawyer)
[28]             Article 3 foresees the prohibition of inhuman or
degrading treatment. This corresponds to Article 4 of the Charter (the Charter
applies where a link with EU law could be established).
[29]             Article 6 the right to a fair trial, corresponds to
Article 47 of the Charter.
[30]             For more details with regard to ECtHR case-law, see Annex
V 
[31]             Article 24: 1. Children shall have the right to such
protection and care as is necessary for their well-being. They may express
their views freely. Such views shall be taken into consideration on matters
which concern them in accordance with their age and maturity; 2. In all actions
relating to children, whether taken by public authorities or private
institutions, the child's best interests must be a primary consideration; 3.
Every child shall have the right to maintain on a regular basis a personal
relationship and direct contact with both his and her parents, unless that is
contrary to his or her interests.
[32]             The ECtHR's judgments, firstly, only slowly build up a
clear and consistent jurisprudence, secondly, depend upon the circumstances of
particular applications, and, finally, may not even be followed by all national
courts. See e.g. Christou et al., European Cross border Justice: A
Case Study of the EAW, The AIRE Centre, 2010
[33]             P. Leach, "On Reform of the European Court of
Human Rights", 6 European Human Rights Law review, p.725 (727);
http://www.ejil.org/pdfs/21/4/2013.pdf 
[34]             Article 41 ECHR
[35]             With a reach extending to over 800 million individuals
within the jurisdiction of the 47 contracting States to the Convention, the
flood of applications lodged in Strasbourg threatens to clog the Court to the
point of asphyxiation. There are delays in processing some cases of up to seven
years http://www.ejil.org/pdfs/21/4/2103.pdf
[36]             27 October 2013 and 2 June 2014
[37]             According to Articles 2 and 3 Member States shall
ensure that suspected or accused persons who do not speak or understand the
language of criminal proceedings are provided without delay with interpretation
[…] and a written translation of "essential" documents. Appropriate
assistance should be foreseen for persons with hearing or speech impediments. 
[38]             OJ L 294, 6.11.2013, p.1
[39]             COM(2010) 171 final, 20.4.2010
[40]             In its statement of 15 May 2013, the European Criminal
Bar Association stated that "When discussing Measure E (on vulnerable
persons) we take it for granted that Measures A to D (related to translation
and interpretation, information, access to a lawyer and communication with
relatives, employers and consular authorities) and F (on pre-trial detention)
will form part of the EU Directives to the Member States. None of them can work
effectively without the others." "The CA is of the opinion that
procedural safeguards in addition to those covered by Measures A to D and F are
necessary to protect all vulnerable people (not just minors and children) so as
to satisfy the standards set in the Stockholm Programme." It concluded
"everyone who has had experience in criminal investigations knows of
vulnerable suspects who, even if not children or minors, have some deviation in
their personality or in the way they live which causes the police to check them
more often than others as suspects of crime. It is clear from experience that
there are characters and personalities of huge diversity, making it even more
difficult to define who might need special safeguards under Measure E (on
vulnerable persons). That, however, should not prevent us from trying to find a
solution which could result in an Equality of Arms."
[41]             Council Framework Decision 2002/584/JHA of 13 June 2002
on the European Arrest Warrant and the surrender procedures between Member
States, OJ L 190, 18.7.2002, p.1
[42]             Council Framework Decision 2008/909/JHA of 27 November
2008 on the application of the principle of mutual recognition to judgments in
criminal matters imposing custodial sentences or measures involving deprivation
of liberty for the purpose of their enforcement in the EU, OJ L 327, 5.12.2008,
p.27
[43]             Council Framework Decision 2008/947/JHA of 27.11.2008,
OJ L 337, 16.12.2008, p.102
[44]             Council Framework Decision 2008/909/JHA of 27.11.2008,
OJ L 327, 5.12.2008, p.27
[45]             Council Framework Decision 2009/829/JHA of 23.102009,
OJ L 294, 11.11.2009, p.20
[46]             "Where the issuing State considers it necessary in
view of the sentenced person's age or his or her physical or mental condition,
that opportunity [to state his or her opinion orally or in writing] shall be
given to his or her legal representative." See Article 6(3) FD
2008/909/JHA on Custodial Sentences.
[47]             European Juvenile Justice Observatory
[48]             Défense des Enfants International
[49]             European Criminal Bar Association
[50]             International Association of Youth and Family Judges
and Magistrates
[51]             See for instance Rechtbank Amsterdam, Case AU7667,
Judgment of 4 January 2006; and Lisowski v. Regional Court of Bialystock, WHC
3227 (Admin), High Court of England and Wales, Judgment of 28 November 2006
[52]             Member States' potential savings owing to a reduction
in a number of appeals, condemnations by the ECtHR, or delays in judicial
cooperation proceedings cannot be estimated with any statistical precision due
to lack of Member State data on costs per case. Only indicative qualitative
expectations in non-numerical terms can therefore be provided based on
stakeholders' judgments. However, the Cadder case (on insufficient legal
representation) could be referred to as an example for the costs arising from a
case undergoing all domestic instances and ultimately arriving before the
ECtHR. It is estimated that the costs exceeded
€175,000. Cadder v. Her Majesty's Advocate, The Supreme Court of Scotland,
26.10.2012
[53]             See in this context also below Chapter 6.3 (Interaction
of safeguards within the different policy options).
[54]             ECtHR, Judgment of 10 November 2004, Appl. N°60958/00
(2004) 
[55]             However, the definition of a child in national
legislation does not always correspond to the generally accepted standard. At
present, 17 years-old are not treated as children everywhere in the EU. In
England, Wales and Scotland 17 year-olds may be treated under adult criminal
law. This means that they may not systematically enjoy the procedural
safeguards that are in place to ensure the fair treatment of suspected and
accused children.
[56]             UN CRC, 2007 General Comment N°10, Children's rights in
juvenile justice, point 39
[57]             See, for instance, the Guidelines of the Committee of
Ministers of the Council of Europe on child-friendly justice, Fundamental
principles, Best interests of the child, point 1
[58]             "Who is looking after the children?" A joint
inspection of appropriate adult provision and children in detention, p.20, §
2.35, December 2011
[59]             External Study, p.22
[60]             CRC, General Comment N°. 14 (2013) on the right of the
child to have his or her best interests taken as a primary consideration (art.
3, para. 1) – 29 May 2013.
[61]             Discussion at expert meeting of 11 December 2012, see Annex
II
[62]             For reactions of Member States, see overview tale in Annex
II; for other stakeholders, for instance, Fair Trials International
concluded in its Report on vulnerable suspects in EU Member States that
"The application of special safeguards to vulnerable suspects at the
earliest stage of criminal proceedings is essential to ensure that these
suspects understand what their rights are and how to exercise them. If people
do not understand the proceedings because their vulnerability is not identified
or because special safeguards are not in place, then this leads to a serious
inequality of arms, undermining the chances of receiving a fair trial." In
"The practical operation of safeguards for vulnerable suspects and
defendants in European Union Member States", August 2012, point 38 
[63]             T. Weaver (2003), Comorbidity
of substance misuse and mental illness in community mental health and substance
misuse services, Brit. Journal of Psychiatry, vol.183, p.304
[64]             G.Moon, Multiple
Discrimination: The Need for Justice for the Whole Person, 2008.
[65]             ECtHR Judgment of 23 February 1994, Application
N°16757/90
[66]             Article 32(1) and Article 33
[67]             Discussion at expert meeting of 11 December 2012, see
Annex II
[68]             A person of trust can be defined as a person other than
a lawyer appointed or exercising the rights of the defence, with a family or
social relationship with the child and who is likely to interact with the child
in order to enable it to exercise its rights in its best interests.
[69]             In cases of conflicts of interests (e.g. if one of the
parent is involved in the same alleged offence) another appropriate adult
should be informed.
[70]             Parents and legal representatives may provide important
(moral) support and general assistance or guidance to children and vulnerable
adults whereas the role of the lawyer is to provide advice on legal issues.
[71]             In certain cases the presence of parents could be even
counterproductive (e.g. sexual crimes).
[72]             Discussion at experts meeting 23.11.2011 and 11.12.2012,
see Annex II
[73]             R. Rickford and K. Edgar, "Troubled Inside:
Responding to the Mental Health Needs of Men in Prison". Prison Reform
Trust, p.101
[74]             Point 89: "Every child has the right to be
examined by a physician upon admission to the detention/correctional facility
and shall receive adequate medical care throughout his/her stay in the
facility, which should be provided, where possible, by health facilities and
services of the community."
[75]             CPT report, 2011, EE, http://www.cpt.coe.int/documents/est/2011-15-inf-eng.htm
[76]             External Study, Table A1.9, p.235
[77]             CPT report 2011, LI,
http://www.cpt.coe.int/documents/ltu/2011-17-inf-eng.htm
[78]             Rickford, R. and Edgar, K. (2005) "Troubled
inside: Responding to the Mental Health Needs of Men in Prison". London,
Prison Reform Trust, p.101
[79]             It is estimated that as an average 44% of the persons
involved in criminal proceedings waive their right to a lawyer (e.g. in FR
about 65%, in BE about 20%, in the NL about 89%). See Study of Financial
and other Impacts for an IA of a measure covering the right of a suspected or
accused person to have legal aid in criminal proceedings, 2013
[80]             Points 37 (to 43):"Children should have the
right to their own legal counsel and representation […]".
[81]             Point 15.1: "Throughout the proceedings the
juvenile shall have the right to be represented by a legal adviser […]."
[82]             Point 49 "The child must be guaranteed legal
[…] assistance in the preparation and presentation of his/her defence."

[83]             ECtHR, Judgment of 11 December 2008, Appl. N°4268/04
[84]             ECtHR, Judgment of 2 March 2010, Appl. N° 54729/00
[85]             J.Jacobson, J.Talbot,
"Vulnerable Defendants in the Criminal Courts: a review of provision
for adults and minors", Prison Reform Trust, 2009, p.34
[86]             See ECBA Statement, points 13, 19, 22 The ECBA
underlines, in particular, the importance to ensure access to a lawyer from the
very beginning of the proceedings (at the earliest opportunity) until the end.
[87]             This means that in a considerable number of cases
children do not have access to a lawyer.
[88]             External Study, Chapter 2.6.2.1
[89]             ECtHR, Judgment of 12 May 1992, Appl. N°13770/88
[90]             ECtHR, Judgment of 4 November 2010, Appl. N°34588/07
[91]             See also similar case, Stoica v. Romania, ECtHR,
Judgment of 4 June 2008, Appl.N°42722/02, where a 14 year old child of Roma
origin was beaten by the police.
[92]             External Study, Chapter 2.3.4.1, p.27
[93]             Fair Trials International, Report, Defence rights in
the EU, October 2012, p.24
[94]             Committee on the Prevention of Torture, Council of
Europe, Report to the PL Government in 2004, p.17, § 28
[95]             Some Member States raised cost concerns. For possible
synergies with regard to the use of audio-video facilities already installed in
the context of the implementation of Directive 2012/29/EU on the protection of
victims of crime, see below section 7, impact analysis, financial impact.
[96]             See External Study, Chapter 2.6.4, p.44 
[97]             The only eight Member States where police interviews
are systematically audio or video recorded are identical with those which
foresee such recording also for children.
[98]             http://www.orf.at/stories/2189225/2189210/
[99]             Recommendation of the Committee of Ministers (2008),
11, on European rules for Juvenile Offenders, paragraph 59.1; see also
Guidelines of the Committee of Ministers of the Council of Europe on child-friendly
justice, pt.19; ECtHR, Cases Selçuk v. Turkey, Appl.N°21768/02, Kosti
a.o. v. Turkey, Appl.N°74321/01, Nart v. Turkey, Appl.N°20817/04
[100]            See, for example, the above mentioned Report by DCI; see
also Explanatory Memorandum on the Guidelines of the Committee of Ministers of
the Council of Europe on child-friendly justice, p. 67
[101]            Article 37 UN CRC, Article 13.4 of Beijing Rules,
Council of Europe Recommendation (2008)11
[102]            See above, recent example for abuse of a child in
detention. Once, Member States will be legally obliged (by a directive) to
foresee separate detention, they will also be obliged to implement it
accordingly. If Member States do not fulfil their obligations, proceedings
according to Article 258 TFEU could be initiated by the Commission.
[103]            External Study, Annex 2, Table A1.14
[104]            For instance AT, BE, ES, IT, PL, SK
[105]            In some of these Member States the hearing can be closed
for public upon order of the judge.
[106]            External Study, Annex 2, Table A1.17
[107]            AT, BE, CZ, DE, FI, IE, IT LU, PL, UK (Scotland) 
[108]            External Study, Annex 2, Table A1.18
[109]            Article 40(1) and (3) UN CRC; see also pt.63 of
Guidelines of the Committee of Ministers of the Council of Europe on
child-friendly justice
[110]            In the Expert's meeting of 23 September 2011, some representatives
stressed the importance of specialised training for legal professionals.
[111]            In the UK, this problem has repeatedly been highlighted
by the Prison Reform Trust. Jacobson, Talbot, Vulnerable Defendants in
the Criminal Courts: a review of provision for adults and minors, Prison Reform
Trust, 2009, p.19.
[112]            A. Gensing, "Jurisdiction and
characteristics of juvenile criminal procedure in Europe", in Juvenile
Justice Systems in Europe (2011), ed. By F. Dunkel et al., pp.
1607-1648; See also External Study, Annex 2, Table A1.17
[113]            Mainly due to lacking financial resources it is not
probable that this situation will improve without action on EU level.
[114]            See Annex VI, Table A1.1 based on UNODOC,
Eurostat and ICF GHK estimates
[115]            See Green Paper on pre-trial detention, Annex, Table 1,
COM(2011)327 final, 14.6.2011
[116]            This would correspond to approximately 358.000 to
719.000 persons. However, in the absence of a standard definition, it is very
difficult to indicate any precise figures. The estimates are based upon data on
the prevalence of mental and physical vulnerabilities in the general population
adjusted because those with mental disabilities have a higher likelihood of
being in contact with judicial process and those with physical disabilities are
understood to have less likelihood. See Annex VI, table A1.2
[117]            See External Study, Chapter 2.8.2, p.55
[118]            In Finland, for instance, main changes to the
legislation concern the right of suspects and defendants to have an assistant
present during the proceedings. In addition, the new law has provisions on the
right to translation of documents as well as more specific guidance about
interviewing and delaying the interview of a suspect who is intoxicated or
mentally disturbed. The new Law on coercive acts will enter into force on
1.1.2014. In Belgium, some of the envisaged reforms aim to prolong special
educative measures until the age of 23 for young adults. See External Study,
Chapter 2.9.2, p.57
[119]            Denmark, Ireland and the UK do not take part in the
adoption of measures in the justice field (Protocols 21 and 22 to the TFEU).
However, Ireland and the UK have the possibility to opt in.
[120]            http://ec.europa.eu/justice/news/intro/doc/com_2010_573_4_en.pdf 
[121]            Very heterogeneous groups of vulnerable persons could
theoretically be covered: Children, foreigners, persons with mental, emotional
and learning problems, individuals with physical impairments and those
suffering from drug or alcohol abuse. It could even cover pregnant women or go
as far as to label all people from difficult socio-economic backgrounds as
vulnerable.
[122]            The age of criminal responsibility ranges between 8
years (Scotland), 10 years (England and Wales), 12 years (NL, PT), 14 years
(e.g. AT, BG, CY, EE, ES, DE, HU, IT, LV, LT, SI), 15 years (CZ, DK, FI, SK,
SE) or 18 years (BE). In some MS there is no determined age of criminal
responsibility (e.g. FR, MT, PL). See External Study, Annex 2, Table A1.1 and
Minutes of experts meeting, Annex II.
[123]            Diversion programs offer the opportunity to suspects to
avoid prosecution by fulfilling various requirements (e.g. restitution to
victims, completion of community service hours, education avoiding situations
for a specified period in the future that may lead to committing a similar
offence).
[124]            http://www.oejj.org
[125]            These measures correspond to relevant EU and
international legal instruments (binding and non-binding). For further details,
see Table, Annex IV
[126]            The holder of parental responsibility should receive the
information on the rights of the child and about the accusation in accordance
with the Directive 2012/13/EU. In addition, the holder of parental
responsibility should also be provided with the information on the rights set
out by this initiative (e.g. mandatory access to a lawyer, right to medical
examination etc.).
[127]            This does not imply the construction of separate prisons
for children but the re-organisation of existing detention facilities with a
separation between children and adult detainees;
[128]            This does not imply the construction of separate prisons
for vulnerable adults but the re-organisation of existing detention facilities
with a separation of vulnerable adults from other detainees.
[129]            For instance, the introduction of privacy protection
rules at court hearings does not lead to quantifiable additional costs.
[130]            Based on average cost in each affected MS at police
stage and per case (see Annex VIII). 
[131]            OJ L 294, 11.11.2009, p.20
[132]            For instance, the introduction of privacy protection
rules at court hearings does not lead to quantifiable additional costs.
[133]            Based on average cost in each affected MS at police
stage and per case (see Annex VIII). 
[134]            As regards Court hearings it is assumed that the costs
for the specialisation of judges are covered by the amount foreseen for
training. The introduction of privacy protection rules at court hearings does
not lead to quantifiable additional costs.
[135]            See Directive 2012/29/EU establishing minimum standards
on the rights, support and protection of victims of crime, 25 October 2012,
Article 24(1) (a) which foresees that "all interviews with the child
victim may be audio-visually recorded." It is assumed that the same
technical recording facilities could be used also for interviews with suspected
and accused children/vulnerable adults. Impact Assessment of 18.5.2011, SEC
(2011) 580 final.
[136]            Directive 2012/29/EU of the European Parliament and of
the Council of 25 October 2012 establishing minimum standards in the rights,
support and protection of victims of crime, OJ L 315/57
[137]            Article 24(1) (a)
[138]            Transposition date is 16 November 2015
[139]            Contrary to policy option 2 capacity building and
dissemination of best practices are not considered within the costs of policy
option 3. Only training costs are taken into account.
[140]            As regards Court hearings it is assumed that the costs
for the specialisation of judges are covered by the amount foreseen for
training. The introduction of privacy protection rules at court hearings does
not lead to quantifiable additional costs
[141]            See Directive 2012/29/EU establishing minimum standards
on the rights, support and protection of victims of crime, 25 October 2012,
Article 24(1) (a) which foresees that "all interviews with the child
victim may be audio-visually recorded." It is assumed that the same
technical recording facilities could be used also for interviews with suspected
and accused children/vulnerable adults. Impact Assessment of 18.5.2011, SEC
(2011) 580 final.
[142]            Contrary to policy option 2 capacity building and
dissemination of best practices are not considered within the costs of policy
option 3. Only training costs are taken into account.
[143]            Option 3 which provides for a simple screening mechanism
is not considered to be sufficient to ascertain the vulnerability of a child in
an appropriate manner. The added value of such a measure would be very limited.
[144]            Option 3 is identical with Option 4.
[145]            Option 3 is identical with Option 4.
[146]            Option 3 is identical with Option 4.
[147]            Option 3 which provides that interviews are conducted by
specially trained professionals is not considered to provide sufficient
safeguards against abuse and ill-treatment during interviews.
[148]            Option 3 is not sufficient to take into account the
specific needs of children in court hearings.
[149]            Option 3 corresponds to international standards and
provides in particular for separate detention.  
[150]            Option 3 is identical with Option 4.
[151]            Option 3 is identical with Option 4.
[152]            Option 3 which provides that interviews are conducted by
specially trained professionals is not considered to provide sufficient
safeguards against abuse and ill-treatment during interviews.
[153]            Option 3 corresponds to international standards. 
[154]            Option 3 corresponds to international standards and
provides in particular for separate detention. For proportionality reasons it
is not considered appropriate to go beyond this option. 
[155]            As regards possible budgetary constraints, the annual
cost is less than € 1 million per year in most Member States.
[156]            A Recommendation gives Member States a certain degree of
flexibility if needed because of budgetary constraints.
[157]            At an experts meeting on 26-27 March 2009, the CPT
offered to assist in monitoring and evaluating the implementation of procedural
safeguards instruments in the context of the CPT visits to the Council of
Europe Member States.
[158]            This overview is based on the minutes of the expert
meetings. These minutes reflect the overall discussions. Each Member State
expressed its opinion on the various issues as it wished to do. However, no
systematic "tour de table" on each measure took place.
[159]            ECBA Statement, point 13
[160]            ECBA Statement, points 19, 22
[161]            ECBA Statement, point 6
[162]            Report August 2012, point 38
[163]            ECBA Statement, point 30
[164]            This statement is published on http://www.ecba.org/extdocserv/20130515_ECBAonMeasureE.pdf
[165]            http://ec.europa.eu/justice/policies/children/docs/com_2011_60_en.pdf
[166]            Available at http://tb.ohchr.org/default.aspx?ConvType=20&docType=36

[167]            This was an analysis of Member States' replies to a
Commission questionnaire regarding existing criminal justice arrangements
during the period of 2002 to 2005. A section of the questionnaire was dedicated
to the protection of vulnerable persons.
[168]            This study spanned over 5 years between 2005 and 2010
and provides a comprehensive guide to the juvenile justice system of all Member
States, e.g. the legal situation of juvenile justice systems, the development
of reported juvenile delinquency, sentencing practice and the development of
community and educational facilities. Both the first and second revised
editions (published in 2011) have been referred to.
[169]            It was carried out over a 3 year period (2007-2010) and
provides empirical information on the extent to which procedural rights that
are indispensable for an effective defence, such as the right to information,
are provided in practice in 8 EU Member States and one accession country
(Turkey).
[170]            As a result of the UK Supreme Court decision of Cadder
v HM Advocate, a review of the of key elements of Scottish criminal law and
practice was ordered by the Scottish Government, and undertaken by Lord
Carloway, a High Court judge. This review included how vulnerable defendants
and children ought to be protected in the pre-trial stages. 
[171]            See External Study, Annex 6
[172]            Medical assistance would be provided upon request of the
child, the parent or a lawyer. It has been assumed that medical assistance
would be requested at the crucial stages of the proceedings (arrest and trial).
[173]            It is assumed that the non-specialised practitioner
would carry out a general assessment of potential vulnerabilities.
[174]            It is assumed that the non-specialised practitioner
would carry out a general assessment of potential vulnerabilities.
[175]            Medical assistance would be provided upon request of the
vulnerable person, the legal representative or a lawyer. It has been assumed
that medical assistance would be requested at the crucial stages of the
proceedings (arrest and trial).
[176]            It is assumed that a medical expert (not general
practitioner) carries out a focussed evaluation of potential vulnerabilities.
[177] Training costs are not included.
[178] Training costs are not included.