Green Paper on criminal proceedings

To facilitate the application of the principle of mutual recognition, the European Commission is presenting this Green Paper on common minimum standards for procedural safeguards for persons suspected or accused of, and prosecuted or sentenced for, criminal offences. There are five fundamental rights: the right to legal assistance and representation; the right to an interpreter or translator; the right of vulnerable groups to proper protection; the right of nationals of other Member States and of third countries to consular assistance; and the right to a "Letter of Rights".

ACT

Commission Green Paper Procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union.

SUMMARY

With a view to facilitating application of the principle of mutual recognition, this Commission Green Paper examines whether it is appropriate and necessary to introduce in the Member States of the EU common minimum standards for procedural safeguards for persons suspected or accused of, and prosecuted or sentenced for, criminal offences. It defines these minimum standards and the areas in which they will be applicable.

The Green Paper, which is divided into nine chapters, contains 35 specific questions submitted for consultation to all the sectors concerned (government departments, professional bodies and institutions, non-governmental organisations (NGOs), legal practitioners and private individuals).

The first three chapters, which make up a third of the Green Paper, explain why the Commission is taking action at the European level to safeguard the rights of persons suspected or accused of, and prosecuted or sentenced for, criminal offences, with particular attention being paid to suspects and defendants in criminal proceedings in Member States of which they are not nationals. These three chapters are devoted to (a) the reasons for action by the Union in this area; (b) identifying fundamental rights (called "basic rights" in this document); and (c) obligations under international conventions and existing provisions.

Fundamental rights stemming from the right to a fair trial

The Commission draws up a list of basic provisions compliance with which calls for EU action: Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which lays down the "right to a fair trial"; Article 47 of the Charter of Fundamental Rights, which refers to the "right to an effective remedy and to a fair trial"; and various other international treaty provisions.

Regarding the identification of fundamental rights, which dovetail with the concept of "right to a fair trial", the Commission comes to the conclusion that, although they are all important, priority should be given at this stage to those rights which are considered essential, namely:

• the right to legal advice and assistance (representation) provided by a lawyer;
• the right to an interpreter and to translation of essential documents;
• the right for persons accused of an offence to obtain written information about their fundamental rights in a language they understand, which may take the form of a "Letter of Rights";
• the right of vulnerable persons to proper protection;
• the right to consular assistance.

Each of these rights is the subject of a chapter in the Green Paper.

Right to legal assistance and representation

The Commission is considering the possibility of going beyond the right to assistance by a lawyer by requiring Member States to establish a national scheme of legal representation by a lawyer. More than that, it is even considering the possibility of requiring Member States to verify the level of competence of lawyers assigned by courts and to guarantee them an adequate remuneration.

Right to an interpreter and/or translator

The Green Paper envisages the possibility of creating a formal mechanism whereby those responsible for the judicial investigation must ascertain whether the suspect/defendant understands the language of the proceedings sufficiently to defend himself. A further possibility put up for consideration is the setting up of national registers of legal translators and interpreters and of national schemes for training such professionals, coupled with an obligation on Member States to verify that they are adequately remunerated.

Protection of vulnerable groups

The Commission analyses a list of groups of potentially vulnerable suspects to whom Member States should provide a proper degree of protection which matches their level of vulnerability. The groups singled out by the Commission for special mention include foreign nationals, children, the physically or mentally ill, those with dependants, persons who cannot read or write, refugees, alcoholics and drug addicts.

The Green Paper also raises the possibility of requiring police officers, lawyers and prison officers to make an assessment of a suspect/defendant's potential vulnerability at certain stages in criminal proceedings, and proposes steps that might be taken to follow up the assessment.

Consular assistance

The provisions governing this matter are those set out in Article 36 of the 1963 Vienna Convention on Consular Relations. With a view to improving on them, the Commission suggests that Member States might be required to ensure that there is an official with responsibility for looking after the rights of suspects and defendants in criminal proceedings in the host State, including acting as a liaison person with their families and lawyers.

Letter of rights

After setting out the rights that a defendant must be granted, the Green Paper refers to the need to draw up a "Letter of Rights", common to all Member States, putting down in writing the basic rights of any suspect or defendant, who would be given it at the latest at the time of his or her arrest.

Compliance with and monitoring of the common standards

Lastly, the Green Paper points to the need to set up a system making it possible to evaluate the level of compliance by all Member States with these minimum standards, to create tools for evaluation, and to provide for sanctions in the event of failure by a Member State to comply with the standards.

RELATED ACTS

Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union [COM(2004) 328 final - Not published in the Official Journal].

Following publication of the Green Paper, the Commission received 78 written replies supporting the idea of setting common minimum standards for procedural safeguards. A hearing was held in June 2003. On 28 April 2004, the Commission presented a proposal for a framework decision. This proposal is concerned with access by suspects and defendants to legal advice; access by foreign defendants to the services of an interpreter or translator; the protection of persons incapable of understanding or following the proceedings; the right of detainees to communicate, inter alia with consular authorities in the case of foreign suspects; the "Letter of Rights"; and evaluation and monitoring.

Consultation procedure (CNS 2004/0113)

Proposal for a Council framework decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters [COM(2003) 688 final - Not published in the Official Journal].Consultation procedure(CNS 2003/0270)

Last updated: 01.02.2008