CELEX: 52013PC0822
Language: en
Date: 2013-11-27
Title: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on procedural safeguards for children suspected or accused in criminal proceedings

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		52013PC0822
		
			Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on procedural safeguards for children suspected or accused in criminal proceedings /* COM/2013/0822 final - 2013/0408 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           CONTEXT OF THE PROPOSAL
1.           This proposal for a
Directive of the European Parliament and the Council aims to set common minimum
standards throughout the European Union on the rights of children who are
suspected or accused in criminal proceedings and of children subject to
proceedings pursuant to Framework Decision 2002/584/JHA ("European arrest
warrant proceedings").
2.           The Stockholm Programme[1] put a strong focus on the
strengthening of the rights of individuals in criminal proceedings. In its
point 2.4, the European Council invited the Commission to put forward proposals
setting out a step by step approach to strengthening the rights of suspects and
accused persons by setting common minimum standards on fair trial rights. This
measure forms also part of the EU Agenda for the Rights of the Child to which
the European Parliament, the Committee of the Regions, the Economic and Social
Committee and the Council of Europe as well as key stakeholders such as UNICEF,
the Ombudspersons for Children in the Member States, and civil society have
contributed[2].
3.           Three measures have
already been adopted: a Directive 2010/64/EU of the European Parliament and of
the Council on the right to interpretation and translation in criminal
proceedings[3]
in October 2010 and Directive 2012/13/EU of the European Parliament and of the
Council on the right to information in criminal proceedings in May 2012[4] and Directive 2013/48/EU of the
European Parliament and of the Council of 22 October 2013 on the right of
access to a lawyer in criminal proceedings and in European arrest warrant
proceedings, and on the right to have a third party informed upon deprivation
of liberty and to communicate with third persons and with consular authorities
while deprived of liberty[5].
Measures on the right to provisional legal aid for suspects or accused persons
while deprived of liberty are presented as a package with the present
initiative together with a Directive on the strengthening of certain aspects of
the presumption of innocence and the right to be present at trial in criminal
proceedings.
4.           This proposal for a Directive
sets out specific minimum rules concerning the rights of suspects or accused
who are children in criminal proceedings. In doing so, it promotes the application
of the Charter, in particular Articles 4, 6, 7, 24, 47 and 48, relying on
Articles 3, 5, 6 and 8 of the ECHR, as interpreted by the European Court of
Human Rights, which, in its case-law sets standards on special safeguards for
vulnerable persons, in particular children. This case-law provides inter alia
that the fairness of proceedings and the right to a fair trial require a
person's ability to understand the minimum stakes of the procedure and have the
ability to participate and effectively exercise his rights and benefit from the
protection of privacy. Under these conditions, the strengthening of procedural
safeguards of children should be explicitly provided for in this Directive.
5.           These measures should be
implemented taking into account the best interests of the child as set out in
Article 24 of the Charter of Fundamental Rights. 
6.           Suspects or accused who
are children are recognised and treated with respect, dignity, professionalism,
in a personal and non-discriminatory manner, whenever they are in contact with
the competent authority acting in the framework of criminal proceedings. This
should also facilitate the reintegration of children into society after they
were confronted with the criminal justice system. The rights set out in this
Directive apply to children suspected or accused in a non-discriminatory
manner, including with regard to their residential status.
7.           This measure is presented
together with a Commission Recommendation on procedural safeguards for
vulnerable persons suspected or accused in criminal proceedings and vulnerable
persons subject to European arrest warrant proceedings. 
8.           The proposal is based on
Article 82(2) of the Treaty on the Functioning of the European Union (TFEU).
9.           The right to an effective
remedy, to a fair trial and a right of defence are provided for in the Charter
of Fundamental Rights of the European Union (the "Charter"), Articles
47 and 48, and in Article 6 of the European Convention of Fundamental Rights (the
"ECHR"). The ability to effectively exercise these rights largely
depends on the ability of the suspect or accused person to follow and fully
participate in the procedure, which may be limited due to age, lack of maturity
or disabilities. This means that for children and vulnerable adults special
measures need to be taken to ensure that they can effectively participate in
the proceedings and benefit from their fair trial rights to the same extent as
other suspects or accused persons.[6]
10.         Due to the lack of a common
definition of vulnerable adult persons and with a view to considerations linked
to the principles of subsidiarity and proportionality the Commission has
refrained at this stage from extending the scope of this Directive to
vulnerable adult persons. Instead, the Commission will adopt a Recommendation
calling upon Member States to put in place a number of safeguards for
vulnerable persons.
2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS
11.         On 23 September
2011, 26 April 2012 and 11 December 2012 three meetings with experts were held.
Representatives of Member States as well as a panel of experts from the Council
of Europe, International Association of Youth and Family Judges and
Magistrates, the United Nations, medical and legal practitioners specialising
in children cases discussed measures that could be taken at EU-level to
increase the protection of children and vulnerable adults in criminal
proceedings.
12.         The Commission carried out
an Impact Assessment to underpin its proposal. The report on the impact assessment
is available at http://ec.europa.eu/governance.
3.           LEGAL ELEMENTS OF THE PROPOSAL
Article 1 – Subject matter
13.         The subject matter of the
Directive is to lay down minimum rules concerning the rights of suspects or
accused persons in criminal proceedings who are children and of children
subject to "European arrest warrant proceedings."
Article 2 – Scope
14.         The Directive applies to
children meaning persons under the age of 18 at the time when they are suspected
or accused of having committed a criminal offence until the conclusion of the
proceedings. 
15.         National rules on the age
of criminal responsibility for children will not be affected by this Directive.
This is the age when a child becomes criminally responsible for his or her
actions.
16.         In certain Member States
children who have committed an act qualified as an offence are not subject to
criminal proceedings according to national law but other forms of proceedings
which may lead to the imposition of certain restrictive measures (for instance
protection measures, education measures). Such proceedings do not fall within
the scope of this Directive.
Article 3 – Definition
17.         In accordance with
international law instruments[7],
any individual below the age of 18 will be considered as a child. 
Article 4 – Right to information of
children
18.         The child should be
informed promptly of the rights under this Directive, complementing the rights
foreseen in Articles 3 to 7 of Directive 2012/13/EU with the exception of minor
offences as provided for by Article 2(2) of Directive 2012/13/EU.
19.         If the child is deprived of
liberty, the Letter of Rights which shall be provided to the child in
accordance with Article 6 of Directive 2012/13/EU shall contain also reference
to the rights provided by this Directive.
20.         This Directive should be
implemented in accordance with the standards set out in Directive 2010/64/EU on
the right to interpretation and translation in criminal proceedings.
Article 5 – Right to information of the
holder of parental responsibility
21.         This Directive provides
further complementary safeguards with regard to the information of the holder
of parental responsibility or an appropriate adult in order the take into
account the specific needs of children provided that this does not prejudice the
due course of the criminal proceedings against the person concerned and any
other criminal proceedings.
22.         The term "holder of
parental responsibility" means any person or institution having parental
responsibility over a child as defined by Council Regulation (EC) 2201/2003 of
27 November 2003 concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and the matters of parental responsibility.
23.         The role of the holder of
parental responsibility is important to ensure moral and psychological support
and adequate guidance to the child. The holder of
parental responsibility is well placed to enhance the protection of the rights
of defence of the suspected child (e.g. to appoint a lawyer or to decide to
appeal a decision). Moreover, the parents are also
legally responsible and can be held civilly liable for the behaviour of the
child. 
24.         This provision reflects
international rules, such as the Guidelines of the Committee of Ministers of
the Council of Europe on child-friendly justice, the Beijing Rules and the 2007
UN CRC General Comment N°10 on Children's rights in juvenile justice. 
25.         If the information of the
holder of parental responsibility would be contrary to the best interests of
the child, this right should not be applied. This could be the case, for
example, if the holder of parental responsibility has been involved in the same
offence as the child and there is a conflict of interest. In this case, another
appropriate adult shall be informed and asked to be present. The term
"another appropriate adult" refers to a relative or a person (other
than the holder of parental responsibility) with a social relationship with the
child who is likely to interact with the authorities and to enable the child to
exercise his or her procedural rights.
Article 6 – Right to a lawyer
26.         This Article ensures
mandatory access to a lawyer for children who are suspected or accused in
criminal proceedings.
27.         Article 6 (3) lit.c) ECHR
and Articles 47 and 48 of the Charter guarantee the right of an individual to
have access to a lawyer. The Directive 2013/48/EU lays down general rules on
such a right for all suspects or accused persons in criminal proceedings.
However, it allows suspects or accused persons to waive their right to be
assisted by a lawyer. This Directive foresees as an additional safeguard that
children may not waive this right. 
28.         The ECtHR has repeatedly
underlined the importance of assistance by a lawyer for children from the
outset of the proceedings and during police questioning thereby suggesting that
a waiver can represent significant risks for them. The importance of access to
a lawyer for children is also recognised by all relevant international rules,
such as the Guidelines of the Committee of Ministers of the Council of Europe
on child-friendly justice[8],
the Beijing Rules[9]
and the 2007 UN CRC 2007 General Comment N°10 on Children's rights in juvenile
justice[10].
29.         However, with regard to certain
minor offences, mandatory access to a lawyer would be disproportionate. This
concerns in particular minor traffic offences, minor offences in relation to
general municipal regulations and minor public order offences, which are
considered to be criminal offences in some Member States. For such offences, the
competent authorities other than a public prosecutor or a court having
jurisdiction in criminal matters do not need to ensure the right of mandatory
access to a lawyer granted under this Directive.
Article 7 – Right to an individual assessment
30.         This Article ensures that a
child has the right to an individual assessment. Such an individual assessment
is needed in order to identify the child's specific needs in terms of
protection, education, training and re-integration into society, to determine
if and to what extent he or she would need special measures during the criminal
proceedings. The personal characteristics of a child, his or her maturity and
economic and social background may vary significantly.
31.         The individual assessment
should be carried out at an appropriate stage of the proceedings and at the
latest before the indictment. It should be recorded in accordance with national
law.
32.         Without prejudice to
Article 8 of Directive 2011/36/EU, in the course of an individual assessment
particular attention should be given to children involved in criminal
activities which they have been compelled to commit as victims of trafficking
in human beings.
33.         The extent and detail of
such an assessment may be adapted according to the seriousness of the offence
and the penalty imposed if the child is found guilty of the alleged offence.
For example, it is envisaged that a more in-depth assessment may be warranted
in the case of a serious offence such as robbery or murder. 
34.         The individual assessment
should be updated throughout the criminal proceedings and individual
assessments that have been previously carried out with regard to the child may
be used, if they are updated.
35.         Member States may derogate
from this obligation when it is not proportionate to carry out in an individual
assessment taking into account the circumstances of the case and whether or not
the child has previously come to the attention of Member State authorities in
the context of criminal proceedings. In such cases, an authority for the
protection or welfare of children should be informed that an individual
assessment is not carried out.
Article 8 – Right to medical examination

36.         Access to medical
examination by a physician and adequate medical care throughout a child's stay
in detention is recommended by international legal instruments, such as the
2007 UN General Comment N°10 on the children's rights in juvenile justice.
Children, due to their young age and physical and mental immaturity, are more
strongly exposed to ill-treatment and health problems than other suspects or
accused persons. Often they may not even able to properly express their health
problems. Particular care is needed to ensure their integrity, in particular in
detention.
37.         If the child is deprived of
liberty, the child should have the right to medical examination upon request by
the holder of parental responsibility, the appropriate adult or the child's
lawyer. Such a medical examination should be carried out by a medical expert.
38.         In case of prolongation of
deprivation of liberty or extension of measures taken against the child, a medical
examination may also be repeated.
39.         If the medical examination
of a child leads to the conclusion that the envisaged measures during the
criminal proceedings against the child (e.g. questioning of the child,
detention) are incompatible with the general mental and physical condition of
the child, the competent authorities should take appropriate measures in
accordance with national law (e.g. postponement of questioning, medical
treatment of the child). Due account should be taken of the best interests of
the child. 
Article 9
– Questioning of children
40.         The questioning of children
is a potentially risky situation where their procedural rights and dignity may
not always be respected and their vulnerability may not be duly taken into
account. 
41.         In order to ensure
sufficient protection of children who are not always able to understand the
content of interviews they are subject to, including during any questioning by the
police, interviews should be audio-visually recorded. However, it would not be
proportionate to require that the competent authorities should ensure the
audio-visual recording in all cases. Due account should be taken of the
complexity of the case, the seriousness of the alleged offence and the
potential sanction that can be incurred. However, if a child is deprived of
liberty, questioning should always be recorded.
42.         Such records must be
accessible only to the judicial authorities and the parties of the proceedings
to ensure their content and context. Any public dissemination of the records
should be prevented. Moreover, the length, style and pace of interviews should
be adapted to the age and maturity of the child questioned. 
Article 10 – Right to liberty
43.         The right to liberty and
security of a person is enshrined in Article 5 (1) ECHR and Article 6 of the
Charter.
44.         In accordance with international
rules, such as Article 37 UN CRC, 2007 UN General Comment N°10 on Children's
rights in juvenile justice, point 79 and the Recommendation of the Committee of
Ministers of the Council of Europe[11],
any form of deprivation of liberty of children should be a measure of last
resort and be for the shortest appropriate period of time[12].
45.         Taking into account these
international standards, this Directive sets minimum rules as regards
detention. This is notwithstanding the compliance by Member States with these
international standards as regards detention, in particular the separation of
children from adults and access to educative measures, beyond conviction.
Article 11 – Alternative measures
46.         In order to avoid deprivation
of liberty for children, all measures alternative to deprivation of liberty
should be taken by the competent authorities whenever this is in the best
interests of the child. Such measures should include for instance reporting
obligations to the competent authorities, restrictions on contacts with
specific persons or participation in therapeutic treatment or educational
measures[13].
Article 12 - Right to specific treatment
in case of deprivation of liberty
47.         In certain cases deprivation
of liberty might be necessary, for example to avoid the risk of tampering with
evidence, influencing witnesses, when there is a risk of collusion or flight
etc. In such cases, particular attention should be paid to the way detained
children are treated.
48.         Moreover, given the
vulnerability of children deprived of liberty, the importance of family ties
and promoting the reintegration into society, competent authorities should
respect and actively support the fulfilment of the rights of the child as set
out in international and European instruments. In addition to other rights,
children in particular should have the right to:
(a)                   
maintain regular and meaningful contact with
parents, family and friends. Restrictions on this right should never be used as
a punishment;
(b)                   
receive appropriate education, guidance and
training, 
(c)                   
receive medical
care. 
49.         In accordance with
international standards[14]
children should be kept separately from adults in order to take into account
their needs and vulnerability. When a detained child reaches the age of 18, the
person should have the possibility to continue the separate detention. For that
purpose, the individual circumstances of the case should be taken into account.
The measures foreseen by this Directive do not require, however, the creation
of separate detention facilities or prisons for children.
Article 13 – Timely and diligent
treatment of cases
50.         In proceedings involving
children, the urgency principle should be applied to provide a rapid response
and protect the best interests of the child. Courts should exercise particular
diligence to avoid any risk of adverse consequences on the family and social
relations of the child.
Article 14 – Right to protection of
privacy
51.         The requirement to protect
the privacy of children suspected or accused in criminal proceedings is arising
from international standards[15].
The involvement in criminal proceedings stigmatises the individuals concerned
and may have in particular for children a detrimental impact on their chances
for reintegration into society and their future professional and social life.
The protection of privacy of children involved in criminal proceedings is a
critical component of the youth rehabilitation.
52.         Children should be judged
in the absence of public. In exceptional cases the court may decide that a
hearing is held publicly after it has taken due account of the best interests
of the child.
53.         Moreover, with regard to
the best interests of the child and the family, authorities should prevent that
information that could lead to their identification is publicly disseminated
(e.g. name and the image of the child and family members)
Article 15 – Right of access to court
hearings of the holder of parental responsibility
54.         In order to ensure proper
assistance and support of the child during court hearings, the holder of
parental responsibility or another appropriate adult as referred to in Article 5
should be present. 
Article 16 - Right of children to appear
in person at the trial aiming at assessing the question of their guilt
55.         If children are not present
during the trial, their rights of defence are at stake. The defendants are in
such case neither able to give their version of the facts to the Court, nor are
they able to present evidence accordingly. They might therefore be found guilty
without having had the opportunity to rebut the grounds for such a conviction. 
56.         The right to be present at
trial, or being able to waive such right after having been informed of it, is
indispensable for the exercise of the rights of defence. 
57.         Article 16 provides that
Member States must ensure that the right to be present applies to any trial
aiming at assessing the question of the guilt of the accused person (both
conviction and acquittal decisions) in line with ECHR case-law. The presence of
the child at this moment in the criminal proceedings is of particular
importance given the consequences that moment could have.
Article 17 –European arrest warrant proceedings
58.         This Directive applies to
children subject to proceedings pursuant to Framework Decision 2002/584/JHA
from the time they are arrested in the executing State. Improving the EAW
system is a central tenet of the Commission's third report on implementation of
the Council Framework Decision on the EAW[16].
59.         The competent authorities
in the executing Member States shall apply the rights as foreseen by the
current Directive. This will promote mutual trust and mutual recognition by
providing a minimum level of protection to children in the executing Member State as exists in the issuing Member State.
60.         Proceedings for the
execution of the EAW will not be delayed since this Article is without
prejudice to the time-limits set out in the Framework decision. 
61.         With regard to the best
interests of the child and in accordance with international rules that any form
of deprivation of liberty of children should be a measure of last resort and be
for the shortest appropriate period of time (see above, Article 10), the
competent authorities shall take all measures to limit the duration of the
deprivation of liberty of children covered by such a EAW.
Article 18 – Right to legal aid
62.         Although this Directive
does not seek to regulate the issue of legal aid, it requires Member States to ensure
that their domestic legal aid regimes guarantee the effective exercise of the
right of access to a lawyer. 
63.         The right of suspected or
accused children to have provisional legal aid when deprived of liberty or when
subject to European arrest warrant proceedings will be covered by the [proposal
for a] Directive on the right to provisional legal aid for suspects or accused
persons in criminal proceedings that are deprived of liberty and for requested
persons in European arrest warrant proceedings and by the [proposal for a]
Commission Recommendation on the right to legal aid for suspects and accused
persons in criminal proceedings. In the latter, the situation of children is
specifically referred to as regards the 'means test' and the 'merits test'[17]. 
Article 19 – Training
64.         Judicial authorities, law
enforcement authorities and prison staff dealing with cases involving children
should be aware of the particular needs of children of different age groups and
should take care that the proceedings are adapted to them. For that purpose
they need appropriate training with regard to children's legal rights and the
need of children of different age groups, child development and child
psychology, pedagogical skills, communicating with children at all ages and
stages of development and on children in situations of particular
vulnerability.[18]
Also defense lawyers specialising in children’s cases should benefit from such
training. 
65.         Those providing children
with support or restorative justice services should also be trained to an
appropriate level to ensure that children are treated in a respectful,
impartial and professional manner.
Article 20 – Data collection
66.         In order to monitor and
evaluate the effectiveness and efficiency of this Directive, there is a need
for collection of data by the Member States with regard to the exercise of the rights
set out in this Directive. Relevant data include 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.
Article 21 – Costs
67.         The costs resulting from
the application of this Directive with regard to the assessment of the child,
the medical examination and audio-visual recording are to be met by Member
States, even in the event of conviction of the suspected or accused child.
Article 22 – Non-regression clause
68.         This Article ensures that
setting common minimum standards in accordance with this Directive does not
have the effect of lowering standards in certain Member States and that the
standards set in the Charter and in the ECHR are maintained. Since this
Directive provides for minimum rules, Member States remain free to set
standards higher than those agreed in this Directive.
Article 23 – Transposition
69.         Member States must
implement the Directive [24 months after its publication] and, by the same
date, transmit the text of the provisions transposing it into national law to
the Commission.
70.         Member States should notify
their transposition measures with one or more documents explaining the
relationship between the components of a directive and the corresponding parts
of national transposition instruments. 
Article 24 – Entry into force
71.         This Article provides that
the Directive will enter into force on the twentieth day following its
publication in the Official Journal of the European Union.
4.           subsidiarity principle
72.         The objective of the
proposal cannot be sufficiently achieved by Member States alone, since the aim
of the proposal is to promote mutual trust between them and it is therefore
important to agree on common minimum standards on procedural safeguards for
children suspected or accused in criminal proceedings across the European
Union. The need for EU action and explanations on why the EU is better placed
to take action on special safeguards for children confronted to criminal
proceedings is further developed in the Impact Assessment accompanying the
proposal for a Directive. 
5.           proportionality principle
73.         The proposal complies with
the proportionality principle in that it does not go beyond the minimum
required in order to achieve the stated objective at European level and what is
necessary for that purpose. Measures aimed at achieving more harmonisation of standards
were discarded, such as the age of criminal responsibility, establishment of
youth courts, rules on diversion from justice systems, which would have lead to
substantial changes of criminal justice systems in Member States. For reasons
of proportionality of EU action, the Directive does not therefore propose a
comprehensive set of rules for children in criminal proceedings. It only sets
up minimum rules that are considered indispensable to meet the objective of
achieving an effective standard of protection for children and to enhance
mutual trust and judicial cooperation.
6.           budgetary implications
74.         This proposal has no
budgetary implications for the budget of the EU.
2013/0408 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on procedural safeguards for children
suspected or accused in criminal proceedings
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 82(2)(b) thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[19],
Having regard to the opinion of the
Committee of the Regions[20],
Acting in accordance with the ordinary
legislative procedure,
Whereas:
(1)       The purpose of this
Directive is to establish procedural safeguards to ensure that children who are
suspected or accused in criminal proceedings are able to understand and follow
those proceedings, to enable such children to exercise their right to a fair
trial and to prevent re-offending by children and foster their social
integration.
(2)       By establishing minimum
rules on the protection of procedural rights of suspects or accused persons,
this Directive should strengthen the trust of Member States in the criminal
justice systems of other Member States and can thus help improve mutual
recognition of decisions in criminal matters. Such common minimum rules should
also remove obstacles to the free movement of citizens throughout the territory
of the Member States.
(3)       Although the Member States
are parties to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, the International Covenant on Civil and Political Rights
and the United Nations Convention on the Rights of the Child, experience has
shown that this in itself does not always provide a sufficient degree of trust
in the criminal justice systems of other Member States.
(4)       The Stockholm Programme[21] put a strong focus on the
strengthening of the rights of individuals in criminal proceedings. In its
point 2.4, the European Council invited the Commission to put forward proposals
setting out a step by step approach[22]
to strengthening the rights of suspects or accused persons. 
(5)       Three measures have been
adopted to date, namely Directive 2010/64/EU of the European Parliament and of
the Council[23],
Directive 2012/13/EU of the European Parliament and of the Council[24] and Directive 2013/48/EU of
the European Parliament and the Council[25].
(6)       This Directive promotes
the rights of the child, taking into account the Guidelines of the Council of
Europe on child-friendly justice. 
(7)       Children who are suspects
or accused in criminal cases should be given special attention in order to
preserve their potential for development and reintegration into society.
(8)       This Directive should apply
to children meaning persons under the age of 18 at the time when they become suspected
or accused of having committed an offence, regardless of their age during the
criminal proceedings until the final judgment.
(9)       This Directive should also
apply in respect of offences which have been committed after the age of 18
years by the same suspect or accused person and which are jointly investigated
and prosecuted as they are inextricably linked to offences where criminal
proceedings started against that person before the age of 18.
(10)     When, at the time a person
becomes a suspect or accused person in criminal proceedings, that person is
above the age of 18, Member States are encouraged to apply the procedural
safeguards foreseen by this Directive until this person reaches the age of 21.
(11)     Member States should
determine the age of children on the basis of the children’s own statements, checks
of their civil status, documentary research, other evidence and, if such
evidence is unavailable or inconclusive, on the basis of a medical examination.
(12)     This Directive should be
implemented taking into account the provisions of Directive 2012/13/EU and
Directive 2013/48/EU. Information with regard to minor offences should be
provided under the same conditions as provided for by Article 2(2) of Directive
2012/13/EU. However, this Directive provides further complementary safeguards
with regard to information to be provided to the holder of parental
responsibility and mandatory access to a lawyer in order to take into account
the specific needs of children. 
(13)     If a child is deprived of liberty, the Letter of Rights provided to
the child pursuant to Article 4 of Directive 2012/13/EU should include clear
information on the child’s rights under this Directive. 
(14)     The term "holder of
parental responsibility" means any person having parental responsibility
over a child as defined in Council Regulation (EC) 2201/2003[26]. Parental responsibility means
all rights and duties relating to the person or the property of a child which
are given to a natural or legal person by judgment, by operation of law or by
an agreement having legal effect, including rights of custody and rights of
access.
(15)     Children should have the
right to have the holder of parental responsibility informed about applicable
procedural rights, either orally or in writing. This information should be
provided promptly and in such detail as is necessary to safeguard the fairness
of the proceedings and the effective exercise of the rights of defence of the
child. Where it would be contrary to the best interests of the child to inform
the holder of parental responsibility of those rights, another appropriate
adult should be informed. 
(16)     Children should not be able
to waive their right of access to a lawyer because they are not able to fully
understand and follow criminal proceedings. Therefore, the presence or assistance
of a lawyer should be mandatory for children.
(17)     In some Member States an
authority other than a public prosecutor and a court having jurisdiction in
criminal matters has competence for imposing penalties other than deprivation
of liberty in relation to relatively minor offences. That may be the case, for
example, in relation to traffic offences which are committed on a large scale
and which might be established following a traffic control. In such situations,
it would be unreasonable to require the competent authorities to ensure
mandatory access to a lawyer. Where the law of a Member State provides for the
imposition of a penalty regarding minor offences by such an authority and there
is either a right of appeal or the possibility for the case to be otherwise
referred to a court having jurisdiction in criminal matters, mandatory access
to a lawyer should therefore apply only to the proceedings before that court
following such an appeal or referral. In some Member States proceedings
involving children may be dealt with by public prosecutors who may impose
penalties. In such proceedings children should have mandatory access to a
lawyer. 
(18)     In some Member States
certain minor offences, in particular minor traffic offences, minor offences in
relation to general municipal regulations and minor public order offences, are
considered to be criminal offences. It would be disproportionate to require the
competent authorities to ensure mandatory access to a lawyer in respect of such
minor offences. Where the law of a Member State provides that deprivation of
liberty cannot be imposed as a penalty in respect of minor offences, the right
to mandatory access to a lawyer should therefore apply only to proceedings
before a court having jurisdiction in criminal matters. 
(19)     Children who are suspected
or accused in criminal proceedings should have the right to an individual
assessment to identify their specific needs in terms of protection, education,
formation and social integration, to determine if and to what extent they would
need special measures during the criminal proceedings and to determine the
extent of their criminal responsibility and the adequacy of a penalty or
educative measure for them. 
(20)     In order to ensure the
personal integrity of a child who is arrested or detained, the child should
have access to a medical examination. The medical examination should be carried
out by a physician.
(21)     In order to ensure
sufficient protection of children who are not always able to understand the
content of interviews to which they are subject, to avoid any challenge of the
content of an interview and thereby undue repetition of questioning, questioning
of children should be audio-visually recorded. This does not include questioning
necessary to identify the child.
(22)     However, it would be
disproportionate to require the competent authorities to ensure audio-visual
recording in all circumstances. Due account should be taken of the complexity
of the case, the seriousness of the alleged offence and the potential penalty
that can be incurred. If a child is deprived of liberty before conviction, any
questioning of the child should be audio-visually recorded. 
(23)     Such audio-visual records should
be accessible only to the judicial authorities and the parties to the proceedings.
Moreover, the questioning of children should be carried out in a manner that
takes into account their age and level of maturity.
(24)     When deciding the issue of
legal aid, Member States should aim at having rules which guarantee the
effective exercise of the right to access to a lawyer for children.
(25)     Children are in a
particularly vulnerable position in relation to detention. Special efforts should
be undertaken to avoid deprivation of liberty of children given the inherent
risks for their physical, mental and social development. The competent
authorities should consider alternative measures and impose such measures whenever
this is in the best interests of the child. This may include the obligation to
report to a competent authority, a restriction on contact with specific
persons, a requirement to undergo therapeutic treatment or treatment for
addiction and participation in educational measures. 
(26)     When deprivation of liberty
is imposed on children, they should benefit from special protection measures. In
particular they should be held separately from adults unless it is considered
in the child's best interest not to do so, in accordance with Article 37(c) of
the United Nations Convention of the Rights of the Child. When a detained child
reaches the age of 18 years, there should be the possibility to continue the
separate detention where warranted, taking into account the individual
circumstances of the case. Particular attention should be paid to the way
detained children are treated given their inherent vulnerability. Children
should have access to educational facilities according to their needs.
(27)     Professionals in direct
contact with children should take into account the particular needs of children
of different age groups and should take care that the proceedings are adapted
to them. For that purpose, they should be specially trained in dealing with
children.
(28)     Children should be judged
in the absence of the public in order to protect their privacy and to
facilitate their re-integration into society. In exceptional cases the court
may decide that a hearing should be held publicly after it has taken due
account of the best interests of the child. 
(29)     In order to ensure
appropriate assistance and support of children, the holder of parental
responsibility or another appropriate adult should have access to the court
hearings involving the suspected or accused child.
(30)     The right of an accused
person to appear in person at the trial is based on the right to a fair trial
provided for in Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, as interpreted by the European Court of
Human Rights. 
(31)     The rights provided for by
this Directive should apply to children subject to European arrest warrant
proceedings from the time they are arrested in the executing Member State. 
(32)     Any individual assessment,
medical examination and audio-visual recording provided for by this Directive
should be carried out free of charge for the child.
(33)     In order to monitor and
evaluate the effectiveness of this Directive, there is a need for collection of
data by the Member States with regard to the implementation of the rights set
out in this Directive. Relevant data include 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 interviews audio-visually recorded and
the number of children deprived of liberty. 
(34)     This Directive upholds the
fundamental rights and principles as recognised by the Charter of Fundamental
Rights of the European Union and the European Convention for the Protection of
Human Rights and Fundamental Freedoms, including the prohibition of torture and
inhuman and degrading treatment, the right to liberty and security, respect for
private and family life, the right to the integrity of the person, the rights
of the child, integration of persons with disabilities, the right to an
effective remedy and to a fair trial, the presumption of innocence and the
rights of defence. This Directive should be implemented in accordance with
those rights and principles.
(35)     This Directive sets minimum
rules. Member States may extend the rights set out in this Directive in order
to provide a higher level of protection. Such higher level of protection should
not constitute an obstacle to the mutual recognition of judicial decisions that
those minimum rules are designed to facilitate. The level of protection should
never fall below the standards provided by the Charter of Fundamental Rights of
the European Union or the European Convention for the Protection of Human
Rights and Fundamental Freedoms, as interpreted in the case law of the Court of
Justice of the European Union and the European Court of Human Rights.
(36)     Since the objectives of
this Directive, namely setting common minimum standards on procedural
safeguards for children suspected or accused in criminal proceedings, cannot be
sufficiently achieved by the Member States, but can rather, by reason of the
scale of the measure, be better achieved at Union level, the Union may adopt
measures in accordance with the principle of subsidiarity as set out in Article
5 of the Treaty on the European Union. In accordance with the principle of
proportionality as set out in that Article, this Directive does not go beyond
what is necessary in order to achieve these objectives.
(37)     [In accordance with
Articles 3 of Protocol No 21 on the position of the United Kingdom and Ireland
in respect of the Area of Freedom, Security and Justice, annexed to the Treaty
on European Union and to the Treaty on the Functioning of the European Union, those
Member States have notified their wish to participate in the adoption and
application of this Directive] OR [In accordance with Articles 1 and 2 of
Protocol 21 on the position of the United Kingdom and Ireland in respect of the
Area of Freedom, Security and Justice, annexed to the Treaty on European Union
and to the Treaty on the Functioning of the European Union, and without
prejudice to Article 4 of that Protocol, those Member States are not taking
part in the adoption of this Directive and are not bound by it or subject to
its application][27];
(38)     In accordance with Articles
1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on
the European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive, and is not bound by it or
subject to its application.
(39)     In accordance with the
Joint Political Declaration of Member States and the Commission of 28 September
2011 on explanatory documents[28],
Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the corresponding
parts of national transposition instruments. With regard to this Directive, the
legislator considers the transmission of such documents to be justified,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject
matter
This Directive lays down minimum rules
concerning certain rights of suspects or accused persons in criminal
proceedings who are children and of children subject to a surrender procedure pursuant
to Council Framework Decision 2002/584/JHA[29]
(“European arrest warrant proceedings”).
Article 2
Scope
1.           This Directive applies to
children subject to criminal proceedings from the time when they become
suspected or accused of having committed an offence and until the conclusion of
the criminal proceedings.
2.           This Directive applies to
children subject to European arrest warrant proceedings from the time of their
arrest in the executing Member State.
3.           This Directive applies to
suspects or accused persons subject to criminal proceedings referred to in
paragraph 1, and to persons subject to European arrest warrant proceedings
referred to in paragraph 2, who are no longer children in the course of those
proceedings, which started when they were children.
4.           This Directive also
applies to children other than suspected or accused who, in the course of questioning
by the police or by another law enforcement authority, become suspects or
accused persons.
5.           This Directive does not
affect national rules determining the age of criminal responsibility.
Article 3 
Definition
For the purposes of this Directive the term
"child" means a person below the age of 18 years. 
Article 4
Right to information
of children
1.           Member States shall ensure
that children are informed promptly about their rights in accordance with Directive
2012/13/EU. They shall also be informed about the following rights within the
same scope as Directive 2012/13/EU:
(1)         
their right to have the holders of parental
responsibility informed as provided for in Article 5;
(2)         
their right to a lawyer, as provided for in
Article 6; 
(3)         
their right to an individual assessment, as
provided for in Article 7;
(4)         
their right to a medical examination, as
provided for in Article 8;
(5)         
their right to liberty and the right to specific
treatment in detention, as provided for in Articles 10 and 12;
(6)         
their right to protection of privacy, as
provided for in Article 14;
(7)         
their right that the holders of parental
responsibility have access to the court hearings, as provided for in Article 15;
(8)         
their right to appear in person at the trial, as
provided for in Article 16;
(9)         
their right to legal aid, as provided for in
Article 18. 
2.           Member States shall ensure
that, where children are deprived of liberty the Letter of Rights given to them
pursuant to Directive 2012/13/EU includes their rights under this Directive. 
Article 5 
Right of
the child to have the holder of parental responsibility informed
Member States shall ensure that the holder
of parental responsibility of the child or, where that would be contrary to the
best interests of the child, another appropriate adult, is provided with the information
that the child receives in accordance with Article 4. 
Article 6
Right to a
mandatory access to a lawyer
1.           Member States shall ensure
that children are assisted by a lawyer throughout the criminal proceedings in
accordance with Directive 2013/48/EU. The right to access to a lawyer cannot be
waived.
2.           The right to access to a
lawyer shall also apply to criminal proceedings that may lead to the final
dismissal of the case by the prosecutor after the child has complied with
certain conditions.
Article 7
Right to an
individual assessment 
1.           Member States shall ensure
that the specific needs of children concerning protection, education, training
and social integration are taken into account.
2.           For that purpose children
shall be individually assessed. The assessment shall take particular account of
the personality and maturity of the child and their economic and social
background. 
3.           The individual assessment
shall take place at an appropriate stage of the proceedings and in any event before
indictment. 
4.           The extent and detail of
the individual assessment may vary depending on the circumstances of the case,
the seriousness of the alleged offence and the penalty which will be imposed if
the child is found guilty of the alleged offence, whether or not the child has
previously come to the attention of competent authorities in the context of
criminal proceedings. 
5.           Individual assessments
shall be carried out with the close involvement of the child. 
6.           If the elements that form
the basis of the individual assessment change significantly, Member States
shall ensure that the individual assessment is updated throughout the criminal
proceedings. 
7.           Member States may derogate
from the obligation in paragraph 1 when it is not proportionate to carry out an
individual assessment taking into account the circumstances of the case and
whether or not the child has previously come to the attention of Member State authorities in the context of criminal proceedings. 
Article 8
Right to
medical examination
1.           In case of deprivation of
liberty of a child, Member States shall ensure that the child has access to a
medical examination with a view, in particular, to assessing the general mental
and physical condition of the child with the aim to determine the capacity of
the child to face questioning or other investigative or evidence gathering acts
or any measures taken or envisaged against the child. 
2.           The following persons
shall have the right to ask for a medical examination:
(a)         
the child,
(b)         
the holder of the parental responsibility or the
appropriate adult referred to in Article 5;
(c)         
the child’s lawyer.
3.           The conclusion of the
medical examination shall be recorded in writing.
4.           Member States shall ensure
that the medical examination is repeated where the circumstances so require.
Article 9
Questioning
of children
1.           Member States shall ensure
that any questioning of children by police or other law enforcement or judicial
authority carried out prior to the indictment is audio-visually recorded,
unless it is not proportionate taking into account the complexity of the case,
the seriousness of the alleged offence and the potential penalty that can be
incurred. 
2.           In any event, the questioning
of children shall be audio-visually recorded where the child is deprived of
liberty, irrespective of the stage of the criminal proceedings. 
3.           Paragraph 1 is without
prejudice to the possibility to ask questions for the purpose of personal
identification of the child without such audio-visual recording.
Article 10
Right to
liberty
1.           Member States shall ensure
that children are deprived of liberty before their conviction only as a measure
of last resort and for the shortest appropriate period of time. Due account shall
be taken of the age and individual situation of the child.
2.           Member States shall ensure
that any deprivation of liberty of children before their conviction is subject
to a periodic review by a court.
Article 11
Alternative
measures
1.           Member States shall ensure
that, where the conditions for deprivation of liberty are fulfilled, the
competent authorities have recourse to alternative measures, wherever possible.
2.           The alternative measures may
include:
(a)         
an obligation for the child to reside in a
specific place, 
(b)         
restrictions of contact with specific persons, 
(c)         
reporting obligations to the competent
authorities, 
(d)         
undergoing of therapeutic treatment or treatment
for addiction, 
(e)         
participation in educational measures.
Article 12
Right to
specific treatment in case of deprivation of liberty
1.           Member States shall ensure
that children are detained separately from adults, unless it is considered in
the child's best interest not to do so. When a detained child reaches the age
of 18 years, Member States shall provide the possibility to continue the
separate detention where warranted, taking into account the individual
circumstances of the detained person.
2.           Member States shall,
during the period of deprivation of liberty, take all appropriate measures to:
(a)         
ensure and preserve the health and physical
development of the child,
(b)         
ensure the right to education and training of
the child,
(c)         
ensure effective and regular exercise of the
right to family life including the maintenance of family ties,
(d)         
foster the development of the child and its
future integration into society.
Article 13
Timely and
diligent treatment of cases
1.           Member States shall ensure
that criminal proceedings involving children are treated as a matter of urgency
and with due diligence.
2.           Member States shall ensure
that children are treated in a manner appropriate to their age, their special
needs, their maturity and level of understanding, and bearing in mind any
communication difficulties they may have.
Article 14
Right to protection
of privacy
1.           Member States shall ensure
that criminal proceedings involving children take place in the absence of the
public, unless, after due consideration of the best interest of the child, exceptional
circumstances justify a derogation. 
2.           Member States shall ensure
that the competent authorities take appropriate measures in criminal
proceedings to protect the privacy of the child and family members, including
their names and images. Member States shall ensure that the competent
authorities do not publicly disseminate information that could lead to the
identification of the child.
3.           Member States shall ensure
that the records referred to in Article 9(1) are not publicly disseminated.
Article 15
Right of
access to court hearings of the holder of parental responsibility 
Member States shall ensure that the holder of
parental responsibility or another appropriate adult as referred to in Article 5
have access to the court hearings involving the child.
Article 16
Right of children
to appear in person at the trial aiming at assessing the question of their
guilt
1.           Member States shall ensure
that children are present at the trial. 
2.           Member States shall ensure
that where children were not present at the trial resulting in a decision on
their guilt, they shall have the right to a procedure in which they have the
right to participate and which allows a fresh determination of the merits of
the case, including examination of new evidence, and which may lead to the
original decision to be reversed.
Article 17
European
Arrest Warrant proceedings
1.           Member States shall ensure
that a requested child has the rights referred to in Articles 4, 5, 6, 8, 10, 11,
12, 14, 15 and 18 in the executing Member State upon arrest pursuant to
European arrest warrant proceedings.
2.           Without prejudice to
Article 12 of the Framework Decision 2002/584/JHA, the executing authorities
shall take all measures to limit the duration of the deprivation of liberty of
children subject to European arrest warrant proceedings.
Article 18
Right to legal
aid
Member States shall ensure that national
law in relation to legal aid guarantees the effective exercise of the right to
access to a lawyer as referred to in Article 6. 
Article 19
Training
1.           Member States shall ensure
that judicial and law enforcement authorities and prison staff who deal with
cases involving children are professionals specialising in the field of
criminal proceedings involving children. They shall receive particular training
with regard to children's legal rights, appropriate interviewing techniques,
child psychology, communication in a language adapted to the child and
pedagogical skills. 
2.           Member States shall ensure
that lawyers defending children also receive such training.
3.           Through their public
services or by funding child support organisations, Member States shall
encourage initiatives enabling those providing children with support and
restorative justice services to receive adequate training to a level
appropriate to their contact with children and observe professional standards
to ensure such services are provided in an impartial, respectful and
professional manner.
Article 20
Data collection
1.           Member States shall, by
[…] and every three years thereafter, send to the Commission data showing how
the rights set out in this Directive have been implemented. 
2.           Such data shall include in
particular the number of children given access to a lawyer, the number of
individual assessments carried out, the number of interviews audio-visually
recorded and the number of children deprived of liberty. 
Article 21
Costs
Member States shall meet the costs
resulting from the application of Articles 7, 8 and 9 irrespective of the
outcome of the proceedings. 
Article 22
Non-regression
clause
Nothing in this Directive shall be
construed as limiting or derogating from any of the rights and procedural
safeguards that are ensured under the Charter, the ECHR, or other relevant
provisions of international law, in particular the UN Convention on the Rights
of the Child, or the law of any Member State which provides a higher level of
protection.
Article 23 
Transposition
1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [24 months after its publication]. They shall
immediately inform the Commission thereof
2.           When Member States adopt
these measures, they shall contain a reference to this Directive or shall be
accompanied by such a reference on the occasion of their official publication.
The methods of making such a reference shall be laid down by the Member States.
3.           Member States shall
communicate to the Commission the text of the measures of national law which
they adopt in the field covered by this Directive.
Article 24
Entry into
force
This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.
Article 25
Addressees
This
Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament                       For
the Council
The President                                                 The
President
[1]               OJ C
115, 4.5.2010, p. 1.
[2]               Communication from the Commission to the European
Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions, 15.2.2011, COM(2011) 60 final
[3]               Directive
2010/64/EU on the right to interpretation and translation in criminal
proceedings (OJ L 280, 26.10.2010, p. 1).
[4]               Directive 2012/13/EU on the right to information in
criminal proceedings (OJ L 142, 1.6.2012, p. 1).
[5]               Directive 2013/48/EU on the right of access to a
lawyer in criminal proceedings and in European arrest warrant proceedings, and
on the right to have a third party informed upon deprivation of liberty and to
communicate with third persons and with consular authorities while deprived of
liberty, (OJ L 294, 6.11. 2013, p.1.
[6]               The guiding principle of the European Court of Human
Rights when assessing a potential breach of Article 6 ECHR with regard to
suspects or accused persons who may be said to be vulnerable has been to focus
on whether or not the person was able to "effectively participate" in
their trial.
[7]               Article 1 UN Convention of the Rights of the Child
("UN CRC").
[8]               Points 37 (to 43).
[9]               Point 15.1.
[10]             Point 49.
[11]             Recommendation of the Committee of Ministers (2008),
11, on European rules for Juvenile Offenders, point 59.1; Guidelines of the
Committee of Ministers of the Council of Europe on child-friendly justice, point
19.
[12]             See Green Paper on "Strengthening mutual trust in
the European judicial area", Chapter 5 on children, COM(2011) 327 final,
14.6.2011.
[13]             See Article 8 of the Council Framework Decision
2009/829/JHA of 23 October 2009 on the application, between Member States of
the European Union, of the principle of mutual recognition to decisions on
supervision measures as an alternative to provisional detention (OJ L 294,
11.11.2009, p.20).
[14]             Article 37 UN CRC, Article 13.4 of Beijing Rules, Guidelines
of the Committee of Ministers of the Council of Europe on child-friendly
justice, point IV.A.6.20.
[15]             Guidelines of the Committee of Ministers of the Council
of Europe on child-friendly justice, point IV.A.2.6.
[16]             Report from the Commission on the implementation since
2007 of the Council Framework Decision of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States – COM(2011) 175,
11.4.2011.
[17]             See points 6 and 12.
[18]             This flows also from international standards such as
Article 40(1) and (3) UNCRC; Guidelines of the Committee of Ministers of the
Council of Europe on child-friendly justice, point 63.
[19]             OJ C , , p. .
[20]             OJ C , , p. .
[21]             OJ C 115, 4.5.2010, p.1.
[22]             OJ C 291, 4.12.2009, p.1.
[23]             Directive 2010/64/EU of the European Parliament and of
the Council of 20 October 2010 on the right to interpretation and translation
in criminal proceedings (OJ L 280, 26.10.2010, p.1).
[24]             Directive 2012/13/EU of the European Parliament and of
the Council of 22 May 2012 on the right to information in criminal proceedings (OJ
L 142, 1.6.2012, p.1).
[25]             Directive 2013/48/EU of the European Parliament and the
Council of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and 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 (OJ L 294, 6.11.2013, p. 1).
[26]             Council Regulation (EC) 2201/2003 of 27 November 2003
concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility (OJ L 338, 23.12.2003, p.
1).
[27]             The
final wording of this recital in the Directive will depend on the position of
the United Kingdom and Ireland taken in accordance with the provisions of
Protocol No 21.
[28]             OJ C 369, 17.12.2011, p. 14.
[29]             Council Framework Decision 2002/584/JHA of 13 June 2002
on the European arrest warrant and the surrender procedures between Member
States (OJ L 190, 18.7.2002, p.1).