Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings’

COM(2010) 392 final — 2010/0215 (COD)

(2011/C 54/15)

Rapporteur-General: Mr PEZZINI

On 29 September 2010 the Council decided to consult the European Economic and Social Committee, under Article 304 of the Treaty on the Functioning of the European Union, on the

Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings

COM(2010) 392 final - 2010/0215 (COD).

On 20 October 2010 the Committee Bureau instructed the Section for Employment, Social Affairs and Citizenship to prepare the Committee's work on the subject.

Given the urgent nature of the work, the European Economic and Social Committee appointed Mr Pezzini as rapporteur-general at its 467th plenary session, held on 8 and 9 December 2010 (meeting of 8 December 2010), and adopted the following opinion by 161 votes to none with three abstentions.

1.   Conclusions and recommendations

1.1   The EESC welcomes the work undertaken by the Commission to develop a comprehensive package of legislation to guarantee a common set of procedural rights in the criminal proceedings of Member States.

1.2   The right to timely and accurate information is part of the EU's legal heritage and is becoming even more important as EU citizens move within the European Union.

1.3   Non-EU citizens too, now entering the EU in growing numbers, should be able to identify, firstly, an EU legal culture and, secondly, clear procedures that reflect respect for individuals, even if facing criminal procedures.

1.4   The EESC believes that the approximation of national legislations, which underlies the Directive, should become the cornerstone of judicial cooperation, also in order to emphasise the Charter of Fundamental Rights, which has been incorporated in the Treaty on European Union (TFEU and TEU).

1.5   The EESC believes that safeguarding human rights through common and shared procedures undoubtedly plays a strong part in the cohesion and reinforcement of free movement within the EU.

2.   General considerations

2.1   In order to guarantee the right to ‘fair’ criminal proceedings, in compliance with the rule of law, the EU has undertaken specific action to strengthen the procedural rights of suspects or accused persons in criminal proceedings.

2.2   This action also includes the strengthening of the rights of the defence. This joint action must be treated as extremely important, especially, in order to increase confidence in the European area of justice, as well as to make the principle of mutual recognition of judicial decisions in criminal matters effective.

2.3   Indeed, the removal of internal borders and the increasing exercise of the rights to freedom of movement and residence have led to an increase in the number of people becoming involved in criminal proceedings in a Member State other than that of their residence.

2.4   Council Resolution 2009/C 295/01 of 30 November 2009, recalling:

proposes, in general, to ensure full implementation and respect – on a step-by-step basis – of the ‘right to a fair trial’.

2.4.1   This is in accordance with the principle set out in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is thus taken as the common basis for the protection of the rights of suspected or accused persons in criminal proceedings.

2.5   Furthermore, the right to a fair trial and to a defence are enshrined in Articles 47 and 48 of the Charter of Fundamental Rights (1).

2.6   More specifically, the six-point roadmap set out in the abovementioned Council Resolution identifies the following priority measures:

3.   Gist of the Proposal

3.1   In line with the mandate set out in the abovementioned Council Resolution, the Commission drew up the Proposal for a Directive on the right to information in criminal proceedings (COM(2010) 392 final) of 27 July 2010.

3.2   The purpose of the Proposal for a Directive is to ensure the detailed implementation of Measure B of the abovementioned roadmap by setting common minimum standards as regards the right to information in criminal proceedings throughout the European Union.

3.3   As a result, under these rules, the prosecuting authority is required not only to make the necessary information available to the accused but also to proactively bring this information to the attention of the defence.

3.4   Furthermore, in practice, these positive and reasonable measures are expected to cut the length and cost of legal procedures by preventing judicial errors and reducing the number of appeals.

3.5   In this respect, there may be a positive ‘compensation’ for the added – albeit limited – financial burden that will undoubtedly be incurred by the development and practical implementation of the information measures.

4.   Specific comments

4.1   Recital 18: the phrase ‘should be given to all suspected and accused persons promptly at the outset’ could give rise to different interpretations, for which reason, the precise moment for giving oral or written notification of the charge should be specified.

4.2   Recital 19: in the first sentence, the phrase ‘information about these immediately relevant procedural rights’ seems inexplicit, for which reason, the nature and scope of these relevant procedural rights should be more clearly spelt out, as they are particularly important to the effectiveness of the defence.

4.3   Recital 21: in the last sentence, the phrase ‘poses a serious risk to […] the internal security …’ seems vague. Nevertheless, the adjective ‘serious’ should be considered as an immutable condition in order to avoid any future possibility of Member States exercising ‘political’ discretion on the grounds of ensuring ‘internal security’.

4.4   Recital 22: the phrase ‘a mechanism to verify that the suspected or accused person’ could be more clearly expressed for the purposes of transparency and scope by adding ‘through formal acts’ after ‘verify’.

4.5   Article 3(1): it would be helpful to replace the word ‘promptly’ with the expression ‘from the very first act’.

4.6   Article 3(2), last indent: [Translator's note: the rapporteur wishes to bring the Italian wording of the phrase ‘be brought promptly before’ into line with the wording of the Italian version of Article 5(3) ECHR. The English wording already matches that of the ECHR, so this point does not concern the English version].

4.7   Article 4(1): it would be helpful to replace the expression ‘promptly provided’ with the expression ‘provided from the very first act’.

4.8   Article 6: since the Directive also concerns the right to information about the charge not only during the trial but also during the ‘pre-trial’ phase, the Article should specify that information about the charge should also be provided during police investigations or at least in cases of delegation of judicial authority or when initial charges are brought.

4.9   Article 6(1): the wording should be amended to read as follows: ‘Member States should ensure that a suspected or accused person is provided with sufficient information about the charge and the grounds for this charge, to safeguard the fairness of the criminal proceedings’, thus reflecting the concept set out in the ECHR (Article 6(3)(a)), which refers specifically to the 'cause of the accusation'’.

4.10   Article 6(2): [Translator's note: the rapporteur wishes to bring the Italian wording of the phrase ‘delivered promptly’ into line with the wording used in the Italian version of the ECHR. The English wording already matches that of the ECHR, so this point does not concern the English version].

4.11   Article 6(3)(a): instead of ‘… circumstances in which the offence was committed …’, this should read ‘… circumstances in which the offence is said to have been committed …’, since at the time of the charge it has not yet even been established that an offence has actually been committed; such a conclusion is only possible after the trial.

4.12   Article 6(3)(a): the phrase ‘including the time, place and degree of participation in the offence’, would be more accurate if ‘degree of participation’ were replaced with ‘effective role played’.

4.13   Article 6(3): add three new points as follows:

4.14   Article 7(2): when using secrecy orders as grounds for refusing access to certain documents after investigations have been concluded, it must be ensured that the judicial authorities are prevented from exercising undue discretion, bearing in mind that in any case, the conclusion of investigations generally means that the procedural acts are made available.

4.15   Article 7(3): it should be ensured that all language versions of the Directive refer to ‘preliminary enquiries’ (English version: pre-trial) and avoid expressions such as the Italian ‘fase istruttoria’ since many legal systems do not have an exact equivalent.

(1)  Article 5(2) of the ECHR (Right to liberty and security) provides, that ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him’.

Article 6(3) of the ECHR (Right to a fair trial) further provides that Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; […] (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 111 of the Italian Constitution, as amended by Constitutional law No 2/1999, also expressly provides for these fair trial guarantees.

(2)  Directive 2010/64/EU was published in OJ L 280, 26 October 2010 and came into force on 20 October 2010.