REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings
Date: 2024-10-24
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: European arrest warrant, application of EU law, charge, child, children's rights, criminal proceedings, right to information, right to justice, rights of the defence, young person

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 24.10.2024  COM(2024) 489 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings                
 
 
Table of Contents 

1. 

INTRODUCTION .......................................................................................................................... 2 

2.  GENERAL ASSESSMENT ........................................................................................................... 3 

3.  SPECIFIC POINTS OF ASSESSMENT ........................................................................................ 6 

3.1. 

Scope (Article 2) and European Arrest Warrant proceedings (Article 17) ......................... 6 

3.2.  Definitions (Article 3) ......................................................................................................... 7 

3.3.  Right to information (Article 4) .......................................................................................... 8 

3.4.  Right of the child to have the holder of parental responsibility informed (Article 5) ......... 8 

3.5.  Assistance by a lawyer (Article 6) ...................................................................................... 9 

3.6.  Right to an individual assessment (Article 7) ................................................................... 12 

3.7.  Right to a medical examination (Article 8) ....................................................................... 13 

3.8.  Audiovisual recording of questioning (Article 9) ............................................................. 14 

3.9. 

Limitation to deprivation of liberty (Article 10) ............................................................... 14 

3.10.  Alternative measures (Article 11) ..................................................................................... 15 

3.11.  Specific treatment in the case of deprivation of liberty (Article 12) ................................. 15 

3.12.  Timely and diligent treatment of cases (Article 13) .......................................................... 17 

3.13.  Right to protection of privacy (Article 14) ....................................................................... 17 

3.14.  Right of the child to be accompanied by the holder of parental responsibility during the 

proceedings (Article 15) ................................................................................................... 18 

3.15.  Right of children to appear in person at, and participate in, their trial (Article 16) .......... 19 

3.16.  Right to legal aid (Article 18) ........................................................................................... 19 

3.17.  Remedies (Article 19) ....................................................................................................... 20 

3.18.  Training (Article 20) ......................................................................................................... 20 

3.19.  Data Collection (Article 21) .............................................................................................. 22 

3.20.  Costs (Article 22) .............................................................................................................. 22 

3.21.  Transposition (Article 24)  ................................................................................................ 22 

4.  APPLICATION OF ARTICLE 6 OF THE DIRECTIVE ............................................................. 23 

5.  CONCLUSION ............................................................................................................................. 25 

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1.  INTRODUCTION 

Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused 
persons in criminal proceedings1 (the ‘Directive’) aims to establish procedural safeguards to 
ensure  that  children,  meaning  persons  below  the  age  of  18,  who  are  suspects  or  accused 
persons in criminal proceedings, are able to understand and follow those proceedings as well 
as  to  exercise their right to  a fair trial effectively. It  also  aims  to  prevent  recidivism and  to 
foster the social integration of children in conflict with the law. 

The safeguards set out in this Directive are based on the right to a fair trial and the right of 
defence  as  enshrined  in  Articles 47  and  48  of  the  Charter  of  Fundamental  Rights  of  the 
European Union2 in conjunction with Article 24 on the rights of the child, which establishes 
the principle that the child’s best interests  must be a primary consideration  in all actions in 
relation to children.  

The  Directive  is  the  fifth  instrument  adopted  under  Article  82(2)(b)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU),  which  provides  the  legal  basis  for  adopting 
minimum rules on ‘the rights of individuals in criminal procedure’. It applies in 25 Member 
States3. 

The EU has adopted the following other five Directives focusing on the rights of suspects and 
accused persons: 

• 

• 

• 

• 

the Directive on the right to interpretation and translation4; 

the Directive on the right to information5; 

the Directive on the right of access to a lawyer and to communicate with third persons 
while deprived of liberty6; 

the Directive on the strengthening of certain aspects of the presumption of innocence 
and of the right to be present at the trial7; and 

• 

the Directive on legal aid8. 

1 OJ L 132, 21.5.2016, p. 1–20. 
2 OJ C 326, 26.10.2012, p. 391–407. 
3 In accordance with Protocol No 21 and Protocol No 22, respectively, Ireland and Denmark are not bound by 
the Directive. Therefore, they are not considered in this assessment. 
4  Directive  2010/64/EU  on  the  right  to  interpretation  and  translation  in  criminal  proceedings,  OJ  L  280, 
26.10.2010, p. 1. 
5 Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
6  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. 
7 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 in criminal proceedings, OJ L 65, 11.3.2016, p. 1. 
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;  corrigendum:  OJ  L  91, 
5.4.2017, p. 40. 

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These  six  procedural  rights  Directives  serve  to  strengthen  Member  States’  trust  in  each 
other's  criminal  justice  systems  and  thereby  to  improve  mutual  recognition  of  decisions  in 
criminal matters. 

The  European  Commission  has  already  published  implementation  reports  for  five  of  the 
directives9 in accordance with its reporting requirements under those acts. Article 25 of the 
present  Directive  similarly  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 to comply with this Directive, including an evaluation of the application 
of Article 6, accompanied, if necessary, by legislative proposals. 

For the purpose of compiling information on the practical application of Article 6, as well as 
to, inter alia, gather information about the implementation of provisions of the Directive that 
require  practical 
transposition,  a 
questionnaire  was  sent  out  to  the  Member  States.  Replies  were  received  by  20  of  the  25 
participating Member States. 

implementation  measures 

legislative 

rather 

than 

This  report  is  therefore  based  on  the  information  provided  by  Member  States  to  the 
Commission in the context of the notification of national measures transposing the Directive 
and corresponding explanatory documents as well as the additional information provided in 
response  to  the  questionnaire  to  the  extent  that  such  additional  information  was  indeed 
submitted.  Information  is  also  drawn  from  research  conducted  by  the  European  Union 
Agency  for  Fundamental  Rights10  and  from  Commission-funded  studies  by  external 
stakeholders11. 

This  report  will  also  highlight  provisions  of  the  Directive  that  require  the  adoption  of 
practical implementation measures and will provide an overview of the information about the 
adoption of such measures provided by the Member States. 

2.  GENERAL ASSESSMENT 

According  to  Article  24  of  the  Directive,  Member  States  had  to  bring  into  force  the  laws, 
regulations and administrative provisions necessary to comply with the Directive by 11 June 
2019 and were obliged to immediately inform the Commission thereof.  

The  approach  to  the  transposition  of  the  Directive  varied  between  Member  States,  due  to 
structural differences between their justice systems. Three general types of approaches can be 
identified.  A  first  group  of  Member  States  have  adopted  specific  legal  instruments  on 

9 COM(2018) 857 final, COM(2018) 858 final, COM(2019) 560 final, COM(2021) 144 final and COM(2023) 
44 final.  
10  Study  by  the  European  Union  Agency  for  Fundamental  Rights  (2022),  Children  as  suspects  or  accused 
persons in criminal proceedings — procedural safeguards, available at Children as suspects or accused persons 
in  criminal  proceedings  —  procedural  safeguards  |  European  Union  Agency  for  Fundamental  Rights 
(europa.eu). 
11  See  for  example:  LA  Child  Project,  ‘Legal  aid  for  children  in  criminal  proceedings:  Report  on  current 
European  national  frameworks’,  available  at  https://lachild.eu/wp-content/uploads/2021/06/FINAL-LA-Child-
European-report-EN.pdf;  CLEAR-Rights  Project,  ‘Practices  and  gaps  in  legal  aid  systems  for  children  in 
Belgium,  France,  Hungary,  Romania  and  The  Netherlands’,  available  at  https://www.defenceforchildren.nl/ 
media/6430/clear-rights_eu-review_en_fv.pdf.  

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procedural safeguards for children, such as in the form of a juvenile justice act, which is set 
up  as  lex  specialis  to  general  rules  of  criminal  procedure  applicable  to  all  suspects  and 
accused  persons.  A  second  group  of  Member  States  have  opted  for  child-specific 
amendments to their general procedural rules i.e. their general codes of criminal procedure.  
A third group of Member States provide rules on criminal proceedings involving children 
in  both  their  general  Codes  of  Criminal  Procedure  as  well  as  in  other  legal  instruments 
specific to proceedings against children who have committed an act qualifying as a criminal 
offence,  without  such  proceedings  themselves  qualifying  as  criminal  proceedings  under 
national  law.  In  these  Member  States,  children  are  subject  to  the  general  rules  of  criminal 
procedure only by way of exception in particularly serious cases or already from the age of 
17 rather than 18. In all other cases, children who committed an act qualifying as a criminal 
offence are subject to proceedings which are not recognised as  criminal  proceedings by the 
respective  Member  States.  These  Member  States  therefore  do  not  acknowledge  the 
applicability of the Directive to such proceedings. Based on the Engel criteria developed by 
the  European  Court  of  Human  Rights  as  applied  by  the  Court  of  Justice  in  its  case  law12, 
however, it can be considered that these proceedings qualify as criminal proceedings falling 
within  the  scope  of  the  Directive.  In  some  of  these  Member  States,  this  has  resulted  in 
substantive  issues  of  compliance  of  the  rules  of  procedure  applicable  to  children  in  such 
proceedings with the requirements of the Directive.   

Bulgaria, Cyprus, Czechia, Germany, Greece, Croatia and Malta13 failed to notify transposing 
measures  by  the  required  deadline.  In  June  2019,  the  Commission  therefore  launched 
infringement  proceedings  under  Article 258  TFEU  against  these  seven  Member  States. 
Cyprus  furthermore  received  a  Reasoned  Opinion  for  continued  non-communication  of 
transposing measures in May 2020. Transposing measures were subsequently notified by all 
seven of these Member States. 

Compliance issues were  identified with regards to the complete and/or correct transposition 
of the Directive in all Member States. Of the seven cases against Member States for complete 
non-communication of transposing measures opened in June 2019, four cases, against Malta, 
Cyprus, Croatia and Czechia14, have been closed to date. The other three Member States are 
at  the  stage  of  having  received  an  additional  Letter  of  formal  notice15  for  partial  non-
communication of transposing measures highlighting remaining gaps in transposition. Since 
July 2023, the Commission has furthermore opened infringement proceedings for complete16 
or  partial17  non-communication  of  transposing  measures  against  all  remaining  18 Member 

12 For the European Court of Human Rights see Engel and Others v. the Netherlands, 8 June 1976, paras. 80 to 
82 and subsequent case-law; For the European Court of Justice see e.g. Judgment of the Court (Grand Chamber) 
of 5 June 2012, Bonda, Case C-489/10, EU:C:2012:319, paras. 37ff and subsequent case law. 
13 Cyprus (ref. no. INFR(2019)0175); Germany (ref. no. INFR(2019)0183); Czechia (ref. no. INFR(2019)0180); 
Greece (ref. no. INFR(2019)0191); Croatia (ref. no. INFR(2019)0203); Malta (ref. no. INFR(2019)0227).  
14 Cyprus also received another Additional reasoned opinion before the case was closed.  
15 Germany, Bulgaria, Greece. 
16 Luxembourg (ref. no. INFR(2024)2002); Spain (ref. no. INFR(2023)2176); Italy (ref. no. INFR(2023)2090).  
17 Poland (ref. no. INFR(2023)2127); Sweden (ref. no. 2023/2110); Hungary (ref. no. 2023/2109); Slovakia (ref. 
no. 2023/2108); Romania (ref. no. INFR(2023)2107); Austria (ref. no. INFR(2023)2106); Netherlands (ref. no. 
INFR(2023)2089); Lithuania (ref. no. 2023/2074); Slovenia (ref. no. 2021/2075); Estonia (ref. no. 2021/2076); 
Latvia  (ref.  no.  INFR(2023)2124);  France  (ref.  no.  INFR(2023)2125);  Finland  (ref.  no.  INFR(2023)2126); 
Belgium (ref. no. INFR(2023)2136); Portugal (ref. no. INFR(2023)2091).  

4 

 
 
 
States.  Three  of  these  infringement  proceedings  could  already  be  closed  again18.  Active 
infringement  proceedings  for  partial  failure  to  communicate  national  measures  transposing 
the  Directive  pursuant  to  Article  260(3)  TFEU  are  therefore  currently  ongoing  against 
18 Member  States.  As  regards  the  conformity  of  notified  transposing  measures  with  the 
Directive, a study and preliminary assessment have been carried out. The Commission will, 
in  due  time,  also  take  the  necessary  steps  to  address  the  shortcomings  identified  in  this 
context by opening infringement proceedings pursuant to Article 258 TFEU. 

Overall, the extent and nature of the shortcomings identified vary. Three types of compliance 
issues should be specifically highlighted. The first type are compliance issues with regards to 
certain  provisions  of  the  Directive  that  can  be  considered  significant  due  to  the  number  of 
Member States whose transposition shows the same shortcoming.  

The second type of notable compliance issues can be considered particularly problematic due 
to the scope of their impact, as affected children are effectively excluded from enjoying the 
majority  of  or  even  all  of  the  rights  and  safeguards  to  which  they  are  entitled  under  the 
Directive.  This  type  of  issues  arise,  in  particular,  vis-a-vis  the  incorrect  transposition  of 
Article 2, setting out the scope of the Directive and the incorrect transposition of Article 17 of 
the  Directive,  which  aims  to  ensure  that  the  rights  referred  to  in  Articles 4,  5,  6  and  8, 
Articles 10  to  15  and  Article 18  of  the  Directive  apply  mutatis  mutandis,  in  respect  of 
children who are requested persons. 

The third type of compliance issues relate to a lack of attention to the difference between the 
scope  and  nature  of  certain  key  procedural  rights  standards  for  adult  suspects  and  accused 
persons and their scope and nature as foreseen by the Directive for children. Article 6 of the 
Directive regulating assistance by a lawyer as well as Articles 4 and 5 regulating information 
rights, are particularly affected by a lack of recognition (and therefore lack of transposition) 
of the added legal requirements on Member States vis-à-vis children compared to adults. 

Such  failure  to  fully  comply  with  the  provisions  of  the  Directive  negatively  affects  the 
effectiveness of the rights provided for therein. The Commission will  continue taking every 
appropriate  measure  to  remedy  it,  including  infringement  proceedings  pursuant  to  Articles 
258/260(3) TFEU. 

In this context, it is also noted that the Court of Justice of the European Union (the Court of 
Justice)  recently  issued  its  first  judgement  on  the  interpretation  of  the  Directive  in  case  C-
603/2219.  The  case  concerned  the  application  of  the  Directive  to  criminal  proceedings  in 
Poland against three children (17 years of age). 

18 Romania, Slovenia, Lithuania.  
19 Judgement of 5 September 2024, Case C-603/22, M.S. and others, ECLI:EU:C:2024:685. 

5 

 
 
 
 
3.  SPECIFIC POINTS OF ASSESSMENT 

3.1. Scope (Article 2) and European Arrest Warrant proceedings (Article 17) 

Article 2(1)  determines  the  scope  of  the  Directive,  which  applies  to  children  who  are 
suspects  and  accused  persons  in  criminal  proceedings  until  those  proceedings  have  been 
finally concluded. This  means that the Directive, in principle, applies immediately once the 
child de facto becomes a suspect, which can, for instance, be the case where they have been 
implicated as the alleged perpetrator of  an  offence by a witness or a victim, irrespective of 
whether they have already been recognised as a suspect or accused person through a formal 
act  by  the  authorities  or  made  aware  of  that  they  are  suspected  or  accused  of  having 
committed a criminal offence. This particularly wide scope of the Directive is important with 
regards to certain safeguards, such as the right to privacy, that are meant to take effect even 
before  the  child  comes  directly  into  contact  with  the  investigative  authorities  and  are 
informed of any suspicion against them. It must also be noted, that while some provisions of 
the Directive, such as those on assistance by a lawyer, are meant to apply only once the child 
has been made aware that they are  a suspect  or  accused person, a  failure by the  competent 
authorities to so inform the child even though they do in fact already suspect them, does not 
invalidate the child’s right to enjoy their rights under the Directive from such time as they are 
de facto considered a suspect. This reasoning has been confirmed by the Court of Justice in 
the context of the application of Directive 2012/13/EU and ensures that any oversight by the 
competent authorities as regards the notification of a suspect of their status in the proceedings 
does not deprive them of their rights.  

More  than  a  third  of  the  Member  States,  however,  have  not  given  the  same  scope  to 
protections at national level. Some Member States only apply the Directive, or at least certain 
provisions  thereof,  to  children  once  they  have  been  formally  recognised  as  a  suspect  or  an 
accused person (in some Member States subsumed under the notion of ‘defendant’) through 
an official act or are directly in contact with the investigating authorities, for instance during 
police  questioning.  Others  apply  the  regular  rules  of  criminal  procedure  which  do  not 
specifically protect children in cases where children committed a particularly serious crime or 
generally from the age of 17 onwards. Therefore, in these Member States, not all children, in 
principle,  benefit  from  the  rights  and  safeguards  provided  for  in  the  Directive.  Compliance 
with  the  Directive  in  these  cases  is  only  incidental  where  similarities  exist  between  certain 
safeguards  for  adults  and  those  for  children  set  out  in  the  Directive.  Overall,  compliance 
issues in the transposition of the scope of the Directive are particularly problematic as they 
can  effectively  deprive  a  large  number  of  children  of  all  of  the  Directive’s  protections  at 
once. It is noted that many issues in the transposition of specific substantive provisions of the 
Directive link back to the incorrect transposition of its scope.  

Those  Member  States  that  do  not  apply  national  safeguards  to  children  before  they  are 
formally  recognised  as  suspects  or  accused  persons  have  also  shown  issues  in  the 
transposition  of  paragraph 4  of  Article 2.  Article  2(4)  makes  the  Directive  applicable  to 
children who may, for instance, initially be considered witnesses but make self-incriminatory 
statements  during  questioning  and  thereby  become  suspects.  In  such  cases,  as  clarified  in 
Recital  29,  questioning  must  be  suspended  until  the  child  is  made  aware  that  they  are  a 
suspect  or  accused  person  and  is  assisted  by  a  lawyer.  These  measures  are  necessary  to 

6 

 
 
ensure, for instance, that  such children are  aware of and can effectively  exercise their right 
not to incriminate themselves and the right to remain silent. 

In  accordance  with  Article 2(2),  the  Directive  also  applies  to  children  who  are  arrested 
following  an  extradition  request  by  another  Member,  such  as  through  a  European  Arrest 
Warrant, from the time of their arrest in the executing Member State. This extension of the 
scope  of  the  Directive  is  explained  in  more  detail  in  Article 17  of  the  Directive,  which 
specifies  those  rights  and  safeguards  which  should  apply  equally  to  all  children  who  are 
suspects or accused persons, whether they are awaiting extradition or not. 

More  than  a  third  of  all  Member  States  did  not  expressly  transpose  Article 2(2)  and  in 
consequence failed to extend some of the necessary rights set out in Article 17, such as the 
right to be accompanied by a holder of parental responsibility to children who are awaiting 
surrender.  

Based  on  Article 2(3),  most  rights  of  the  Directive  also  continue  to  apply  to  children  who 
come  of  age  during  the  criminal  proceedings  against  them  where  the  competent  authorities 
consider  that  it  would  be  appropriate  in  the  light  of  all  the  circumstances  of  the  case, 
including  the  maturity  and  vulnerability  of  the  person  concerned.  From  the  time  the  young 
person  turns  21,  Member  States  may  decide  to  no  longer  apply  the  Directive,  even  if  the 
proceedings are still ongoing. Compliance issues have been identified in a significant number 
of Member States in relation to this provision. 

In some Member States an authority other than a court having jurisdiction in criminal matters 
has  competence  for  imposing  sanctions  or  deprivation  of  liberty  cannot  be  imposed  as  a 
sanction in relation to relatively minor offences, such as road traffic offences, which might be 
established following a traffic control. Article 2(6) provides, that in such cases, in respect of 
minor  offences  and  offences  for  which  deprivation  of  liberty  cannot  be  imposed  as  a 
sentence, the Directive applies only to the proceedings before a court having jurisdiction in 
criminal matters and where the child is deprived of liberty. 

A  significant  number  of  Member  States  have,  however,  failed  to  make  the  distinction 
between proceedings for minor offences before courts having jurisdiction in criminal matters 
and those before other authorities or have do not guarantee the rights of the Directive where 
deprivation of liberty can be imposed as a sanction for specific minor offences. They do not 
extend national safeguards to children suspected or accused of minor offences at all. 

3.2. Definitions (Article 3) 

Article 3  of  the  Directive  defines  key  concepts,  such  as  the  notions  of  ‘child’,  ‘holder  of 
parental responsibility’ and ‘parental responsibility’. It also provides that where it is uncertain 
whether  a person has reached the  age of 18, that  person shall be presumed to  be a child;  a 
requirement  which  a  third  of  all  Member  States  have  failed  to  expressly  transpose  for  the 
purpose of criminal proceedings. 

3.3. Right to information (Article 4) 

Article 4(1) prescribes which information a child who is suspected or accused of a criminal 
offence must receive and at which specific points in time this information is to be provided. 
In  addition  to  their  rights  in  accordance  with  Directive  2012/13/EU,  children  should  thus 

7 

 
 
promptly be made aware of general aspects of the conduct of the proceedings, such as about 
the next procedural steps. Almost half of the Member States do not explicitly provide for this. 

Further information to be provided promptly concerns legal aid and other rights enshrined in 
Articles 5,  6,  14,  15(4)  of  the  Directive,  which  can  and  should  be  exercised  from  an  early 
stage of the proceedings. Information on the right to an individual assessment as well as other 
rights  enshrined  in  Articles 8,  10,  11,  15(1),  16,  and  19,  which  come  into  play  at  different 
points  in  time,  depending  on  the  different  legal  systems,  should  be  given  at  the  earliest 
appropriate  stage.  Finally,  there  is  some  information  which  must  be  provided  upon 
deprivation of liberty, namely information in respect of the right to specific treatment during 
deprivation of liberty, as provided for in Article 12 of the Directive. 

Overall, there are only a handful of Member States that require their competent authorities to 
provide all the required  information  progressively  at  the different  stages  of the proceedings 
indicated in the Directive. In most Member States, the scope of information to be provided is 
more  limited  or  information  on  applicable  procedural  rights  and  safeguards  is  given  all  at 
once.  The  latter  can  easily  overwhelm  the  child.  Indeed,  the  purpose  of  the  staggered 
provision  of  information  in  the  Directive  is  mainly  to  ensure  that  children  are  able  to  fully 
benefit  from  crucial  information  about  specific  rights  exactly  when  those  rights  become 
applicable or relevant. 

Many  Member  States  also  do  not  explicitly  require  competent  authorities  to  provide 
information  to  children  in  simple  and  accessible  language  as  required  by  paragraph 2  of 
Article 4. Others have failed to formally introduce a specifically adapted letter of rights for 
children which will include a reference to all of their rights under the Directive as they have 
been transposed into national law, as required by paragraph 3.  

In  this  context  it  is  important  to  note,  that  when  consulted  on  this  matter,  some  of  these 
Member States  indicated that specific letters  of rights  for children  have  been drawn up and 
are used in practice, yet  no corresponding obligation has been transposed into national law, 
which constitutes a compliance issue.  

3.4. Right  of  the  child  to  have  the  holder  of  parental  responsibility  informed 

(Article 5) 

As Recital 22 of the Directive recalls, Member States should inform the holder or holders of 
parental responsibility (both parents, in principle, count as holders of parental responsibility) 
about  the  procedural  rights  of  the  child.  The  information  should  be  provided  as  soon  as 
possible and in such detail as is necessary to safeguard the fairness of the proceedings and to 
allow  the  holder(s)  of  parental  responsibility  to  support  the  child  in  effectively  exercising 
their  rights.  This  principle  is  enshrined  in  Article  5(1)  of  the  Directive,  but  has  not  been 
transposed in compliance with the Directive in a majority of Member States.  

Some Member States failed to distinguish between the obligation to inform the holder(s) of 
parental responsibility of the child’s rights under the Directive and the obligation to inform 
them  that  the  child  has  been  deprived  of  liberty.  The  latter  is  enshrined  in  Article  5(2)  of 
Directive  2013/48/EU,  not  in  the  Directive.  However,  there  are  also  indirect  compliance 
issues.  These  are  linked  to  the  incorrect  transposition  of  Article  4  on  the  child’s  right  to 

8 

 
 
information where in some Member States, as noted above, national law does not require the 
child to be given all the information they should be given in accordance with the Directive. 
The holder(s) of parental  responsibility or another appropriate adult nominated by the child 
and  accepted  as  such  by  the  competent  authority  in  accordance  with  paragraph 2  of 
Article 5  are  generally  only  required  to  be  given  the  same  (insufficient)  information  as  the 
child. This gives rise to an indirect compliance issue in many Member States. 

Overall,  compliance  issues  in  the  transposition  of  Article  5(2)  concerning  the  appointment 
and provision of information to another appropriate adult have been identified in 21 Member 
States.  In  addition  to  the  indirect  compliance  issue  linked  to  Article  4,  compliance  issues 
follow, inter alia, from the lack of precision in the transposition of the strictly limited grounds 
for derogating from the primary right of the holder(s) of parental responsibility to receive the 
information  on  the  one hand  or  the  lack  of  recognition  of  the  figure  of another  appropriate 
adult appointed by the child as a party equal to that of a holder of parental responsibility in 
terms of procedural rights and privileges on the other.  

The former issue also feeds into compliance issues noted for the transposition of Article 5(3) 
of the Directive, which provides for the procedure to be followed where the circumstances for 
withholding information from the holder(s) of parental responsibility cease to exist. 

3.5. Assistance by a lawyer (Article 6) 

Article 6(1)  recalls  and  reinforces  the  right  of  access  to  a  lawyer  as  enshrined  in  Directive 
2013/48/EU.  While there are currently  9 infringements  open against Member States  for the 
incorrect  transposition  of  the  Directive  2013/48/EU20,  none  of  the  notified  measures 
transposing  this  Directive  were  identified  as  prejudicing  this  right.  Nevertheless,  the 
transposing  measures  notified  by  Member  States  in  many  instances  fall  short  of  the 
requirements of the present Directive as set out in the following paragraphs of Article 6.  

Paragraph 2 of Article 6 establishes a general obligation for Member States to ensure that 
children  are  assisted  by  a  lawyer  in  a  way  which  allows  them  to  exercise  the  rights  of  the 
defence effectively. Assistance by a lawyer is to be understood in this context as legal support 
and representation by a lawyer during the criminal proceedings. Where the child or the holder 
of parental responsibility have not appointed a lawyer themselves, the competent authorities 
must therefore do so.  

The  detailed  procedural  requirements  which  aim  to  ensure  that  assistance  by  a  lawyer  is 
guaranteed in such a way as to make the effective exercise of defence rights possible, are set 
out in paragraphs 3 to 8. These have, however, not all been transposed in compliance with the 
Directive  in  many  Member  States  (as  discussed  in  further  detail  below).  Therefore, 
compliance  with  the  general  principle  set  out  in  paragraph  2  of  Article  6  is  overall  not 
guaranteed in all circumstances in a majority of Member States legal systems either.  

More  than  half  of  the  Member  States  have,  for  instance,  not  achieved  a  fully  compliant 
transposition  of  paragraph  3  of  Article  6,  which  requires  Member  States  to  ensure  that 

(INFR(2021)2107), 

20  Czechia 
(INFR(2023)2007),  Slovakia 
(INFR(2023)2008),  Slovenia  (INFR(2023)2010),  Poland  (INFR(2024)2073),  Bulgaria  (INFR(2024)2003), 
Estonia (INFR(2021)2135),   Hungary (INFR(2021)2137).  

(INFR(2023)2006),  Netherlands 

Italy 

9 

 
 
 
children are assisted by a lawyer without undue delay once they are made aware that they are 
suspects  or  accused  persons.  The  Directive  names  four  possible  earliest  points  in  the 
proceedings at which legal assistance should set in. 

In some of these non-compliant Member States, legal assistance is not yet ensured where the 
child is clearly already a suspect in the investigation, but has not yet been designated as such, 
because  the  notion  of  a  suspect  is  not  recognised  in  the  particular  legal  system.  This  links 
back  to  the  incorrect  transposition  of  the  scope of  the  Directive21.  Legal  assistance  without 
undue  delay  is  also  not  ensured  in  all  cases  in  those  Member  States  where  proceedings 
against  a  child  can  be  governed  by  the  regular  instead  of  child  specific  rules  of  criminal 
procedure. In other Member States still, it may be ensured that a lawyer is appointed for the 
child, but there is no legal certainty as to whether the lawyer must be present and effectively 
assist the child during the particular acts specified in the Directive without the child having to 
request their presence/participation. In some legal systems it is the lawyers that have the right 
to decide whether their presence is necessary or not and therefore decline to be present, while 
the Directive provides that it is the child’s right to have the lawyer there. Similar compliance 
issues affect the transposition of Article 6(4), which stipulates that as part of the assistance 
by a lawyer to be ensured, Member States are required to ensure that children have the right 
to meet with a lawyer in private prior to questioning. It must also be ensured that a lawyer is 
present  and  can  effectively  participate  during  questioning  and  that  children  are,  as  a 
minimum,  assisted  by  a  lawyer  during  certain  investigative  or  evidence-gathering  acts 
provided for in the Directive. In many Member States, the presence and active assistance by a 
lawyer is not always required in all of these situations. Some, for instance, do not guarantee a 
personal meeting with the lawyer prior to questioning. 

Article 6(5)  safeguards  the  confidentiality  of  communication  between  children  and  their 
lawyer, in whichever form, such as meetings, written correspondence or communication via 
telephone. However, not all Member States explicitly extend the scope of confidentiality to 
all kinds of communication.  

The  right  to  assistance  by  a  lawyer  is,  however,  not  absolute.  The  Directive  foresees  two 
grounds for derogating from the rules on assistance by a lawyer, one based on proportionality 
(Article 6(6)) and the other based on exceptional and temporary necessity (Article 6(8)).  

Where  compliance  with  the  right  to  a  fair  trial  allows  for  it,  Member  States  may  thus,  in 
accordance  with  Article 6(6),  derogate  from  providing  assistance  by  a  lawyer,  where  this 
would  not  be  proportionate  in  the  light  of  the  circumstances  of  the  case.  A  derogation  on 
proportionality grounds thus requires a case-by-case assessment, taking into account, but not 
solely prefaced on, the seriousness of the alleged criminal offence, the complexity of the case 
and the measures that could be taken in respect of such an offence. The child's best interests 
must in any case always be a primary consideration and children must still be assisted by a 
lawyer  when  they  are  brought  before  a  competent  court  or  judge  in  order  to  decide  on 
detention  as  well  as  during  detention.  Importantly,  deprivation  of  liberty  must  also  not  be 
imposed as a criminal sentence where a lack of assistance by a lawyer has affected the child’s 
ability to effectively exercise their rights of defence.  

21 See section 3.1. 

10 

 
 
 
A majority of Member States made use of this possibility in some form, but not necessarily in 
full compliance with the Directive. For instance, many fail to limit the circumstances under 
which this proportionality-based derogation is limited to the same extent as in the Directive. 
Notably,  some  Member  States  do  not  require  a  true  case-by-case  assessment  taking  into 
account all the circumstances of the case. They instead apply the derogation option based on 
generic  criteria,  such  as  the  seriousness  of  the  offence,  alone.  This  is  not  sufficient  to 
guarantee  the  best  interests  of  the  child  as  there  may  be  circumstances  linked  to  a  child’s 
particular  vulnerabilities  or  level  of  maturity  that  affect  their  ability  to  properly  understand 
and  participate  in  the  proceedings  and  would  therefore  speak  against  a  derogation  from 
assistance by a lawyer, even where certain generic criteria are fulfilled.  

Member States may also not derogate from ensuring assistance by a lawyer just because the 
lawyer does not appear in time for a specific investigative or evidence-gathering act, such as 
questioning,  for  which  assistance  must  normally  be  ensured.  Article 6(7)  of  the  Directive 
provides that in such cases the competent authorities must postpone the act for a reasonable 
period  of  time  in  order  to  allow  for  the  arrival  of  the  lawyer.  Where  the  child  has  not 
nominated a lawyer, the authorities should postpone the act until they have arranged a lawyer 
for the child.  

As  noted  in  the  context  of  the  discussion  on  paragraphs 3  and 4,  however,  some  Member 
States do not strictly require a child to be assisted by a lawyer in all cases provided for in the 
Directive. This also affects the transposition of paragraph 7 of Article 6.   

As regards necessity-based temporary derogations from the requirement to ensure assistance 
by  a  lawyer,  Article 6(8)  allows  Member  States,  in  exceptional  circumstances,  and  only  at 
the  pre-trial  stage,  to  temporarily  conduct  investigative  or  evidence-gathering  acts  in  the 
absence  of  a  lawyer  for  compelling  reasons  set  out  in  the  Directive.  This  includes,  for 
instance, an urgent need to avert serious adverse consequences for the life, liberty or physical 
integrity of a person or to secure important evidence regarding a serious criminal offence. Of 
course,  such  a  derogation  may  also  only  be  applied  where  an  assessment  of  the  particular 
circumstances  of  the  individual  case,  including  as  regards  any  particular  vulnerabilities  the 
child  may  have,  justifies  it,  taking  into  account  the  child’s  best  interests.  Importantly,  any 
decision to apply such a derogation must be taken by a judicial authority or must be subject to 
judicial review.  

A large majority of Member States provide for such a derogation option, but not necessarily 
in  full  compliance  with  the  Directive.  Some  foresee  broader  grounds  for  a  temporary 
derogation or fail to account for the ‘urgency’ requirement established by the Directive. This 
is  problematic,  since  such  derogations  from  assistance  by  a  lawyer  always  carry  a  risk  of 
prejudicing the child’s effective exercise of their rights of defence and should only be applied 
within  strict  limitations.  In  particular,  children  may  inadvertently  incriminate  themselves, 
either because they have not fully understood the extent of their rights to remain silent and 
not  to  incriminate  themselves  or  because  they  feel  intimidated  and  pressured  to  respond  to 
questions.  

3.6. Right to an individual assessment (Article 7) 

In  criminal  proceedings  against  children,  it  is  of  crucial  importance  for  them  to  be 
individually  assessed  to  identify  their  specific  needs  in  terms  of  protection,  education, 

11 

 
 
training and social integration. This is provided for in paragraphs 1 and 2 of Article 7. As 
specified in paragraph 2, the individual assessment must, in particular, take into account the 
child's  personality  and  maturity,  their  economic,  social  and  family  background,  and  any 
specific  vulnerabilities  that  they  may  have,  such  as  learning  disabilities  or  communication 
difficulties.  

The  results  of  the  assessment  should  never  be  used  as  a  form  of  unofficial  contextual 
‘evidence’  against  them,  but  should  only  be  used  to  determine,  in  accordance  with 
paragraph 4 of Article 7, if and to what extent they would need special measures during the 
criminal proceedings, the extent of their criminal responsibility and the appropriateness of a 
particular penalty or educative measure.  

National  rules  on  the  conduct  of  individual  assessments  and  their  purpose  are  not  in 
compliance  with  the  Directive  in  at  least  half  of  the  Member  States.  As  regards  the 
transposition  of  the  personal  scope  of  the  right  to  an  individual  assessment,  a  compliance 
issue arises in Member States that do not require all children to be individually assessed, such 
as those above the age of 17, or do not foresee individual assessments in all types of cases, 
such  as  those  in  which  the  proceedings  are  governed  by  the  regular  rules  of  criminal 
procedure instead of child specific ones. This links back to the incorrect transposition of the 
scope of the Directive22. Furthermore, some Member States made the individual assessment 
as a rule optional instead of obligatory, to be carried out at the discretion of the prosecution. 
In such cases, there is no legal certainty that the individual assessment will always be carried 
out  where  required  by  the  Directive,  even  where  non-binding  guidance  encourages 
prosecutors to abide by its principles. Furthermore, in some Member States, the substantive 
scope  of  the  assessment  to  be  carried  out  is  more  limited  than  foreseen  by  the  Directive. 
Often it is also not regulated how all necessary and relevant information will be collected in 
cases  where  this  has  not  already  been  done  by  other  relevant  authorities,  such  as  child 
protective services. 

As regards the purpose of the individual assessment and its role in decision-making through 
the  criminal  proceedings,  Member  States  frequently  failed  to  make  express  provisions  in 
national  law.  Where  a  purpose  is  set  out  in  national  law,  it  is  mostly  limited  to  informing 
decisions  on  sentencing.  Where  the  results  of  an  individual  assessment  are  not  taken  into 
account in all main decisions affecting the child throughout the proceedings, its function as a 
key  tool  for  ensuring  that  the  proceedings  will  be  child-friendly  and  guided  by  the  child’s 
best interests is severely limited.  

To ensure that the results of the individual assessment can, in practice, positively inform key 
decisions  taken  vis-à-vis  the  child  already  during  the  pre-trial  stage,  paragraph 5  provides 
that it should be carried out at the earliest appropriate stage of the proceedings and subject to 
paragraph 6  at  the  latest  before  the  formal  indictment  is  presented.  Only  in  exceptional 
circumstances,  such  as  where  the  child  is  detained  and  awaiting  the  individual  assessment 
report  would  unnecessarily  prolong  that  detention,  can  the  assessment  be  presented  only  at 
the beginning of the trial hearing before a court. Recital 38 explains that the appropriateness 
and effectiveness of the measures or decisions that are taken before an individual assessment 
is carried out could then be re-assessed when the individual assessment becomes available. 

22 See section 3.1. 

12 

 
 
 
While most Member States provide for the individual assessment to be available at the latest 
prior  to  indictment  or  at  least  by  the  beginning  of  the  trial  hearings  before  a  court,  the 
majority of transposing measures do not further specify this earliest appropriate point in time.  

Even where individual assessments are conducted at the earliest appropriate stage, they may 
lack in quality as very few Member States explicitly require the child, and their holder(s) of 
parental responsibility, where appropriate, to be closely involved in the assessment or for the 
assessment  to  be  updated  throughout  the  proceedings,  where  there  is  cause,  as  required  by 
paragraphs 7 and 8 of Article 7.  Furthermore, in some Member States  it is not effectively 
regulated by whom and from which sources necessary/relevant information will be collected 
in  cases  where  no  information  on  the  child  and  their  circumstances  is  already  readily 
available  from  other  relevant  authorities,  such  as  child  protective  services.  This  affects 
compliance  with  the  requirement  for  individual  assessments  to  be  carried  out  by  qualified 
personnel, following, as far as possible, a multidisciplinary approach in those Member States. 
In accordance with Article 7(9) Member States may derogate from the obligation to carry out 
an  individual  assessment  where  this  is  compatible  with  the  child's  best  interests  and 
warranted taking into account the specific circumstances of the case, such as whether or not 
the child has, in the recent past, already been the subject of an individual assessment. While 
most  of  those  Member  States  that  chose  to  provide  for  this  derogation  option  did  so  in 
compliance with the Directive, a few do not legally require a case-by-case assessment for the 
purpose of its application. 

3.7. Right to a medical examination (Article 8) 

In order to safeguard the health and personal integrity of a child who is deprived of liberty, 
Article 8(1)  of  the  Directive  requires  Member  States  to  ensure  that  such  children  have  the 
right to a professional and minimally invasive medical examination without undue delay, to 
be  carried  out,  in  accordance  with  paragraph 3,  either  on  the  initiative  of  the  competent 
authorities  or  the  child,  their  lawyer  or  holder(s)  of  parental  responsibility,  recorded  in 
writing  (see  paragraph 4)  and  updated  where  required  (see  paragraph 5).  The  purpose  of 
such  an  examination  is  to  assess  the  child’s  general  mental  and  physical  condition  and  in 
particular,  as  specified  in  paragraph 2,  their  capacity  to  be  subject  to  questioning,  other 
investigative  or  evidence-gathering  acts,  or  any  measures  taken  or  envisaged  against  the 
child, such as prolonged deprivation of liberty in pre-trial detention. The examination is also 
required  as  a  basis  for  determining  where  medical  assistance  must  be  provided  (see 
paragraph 4). 

While  all  Member  States  provide  the  option  for  some  form  of  medical  examination  to  be 
conducted where children are deprived of liberty in police custody or pre-trial detention, such 
examinations are not always required to be carried out without undue delay.  

In  many  legal  systems,  it  is  also  not  expressly  provided  that  the  results  of  a  medical 
examination need to be taken into account to determine whether the child is fit to be subject 
to  certain  procedural/coercive  acts.  It  is  frequently  left  to  the  discretion  of  the  competent 
investigative  authorities  whether  to  request  medical  records  for  this  purpose,  which  is  not 
compliant with the Directive. 

13 

 
 
 
3.8. Audiovisual recording of questioning (Article 9) 

Children who are suspects or accused persons in criminal proceedings are not always able to 
understand the content of questioning to which they are subject. In order to ensure sufficient 
protection of such children, the questioning  of children by police or other law enforcement 
authorities during the criminal proceedings must be audio-visually recorded where, as set out 
in  Article 9(1),  this  is  proportionate  in  the  individual  case.  The  competent  authorities  in 
charge of questioning should take into account, in particular, whether a lawyer is present or 
not and whether the child is deprived of liberty or not  and must ensure that the child's best 
interests are always a primary consideration. 

Where  national  law  provides  for  such  recording  based  only  on  certain  generic  criteria  and 
does  not  require  the  particular  circumstances  of  the  case  to  be  taken  into  account,  such  as 
whether the child has an intellectual or psychosocial disability which could make audiovisual 
recording appropriate, it is doubtful whether the transposition is compliant with the Directive. 
Insufficient  technical  infrastructure  is  no  valid  ground  for  derogating  from  the  rules  on 
audiovisual  recording  as  established  by  the  Directive.  A  systemic  lack  of  investment  into 
appropriate  technical  infrastructure  cannot  be  considered  an  exceptional  insurmountable 
technical  problem that would  justify a derogation from  the  Directive’s rules on audiovisual 
recording.  Overall,  such  issues  have  been  noted  regarding  the  transposition  of  Article  9  in 
two thirds of the Member States. 

3.9. Limitation to deprivation of liberty (Article 10) 

Children  are  in  a  particularly  vulnerable  position  when  they  are  deprived  of  liberty,  in 
particular in police custody or pre-trial detention. Any deprivation of liberty bears a possible 
risk  of  harm  as  regards  their  physical,  mental  and  social  development  as  well  as  their 
successful reintegration into society. The Directive therefore establishes two key principles to 
be observed by competent authorities when they impose deprivation of liberty.  

The first principle is that deprivation of liberty of a child at any stage of the proceedings must 
be  limited  to  the  shortest  appropriate  period  of  time,  taking  due  account  of  the  age  and 
individual situation of the child  as well as  the particular circumstances of the case  (Article 
10(1)). The second principle is that deprivation of liberty, in particular detention, must always 
be a measure of last resort and that decisions to impose pre-trial detention must be based on a 
reasoned  decision,  taken  without  undue  delay,  that  is  subject  to  periodic  judicial  review  at 
reasonable intervals (Article 10(2)).  

More  than  a  third  of  all  Member  States  have  not  transposed  either  the  first  or  the  second 
principle in full compliance with the Directive. Recurrent compliance issues play a role here, 
including  the  incorrect  transposition  of  the  scope  of  the  Directive23  and  the  general  lack  of 
explicit  legal  requirement  in  many  Member  States'  national  legislation  for  competent 
authorities to conduct thorough case-by-case assessments that take into account the specific 
circumstances of the child and the case, in particular to determine the potential suitability of 
alternative measures24.  

23 See section 3.1. 
24 See section 3.6. on the right to an individual assessment. 

14 

 
 
 
3.10. 

Alternative measures (Article 11) 

Article  11 of  the  Directive  requires  Member  States  to  ensure  that  measures  alternative  to 
detention  are  applied  to  children  where  possible  instead  of  depriving  them  of  their  liberty. 
Such alternative measures could include a prohibition for the child to be in certain places, an 
obligation for them to reside in a specific place, restrictions concerning contact with specific 
persons,  reporting  obligations  to  the  competent  authorities,  participation  in  educational 
programmes,  or,  subject  to  the  child's  consent,  participation  in  therapeutic  or  addiction 
programmes (see Recital 46). 

Most Member States  provide  for such alternative measures, but  the type  of measures  differ 
across  Member  States  and  even  regions  within  those  Member  States.  Only  a  handful  of 
Member  States  do  not  guarantee  the  availability  of  more  than  one  alternative  measure  in 
national law or do not guarantee alternatives to all children. 

In this context, it is key to note, that the Directive speaks of alternative measures in the plural, 
meaning that more than one potential alternative measure should be available by law, given 
the large range of possible measures that Member States can, in principle, choose from. The 
main  challenge  for  ensuring  that  children  do  in  fact  benefit  from  the  application  of  such 
alternative  measures,  however,  lies  in  judicial  practice,  the  results  of  which  varies  across 
Member States.  

3.11. 

Specific treatment in the case of deprivation of liberty (Article 12) 

Article 12(1) of the Directive requires that children who are detained must be held separately 
from adults, unless this is not in the child's best interests. Article 12(2) similarly requires that 
children who are kept in police custody are held separately from adults, unless this is not in 
the  child's  best  interests,  or  unless,  in  exceptional  circumstances,  this  is  not  possible  in 
practice. The latter derogation option may come to bear on cases in sparsely populated areas, 
where  police  stations  are  not  equipped  with  separate  facilities  for  holding  children,  as  they 
deal with very few cases involving them. In such circumstances, children must, however, be 
held together with adults in a manner that is compatible with the child's best interests.  

These principles are not fully complied in the national law of about a third of Member States. 
Of note here is the difference between  the rules on separation in police custody and in pre-
trial  detention  as  regards  the  possibility  to  derogate.  For  pre-trial  detention,  the  Directive 
requires that joint accommodation may only be arranged where it is in fact in the child’s best 
interests  not  to  hold  them  separately.  Structural  problems  in  the  adaptation  of  detention 
infrastructure are no justified basis for a derogation from this rule.  

There  are  also  a  number  of  cases  in  which  Member  States’  endeavours  to  transpose 
paragraphs 3 and 4 of Article 12 had the effect of weakening compliance with the child’s 
right to, in principle, be held separately from adults, even young adults who just turned 18. 

Paragraphs 3  and 4  regulate  the  extension  of  the  more  supportive  and  protective  detention 
regime  for  children  to  those  who  come  of  age  during  their  time  in  detention  (at  least  until 
they reach the age of 21). The problem in some Member States is that an extension of joint 
accommodation  with  children  is,  in  effect,  provided  for  by  default  rather  than  being  made 
conditional  on  a  case-by-case  assessment,  taking  into  account  the  best  interests  of  the 

15 

 
 
children  the  young  adult  would  be  detained  with.  In  other  Member  States,  national  law  is 
framed  in  a  way  which  suggests  that  young  adults  would  be  held  separately  from  both 
children and other adults, but legal uncertainty as to this interpretation remains.  

In  addition  to  separate  accommodation  from  adults,  other  special  protective  and  supporting 
measures  are  necessary  to  ensure  children’s  well-being  and  capacity  for  reintegration,  in 
particular  where  they  are  subject  to  pre-trial  detention.  Article 12(5)  therefore  requires 
Member  States  to  take  appropriate  measures  across  five  substantive  areas  with  regards  to 
children in pre-trial detention that ensure, among others, their effective exercise of the right to 
family  life  through  regular  contact  in  the  form  of  visits  and  correspondence  with  their 
parents,  family  and  friends.  Such  measures  should  also,  where/to  the  extent  appropriate, 
cover  situations  of  police  custody  and,  where  provided  for  under  national  law,  other 
situations of deprivation of liberty. 

All Member States have adopted measures, including legislation, that aim, at least to a certain 
extent,  to  ensure,  in  particular,  children’s  health  while  deprived  of  liberty.  Other 
requirements,  such  as  to  ensure  respect  for  children’s  freedom  of  religion  or  belief,  are 
mainly  given  effect  through  general  provisions  on  the  protection  of  freedom  of  religion. 
Many Member States also notified general provisions of national law that enshrine the right 
to be treated with dignity and in compliance with applicable human rights standards.  

In many Member States, notified transposing measures are (partially) insufficient to achieve 
the  standards  foreseen  by  the  Directive  for  one  of  the  following  reasons:  measures  are  not 
specific enough or cannot be considered effective to ensure the rights and standards foreseen 
by the Directive, are insufficient in scope to cover all the key aims identified by the Directive 
or forms of deprivation of liberty to the extent required or do not cover all children deprived 
of  liberty  (effect  of  non-compliant  transposition  of  the  scope  of  the  Directive).  When 
consulted,  several  Member  States  also  indicated  the  existence  of  additional  practical 
implementation measures, such as the establishment of support and educational programmes 
which  are  offered  on  a  voluntary  regular  or  ad-hoc  basis  by  relevant  social  or  educational 
services  and  some  stressed  the  individualisation  of  treatment  for  each  child.  Overall, 
however,  a  majority  of  Member  States  were  found  to  have  failed  to  demonstrate  a  fully 
compliant transposition of Article 12(5). 

Similarly,  around  half  of  Member  States  failed  to  adopt  specific  measures  to  ensure  that 
children  who  are  deprived  of  liberty  can  meet  with  the  holder  of  parental  responsibility  as 
soon  as  possible,  as  they  are  required  to,  at  least,  endeavour  to  do  in  accordance  with 
Article 12(6) of the Directive. 

3.12. 

Timely and diligent treatment of cases (Article 13) 

Article 13(1)  and (2)  of  the  Directive  requires  Member  States  to  take  all  appropriate 
measures  to  ensure  that  criminal  proceedings  involving  children  are  treated  as  a  matter  of 
urgency and with due diligence and that children themselves are always treated in a manner 
which protects their dignity, is appropriate to their age, maturity and level of understanding 
and takes into account any special needs, including any communication difficulties, that they 
may have. 

16 

 
 
As in the context of specific measures for children deprived of liberty, most Member States 
consider  that  these  requirements  are  given  sufficient  effect  through  general  provisions  of 
national  law,  such  as  constitutional  principles,  which  require  respect  for  the  dignity  of  the 
individual and applicable human rights standards, including the UN Convention on the Rights 
of the Child, which has been ratified by all EU Member States.  

3.13. 

Right to protection of privacy (Article 14) 

The privacy of children during criminal proceedings, including of their personal information 
contained in the criminal file, should be ensured in the best possible way to prevent, among 
others,  stigmatisation  as  a  hurdle  for  their  reintegration  into  society.  A  corresponding 
requirement  for  the  protection  of  children  is  accordingly  set  out  in  Article 14(1)  of  the 
Directive. 

Paragraph 2 of Article 14 requires that court hearings involving children are usually held in 
the absence of the public, or for courts or judges to be allowed to order their exclusion, while 
paragraph 3 adds that appropriate measures must be taken to ensure that audiovisual records 
of questioning are not publicly disseminated. 

Only minor compliance issues in less than a handful of Member States were identified in the 
transposition  of  either  of  these  provisions.  However,  in  many  Member  States  the  scope  of 
national  provisions  transposing  the  general  right  to  privacy  of  children  as  set  out  in 
paragraph 1 of Article 14, does not appear to extend to children who are suspected of having 
committed  a  criminal  offence,  but  have  not  yet  been  officially  designated  as  a  suspect  or 
accused  person  (or  the  Member  States’  equivalent  notions  of  these  concepts)  by  the 
competent  authorities.  This  links  back  to  the  incorrect  transposition  of  the  scope  of  the 
Directive25.  

In any case, Member States must, in accordance with paragraph 4 of Article 14 and while 
respecting  freedom  of  expression  and  information  as  well  as  freedom  and  pluralism  of  the 
media,  also  encourage  the  media  to  take  self-regulatory  measures  in  order  to  achieve  the 
objectives of the Directive’s rules on privacy. 

Most  Member  States  therefore  did  not  officially  notify  transposing  measures  for  this 
provision.  However,  in  the  response  to  the  Commission’s  consultation  on  practical 
implementation measures, more than a third of Member States indicated that the media is at 
least  partially  bound  by  legislative  measures  prohibiting  the  dissemination  of  personal 
information,  images  or  recordings  of  children  who  are  suspects  or  accused  persons.  This  is 
complemented by self-regulation. Other Member States indicated that the media in their legal 
system  operates  according  to  guidelines  issued  by  dedicated  national  administrative  bodies 
and/or  according  to  self-imposed  and  self-monitored  codes  of  ethics  without  State 
intervention. 

25 See section 3.1. 

17 

 
 
 
 
3.14. 

Right  of  the  child  to  be  accompanied  by  the  holder  of  parental 

responsibility during the proceedings (Article 15) 

An exclusively child-specific procedural safeguard is introduced with the right of the child to 
be accompanied by the holder of parental responsibility during court hearings, as enshrined in 
paragraph 1  of  Article 15  of  the  Directive,  as  well  as,  in  accordance  with  paragraph  4, 
during other stages of the proceedings where this is in the child's best interests and does not 
prejudice the criminal proceedings. If more than one person holds parental responsibility for 
the same child, the child should, as set out in Recital 57, have the right to be accompanied by 
all of them, unless this is not possible in practice despite the competent authorities' reasonable 
efforts. 

Most Member States have established this right, although a few Member States limit its scope 
by  way  of  derogation  options  not  foreseen  by  the  Directive.  This  also  links  back  to  the 
incorrect transposition of the scope of the Directive26.  

Most  compliance  issues,  however,  occurred  in  the  transposition  of  the  rules  on  the 
appointment of another appropriate adult, as set out in paragraphs 2 and 3, which are similar 
to those set out in Article 5 of the Directive 

Some Member States do not allow the child to appoint the other appropriate adult themselves, 
in  the  first  instance.  In  certain  other  Member  States,  competent  authorities  have  the 
discretionary  power  to  exclude  holders  of  parental  responsibility  from  the  proceedings 
without  necessarily  having  to  ensure  that  another  appropriate  adult  is  appointed  to  replace 
them. This is mainly linked to a failure to introduce the notion of ‘another appropriate adult’ 
who has not also been formally appointed as an actual legal guardian for the child, such as a 
teacher or a family member that does not legally hold parental responsibility for the child. 

Overall,  issues  in  the  compliant  transposition  of  the  right  to  be  accompanied,  can  have  a 
severely negative impact on the child’s effective understanding of the criminal procedure and 
their ability to exercise their procedural rights. In particular children who are, in application 
of Article 6(6) or 6(8) of the Directive, not assisted by a lawyer, could be left entirely without 
a guiding and supportive presence of an appropriate adult. 

3.15. 

Right  of  children  to  appear  in  person  at,  and  participate  in,  their  trial 

(Article 16) 

Article 16(1)  recalls  children’s  right  to  be  present  at  their  trial.  It  additionally  requires, 
however, that Member States also take all necessary measures to enable them to participate 
effectively, including by giving them the opportunity to be heard and to express their views. 
As Recital 60 suggests, Member States should provide incentives for children to attend their 
trial, including by summoning them in person and by sending a copy of the summons to their 
holder(s) of parental responsibility or another appropriate adult. 

Of the few Member States whose national law is not fully compliant with these requirements, 
two  provide  that  at  least  part  of  the  trial  can,  in  certain  cases,  be  conducted  without  the 
physical presence of child.  

26 See section 3.1. 

18 

 
 
 
Article 16(2), furthermore sets out a requirement for children who were tried in absentia to 
be  granted  the  right  to  a  new  trial  that  allows  for  the  examination  of  (new)  evidence  or  to 
another  effective  legal  remedy,  in  accordance  with,  and  under  the  conditions  set  out  in, 
Directive (EU) 2016/343. In general, provisions of national law regulating such matters are 
not specific to children, but apply to all suspects and accused persons. In this context, it must 
be  noted  that  issues  in  the  transposition  of  the  relevant  provisions  of  Directive  (EU) 
2016/343, namely Article 8 on the right to be present at the trial and Article 9 on the right to a 
new trial, have not been correctly transposed in at least  six Member States27, against which 
infringement proceedings have been opened.   

3.16. 

Right to legal aid (Article 18) 

Children who are suspects or accused persons, like adults, benefit from entitlements to legal 
aid  as  set  out  in  Directive  (EU)  2016/1919.  However,  for  children,  Article 18  explicitly 
requires that national law in relation to legal aid guarantees not only the right of access to a 
lawyer granted to all suspects and accused persons, but the effective exercise of the right to 
actually be assisted by a lawyer as set out in Article 6 of this Directive. 

Compliance issues with regards to the transposition of Directive (EU) 2016/1919 also affect 
the  provision  of  legal  aid  to  children.  Those  Member  States  who  have  failed  to  correctly 
transpose  Directive  (EU)  2016/1919  are  automatically  also  considered  to  have  incorrectly 
transposed  Article  18  of  this  Directive,  unless  the  transposition  issue  only  affects  adult 
suspects or accused persons because there are different rules governing the provision of legal 
aid  to  children  who  are  suspects  or  accused  persons  that  are  in  conformity  with  Directive 
(EU) 2016/1919. As regards compliance issues with Directive (EU) 2016/1919, the rules on 
the  timing  for  provision  of  legal  aid  set  out  in  Article  4(5)  have  not  been  transposed  in  a 
compliant manner by almost all Member States28. As the affected Member States apply the 
same  rules  on  legal  aid  to  children  as  they  do  to  adults,  these  compliance  issues  under 
Directive (EU) 2016/1919 also constitute compliance issues under this Directive. 

As noted in relation to the transposition of Article 6 of the Directive, not all Member States 
provide for assistance by a lawyer, including the appointment of a legal aid lawyer, from the 
earliest  point  in  time  foreseen  by  the  Directive.  This  also  links  back  to  the  incorrect 
transposition of the scope of the Directive29. 

In  some  Member  States,  children  who  receive  legal  aid  also  have  to  repay  those  costs  in 
certain  circumstances,  even  though  assistance  by  a  lawyer  is  mandatory.  As  the 
implementation  report30  for  Directive  (EU)  2016/1919  highlights,  half  the  Member  States 
generally  enable  cost  recovery  in  case  of  conviction  or  where  the  criminal  proceedings  are 
terminated due to circumstances that do not exonerate the person such as the expiration of the 

(INFR(2023)2093),  Croatia 

(INFR(2023)2094),  Bulgaria 

27  Belgium 
(INFR(2023)2141), Latvia (INFR(2023)2140), Poland (INFR(2024)2034). 
28  See  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  implementation  of 
Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for 
suspects  and  accused  persons  in  criminal  proceedings  and  for  requested  persons  in  European  arrest  warrant 
proceedings, COM/2023/44 final.  
29 See section 3.1. 
30 Ibid.  

(INFR(2023)2092),  Hungary 

19 

 
 
 
statute  of  limitations.  In  some  cases,  such  cost  recovery  is  performed  irrespective  of  the 
affected persons economic/financial situation. 

3.17. 

Remedies (Article 19) 

The right to an effective remedy, as enshrined in Article 47 of the Charter, is a fundamental 
procedural right. Article 19 therefore requires that children have an effective remedy under 
national  law  in  the  event  of  a  breach  of  their  rights  under  this  Directive.  What  form  those 
remedies take is a matter of procedural autonomy. Compliance with this provision in terms of 
transposition is very high. All Member States have at least some form of remedy in place in 
the event a child’s rights under the Directive are violated.  

3.18. 

Training (Article 20) 

Effective and continuous training of members of professions in contact with children during 
criminal  proceedings  in  areas  such  as  children’s  rights,  appropriate  questioning  techniques, 
child  psychology,  and  communication  in  a  language  adapted  to  the  child,  is  of  vital 
importance for ensuring that the Directive is implemented and applied in a manner which is 
compliant with its requirements and objectives. Article 20 therefore sets out requirements for 
such training for different key actors. Approaches to the transposition of these requirements 
differ widely between Member States. 

Paragraph 1 requires Member States to ensure that staff of both law enforcement authorities 
and  detention  facilities  who  handle  cases  involving  children,  receive  specific  training  to  a 
level appropriate to their contact with children. However, a lack of well-established training 
frameworks  subject  to  quality  control  mechanisms  in  practice  contributes  to  compliance 
issues  in  many  Member  States.  Some  Member  States  have  only  transposed  the  Directive’s 
training  requirements  either  for  law  enforcement  or  for  penitentiary  staff.  Many  make 
participation in relevant trainings voluntary. There also appear to be significant differences in 
the  frequency  of  trainings  offered.  When  consulted,  some  Member  States  confirmed  that 
trainings  are  provided  only  ad-hoc,  based  on  internal  needs  assessments,  while  others  have 
established regular training cycles. This has also been highlighted by the Fundamental Rights 
Agency31. Consulted stakeholders furthermore point to  possible shortcomings in  the quality 
of  trainings  provided.  With  regards  to  judges  and  prosecutors  who  deal  with  criminal 
proceedings  involving  children,  Member  States  must,  in  accordance  with  paragraph 2,  at 
least  take  appropriate  measures  to  ensure  that  they  have  specific  competence  or  have 
effective access to specific training. 

Such ‘appropriate measures’ are not necessarily limited to legislative measures and should in 
any  case  respect  judicial  independence  and  differences  in  the  organisation  of  the  judiciary 
across the Member States as well as the role of those responsible for the training of judges 
and  prosecutors,  such  as  independent  national  institutes  for  judicial  training.  Most  Member 
States  that  do  have  legislative  requirements  for  the  training  of  judges  and  prosecutors  in 
place,  therefore  kept  such  rules  very  general  and  pointed  to  supplementary  practical 

31  Study  by  the  European  Union  Agency  for  Fundamental  Rights  (2022),  Children  as  suspects  or  accused 
persons 
at 
procedural 
https://fra.europa.eu/de/publication/2022/children-criminal-proceedings.  

proceedings 

safeguards, 

available 

criminal 

— 

in 

20 

 
 
 
implementation  measures,  including  measures  taken  by  independent  bodies  for  the  training 
and self-regulation of the judicial profession. 

In those Member States in which no legislative provisions on the training of prosecutors and 
judges  exist,  a  variety  of  different  implementation  frameworks,  mainly  reliant  on  practical 
implementation  measures,  are  in  place.  When  consulted,  two  Member  States  indicated  that 
their legal  system  works with special juvenile courts and prosecution services. Only judges 
and  prosecutors  who  have  acquired  specialised  knowledge  through  training  offered  by 
relevant  training  institutions  for  judges  and  prosecutors  can  be  appointed  to  work  in  those 
positions.  There  are  furthermore  Member  States  in  which  specialised  training  is  offered  by 
dedicated  training  institutions  but,  it  appears,  only  on  a  voluntary  basis,  at  least  for  some 
relevant justice professionals. This is not necessarily sufficient to ensure that specific training 
is in fact received by all relevant individuals.  

Appropriate measures must, according to paragraph 3, also be taken to at least promote the 
provision of such specific training to lawyers who deal with criminal proceedings involving 
children,  taking  into  account,  of  course,  the  need  to  respect  the  independence  of  the  legal 
profession and the role of those responsible for the training of lawyers, such as national Bar 
Associations. 

When consulted on this matter, a few Member States indicated that they provide funding to 
national  bar  associations  to  facilitate  the  appropriate  training  of  lawyers  in  child-friendly 
justice  methods  and/or  require  lawyers  who  want  to  be  included  on  the  list  of  legal  aid 
lawyers  for  children  to  have  undergone  specific  training.  However,  the  vast  majority  of 
Member States indicated that in their legal system, training is regulated and provided entirely 
by the national bar associations and that the state does not interfere in this matter. 

Finally, paragraph 4 asks Member States to encourage initiatives enabling those providing 
children  with  support  and  restorative  justice  services  to  receive  adequate  training  and  to 
respectfulness  and 
regards 
observe  professional 
professionalism. This should be achieved through Member States’ public services or through 
the funding of child support organisations. 

standards  with 

impartiality, 

to 

When  consulted,  some  Member  States  provided  information  on  practical  implementation 
measures  and  structures  in  place  to  facilitate  the  training  of  child  support  and  restorative 
justice  professionals.  Measures  adopted  include,  inter  alia:  the  establishment  of  dedicated 
training  institutions/programmes;  the  provision  of  funding  to  civil  society  organisations 
providing  relevant  training  and  guidance;  a  requirement  for  all  professionals  working  with 
children to take a basic training course on the rights of the child as part of their professional 
qualification; and the opening of state funded training courses for members of the judiciary to 
other  professions,  in  particular  probation  officers  and  professionals  guiding  mediation 
procedures. 

3.19. 

Data Collection (Article 21) 

In  order  to  monitor  and  evaluate  the  effectiveness  of  this  Directive,  there  is  a  need  for 
collection  of  relevant  data.  In  accordance  with  Article 21,  Member  States  therefore  had  to 
send available data showing how the rights set out in this Directive have been implemented to 
the Commission by 11 June 2021 and must do so again every three years thereafter. 

21 

 
 
In line with Recital 64, this should include both data recorded by the judicial authorities and 
by  law  enforcement  authorities  and,  as  far  as  possible,  administrative  data  compiled  by 
healthcare  and  social  welfare  services  as  regards  the  rights  set  out  in  this  Directive,  in 
particular  in  relation  to  the  number  of  children  given  access  to  a  lawyer,  the  number  of 
individual assessments carried out, the number of audiovisual recordings of questioning and 
the number of children deprived of liberty. 

Data has been  transmitted  by more than two thirds  of the Member States.  Even where data 
has  been  transmitted,  however,  it  has  rarely  been  as  comprehensive  as  envisioned  by  the 
Directive.  Member  States  should  therefore,  as  far  as  possible,  adjust  their  data  collection 
practices in line with the Directive. 

3.20. 

Costs (Article 22)  

Finally, the Directive regulates the allocation of additional procedural costs resulting from the 
application of the right  to an individual assessment  as  enshrined in  Article 7, the  right  to  a 
medical  examination  as  set  out  in  Article 8  and  audiovisual  recording  of  questioning,  as 
provided  for  in  Article 9  of  the  Directive.  Article 22  requires  that  it  must  always  be  the 
Member States that bear these costs, irrespective of the outcome of the proceedings,  except 
for costs resulting from the application of the right to a medical examination where these are 
covered by medical insurance. 

In a small  number of  Member States,  it is  nevertheless not  explicitly  ensured that the State 
will bear such costs, while in others, national law in fact directly provides for at least part of 
the  costs  to  be  borne  by  the  child,  either  in  general  or  at  least  in  cases  where  the  child  is 
found guilty. This places an undue financial burden on children and ultimately their holder(s) 
of parental responsibility in such Member States and constitutes a compliance issue. 

3.21. 

Transposition (Article 24)  

Article 24(1)  obliges  Member  States  to  adopt  measures  to  transpose  the  Directive  and  to 
inform the Commission thereof. However, it also requires that when adopted, those measures 
contain a reference to the Directive or are accompanied by such a reference on the occasion 
of their official publication. This kind of provision is also referred to as an ‘interconnection 
clause’.  It  is  meant  to  ensure  sufficient  publicity  for  the  transposition  measures  and  enable 
affected  persons  to  ascertain  the  scope  of  their  rights  and  obligations  in  the  particular  area 
governed by EU law as transposed in national law32. 

Member States are free to choose how this reference is made, as long as they adopt a specific 
transposition measure (acte positif de transposition) that explicitly refers to the Directive. In 
particular  with  regards  to  pre-existing  laws,  this  could,  for  instance,  be  a  specific  act 
published  in  the  Member  State’s  official  journal,  which  unequivocally  indicates  the  pre-
existing laws, regulations or administrative provisions by which the respective Member State 
considers  that  it  transposed  the  Directive.  No  legislative  amendments  are  thus  necessarily 

32 Judgment of the Court of Justice of 27 February 2003, Commission v Belgium, C-415/01, EU:C:2003:118, 
paragraph 21. 

22 

 
 
 
called  for.  However,  where  no  measure  is  taken  to  ensure  a  reference  to  the  Directive,  the 
affected measures can be rejected by the Commission as transposing measures.  

Initially, only three Member States fully implemented the Directive’s interconnection clause. 
Most  other  Member  States  complied  with  this  requirement  only  as  regards  new  measures 
adopted  for  the  purpose  of  transposing  the  Directive  and  not  as  regards  pre-existing 
legislation, while a handful of Member States failed to implement this requirement entirely. 
This lack of proper implementation of the interconnection clause was raised in infringements 
against the 22 affected Member States.    

On  30  April  2024,  following  discussions  with  Member  States,  the  Commission  proposed  a 
one-year test phase, during which the official publication of national transposition measures 
required by the interconnection clause is ensured via EUR-Lex. At the end of the test phase, 
the Commission will evaluate the results and Member States' practices. If the test phase is not 
found  to  have  delivered  the  required  results,  the  Commission  reserves  its  right  to  resume 
enforcing  the  obligations  flowing  from  the  interconnection  clauses.  In  the  meantime, 
grievances  in  ongoing  pre-litigation  proceedings  or  enquiries  about  the  fulfilment  of  the 
requirements  under  interconnection  clauses  will  not  be  (further)  pursued,  if  Member  States 
have agreed to the publication of hyperlinks and/or documents directly on EUR-Lex. 

Despite  the  clear  advantages  of  the  EUR-Lex  solution  in  terms  of  accessibility,  Member 
States  have  the  right  to  opt  out  of  this  publication  method  if  they  commit  to  referring 
systematically  and  directly  to  the  directives  in  their  national  transposition  measures  or  to 
publishing national official notices to that effect, both for national legislation pre-dating and 
post-dating the respective directive to be transposed.  

4.  APPLICATION OF ARTICLE 6 OF THE DIRECTIVE 

In  addition  to  the  general  assessment  of  the  transposition  of  Article  6  of  the  Directive,  the 
Commission  also  committed  to  reporting  on  the  application  of  this  provision.  For  this 
purpose, as mentioned in the introduction to this report, the Commission consulted Member 
States  and  asked  them  to  provide  relevant  information  and  statistics.  Member  States  were 
asked to provide information/data on their practice/practical arrangements with regards to: 

(a)  the right to meet with a lawyer prior to questioning as set out in paragraph 4(a); 
(b) the rules on confidentiality of communication as set out in paragraphs 4(a) and 5; 
(c)  the  proportionality-based  derogation  option  provided  for  in  paragraph 6  and  the 

temporary derogations option provided for in paragraph 8; 

(d) the rules on postponement of questioning as set out in paragraph 7; and  
(e)  relevant case law. 

The following feedback was obtained: 

First, as regards the right to meet and consult with a lawyer prior to questioning, all but 
two Member States reported that their law does not provide for a minimum/maximum period 
of  time  for  such  consultations.  Most  Member  States  indicate  that  in  practice,  children  and 
their lawyers will be granted as much time as necessary, within reason. In most cases, such 
consultations reportedly come to around 30 minutes. 

23 

 
 
In  some  Member  States,  however,  consultations  are  as  a  matter  of  principle  limited  to 
30 minutes, extendable only upon justified request. Arrangements that set such a generic limit 
to  the  time  granted  to  children  for  a  consultation  with  their  lawyer  are  not  per  se  non-
compliant  with  the  Directive.  It  has  to  be  ensured,  however,  that  in  practice  request  for  an 
extension of this limit are always granted where this is necessary to safeguard the fairness of 
the proceedings, in  particular where a child may need more time with their lawyer due, for 
instance, to communication difficulties.  

For a few Member States, the information provided also indicates that they do not ensure that 
the child always has the possibility to meet with the lawyer in person for the purpose of such 
consultations.  In  those  Member  States,  consultations  are  at  least  in  some  cases,  only 
facilitated via telephone. This practice is, in principle, not compliant with the right to ‘meet’ 
with the lawyer as established by the Directive, as a meeting implies that the lawyer should 
be  present  in  person.  Whether  it  could  be  justified  in  certain  cases  on  the  basis  of  the  best 
interests of the child needs to be further assessed. 

Second,  concerning  the  application  of  the  rules  on  confidentiality  of  communication 
between  a  child  and  their  lawyer,  as  set  out  in  paragraphs 4(a)  and 5,  all  respondent 
Member States reported that it is always ensured that consultations between a child and their 
lawyer are confidential. The majority indicated that separate facilities are made available for 
this purpose where the child is deprived of liberty in police custody or pre-trial detention. 

However,  at  least  two  Member  States  appear  to  allow  for  such  facilities  to  be  visually 
monitored.  While  the  Directive  does  not  explicitly  preclude  this  practice,  it  can  potentially 
raise concerns,  where legally privileged documents  or other materials  that  are  examined by 
the child and their lawyer  during such a  consultation  are visibly  accessible to  the person(s) 
monitoring it. 

Third, looking at the application of the derogation options provided for in paragraphs 6 
and 8 of the Directive, some of the respondent Member States indicated that this derogation 
option is not provided for in their legal systems. Those Member States which consider that it 
is provided for, either indicated that no data is available on the number of cases in which the 
derogation option has been applied or simply did not provide any figures. One Member State 
reported that the derogation option does exist in their legal system, but that it has not yet been 
applied. 

Member States were also asked to indicate the national authority responsible for making the 
assessment  required  by  paragraph 6  for  ascertaining  whether  a  derogation  from  the 
Directive’s requirements on assistance by a lawyer is proportionate and compatible with the 
child’s  right  to  a  fair  trial  and  the  effective  exercise  of  their  rights  of  defence.  To  this 
question,  most  Member  States  replied  that  the  responsible  authority  is  the  one  aiming  to 
conduct the questioning or other investigative act (usually the police) or the authority that is 
overall in charge of the proceedings at the time (usually a prosecutor or an investigative judge 
at  the  pre-trial  stage,  depending  on  the  legal  system).  A  small  number  of  Member  States 
always require a judicial authority to make the relevant assessment. 

In remains unclear, however, whether in all cases in which the responsible authority is a law 
enforcement  authority,  the  decision  to  apply  the  derogation  must  nevertheless  still  be 
approved  by  a  prosecutor  or  investigative  judge,  as  the  case  may  be,  or  will  be  subject  to 

24 

 
 
judicial review at the trial stage. This would be important to ensure an effective remedy for 
and ideally also to prevent any potential abuse of the derogation option. 

Essentially  the  same  replies  were  received  with  regards  to  the  application  of  the  temporary 
derogation option provided for in paragraph 8 of the Directive. No data on the frequency of 
application  was  provided  and  it  remains  unclear,  whether  a  decision  by  a  law  enforcement 
authority to apply the derogation option will always be subject to judicial review.  

Fourth, in relation to the application of the rules on postponement of questioning set out 
in paragraph 7, almost half the Member States provided information on how the notion of 
‘reasonable  period  of  time’,  introduced  in  paragraph 7  of  Article 6,  is  interpreted  in  their 
national legal system.  

Most do not explicitly define this notion in national law, but rather let competent authorities 
interpret this notion on a case-by-case basis, taking into account the individual circumstances 
of the case, in particular whether the child is deprived of liberty or not.  

Some Member States did, however, indicate specific limits for the amount of time that will be 
granted  to  a  child’s  chosen  lawyer  to  appear.  This  ranges  from  one  hour  to  three  days  (in 
cases where the child is not deprived of liberty and the delay is not expected to jeopardise the 
investigation). 

As highlighted  in  the discussion on the transposition  of Article 6(7), the  Directive does not 
define the notion of ‘reasonable period of time’. The Commission considers, however, that it 
should be interpreted as ‘for as long as it takes to get a lawyer on site’, it being understood, 
that  in  cases  of  clearly  exaggerated  or  unreasonable  delays,  Member  States  are  allowed  to 
appoint another, on-duty lawyer for the duration of the specific act. 

Finally,  concerning  relevant  case-law  at  the  national  level  in  which  a  violation  of  the 
child’s  rights  under  Article 6,  in  particular  in  relation  to  the  application  of  the 
derogation  options  foreseen  by  paragraphs 6  and 8,  has  been  raised,  Member  States 
indicated that they are not aware of any such cases and/or do not maintain relevant statistics. 
The  Commission  was  therefore  not  in  a  position  to  assess  with  regards  to  which  particular 
elements of Article 6 compliance issues may have been raised in practice or the frequency of 
such occurrences. 

5.  CONCLUSION 

The aim of the Directive is to strengthen and supplement procedural safeguards for children 
who are suspects or accused persons in criminal proceedings in a comprehensive manner, to 
ensure  that  they  have  the  real  and  effective  possibility  to  fully  understand  and  follow 
proceedings  against  them  as  well  as  to  exercise  their  right  to  a  fair  trial.  As  such,  this 
Directive has significantly progressed efforts to ensure equal access to justice across the EU 
for  one  of  the  most  vulnerable  categories  of  suspects  and  accused  persons.  Its  potential  for 
positive impact does not only extend to strengthened mutual trust between Member States in 
each  other’s  justice  systems,  but  also  to  the  prevention  of  recidivism  and  the  fostering  of 
children’s social rehabilitation and reintegration. 

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However,  this  report  highlights  that  there  are  still  compliance  issues  relating  to  key 
provisions of the Directive in some Member States. This is particularly true and problematic 
as  regards  the  scope  of  the  national  measures  implementing  the  Directive,  and  the 
transposition of key substantive provisions, including on information rights, assistance by a 
lawyer, the right to an individual assessment and rules for the imposition of and treatment in 
case  of  deprivation  of  liberty.  Based  on  the  information  collected  for  this  report,  it  also 
appears that compliance issues exist as regards the application of Article 6 of the Directive, in 
particular concerning the rules on postponement of questioning and the right to meet with and 
consult a lawyer prior to questioning.  

The  Commission  will,  as  a  matter  of  priority,  continue  pursuing  the  infringement  cases 
opened  for  lack  of  full  transposition  of  the  Directive  and  will  continue  to  assess  Member 
States’  compliance  with  the  Directive.  Where  necessary,  the  Commission  will  take  every 
appropriate measure to ensure compliance with the Directive’s provisions throughout the EU. 

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