REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings
Date: 2018-12-18
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: application of EU law, charge, criminal proceedings, fundamental rights, judicial cooperation in criminal matters in the EU, right to information, right to justice, rights of the defence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 18.12.2018  COM(2018) 858 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings  
 
 
1.  INTRODUCTION 

1.1.  Background 

Directive 2012/13/EU on the right to information in criminal proceedings1 (‘the Directive’) is 
the  second  instrument  which  has  been  adopted  pursuant  to  the  Roadmap  for  strengthening 
procedural  rights  of  suspected  or  accused  persons  in  criminal  proceedings 2 .  On 
11 December 2009,  the  European  Council  welcomed  the  Roadmap  and  made  it  part  of  the 
Stockholm Programme — An open and secure Europe serving and protecting citizens3. 

The first measure adopted pursuant to the Roadmap was Directive 2010/64/EU on the right to 
interpretation and translation in criminal proceedings4. Following the adoption of these first 
two  directives,  further  work  related  to  procedural  rights  has  been  carried  out.  The  EU  has 
since  adopted  four  more  directives  on  the  right  to  access  a  lawyer  and  communicate  with 
third  persons  while  being  deprived  of  liberty 5 ;  on  strengthening  certain  aspects  of  the 
presumption of innocence and the right  to  be present  at  the trial6;  on procedural  safeguards 
for children7 and on legal aid8. 

These six directives aim to contribute to the general objective of increasing mutual trust  by 
allowing better application of the principle of mutual recognition, the cornerstone of the EU 
area of freedom, security and justice. They do this by providing common minimum standards 
for  procedural  rights  in  all  criminal  proceedings,  and  by  providing  a  more  consistent 
implementation of the right to a fair trial set out in Article 47 of the Charter of Fundamental 
Rights  of the European  Union9 as well as  Article 6 of the European Convention on Human 
Rights (ECHR). 

1.2.  Purpose and main elements of the Directive 

Directive  2012/13/EU  seeks  to  help  ensure  that  the  right  of  suspects  and  the  accused  to 
information in criminal proceedings is applied in practice. 

1 OJ L 142, 1.6.2012, p. 1. 
2  Resolution  of  the  Council  of  30  November  2009  on  a  Roadmap  for  strengthening  procedural  rights  of 
suspected or accused persons in criminal proceedings, OJ C 295, 4.12.2009, p. 1. 
3 OJ C 115, 4.5.2010, p. 1. 
4 OJ L 280, 26.10.2010, p. 1. 
5 Directive 2013/48/EU 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. 
6 Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the 
right to be present at the trial, OJ L 65, 11.3.2016, p. 1. 
7 Directive (EU) 2016/800 on procedural safeguards for children who are suspects and accused in criminal 
proceedings, OJ L 132, 21.5.2016, p. 1. 
8 8 Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for 
requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016, p. 1. 
9 OJ C 326, 26.10.2012, p. 392. 

1 

 
 
                                                           
By  establishing  common  minimum  rules  governing  the  right  to  information  in  criminal 
proceedings  (and  European  arrest  warrant  proceedings)  the  Directive  aims  to  increase 
Member States’ confidence in each other’s criminal justice systems. To that end it builds on 
and seeks to promote the rights laid down in, for example, Articles 47 and 48 of the Charter 
of Fundamental Rights of the European Union10. 

The Directive sets out minimum standards for all suspects or accused persons within the EU 
regardless  of  their  legal  status,  citizenship  or  nationality.  It  is  designed  to  help  prevent 
miscarriages of justice and reduce the number of appeals. 

The  Directive  establishes  the  right  to  information  in  criminal  proceedings  and  European 
arrest warrant proceedings. Persons have this right from the moment they are made aware by 
the competent authorities that they are suspected or accused of having committed a criminal 
offence, and until the conclusion of the proceedings. 

It lays down the right to information about procedural rights orally (Article 3) or in writing if 
the person is deprived of liberty (Article 4) or subject to a European arrest warrant (Article 5), 
the right to information about the accusation (Article 6) and the right to access to materials of 
the case (Article 7). 

1.3.  Scope of this implementation report 

This  evaluation  of  the  implementation  of  the  Directive  has  been  carried  out  in  accordance 
with  Article  12  of  the  Directive,  which  requires  the  Commission  to  submit  a  report  to  the 
European  Parliament  and  to  the  Council  assessing  the  extent  to  which  the  Member  States 
have taken the necessary measures in order to comply with the Directive. 

The description and analysis in this report are based primarily on the information provided by 
Member  States.  They  are  complemented  by  publicly  available  studies  carried  out  by  the 
European Union Agency for Fundamental Rights11 or by external stakeholders assessing the 
implementation of the procedural rights directives using Justice Programme action grants12. 

The  report  focuses  on  the  measures  Member  States  have  taken  so  far  to  implement  the 
Directive.  It  assesses  whether  Member  States  have  implemented  the  Directive  within  the 

10 See  CJEU,  5  June  2018,  Kolev  a.o.,  C-612/15;  other  relevant  judgments  on  this  Directive  are  CJEU,  15 
October 2015, Covaci, C-216/14; CJEU, 22 March 2017, Tranca a.o., Joined Cases C-124/16, C-188/16 and C-
213/16. 
11 See the study by the European Union Agency for Fundamental Rights (FRA), ‘Rights of suspected and 
accused persons across the EU: translation, interpretation and information’, November 2016. Available at 
http://fra/europaeuenpublication/2016/rights-suspected-and-accused-persons-across-eu-translation-interpretation 
12 See  the  study done by  Council of Bars and  Law Societies of Europe (ECCB) ‘TRAINAC Assessment,  good 
practices and recommendations on the right to interpretation and translation, the right to information and the 
in  2016.  Available  at: 
right  of  access 
"Inside  Police 
http://europeanlawyersfoundation.eu/wp-content/uploads/TRAINAC-study.pdf.  See 
Custody" and "Inside Police Custody 2", carried out by the Irish Council for Civil Liberties in 2014 and 2018. 
Available at: https://intersentia.be/nl/pdf/viewer/download/id/9781780681863_0/ . 

in  criminal  proceedings,  published 

lawyer 

to  a 

also 

2 

 
 
                                                           
 
specified timeframe, and whether national  legislation achieves the objectives and fulfils the 
requirements of the Directive. 

2.  GENERAL ASSESSMENT 

Under  Article  11,  Member  States  had  to  transpose  the  Directive  into  national  law  by 
2 June 2014. At the date of expiry of the transposition period, seven Member States had not 
communicated  the  necessary  measures  to  the  Commission:  Cyprus,  the  Czech  Republic, 
Luxembourg,  Malta,  Slovenia,  Slovakia,  and  Spain.  The  Commission  therefore  decided  in 
July  2014  to  launch  infringement  proceedings  under  Article  258  of  the  Treaty  on  the 
Functioning  of  the  European  Union,  against  these  seven  Member  States  for  failing  to 
communicate their transposition measures. 

The  Commission’s  main  objective  has  been  to  ensure  that  all  Member  States  transpose  the 
requirements  of  the  Directive  into  their  national  law,  so  that  the  rights  it  contains  are 
protected throughout the European Union. The transposition of the Directive is a prerequisite 
to properly assess the extent to which the Member States have taken the necessary measures 
to  comply  with  the  Directive.  The  Commission  started  assessing  whether  the  national 
measures  comply  with  the  Directive  as  soon  as  they  were  notified  by  Member  States. 
However,  Luxembourg,  for  example,  transposed  the  Directive  only  in  March  2017,  and 
Romania  completed  its  initially  partial  notification  with  transposition  measures  on  12  July 
2016  and  6 October  2017.  These  delays  in  transposition  have  postponed  the  overall 
assessment  process.  The  last  infringement  proceedings  for  non-communication  could  be 
closed  only  in  January  2018.  In  these  circumstances,  and  given  the  complexity  of  the 
assessment  of  all  the  measures  communicated  by  the  27  Member  States  bound  by  the 
Directive with particular regard to their different national legal systems, the Commission has 
not been in a position to submit this report earlier 

Although the Directive’s impact is limited to setting minimum rules and consequently leaves 
the possibility for differences between national criminal procedural laws, it does impose clear 
obligations on Member States.  

The  assessment  has  raised  certain  issues  of  compliance  in  several  Member  States,  in 
particular as regards the Letter of Rights in criminal proceedings and European arrest warrant 
proceedings,  the  right  to  information  about  the  accusation  and  the  right  of  access  to  the 
materials  of  the  case.  Unless  remedied,  such  divergences  may  negatively  affect  the 
effectiveness  of  the  rights  provided  by  this  Directive.  The  Commission  will  take  every 
appropriate measure to ensure conformity with the Directive throughout the European Union, 
including  where  necessary  initiating  infringement  proceedings  under  Article  258  of  the 
Treaty on the Functioning of the European Union. 

In accordance with Articles 1 and 2 of the Protocol (No 22), Denmark is not taking part in the 
adoption of the Directive and is not bound by it or subject to its application. Hence, Denmark 
is not considered in the following assessment. 

3 

 
 
 
In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom 
and Ireland in respect of the area of freedom, security and justice, the United Kingdom and 
Ireland  have  notified  that  they  wish  to  take  part  in  the  adoption  and  application  of  the 
Directive. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Subject matter (Article 1) 

Article 1 of the Directive specifies that the Directive lays down rules concerning the right to 
information of suspects and accused persons, relating to their rights in criminal proceedings 
and to the accusation against them as well as to persons subject to a European arrest warrant. 

Most  Member  States  already  had  legislation  on  the  right  to  information.  The  transposition 
process therefore involved Member States amending any pre-existing legislation or adopting 
more specific legislation. 

3.2.  Scope (Article 2) 

Article 2 of the Directive outlines the scope of application of the Directive. 

3.2.1.  Scope of application — Article 2(1) 

Article  2(1)  of  the  Directive  provides  that  the  right  to  information  in  criminal  proceedings 
and proceedings for the execution of a European arrest warrant applies from the time a person 
is  made  aware  by  the  competent  authorities  that  they  are  suspected  or  accused  of  having 
committed  a  criminal  offence  until  the  conclusion  of  the  proceedings,  that  is,  until  the 
decision is final. 

According to Recital 19 of the Directive ‘[t]he competent authorities should inform suspects 
or accused persons promptly […] and at latest before the first official interview […] by the 
police or another competent authority’. 

Most Member States do not  specifically address  the moment  at  which a suspect  or accused 
person is  ‘made aware’  of the suspicion  or accusation, nor do they specify that the  right  to 
information applies throughout the criminal proceedings. However, a systematic analysis of 
the  different  stages  of  criminal  proceedings  in  the  respective  national  legal  contexts  shows 
that conformity can be inferred for a large number of Member States. 

However, issues arise with regard to three Member States13 which lay down the obligation to 
provide information about rights only when a person is deprived of their liberty. For persons 
who are not deprived of liberty, the same safeguards do not apply. 

13 One Member State concerned only for part of its territory. 

4 

 
 
 
                                                           
As regards the personal scope, certain discrepancies of the terms ‘suspect’ and ‘accused’ have 
appeared  in  Member  States’  legislations.  The  large  majority  of  Member  States  distinguish 
between  both  terms  when  referring  to  the  persons  subject  to  the  criminal  proceedings. 
However, two Member States only use the notion of ‘accused person’ in their legal systems, 
but  not  the  notion  of  "suspect".  Persons  are  considered  as  accused  when  they  have  been 
charged with a criminal offence. 

3.2.2.  Minor offences — Article 2(2) 

Article 2(2) of the Directive ensures that when the law of a Member State provides for the 
imposition of a sanction regarding minor offences by an authority other than a court having 
jurisdiction  in  criminal  matters,  and  the  imposition  of  such  a  sanction  may  be  appealed  to 
such a court, the right to information is granted for the appeal proceedings. 

This  provision  is  relevant  for  those  Member  States  where  administrative  authorities,  the 
police or courts having jurisdiction in non-criminal matters  are responsible for dealing with 
minor  offences.  For  the  remaining  Member  States,  the  provision  does  not  apply  because 
sanctions on minor offences are imposed by courts having jurisdiction in criminal matters. 

3.3.  Right to information about rights (Article 3) 

Article 3 of the Directive states that suspects or the accused must be provided promptly with 
information  concerning  at  least  the  procedural  rights  set  out  explicitly  in  this  Article.  This 
information must be given orally or in writing, in simple and accessible language, taking into 
account any particular needs of vulnerable suspects or vulnerable accused persons. 

3.3.1.  Information on procedural rights — Article 3(1) 

In  accordance  with  Article  3(1)  and  taking  into  account  Recital  19  of  the  Directive,  the 
information has to be provided promptly to suspects and accused persons.  

Most Member States have transposed this provision accordingly. Although several Member 
States do not explicitly refer to the requirement of ‘prompt’ provision of information, this can 
be inferred from the fact that suspects or the accused are provided with information regarding 
their  rights  at  the  latest  before  the  first  questioning.  However,  in  three  Member  States 
information on rights is only provided when the person is deprived of liberty (see 3.2.1.). 

3.3.1.1.   Information on the right of access to a lawyer — Article 3(1)(a) 

Article  3(1)(a)  was  transposed  accurately  by  almost  all  Member  States.  However,  three 
Member States either did not transpose the provision, or did not transpose it in misdemeanour 
proceedings.  In three Member States the information is not provided to suspects or accused 
persons who are not deprived of liberty. 

5 

 
 
3.3.1.2.   Information  on  entitlement  to  free  legal  advice  and  the  conditions  thereof  — 

Article 3(1)(b) 

25  Member  States  have  rules  in  place  informing  suspects  and  accused  persons  of  any 
entitlement to free legal advice, but two have no corresponding provisions. In some Member 
States discrepancies were identified because national legislation does not clearly set out that 
information on the conditions for obtaining free legal aid must be provided to suspects or the 
accused. In one Member State information about the right to free legal advice is not ensured 
in  the  context  of  misdemeanour  proceedings.  Lastly,  in  three  Member  States  the  relevant 
information is only provided to persons who are deprived of liberty. 

3.3.1.3.   Information on the right to be informed of the accusation — Article 3(1)(c) 

Almost  all Member States transposed this provision.  However, in  three  Member States this 
information is provided only when the person is deprived of liberty. 

3.3.1.4.   Information on the right to interpretation and translation — Article 3(1)(d) 

The  majority  of  Member  States  complied  with  this  provision.  However,  conformity  issues 
arise in a few Member States where the right to information on interpretation and translation 
is not clearly regulated. In two Member States the national legislation provides neither for the 
right to translation nor for the right to be informed about it. 

3.3.1.5.   Information on the right to remain silent — Article 3(1)(e) 

All  Member  States  transposed  this  provision  correctly,  except  one.  Many  Member  States 
transposed  the  provision  in  a  more  detailed  manner,  for  example  adding  that  the  right  to 
remain  silent  entails  the  right  to  comment  on  the  accusation;  or  to  make  a  statement,  or  to 
answer questions or not. 

3.3.2.  Providing  information  in  "simple  and  accessible"  language  and  taking  into 

account particular needs of vulnerable persons — Article 3(2) 

Most  Member  States  transposed  this  provision,  however  their  approaches  vary.  Some 
Member  States  made  general  references  to  vulnerable  persons,  without  mentioning  any 
specific categories or defining vulnerability14. Several other Member States mention specific 
categories of vulnerable persons, such as:  

  persons with hearing and speech impairments,  
  persons with visual impairments,  
  mentally disabled persons,  
  persons with learning disabilities,  
  persons suffering from mental conditions,  
  persons over 75,  

14 Vulnerable persons are defined by the Commission’s Recommendation of 27 November 2013 on procedural 
safeguards for vulnerable persons suspected or accused in criminal proceedings as ‘persons who are not able to 
understand and to effectively participate in criminal proceedings due to age, their mental or physical condition 
or disabilities’. 

6 

 
 
                                                           
  pregnant women,  
  single parents raising minor children, and 
  persons  who  have  been  subjected  to  torture,  rape  or  other  serious  forms  of 

psychological, physical or sexual violence. 

However, some Member States do not provide for special treatment for vulnerable persons, 
which is  not  fully in  line with  the Directive.  In  one Member State, the needs of vulnerable 
persons have to be taken into account only if the person is arrested. In few jurisdictions it is 
not clearly regulated who is protected, and when. 

Eleven Member States have transposed the  requirement to  provide information  on rights  in 
‘simple  and  accessible  language’  explicitly  into  their  national  legislation.  However,  14 
Member States do not meet the requirement to provide the relevant information in a language 
that  a  person  understands  or  do  not  state  that  information  must  be  provided  in  ‘simple  and 
accessible language’. 

3.4.  Letters of Rights on arrest (Article 4) 

Article  4  of  the  Directive  obliges  Member  States  to  promptly  provide  persons  deprived  of 
liberty  with  a  Letter of  Rights  containing information  about  additional  specific rights  listed 
under  the  Directive.  The  Annex  to  the  Directive  sets  out  model  letters  for  (I) persons  who 
have  been  arrested  or  detained,  and  (II) persons  arrested  on  the  basis  of  a  European  arrest 
warrant. 

3.4.1.  Provisions of a Letter of Rights — Article 4(1) 

Article 4(1) of the Directive states that Member States must ensure that suspects or accused 
persons who are arrested or detained are provided promptly with a written Letter of Rights. 
They must be given an opportunity to read the Letter of Rights and must be allowed to keep it 
in their possession throughout the time that they are deprived of liberty. 

Almost  all  Member  States  have  national  rules  requiring  a  Letter  of  Rights.  Whereas  some 
Member States refer literally to the Letter of Rights, others use different terminology, such as 
‘declaration’, ‘written information or notification or notice’ or ‘leaflet’. Nevertheless, despite 
the different terminology, all documents referred to in the respective national laws fulfil the 
role of a Letter of Rights under the Directive. 

One Member State’s law does not provide for a Letter of Rights as such. Although it refers to 
a written declaration of rights, its purpose is not only informative. The declaration is handed 
over to a person when they are formally charged and is presented with a decree of accusation 
and  an  interview  record  to  sign.  This  document  mentions  certain  of  the  accused  person’s 
rights but does not correspond to the list set out in the Directive. 

Another Member State also does not have a uniform Letter of Rights. Different templates are 
used by courts and the police and it is unclear whether these different templates contain all 

7 

 
 
the rights required under the Directive. Moreover, it is not ensured that the person is allowed 
to keep the letter. 

Most Member States transposed the requirement to provide the Letter of Rights ‘promptly’, 
albeit they expressed it in different ways in their national laws. However, the national law of 
a few Member States either does not determine when the Letter must be provided or allows 
the authority’s obligation to vary depending on the type of proceedings. 

Not all Member States explicitly transposed the obligation to give suspects and the accused 
the opportunity to read and to keep the Letter of Rights. Moreover, one Member State allows 
for a deviation from the obligation to provide the person with written information (even at a 
later  stage)  in  cases  where  providing  written  information  can  reasonably  not  be  done  and 
providing oral information is deemed sufficient. 

3.4.2.  Content of the Letter of Rights — Article 4(2) 

Article  4(2)  of  the  Directive  introduces  the  list  of  rights  that  the  Letter  of  Rights  has  to 
contain, in addition to the information set out in Article 3 of the Directive, namely: 

(a)  the right of access to the materials of the case;  
(b) the right to have consular authorities and one person informed;  
(c)  the right of access to urgent medical assistance; and 
(d) the maximum number of hours or days suspects or accused persons may be deprived 

of liberty before being brought before a judicial authority. 

3.4.2.1.   Information on the right of access to the materials of the case — Article 4(2)(a) 

A majority of Member States transposed this provision adequately. Some Member States use 
a general reference to the right of access to the materials of the case, for example the right to 
consult  or  examine  the  file  of  the  case,  or  the  right  to  access  evidence  or  judicial 
documentation,  the  documents  of  the  criminal  case  or  the  information  gathered  during  the 
criminal investigation. 

However, certain issues arise in eight Member States. The Member State which does not have 
a ‘Letter of Rights’ (see 3.4.1) does not have rules in place that refer to the right to access the 
materials of the case. Four Member States provide for access to essential documents related 
to  arrest  and  detention  instead  of  general  information  on  access  to  materials  of  the  case. 
Finally, in one Member State it is not clear whether, for certain types of criminal proceedings, 
information  about  the  right  to  access  the  materials  of  the  case  is  included  in  the  Letter  of 
Rights.   

3.4.2.2.   Information  on the  right  to  have  consular  authorities  and  one  person  informed 

— Article 4(2)(b) 

This  provision  was  correctly  transposed  by  a  large  majority  of  Member  States.  In  a  few 
Member States there were some issues of conformity with the Directive, for example due to 
placing  a  limitation  on  contacting  family  members  exclusively,  or  on  contacting  a  relative, 

8 

 
 
educational  institution  or  employer.  In  one  Member  State  the  right  to  contact  the  consular 
authorities is not included in the Letter of Rights.   

3.4.2.3.   Information on the right of access to urgent medical assistance — Article 4(2)(c) 

Almost  all  Member  States  (except  one)  transposed  this  provision.  One  Member  State 
provides  for  the  right  to  medical  assistance,  but  it  is  not  mentioned  in  the  Letter  of  Rights 
itself. 

3.4.2.4.  Information  on  the  maximum  number  of  hours  or  days  suspects  or  the  accused 
may  be  deprived  of  liberty  before  being  brought  before  a  judicial  authority  — 
Article 4(2)(d) 

A  large  majority  of  Member  States  transposed  this  provision  appropriately.  However,  each 
country’s  national  legislation  varies  somewhat  since  the  Directive  does  not  specify  the 
maximum  time  a  person  may  be  deprived  of  their  liberty  before  they  are  brought  before  a 
judicial authority. 

Issues  arise  in  five  Member  States  due  to  the  absence  of  information  regarding  these  time-
periods in the national Letters of Rights. In one Member State the Letter of Rights provided 
to detainees contains relevant information, whereas the Letter of Rights provided to persons 
under arrest does not contain any reference to the maximum time period. 

3.4.3.  Basic  information  on  challenging  the  arrest  or  detention  and  requesting  a 

provisional release — Article 4(3) 

Under Article 4(3) of the Directive, the Letter of Rights must contain information about any 
possibility, under national law, of challenging the lawfulness of the arrest; obtaining a review 
of the detention; or making a request for provisional release. 

A majority of Member States transposed the provision adequately. However, in five Member 
States  national  rules  do  not  ensure  that  the  Letters  of  Rights  contain  information  on  the 
possibility of challenging the lawfulness of the arrest, of obtaining a review of the detention 
or  making  a  request  for  provisional  release.  In  one  Member  State  where  a  proper  Letter  of 
Rights  does  not  exist (see 3.4.1), this information is  not provided to  the suspect  or accused 
person. 

3.4.4.  Manner of drafting the Letter of Rights — indicative model — Article 4(4) 

Article  4(4)  of  the  Directive  states  that  the  Letter  of  Rights  must  be  drafted  in  simple  and 
accessible  language.  Annex  I  to  the  Directive  also  sets  out  an  indicative  model  Letter  of 
Rights. 

Most Member States provide for a Letter of Rights drafted in simple and accessible language. 
Twelve Member States explicitly require this in their national legislation, for eight Member 
States this could be inferred from the actual content of the model Letter of Rights. 

However,  the  national  legislation  of  five  Member  States  does  not  ensure  that  the  written 
information  be  provided  in  simple  and  accessible  language,  and  due  to  the  absence  of  a 

9 

 
 
national  model  it  could  not  be  established  whether  this  requirement  is  fulfilled.  In  one 
Member State where a proper Letter of Rights does not exist (see 3.4.1), this requirement is 
not fulfilled. 

3.4.5.  Language of the Letter of Rights — Article 4(5) 

Article  4(5)  of  the  Directive  obliges  Member  States  to  ensure  that  suspects  or  accused 
persons  receive  the  Letter  of  Rights  written  in  a  language  that  they  understand.  Where  a 
Letter  of  Rights  is  not  available  in  the  appropriate  language,  suspects  or  accused  persons 
must be informed of their rights orally in a language that they understand. A Letter of Rights 
must then be given to them without undue delay in a language that they understand. 

Thirteen  Member  States  transposed  the  provision  correctly.  Three  Member  States  did  not 
transpose it. Some others did not fully transpose this Article because, for instance, they do not 
ensure that oral information will be provided to suspects and accused persons in a language 
that they understand if the Letter of Rights is not available in the appropriate language, and 
that this will be followed by a translation of the Letter of Rights. Moreover, some Member 
States  do  not  require  a  translation  of  the  Letter  of  Rights  to  be  provided  ‘without  undue 
delay’. Finally, in one Member State information needs to be provided orally only where the 
person  cannot  read  or  write  and  not  if  the  information  is  not  available  in  the  appropriate 
language. 

3.5.  Letter of rights in European arrest warrant proceedings (Article 5) 

Under Article 5 of the Directive, persons arrested to execute a European arrest warrant must 
be  provided  with  a  Letter  of  Rights  listing  their  specific  rights  according  to  the  law 
implementing Framework Decision 2002/584/JHA15.  Paragraph (1)  requires  the information 
to be provided promptly, and paragraph (2) states that the Letter of Rights must be drafted in 
simple and accessible language and refers to the model letter in Annex II. 

3.5.1.  Provision  of  Letter  of  Rights  in  European  arrest  warrant  proceedings  — 

Article 5(1) 

A  majority  of  Member  States  transposed  this  provision  adequately.  Several  Member  States 
refer  to  the  Letter  of  Rights  literally,  others  have  chosen  different  terminology  such  as 
‘declaration’, ‘written information’, ‘written notification, ‘written notice’ or ‘leaflet’.   

The requirement of being ‘prompt’ (sometimes paraphrased as ‘immediately’, ‘without undue 
delay’, ‘at the time of the notification of custody’, ‘upon reception’, ‘as soon as possible’ or 
‘as  soon  as  practicable’)  was  transposed  by  most  Member  States.  However,  three  Member 
States do not meet this requirement. 

In several Member States there are no separate provisions regulating the obligation to provide 
information  on  the  rights  of  suspects  and  accused  persons  in  European  arrest  warrant 
proceedings.  A  ‘bridge  provision’  means  the  rules  applicable  in  criminal  proceedings  also 

15 OJ L 190, 18.7.2002, p. 1. 

10 

 
 
                                                           
apply  to  European  arrest  warrant  proceedings.  This  raises  concerns  as  the  content  of  the 
Letter of Rights under Article 4 of the Directive varies from the one required under Article 5. 

Finally, one Member State16 does not require a Letter of Rights for European arrest warrant 
proceedings.  In  two  other  Member  States  it  is  unclear  whether  the  relevant  information  is 
provided in writing. 

3.5.2.  Manner of drafting the Letter of Rights — indicative model — Article 5(2) 

Under  Article  5(2)  of  the  Directive,  the  Letter  of  Rights  in  the  European  arrest  warrant 
proceedings must be drafted in simple and accessible language. Annex II to the Directive also 
sets out an indicative model Letter of Rights. 

Most  Member  States  provide  for  the  existence  of  a  Letter  of  Rights  drafted  in  simple  and 
accessible  language.  Eleven  Member  States  have  explicitly  laid  down  this  requirement  in 
national legislation, for six Member States this could be inferred from the actual content of 
the model Letter of Rights. 

However, for the remaining Member States the national legislation does not ensure that the 
written information is provided in a simple and accessible language. Due to the absence of a 
national model it could not be established whether this requirement is fulfilled. 

3.6.  Right to information about the accusation (Article 6) 

Article 6 of the Directive lays down the obligation to  inform  suspects  and accused persons 
about the accusation and changes to it. 

3.6.1.  Information about the criminal act promptly and in detail — Article 6(1) 

Article 6(1) of the Directive obliges Member States to ensure that suspects or those accused 
are provided with information about the criminal act they are suspected or accused of having 
committed. That information must be provided promptly and in such detail as is necessary to 
safeguard the fairness of the proceedings and ensure the defence can effectively exercise their 
rights. 

All  Member  States  but  two  complied  with  the  obligation  to  provide  the  information  on  the 
accusation  promptly.  Many  opted  to  paraphrase  with  ‘as  soon  as  possible’,  ‘immediately’, 
without  undue  delay’,  ‘in  the  shortest  possible  period’  or  ‘urgently’,  but  nevertheless  in 
general at the latest before the first interrogation. 

The  scope  and  content  of  the  information  provided  differs  depending  on  the  national  law. 
Some Member States opted for to introduce more detailed rules, and information is provided 
to the suspect or accused person which goes beyond the requirements of the Directive. 

16 For part of its territory. 

11 

 
 
                                                           
3.6.2.  Information about the reason for arrest and detention and about the criminal act 

— Article 6(2) 

Under Article 6(2) of the Directive, suspects or accused persons who are arrested or detained 
have  the  right  to  be  informed  of  the  reasons  for  their  arrest  or  detention,  including  the 
criminal act they are suspected or accused of having committed. 

Most Member States require a suspect or accused person who is deprived of their liberty to be 
informed of the reasons  for their arrest  or detention. However, in  two Member States17 this 
right is not explicitly ensured for persons who have been arrested, only for those detained. In 
one Member State, information on the reasons for arrest or detention is provided only when 
the person is handed over to correction institutions. Finally, in another Member State national 
legislation requires  that  the arrested or detained  person should be informed about  the facts, 
but it is not specified that the reasons for arrest or detention must be provided. 

3.6.3.  Information on the accusation: the nature and legal classification of the criminal 

offence and the nature of participation — Article 6(3) 

Under Article 6(3) of the Directive, Member States must ensure that detailed information is 
provided  on  the  accusation,  including  the  nature  and  legal  classification  of  the  criminal 
offence, as well as the nature of participation by the accused person. This must be provided at 
the latest on submission of the merits of the accusation to a court. 

The  majority  of  Member  States  transposed  this  provision  accurately.  Disparities  arise  in 
several  Member States with  regard to  the timing of the provision of the information  on the 
accusation. In six Member States the merits of the case are first sent by the prosecution to the 
court and only afterwards to the accused person. In one Member State it is possible that the 
accused  is  notified  of  the  charges  only  moments  before  brought  before  the  court.  In  two 
Member States it is not clear if the decision is delivered to the accused person at the latest on 
submission of the merits of the accusation to a court. Finally, in one Member State18 detailed 
information on the accusation is provided at the latest on the substantive hearing of the case 
or matter by the court. 

The interpretation of the term ‘at the latest on submission of the merits of the accusation to a 
court’,  was  subject  to  a  preliminary  ruling  of  the  Court  of  Justice19.The  Court  stated  that 
‘Article  6(3)  of  Directive  2012/13  must  be  interpreted  as  not  precluding  the  disclosure  of 
detailed information on the charges to the defence after the lodging before the court of the 
indictment that initiates the trial stage of proceedings, but before the court begins to examine 
the  merits  of  the  charges  and  before  the  commencement  of  hearing  of  argument  before  the 
court, and after the commencement of that hearing but before the stage of deliberation, where 
the  information  thus  disclosed  is  the  subject  of  subsequent  amendments,  provided  that  all 
necessary  measures  are  taken  by  the  court  in  order  to  ensure  respect  for  the  rights  of  the 
defence and the fairness of the proceedings.’ 

17 In one of these Member States only for a part of its territory. 
18 For a part of its territory. 
19 CJEU, 5 June 2018, Kolev a.o., C-612/15. 

12 

 
 
                                                           
In a few Member States issues arise with regard to the content of the information provided. 
For example, national legislation does not stipulate that the suspect or accused person must 
be  informed  in  a  detailed  manner  about  the  accusation,  mention  the  nature  and  legal 
classification  of  the  criminal  offence,  or  specify  the  nature  of  participation  by  the  accused. 
General uncertainties on the level of details provided in regard to the content of the decisions 
remain in some national legislation. 

Finally,  the  question  of  how  to  inform  persons  who  have  no  fixed  domicile  or  residence 
within the territorial jurisdiction of a Member State has been subject to two references for a 
preliminary ruling before the Court of Justice20.   

3.6.4.  Provision of updated information — Article 6(4) 

Under Article 6(4) of the Directive, suspects or accused persons must be informed promptly 
of any changes in the information on the accusation where this is necessary to safeguard the 
fairness of the proceedings. 

The  majority  of  Member  States  transposed  this  provision  correctly,  but  no  implementation 
measures could be identified in five Member States. In several other Member States concerns 
arise  as  only  certain  changes  need  to  be  communicated  (for  example,  changes  in  the  legal 
classification) or because the timing of information is not specified. 

3.7.  Right to access to materials of the case (Article 7) 

Article 7 of the Directive lays down rules regarding access to the materials of the case. 

3.7.1.  Right of access to essential documents for challenging the arrest or detention — 

Article 7(1) 

Under Article 7(1) of the Directive, where a person is arrested and detained at any stage of 
the criminal proceedings, the documents related to the specific case in the possession of the 
competent  authorities,  which  are  essential  to  challenging  effectively,  in  accordance  with 
national law, the lawfulness of the arrest or detention, are to be made available to the arrested 
person or to their lawyers. 

The assessment of national implementing measures shows that the understanding of ‘essential 
documents’ as well as the overall scope of access differs in various Member States. 

Only  few Member States specify the  criterion of  ‘essential documents’.  One Member State 
lists  essential  documents;  another  Member  State  explicitly  defines  and  names  essential 
documents.  Two  other  jurisdictions  also  provide  for  a  definition,  but  the  decision  on  this 
matter  remains  with  the  custody  officer  or  the  court.  The  remaining  Member  States  do  not 
define what constitutes essential documents. 

20 CJEU, 15 October 2015, Covaci, C-216/14; CJEU, 22 March 2017, Tranca a.o., Joined Cases C-124/16, C-
188/16 and C-213/16. 

13 

 
 
                                                           
 
Furthermore, some Member States allow for access to essential documents to be refused. In 
several Member States the existing restrictions regarding access to the materials of the case 
(see  below,  3.7.2  related  to  Article  7(2)  and  3.7.4  related  to  Article  7(4))  also  extend  to 
documents which are essential to challenging the lawfulness of the arrest or detention. Access 
to  essential  documents  can  be  denied  by  the  authorities  in  charge  of  the  case  if  the 
fundamental rights or interests of other persons may be infringed or if another investigation 
could  be  seriously  jeopardised.  In  line  with  established  case  law  of  the  European  Court  of 
Human Rights21, it is not excluded that part of the case materials could be kept secret in order 
to  prevent  suspects  from  tampering  with  evidence  and  undermining  the  course  of  justice. 
However, such denial of access cannot be pursued at the expense of substantial restrictions on 
the rights of defence22. In some cases reference is made to the presence of ‘counterbalancing 
factors’ which should ensure that the person or their lawyer have the possibility to effectively 
challenge the detention23. 

Other  issues  which  arise  in  the  context  of  this  provision  relate  mainly  to  the  timing  of  the 
access  to  essential  documents.  Whereas  Article  7(1)  refers  to  ‘any  stage  of  the  criminal 
proceedings’, in some Member States access to essential documents is granted only after the 
first  interrogations  or  even  once  the  pre-trial  investigation  has  been  completed.  In  one 
Member State not all essential documents are made available to arrested persons who are in 
police custody. 

3.7.2.  Right of access to all material evidence — Article 7(2) 

Article  7(2)  of  the  Directive  obliges  Member  States  to  ensure  that  suspects  or  accused 
persons or their lawyers are granted access at least to all material evidence in the possession 
of  the  competent  authorities  in  order  to  safeguard  the  fairness  of  the  proceedings  and  to 
prepare the defence. 

A majority of Member States fully transposed this provision. However, issues arise where the 
access to the case file is granted but the case file does not  contain all material evidence. In 
some cases evidence that is kept outside the case file is not made accessible, or only at the 
trial stage. 

As mentioned above (see 3.7.1.), in one Member State only the lawyer has full access to the 
case file. If a suspect or accused person is not represented by a lawyer, they do not have full 
access to the file but only to selected documents. 

Finally, concerns also arise because certain Member States apply broad derogations from the 
right of access to the file (see 3.7.4.). 

21 ECtHR, 9 July 2009, Mooren v. Germany, n°11364/03; 9 January 2003, Shishkov v. Bulgaria, No 38822/97. 
22 ‘Therefore, information which is essential for the assessment of the lawfulness of a detention should be made 
available in an appropriate manner to the suspect’s lawyer’, case Shishkov v. Bulgaria, n° 38822/97, §77. 
23 ECtHR, 20 February 2014, Ovsjannikov v.Estonia, n° 1346/12, §§ 73 and 77; ECtHR, 13 April 2017, 
Podeschi v. San Marino, n° 66357/14, §§ 172-176. 

14 

 
 
                                                           
3.7.3.  Availability of all material evidence in due time — Article 7(3) 

Article 7(3) of the Directive provides that without  prejudice to  paragraph (1), access  to  the 
material evidence must be granted in due time to allow the effective exercise of the rights of 
the defence and at the latest upon submission of the merits of the accusation to the judgment 
of  a  court.  Where  further  material  evidence  comes  into  the  possession  of  the  competent 
authorities, access must be granted in due time to allow for it to be considered. 

The majority of Member States transposed the provision accurately. 

However, a number of discrepancies continue to exist in national jurisdictions. One Member 
State sets no time limit for access to the file, in a few others access is granted only after the 
pre-trial  investigation  has  been  terminated  and  the  act  of  indictment  has  been  adopted  or 
notified. In this context, the Court of Justice stated in the above-mentioned case Kolev24 that 
‘Article 7(3)of that Directive must be interpreted as meaning that it is for the national court 
to be satisfied that the defence has been granted a genuine opportunity to have access to the 
case materials, such access being possible, in some cases, after the lodging before the court 
of the indictment that indicates the trial stage of the proceedings, but before that court begins 
to  examine  the  merits  of  the  charges  and  before  the  commencement  of  any  hearing  of 
argument by that court, and after the commencement of that hearing but before the stage of 
deliberation where new evidence is placed in the file of the course of proceedings, provided 
that all necessary measures are taken by the court in order to ensure respect for the rights of 
defence and the fairness of the proceedings.’ 

Finally,  in  another  Member  State  access  at  pre-trial  stage  is  only  ensured  if  it  is  ‘in  the 
interests of justice on the facts  of the particular  case’. Finally, in  two jurisdictions no clear 
provision  is  made  for  access  to  material  evidence  and  questions  remain  as  to  when  and  to 
which extent access to the file is granted. 

3.7.4.  Derogation  from  the  right  to  access  all  material  evidence  following  a  judicial 

decision or decision subject to judicial review — Article 7(4) 

Under  Article  7(4)  of  the  Directive,  access  to  certain  materials  may  be  refused  by  way  of 
derogation from Article 7(2) and 7(3), if such access may lead to a serious threat to the life or 
the fundamental rights of another person or if such refusal is strictly necessary to safeguard 
an important public interest, such as where access could prejudice an ongoing investigation or 
seriously harm the national security of the Member State in which the criminal proceedings 
are instituted. Member States must ensure that, in accordance with procedures in national law, 
a  decision  to  refuse  access  to  certain  materials  under  this  paragraph  is  taken  by  a  judicial 
authority or is at least subject to judicial review. The derogation under Article 7(4) will apply, 
provided that it does not prejudice the right to a fair trial. 

The  assessment  of  national  implementing  measures  shows  that  Article  7(4)  is  one  of  the 
provisions with the highest level of disparities between Member States. Whereas 10 Member 

24 CJEU, 5 June 2018, Kolev a.o., C-612/15. 

15 

 
 
                                                           
States  allow  refusals  based  on  the  grounds  set  out  in  the  Directive,  others  apply  a  less 
restrictive approach. 

As regards a refusal of access to the file on the ground of a serious threat to the life or the 
fundamental rights of individuals, some Member States require a ‘serious danger to the life, 
health,  physical  integrity  or  freedom  of  a  person’,  or  ‘a  risk  to  individuals  and  a  serious 
violation  of  their  privacy’.  However,  in  other  jurisdictions  the  ‘risk’  for  individuals  is  not 
required to be serious. Some provide that ‘private interests or interests of other persons’ can 
be invoked. 

In several Member States access can be restricted because of ‘risks of pressure on or threat to 
victims, witnesses, investigators, experts or any other persons involved in the proceedings’. 

As regards refusing access  to  the file because of  the need to safeguard  an important  public 
interest, only few Member States explicitly refer to the need of safeguarding an ‘important’ 
public  interest,  but  generally  refer  to  a  ‘public  interest’  or  an  ‘interest  of  society’.  In  some 
Member States, the reason of ‘national security’ is considered as a ground for refusal, in one 
jurisdiction accompanied with ‘defence’ reasons. 

Many  Member  States  also  deny  access  where  it  could  prejudice  an  ongoing  investigation. 
National  laws  invoke  a  general  prejudice,  danger  or  damage  to  the  investigation  itself.  In 
some jurisdictions these grounds may also relate to other investigations. More general terms 
are  also  used,  such  as  ‘serious  reasons’  without  further  describing  what  those  reasons  may 
entail. 

Finally, the requirement that the decision to refuse access to documents be taken by a judicial 
authority or be at least subject to judicial review is observed by almost all Member States. A 
few Member States do not provide for judicial review at the stage of police investigation. In 
these cases, remedies are reviewed by the prosecutor or a superior prosecutor. 

3.7.5.  Free access to documentation — Article 7(5) 

Under Article 7(5) of the Directive, access to the materials of the case must be provided free 
of charge. 

Most  Member  States  transposed  this  requirement  accurately.  However,  conformity  issues 
have been found in a few Member States and often relate to the cost of copying the files. 

3.8.  Recording and remedies (Article 8) 

Article 8 requires Member States to record when information is provided to suspects and the 
accused. It also ensures that the failure or refusal to provide information in accordance with 
the Directive can be challenged. 

3.8.1.  Recording obligation — Article 8(1) 

Article  8(1)  of  the  Directive  obliges  Member  States  to  require  that  the  provision  of 
information to suspects or accused persons in accordance with Articles 3 to 6 of the Directive 

16 

 
 
should  be  noted  using  the  recording  procedure  specified  in  the  law  of  the  Member  State 
concerned. 

The majority of Member States transposed this provision in a conform manner. The record-
keeping generally includes registering the fact that information about the rights listed under 
Article  3  of  the  Directive  was  provided,  recording  the  provision  of  the  Letter  of  Rights  in 
criminal proceedings and the European arrest warrant proceedings as well as noting the fact 
and  the  extent  of  information  given  regarding  accusations.  Some  Member  States  lay  down 
general provisions regarding the duty of recording, others lay down specific clauses, or both 
general and more specific national provisions. 

Conformity  issues  arise  in  certain  Member  States  due  to  the  non-specificity  of  national 
provisions  and lack of  accuracy.  In  certain  Member States,  there is  no recording  obligation 
for specific types of criminal procedures or at certain stages of the criminal proceedings. 

3.8.2.   Procedure  for  appealing  against  the  failure  or  refusal  of  the  competent 

authorities to provide information — Article 8(2) 

Article  8(2)  of  the  Directive  lays  down  the  obligation  to  ensure  that  suspects  or  accused 
persons  or  their  lawyers  have  the  right  to  challenge,  in  accordance  with  procedures  in 
national  law,  the  possible  failure  or  refusal  of  the  competent  authorities  to  provide 
information in accordance with the Directive. 

Member  States  largely  transposed  this  provision  accurately.  Most  of  them  provide  for  a 
general  right  to  challenge  the  refusal  to  provide  information  or  relevant  omissions  of  the 
competent authorities. This also covers refusal or failure to provide information on rights in 
accordance with  the Directive. Other Member States have specific provisions  regarding the 
right to challenge such refusals or omissions. 

However, in a few Member States issues arise. For instance, the right to challenge the non-
provision of information  has not  been enacted in  national  law, or the  right to  challenge the 
possible  failure  or  refusal  of  the  competent  authorities  to  provide  information  covers  only 
certain rights or certain types of proceedings, while others are excluded. 

3.9.  Training (Article 9) 

In  accordance  with  Article  9  of  the  Directive,  Member  States  are  obliged  to  request  those 
responsible  for  the  training  of  judges,  prosecutors,  police  and  judicial  staff  involved  in 
criminal  proceedings  to  provide  appropriate  training  with  respect  to  the  objectives  of  the 
Directive. 

Overall, this provision has not been explicitly transposed by the majority of Member States. 
However,  their  national  frameworks  generally  include  soft-law  measures  ensuring  training 
programmes for judicial staff. 

17 

 
 
4.  CONCLUSIONS 

The  Directive  was  introduced  to  ensure  the  application  of  the  right  of  suspects  or  accused 
persons to information in criminal proceedings. By establishing common European minimum 
standards,  the  Directive  has  a  significant  impact  on  the  protection  of  suspects  or  accused 
persons in  Member States by providing  a more  consistent implementation  of the rights  and 
guarantees set out in Articles 47 and 48 of the Charter of Fundamental Rights and Article 6 of 
the  European  Convention  on  Human  Rights.  In  this  way,  the  Directive  contributes  to 
improving mutual trust among Member States as set out in the Roadmap for strengthening the 
procedural  rights  of  suspected  or  accused  persons  in  criminal  proceedings.  Overall,  the 
Directive has provided  EU added value by improving the protection of citizens involved in 
criminal  proceedings,  especially  in  some  Member  States  where  the  right  to  information 
(including the right of access to the file) did not previously exist or was not as detailed. 

The  extent  of  the  Directive’s  impact  on  Member  States  varies  according  to  the  national 
criminal  justice  systems  in  place.  The  evaluation  highlights  that  there  are  still  difficulties 
regarding  key  provisions  of  the  Directive  in  some  Member  States.  This  is  particularly  the 
case  as  regards  the  Letter  of  Rights  in  criminal  proceedings  and  European  arrest  warrant 
proceedings, the right to information about the accusation and the right to access to materials 
of the case. 

The evaluation also shows that there is currently no need to revise the Directive but that its 
application  can  be  further  improved  in  practice.  The  Commission  will  continue  to  assess 
Member  States’  compliance  with  the  Directive  and  will  take  every  appropriate  measure  to 
ensure conformity with its provisions throughout the European Union. 

18