COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Making progress on the European Union Agenda on Procedural Safeguards for Suspects or Accused Persons - Strengthening the Foundation of the European Area of Criminal Justice
Date: 2013-11-27
Institutions: European Commission
Subjects: EU Charter of Fundamental Rights, criminal responsibility of minors, imprisonment, infancy, judicial cooperation in criminal matters in the EU, legal aid, rights of the defence, translation

EUROPEAN 
COMMISSION 

Brussels, 27.11.2013  
COM(2013) 820 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Making progress on the European Union Agenda on Procedural Safeguards for 
Suspects or Accused Persons - Strengthening the Foundation of the European Area of 
Criminal Justice 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Making progress on the European Union Agenda on Procedural Safeguards for 
Suspects or Accused Persons - Strengthening the Foundation of the European Area of 
Criminal Justice 

It is a well-known maxim that ‘justice must not only be done, but be seen to be done’. In the 
European  area  of  justice,  the corollary  is that citizens must not only have the right to a fair 
trial anywhere in the European Union, but be confident of this when exercising their right to 
move freely in the European Union. The judicial authorities in the Member States also need to 
be able to trust each other’s justice systems to work fairly. 

To develop this area of justice based on mutual recognition and mutual trust, the Commission 
was  in  the  Stockholm  Programme1  asked  to  submit  proposals  to  strengthen  the  procedural 
rights  of  suspects  or  accused  persons.2  This  political  mandate  for  a  strong  focus  on 
strengthening citizens’ rights in criminal proceedings, to ensure the right to a fair trial across 
the European Union, resulted in the Commission’s Procedural Rights Agenda. 

The present package is the continuation of a successful legislative program. Step by step, very 
good  progress  has  been  made  and  the  European  Union  has  adopted  three  Directives  on 
procedural rights. 

• 

• 

• 

A Directive on the right to interpretation and translation in criminal proceedings 
was adopted in 2010 and must be transposed by 27 October 2013.3 Defendants will 
be  provided  with  interpretation  free  of  charge  not  only  during  trial  but  also  during 
police  interrogation  and  important  meetings  with  their  lawyer,  as  well  as  with  a 
written translation of documents essential to exercise their right of defence. 

A  Directive  on  the  right  to  information  in  criminal  proceedings  followed  in  2012, 
and must be implemented by 2 June 2014.4 Suspects who are arrested should always 
be  provided  with  a  written  Letter  of  Rights  in  simple  everyday  language,  with 
information on their rights. It will be translated if needed. 

A Directive on the right of access to a lawyer and the right to communicate upon 
deprivation of liberty was adopted in October 2013.5 This measure is at the core of 
the Procedural Rights Agenda. Anyone who is a suspect will be guaranteed the right 
to  see  a  lawyer  from  the  earliest  stages  of  proceedings  until  their  conclusion. 
Moreover, anyone deprived of liberty has the opportunity to communicate with their 
family and, if arrested in another EU country, with the consulate.  

These  Directives  are  landmarks  for  strengthening  the  procedural  rights  of  EU  citizens.  The 
novelties of the Lisbon Treaty in the area of criminal law, including qualified majority voting 
in Council and the European Parliament acting as a co-legislator, have led to these pioneering 
instruments, which were produced in a collaborative effort by the institutions. 

1 
2 
3 
4 
5 

OJ C 115, 4.5.2010, p. 1. 
OJ C 291, 4.12.2009, p. 1. 
Directive 2010/64/EU of 20 October 2010, OJ L 280 of 26.10.2010, p. 1–7. 
Directive 2012/13/EU of 22 May 2012, OJ L 142 of 1.6.2012, p. 1–10. 
Directive 2013/48/EU of 22 October 2013, OJ L 294 of 6.11.2013, p. 1-12. 

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In addition, a Green Paper on the application of EU criminal justice legislation on detention 
was published in June 2011, exploring the links between detention and mutual trust in the EU. 
Detention  conditions  can  have  a  direct  impact  on  the  smooth  functioning  of  mutual 
recognition  of  judicial  decisions,  as  substandard  detention  conditions  could  lead  a  judge  to 
refuse  surrendering  a  requested  person  e.g.  in  European  Arrest  Warrant  proceedings.6  The 
replies  and  an  analysis  of  these  replies  have  been  published  on  the  Commission’s  website. 
The  conclusion  is  that  while  pre-trial  detention  and  the  promotion  of  alternatives  to  it  are 
important 
timely 
implementation of existing EU legislation is the priority.7 

issues,  raised  by  Member  States  and  civil  society,  proper  and 

This Communication introduces a package of five legal measures to make progress on the 
Procedural  Rights  Agenda  and  to  further  strengthen  the  foundation  for  the  European 
area  of  criminal  justice.  This  package  follows  up  on  the  successful  recent  adoption  of  the 
three procedural rights Directives. 

It consists of three proposals for Directives on: 

(1)  strengthening  certain  aspects  of  the  presumption  of  innocence  and  of  the  right  to  be 
present at trial in criminal proceedings,  

(2) special safeguards for children suspected or accused in criminal proceedings, and  

(3) provisional legal aid for suspects or accused persons deprived of liberty and legal aid in 
European arrest warrant proceedings. 

Since the measures taken must be proportionate to the aim of EU action, there are also two 
Commission Recommendations: 

(4)  procedural  safeguards  for  vulnerable  persons  suspected  or  accused  in  criminal 
proceedings, and  

(5) the right to legal aid for suspects or accused persons in criminal proceedings. 

1. 

• 

THE RATIONALE FOR ACTION AT EU LEVEL 

The common basis: the EU Charter and the ECHR 

The EU has a strong tradition of developing and promoting fundamental rights. The Charter 
of Fundamental Rights of the European Union (EU Charter) and the European Convention for 
the  Protection  of  Human  Rights  and  Fundamental  Freedoms  (ECHR)  form  the  basis  for 
protecting  the  rights  of  suspects  or  accused  persons  in  criminal  justice  systems  in  the 
European  Union.  The  Treaty  makes  the  EU  Charter  legally  binding8  and  provides  that  the 
European Union will accede to the ECHR.9 All Member States are signatories to the ECHR. 
The  right  to  an  effective  remedy,  to  a  fair  trial,  to  be  presumed  innocent  and  a  right  of 
defence, provided for in Articles 47 and 48 of the EU Charter and in Article 6 of the ECHR, 
need  to  be  upheld  in  the  EU’s  area  of  justice.  This  means  that  there  is  a  substantial  legal 
framework recognised in the Member States for the rights covered in the package.  

6 

7 
8 
9 

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 of 18.7.2002, p. 1-18. 
http://ec.europa.eu/justice/newsroom/criminal/opinion/110614_en.htm. 
Article 6(1) TEU. 
Article 6(3) TEU. 

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A  shift  of  focus:  complementing  security  with  procedural  rights  and  mutual  trust  as  a 
condition for mutual recognition 

In the decade before the entry into force of the Lisbon Treaty, EU legislation concentrated on 
making it easier to fight crime, resulting in an impressive number of instruments for judicial 
cooperation  and  mutual  recognition  aimed  at  prosecuting  offenders.  The  best-known  is  the 
Framework  Decision  on  the  European  arrest  warrant,  which  allows  requested  persons  to  be 
transferred expeditiously between Member States. The aim is primarily to ensure that the free 
movement of citizens across EU borders does not hamper cross-border law enforcement. 

These  EU  instruments  allow  national  judicial  authorities  to  mutually,  easily  and  promptly 
recognise  investigation  measures  and  punitive  decisions  against  defendants  across  the 
European  Union.  They  assume  that  the  request  should  be  recognised  and  executed  because 
each  Member  State  has  a  system  of  justice  which  guarantees  fair  trial  rights  to  a  relatively 
similar degree. 

The system of mutual recognition can only operate satisfactorily if Member States trust each 
other’s criminal justice systems. However, the protection of the procedural rights of suspects 
and accused persons still varies significantly between the Member States. This situation gives 
rise to gaps to achieve the mutual trust needed between EU Member States. To fill those gaps 
the European Union must ensure that all Member States uphold a common minimum level of 
procedural rights, and that these rights can be enforced through EU law. 

This  is  why  the  Lisbon  Treaty  allows  action  at  EU  level  on  the  rights  of  individuals  in 
criminal  procedure  in  Article  82(2)(b)  TFEU.  It  is  also  spelled  out  in  the  mandate  that  the 
European Council gave to the Commission for the period 2010-2014: ‘…a lot of progress has 
been  made  in  the  area  of  judicial  and  police  cooperation  on  measures  that  facilitate 
prosecution. It is now time to take action to improve the balance between these measures and 
the protection of procedural rights of the individual. Efforts should be deployed to strengthen 
procedural guarantees and the respect of the rule of law in criminal proceedings, no matter 
where citizens decide to travel, study, work or live in the European Union.’10 

• 

Citizens’ trust in a level playing field in procedural rights 

The need to protect the fair trial rights of suspects or accused persons has a clear cross-border 
dimension. Around 14.1 million EU citizens reside permanently outside their home country,11 
10 % of EU citizens have lived and worked abroad at some time in their lives and 13 % have 
gone abroad for education or training.12 As people are constantly travelling and moving across 
borders in the European Union and risk being involved in criminal proceedings outside their 
own country, the European Union must ensure that there is a level playing field on procedural 
rights in criminal proceedings. 

10 
11 
12 

Recital 10, OJ C 291, 4.12.2009, p. 1. 
Eurostat, Migration and migrant population statistics (March 2013). 
Eurobarometer 337/2010. 

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2. 

• 

TIME  FOR  WELL-CONSIDERED  MEASURES  TO  MAKE  PROGRESS  ON  THE EUROPEAN 
UNION’S AGENDA ON PROCEDURAL RIGHTS 

Why go further at EU level? 

Once  implemented  by  the  Member  States,  the  recently  adopted  Directives  on  procedural 
rights  will  ensure  that  suspects  or  accused  persons  benefit  from  a  wide  range  of  essential 
guarantees. But the Procedural Rights Agenda needs to be strengthened. 

• 

• 

• 

Suspects  or  accused  persons  will  promptly  be  given  information  on  their  right  to 
remain  silent,  but  what  happens  if  they  make  use  of  this  right?  In  some  Member 
States,  judicial  authorities  may  consider  this  silence  as  corroborating  any  evidence 
against  the  person.  Fair  trial  rights  must  be  put  on  a  solid  basis  and  EU-wide 
protection of the presumption of innocence must be ensured. 

Those who cannot speak or understand the language of the criminal proceedings will 
be  provided  with  interpretation  and  translation,  but  what  about  those  who,  for 
example,  due  to  their  young  age  or  mental  disability  are  unable  to  properly  follow 
and  participate  in  the  criminal  proceedings?  The  existing  EU  Directives  on 
safeguards  for  suspects  and  accused  persons  apply  also  to  children.  However, 
because  of  their  inherent  vulnerability,  it  is  widely  recognised  by  stakeholders  and 
Member  States  that  children  need  specific  enhanced  protection;  for  example, 
mandatory  assistance  by  a  lawyer  if  they  face  the  police  or  the  criminal  justice 
system.13 At present, the fair trial rights of children and other vulnerable persons are 
not  sufficiently  guaranteed  in  the  EU  -  no  overarching  protections  exists.  The 
Stockholm Programme explicitly foresees that a specific measure should be adopted 
to provide common minimum rules for vulnerable persons. Such minimum rules will 
strengthen the trust of Member States in the criminal justice system of other Member 
States  and  will  thus  help  improve  the  mutual  recognition  of  decision  in  criminal 
matters.  Special  safeguards  are  needed  to  meet  needs  of  children  and  vulnerable 
persons during the criminal proceedings. 

The Directive on the right of access to a lawyer gives any suspect or accused person 
the  right  to  a  lawyer  from  the  earliest  stages  of  proceedings,  and  e.g.  when 
questioned  by  police.  But  what  if  they  do  not  have  the  means  to  afford  a  lawyer? 
They  will  need  legal  aid  to  make  sure  that  their  right  of  access  to  a  lawyer  is 
effective. 

• 

Need for balanced action 

The  Commission  is  presenting  a  balanced  package  of  measures  taking  into  account  and 
respecting the differences between the legal traditions and systems of the Member States, as 
provided  for  in  Article  82(2)  TFEU,  seeking  to  foster  mutual  trust  while  respecting  the 
principle  of  proportionality  (Article  5  TEU).  Each  element  has  been  carefully  assessed  to 
decide  if  action  should  be  taken  at  EU  level,  and  if  so,  at  what  level  and  in  what  form, 
including  the  potential  costs  for  the  Member  States.  The  need  for  caution  is  particularly 
obvious in times of fiscal consolidation, when cost implications need to be carefully assessed. 
This is why, for example, in the field of legal aid, the Commission does not in the package 
propose legally binding parameters for eligibility testing for legal aid in a Directive. The costs 
for  the  Member  States  to  provide  provisional  legal  aid  and  legal  aid  in  European  arrest 
warrant proceedings will be limited. 

13 

See e.g. Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. 

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• 

A  wider  perspective:  procedural  safeguards  and  the  European  Public  Prosecutor’s 
Office 

This  package  will  also  contribute  to  strengthening  the  legal  safeguards  for  individuals  in 
proceedings by the European Public Prosecutor’s Office. The recently presented proposal for 
a Council Regulation14 clarifies that a suspect has all rights granted by EU legislation, the EU 
Charter  and  applicable  national  law,  and  it  explicitly  refers  to  the  right  to  legal  aid  and  the 
right  to  be  presumed  innocent.  Introducing  strengthened  rights  will  reinforce  the  procedural 
safeguards applying to proceedings led by the European Public Prosecutor’s Office and will 
foster public trust in the good functioning of this Office. 

3. 

THE MAIN ELEMENTS OF THE PROPOSALS 

3.1. 

A strong foundation for fair trial rights - the presumption of innocence 

• 

The presumption of innocence — a fundamental principle of justice 

That defendants are presumed innocent until proven guilty by a court in a final judgment and 
that it is the  prosecution that must prove their  guilt  is  one  of  the  oldest  and  most  important 
principles  in  criminal  proceedings,  enshrined  in  all  major  international  and  regional  human 
rights instruments. Inspired by Article 6(2) of the ECHR, and Article 11(1) of the Universal 
Declaration of Human Rights, Article 48(1) of the EU Charter states that: ‘Everyone who has 
been charged shall be presumed innocent until proved guilty according to law’. 

The European Court of Human Rights (ECtHR) has clarified the scope of the principle of the 
presumption of innocence over the years. Article 6(2) ECHR encompasses three key issues:15 
the right not to be referred to as guilty by public authorities before the final judgment,16 that 
the  burden  of  proof  is  on  the  prosecution  and  that  any  reasonable  doubt  about  guilt  should 
benefit  the  accused,17  and  the  right  to  be  informed  of  the  accusation.18  The  presumption  of 
innocence is an essential prerequisite for a fair trial and the ECtHR has stated that a breach of 
the presumption of innocence undermines the right to a fair trial.19 This particularly applies to 
the right not to incriminate oneself, the right not to cooperate and the right to silence.20 

The  right  to  be  presumed  innocent  encompasses  different  needs  and  degrees  of  protection 
regarding  natural  persons  and  legal  persons,  as  recognised  by  the  case  law  of  the  Court  of 
Justice on the right not to incriminate oneself.21 The proposal for a Directive takes account of 
these differences and therefore only applies to natural persons. 

• 

The presumption of innocence as the foundation and cement of the rights laid down 
in the Directives on procedural rights 

The fair trial rights referred to in the existing EU instruments, including the right to be given 
information,  the  right  to  be  able  to  understand  and  follow  the  proceedings  and  the  right  of 

14 

15 

16 
17 
18 

19 
20 

21 

Proposal  for  a  Council  Regulation  on  the  establishment  of  the  European  Public  Prosecutor’s  Office, 
COM(2013) 534 final; 17.7.2013. 
Barberà,  Messegué  and  Jabardo  v.  Spain,  Applications  No  10588/83,  10589/83  and  10590/83, 
judgment of 6 December 1988. 
Minelli v. Switzerland, Application No 8660/79, judgment of 25 March 1983. 
See footnote 14. 
This  is  addressed  in  Directive  2012/13/EU  of  22  May  2012  on  the  right  to  information  in  criminal 
proceedings. 
John Murray v UK, Application 18731/91, judgment of 26 January 1996. 
Murray v. UK, see supra, Funke v. France, Application No 10828/84, judgment of 25 February 1993, 
Saunders v. UK, Application No 19187/91, judgment of 17 December 1996. 
See  inter  alia  Case  C-301/04  P  Commission  v  SGL  Carbon  [2006]  ECR  I-5915  and  Case  T-112/98 
Mannesmannröhren-Werke v Commission [2001] ECR II-732. 

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access  to  a  lawyer,  are  thus  complementary  to  and  inseparable  from  the  presumption  of 
innocence in securing a fair trial and mutual trust. 

The  Stockholm  Programme  called  on  the  Commission  to  examine  further  elements  of 
minimum procedural rights for suspects or accused persons, and mentioned, in particular, the 
presumption  of  innocence.  The  Commission  proposes  in  a  Directive  to  strengthen  certain 
aspects  of  the  presumption  of  innocence  in  criminal  proceedings,  aspects  that  are  closely 
linked  and  indispensable  to  make  both  the  procedural  rights  and  the  mutual  recognition 
instruments  work  in  a  climate  of  mutual  trust.  It  will  further  foster  a  culture  amongst 
professionals limiting recourse to measures such as pre-trial detention. 

• 

Strengthening certain aspects of the right to be presumed innocent at EU level 

The proposed Directive focuses on certain aspects of the presumption of innocence flowing 
from ECtHR case-law and where there is a need to set common minimum standards to ensure 
mutual trust. It gives a solid basis to other procedural rights instruments which have already 
been adopted or are proposed together with this Directive. 

Moreover, given that the right of the accused person to be present at trial is an essential right 
of defence and part of the right to a fair trial, as interpreted by the ECtHR,22 strengthening this 
right will contribute to reinforcing the right to a fair trial and is also addressed in the proposal. 

The  level  of  safeguards  in  Member  States'  legislation  is,  in  a  general  way,  acceptable  and 
there does not seem to be any systemic problem in this area. However, there still exist points 
on which legal safeguards should be strengthened. Moreover, breaches of the presumption of 
innocence do still occur too often across the European Union. 

(a) 

No public reference to guilt before conviction 

A public statement made by police or judicial authorities, suggesting that someone who has 
not  been  finally  convicted  is  guilty  damages  that  person’s  reputation  and  can  influence  the 
jury or the court that decides the case. 
Along the lines of ECtHR case-law,23 the Directive makes it a firm principle that, before final 
conviction,  official  decisions  and  statements  by,  for  example,  police  and  judicial  authorities 
must not present the suspect or accused person as guilty. It hereby protects the reputation and 
privacy of those facing criminal proceedings. 

(b) 

The  burden  of  proof  -  any  doubt  about  guilt  should  benefit  the  suspect  or  accused 
person 

In  criminal  proceedings,  the  burden  of  proof  should  be  on  the  prosecution  and  any  doubt 
should  benefit  the  suspect  or  accused  person,  without  prejudice  to  the  independence  of  the 
judiciary  when  assessing  the  suspect  or  accused's  guilt.  A  judgment  must  be  based  on  the 
evidence  put  before  it  and  not  on  allegations  or  assumptions.  However,  the  ECtHR  has 
accepted that in specific and limited cases the burden of proof may be shifted to the defence, 
and the Directive will reflect this standard, striking a balance between the public interest in 
effective prosecution and the rights of the defence. 24 

(c) 

The right to remain silent - no coercion to incriminate oneself or to cooperate 

22 
23 

24 

Colozza v. Italy, Application No 9024/80, judgment of 12 February 1985. 
Minelli  v  Switzerland,  Application  8660/79,  judgment  of  25  March  1983;  Allenet  de  Ribemont  v. 
France,  Application  no.  15175/89,  judgment  of  10  February  1995;  Pandy  v.  Belgium,  Application 
13583/02, judgment of 21 September 2006; Garlicki v. Poland, Application 36921/07, judgment of 14 
June 2011. 
Salabiaku  v.  France,  Application  10519/83,  judgment  of  7  October  1988;  Barberà,  Messegué  and 
Jabardo v. Spain, Application 10590/83, judgment of 6 December 1988. 

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The right to remain silent, the right to not incriminate oneself and the right not to cooperate 
are ‘generally recognised international standards which lie at the heart of the notion of a fair 
procedure.’25  They  ensure  that  a  suspect  or  accused  person  cannot  be  improperly  forced  to 
produce  evidence,  which  would  breach  the  principle  that  the  burden  of  proof  is  on  the 
prosecution. 

The proposed Directive does not only uphold these principles with respect to natural persons, 
but provides for a specific remedy. Any use of evidence obtained in breach of these rights is 
excluded  save  in  exceptional  cases  where  the  use  of  such  evidence  will  not  prejudice  the 
overall fairness of the proceedings. 

(d) 

The right to be present at trial - a common minimum standard and a remedy 

If a suspect or accused person is tried ‘in absentia’, i.e. is not present at the trial, the right of 
defence is jeopardised: defendants are denied the opportunity to give their version of the facts 
to the court, and to rebut evidence. 
Framework Decision 2009/299/JHA26 improved the protection of such defendants in various 
other  EU  instruments  on  the  mutual  recognition  of  judicial  decisions  in  line  with  ECtHR 
standards,27  by  establishing  a  possible  ground  for  refusal  in  cases  of  judicial  cooperation  if 
certain common minimum standards have not been met. 

The proposed Directive consequently takes the fundamental right of the accused to be present 
at the trial, established by the ECtHR, and makes it a minimum EU standard applicable also to 
domestic criminal proceedings. It is subject to very limited exceptions to ensure that justice is 
not unduly delayed by defendants acting in bad faith. A concrete remedy in the form of a re-
trial is provided, as established by the ECtHR28 in cases where the right to be present at trial 
has been breached. 

3.2. 

Protection  for  those  who  need  it  most  -  special  safeguards  for  vulnerable 
persons 

• 

Who needs special protection, and why? 

The Stockholm Programme emphasises the need to strengthen the rights of individuals who 
are  vulnerable  in  criminal  proceedings:  ’it  is  important  that  special  attention  is  shown  to 
suspected and accused persons who cannot understand or follow the content or the meaning 
of the proceedings, owing for example to their age, mental or physical condition.’29  

International standards and ECtHR case-law recognise their specific needs. Someone may be 
vulnerable because he or she cannot effectively participate in criminal 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.’30 
Children are considered vulnerable by definition, due to young age, unfinished physical and 
psychological  development  and  emotional  immaturity.31  Children  are  also  at  greater  risk  of 

25 
26 

27 
28 
29 
30 
31 

Heaney and McGuiness v. Ireland, Application 34720/97, judgment of 21 December 2000. 
Council  Framework  Decision  2009/299/JHA  of  26  February  2009  amending  Framework  Decisions 
2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, OJ L 81, 27.3.2009, 
p. 24-36. 
Colozza v. Italy, Application 9024/80, judgment of 12 February 1985. 
See footnote 25. 
OJ C291, 4.12.2009, p.1 
S.C. v. UK, Application No 60958/00, judgment of 10 November 2004. 
Under Article 1 of the UN Convention on the Rights of the Child, which has been ratified by all EU 
Member States and the EU, anyone below the age of 18 should be considered a child. 

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ill-treatment  and  health  problems  than  other  suspects  or  accused  persons;  they  may  not  be 
able  to  properly  express  their  difficulties  or  health  problems.  All  Member  States  therefore 
regard children as requiring special safeguards and protection in criminal proceedings.  

The situation is different for adults. The reasons why an adult may not be able to participate 
effectively  in  the  proceedings  can  be  manifold,  for  example  mental  illness  or  a  physical  or 
learning  disability.  There  is  no  standard  definition  of  who  is  a  vulnerable  adult  in  criminal 
proceedings in the EU Member States. 

• 

A Directive focusing on crucial safeguards for children 

The  three  Procedural  Rights  Directives  already  adopted  apply  to  all  suspects  or  accused 
persons,  including  children.  However,  even  though  they  provide  for  certain  safeguards 
specifically  for  children,  they  do  not  take  sufficient  account  of  the  specific  needs  they  may 
have  e.g.  finding  it  hard  or  impossible  to  understand  and  follow  the  proceedings,  increased 
risk of ill-treatment because of their vulnerability.  

The proposed Directive will ensure: 

• 

• 

• 

• 

• 

• 

• 

that the procedural safeguards apply to children from the time they are suspected or 
accused of having committed an offence (scope); 

that children are assisted by their parents or other appropriate persons when arrested, 
and that both children and their parents are informed of their rights;  

that children cannot waive the right to be assisted by a lawyer, as there is a high risk 
that they would not understand the consequence of their actions; mandatory access to 
a lawyer is the core measure of the proposed Directive; 

that  their  personal  and  family  situation  and  needs  are  properly  assessed  before 
judgment and that children receive a medical examination if deprived of liberty; that 
throughout the proceedings, questioning is carried out in circumstances that take into 
account  the  child’s  age  and  level  of  maturity  and  questioning  by  police  is  audio-
visually recorded unless it would not be proportionate; 

that children cannot be tried in their absence; to ensure that children cannot be found 
guilty without having had the opportunity to rebut the grounds for such a conviction, 
and  understand  the  grounds  of  a  possible  conviction  to  prevent  re-offending  by 
children and to foster social integration.  

that  judicial  authorities  dealing  with  children  receive  specialised  training;  that  the 
child’s  privacy  is  protected  to  facilitate  reintegration  into  society,  e.g.  by  ensuring 
that the proceedings are in principle not open to the public;  

that children are only deprived of liberty only as a last resort, and that children are 
detained separately from adults. 

It  results  from  international  standards  that  children  confronted  with  the  criminal  justice 
system  should  benefit  from  alternative  measures  to  imprisonment  and  education  and  should 
be  deprived  of  liberty  only  in  exceptional  circumstances.  Children  are  in  a  particularly 
vulnerable position when deprived of liberty given the inherent risks for their physical, mental 
and social development. In order to prevent ill-treatment and abuse in case of deprivation of 
liberty,  certain  protection  measures  should  be  foreseen.  Given  those  specific  needs  of 
children, the Directive contains special rules on the specific treatment of children in case of 
deprivation of liberty. 

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The  Directive  will  thus  promote  the  rights  of  the  child,  bearing  in  mind  international 
guidelines and recommendations on child-friendly justice and it forms part of the EU Agenda 
for the Rights of the Child.32 The Directive will not affect national rules determining criminal 
responsibility33. 

• 

A  Commission  Recommendation  ensuring  that  vulnerable  persons  are  recognised 
and their needs taken into account 

Defining  why  people  may  be  vulnerable  in  criminal  proceedings  -  for  reasons  other  than 
young age - is not possible at this stage; any definition may even be criticised as stigmatising 
them.  This  results  from  several  consultations  and  meetings  with  stakeholders  and  Member 
States.  

However, at the same time it is generally recognised by stakeholders that some people need 
special  safeguards  in  criminal  proceedings  to ensure  that  they  understand  and  exercise  their 
rights.  If  people  do  not  understand  the  proceedings  or  the  consequences  of  actions  such  as 
confessing,  either  because  their  vulnerability  is  not  identified  or  because  special  safeguards 
are not in place, this leads to ‘inequality of arms’, which reduces their chances of receiving a 
fair trial and threatens the integrity of the judicial process. If action is not taken at EU level an 
uneven  level  of  protection  would  persist  throughout  the  EU.  Therefore,  the  only  balanced 
approach that would reconcile proportionality and subsidiarity considerations and the need to 
enhance  the  level  of  protection  of  vulnerable  persons  is  a  Commission  Recommendation 
fostering the core rights of vulnerable persons in criminal proceedings. 

• 

• 

Setting up assessment mechanisms to ensure that vulnerable persons are detected and 
recognised, and that their special needs are met in criminal proceedings, is the core 
of  the  Recommendation.  It  is  recommended  that  an  assessment  is  made  by  an 
independent expert, ensuring that the degree of vulnerability is properly ascertained 
and the person’s specific needs are acknowledged.  

Establishing  appropriate  safeguards  for  vulnerable  persons:  the  Recommendation 
calls  on  the  Member  States  to  put  in  place  concrete  safeguards  depending  on  the 
assessment, such as mandatory access to a lawyer, assistance by an appropriate third 
person, audio-visual recording of police questioning and medical assistance. 

While  giving  Member  States  more  flexibility  than  a  Directive,  the  Recommendation  will 
nevertheless contribute to raising standards on the procedural rights of vulnerable adults and 
to  enhancing  mutual  trust.  The  Commission  will  assess  the  extent  to  which  Member  States 
have  taken  measures  to  give  effect  to  the  Recommendation  four  years  after  its  publication 
and, if necessary, propose legislative measures to enhance the procedural rights of vulnerable 
persons. 

3.3. 

An effective right to access to a lawyer - the right to legal aid 

Drawing on Article 6(3)(c) ECHR, Article 47(3) of the EU Charter states that ‘Legal aid shall 
be made available to those who lack sufficient resources insofar as such aid is necessary to 
ensure effective access to justice.’ 

The right to legal aid is intrinsically linked to the right of access to a lawyer. For persons who 
lack  resources  access  to  a  lawyer  cannot  be  effective  unless  the  State  provides  legal  aid  to 
ensure legal assistance. Thus, for the right of access to a lawyer to be effective, and to further 

32 

33 

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 
This is the age when children become criminally responsible for their actions.  

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strengthen mutual trust in the European Union, legal aid needs to be available to those who 
need it. 

A Directive focussing on certain aspects of the right to legal aid 

• 

Guaranteeing legal aid for access to a lawyer when it is most needed - ‘provisional 
legal aid’ 

At  the  early  stages  of  proceedings,  the  suspect  or  accused  person  is  particularly  vulnerable, 
especially  if  deprived  of  liberty.  Access  to  a  lawyer  at  those  stages  is  of  paramount 
importance to protect fair trial rights, including the right to not incriminate oneself, as stated 
in ECHR case law. Article 6 ECHR requires that, as a rule, suspects or accused persons are 
granted access to legal assistance from the moment they are taken into police custody or pre-
trial detention, and that such assistance is assigned officially if need be. They should not have 
to wait for access to a lawyer until their application for legal aid has been processed and their 
eligibility assessed. 

Therefore,  the  proposed  Directive  on  the  right  to  legal  aid  provides  for  suspects  or  accused 
persons  who  are  deprived  of  liberty  to  have  access  to  provisional  legal  aid  at  these  early 
stages of the proceedings and until the competent authority has made a final decision on the 
application for legal aid. 

• 

Special focus on those who are subject to European arrest warrant proceedings 

The  Directive  on  access  to  a  lawyer  provides  for  a  right  to  dual  legal  representation  in 
European arrest warrant proceedings, i.e. in both the executing and issuing Member States, in 
order to boost mutual trust across the European Union. However, to make this effective, there 
needs to be a guarantee of access to legal aid in European arrest warrant proceedings. 

Persons sought under a European arrest warrant also need to be given the right to provisional 
legal aid when deprived of liberty in the executing Member State, without having to wait for 
legal advice until the application for legal aid has been dealt with. 

A Recommendation on some further issues on legal aid in criminal proceedings 

• 

Towards greater convergence in the criteria for deciding on the right to legal aid 

It follows from Article 47(3) of the EU Charter and Article 6(3)(c) ECHR that Member States 
may determine whether a person has a right to legal aid if that person has insufficient means 
(the ‘means test’), and/or the interests of justice require legal aid to be granted, for example in 
a complex case or because of the personal situation of the suspect, the gravity of the offence 
or the severity of the potential sanction (the ‘merits test’). 

The  way  these  eligibility  criteria  are  combined  and  assessed  varies  greatly  between  the 
Member  States.  Some  Member  States  apply  only  a  means  test,  others  apply  a  merits  test, 
while  some  combine  the  two.  There  are  also  considerable  differences  in  the  way  the  means 
test and the merits test are interpreted and understood. 

Because  of  the  great  variety  of  legal  aid  systems  and  the  need  to  keep  any  measures 
proportional, especially in times of economic and financial challenges, this issue is addressed 
in a Recommendation. It provides common objective criteria to be taken into account when 
assessing  the  eligibility  for  legal  aid.  It  clarifies  the  framework  for  the  assessment  as 
developed in ECtHR case-law and promotes convergence between the different legal systems, 
with a view to strengthening mutual trust. 

• 

Ensuring the quality and effectiveness of legal aid services 

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The  ECtHR  has  held  that  the  State’s  obligation  to  provide  free  legal  assistance  is  not  met 
merely by appointing a publicly funded lawyer.34 It must ensure that the assistance provided 
by  legal  aid  lawyers  is  practical  and  effective.  To  this  end,  the  Recommendation,  asks 
Member  States  to  set  up  mechanisms  to  ensure  high-quality  legal  aid  services,  to  promote 
systems  for  accrediting  lawyers  and  continuous  professional  training  for  legal  aid 
professionals  and  lawyers.  The  implementation  of  this  Recommendation  will  improve  the 
quality of and effectiveness of legal aid services and increase mutual trust in other Member 
States’ justice systems. 

To  further  the  effect  and  application  of  the  Recommendation,  the  Commission  will  have 
recourse to the existing expert group on judicial cooperation in criminal matters. The group 
may  assist  the  Commission  in  drawing  up  guidelines  for  its  application  and  facilitate 
exchange  of  best  practices  between  the  Member  States.  The  Commission  will  assess  the 
extent  to  which  Member  States  have  taken  measures  to  give  effect  to  the  Recommendation 
four years after its publication and, if necessary, propose legislative measures to enhance the 
right to legal aid in criminal proceedings. 

4. 

CONCLUSION 

This package reflects common minimum standards for the right to a fair trial in the European 
Union, making progress in the Commission’s Procedural Rights Agenda. Combined with the 
full  range  of  instruments  in  place  to  make  cross-border  judicial  cooperation  a  reality  in  a 
climate  of  mutual  trust,  through  common  minimum  standards,  it  fosters  the  development  of 
the European area of freedom, security and justice. 

The  new  regime  introduced  by  the  Lisbon  Treaty  will  become  fully  effective  soon.  The 
Treaty’s  transitional  regime  for  justice  and  home  affairs  -  covered  by  the  former  so-called 
‘third  pillar’  -  expires  on  30  November  2014.  From  that  date,  the  Commission  will  have 
enforcement powers over the whole justice and home affairs acquis and the European Court 
of  Justice  will  have  full  jurisdiction  for  pre-Lisbon  mutual  recognition  instruments.  This, 
together with the establishment of an EU-wide prosecution system to tackle fraud against the 
EU’s financial interests, will change the landscape of the European area of criminal justice. 

Given  the  internationalisation  of  crime,  it  should  result  in  an  increase  in  requests  for 
investigations and enforcement of decisions in criminal matters across the EU resulting from 
the implementation of the many mutual recognition measures. This is all the more reason to 
make  progress  on  the  European  Agenda  on  Procedural  Rights  by  rapidly  adopting  this  new 
package. 

In  the  longer  term,  this  framework  of  procedural  rights  at  EU  level  will  be  transposed  into 
national  law.  Its  impact  on  upholding  the  right  to  a  fair  trial  in  practice  will  have  to  be 
carefully  assessed  and  any  gaps  identified,  possibly  with  a  view  to  drafting  a  consolidated 
proposal on fair trial rights. 

34 

ECtHR case Pavlenko v. Russia, Application No 42371/02, judgment of 4 October 2010, para. 99. 

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