PRO-JUS is an ambitious project that aims to ensure that foreign children suspected or accused in criminal proceedings benefit from the procedural guarantees they are entitled to as per three EU directives on the rights of suspected and accused persons in criminal proceedings.
The PRO/JUS project, implemented in 5 different countries (Belgium, France, Hungary, Spain, The Netherlands) will examine the situation of foreign children suspected or accused in criminal proceedings since their extra vulnerability may hamper their enjoyment of the rights enshrined in the three procedural directives.
The project in order to attain these objectives will strive to increase the knowledge-base and capacity of law enforcement and legal practitioners to ensure the rights of foreign children suspected or accused in criminal proceedings are respected
Equally, it will provide tools to legal practitioners in order to contribute to the harmonious implementation of the three procedural directives throughout the EU therefore advancing the access of foreign children to their rights in the course of criminal proceedings.
For the purpose of this project, a foreign child is to be understood as ‘any natural person below 18 years of age who does not hold the citizenship of the country where (s)he is being or was suspected or accused in criminal proceedings’.
Rationale
By definition, children lack the knowledge, ability and independence to seek justice and demand respect for their rights. This primary vulnerability is further exacerbated in the course of investigations or criminal proceedings by social and administrative conditions such as holding a foreign citizenship. The procedural guarantees that need to be triggered for children suspected or accused in criminal proceedings raise additional challenges for national justice systems when these are of foreign origin.
Activities
Based on a thorough research methodology designed during the inception phase a 14-month long data collection and qualitative analysis process will provide a clear picture of the situation of foreign children involved in criminal proceedings.
A desk review carried out by national researchers and complemented with semi-structured interviews with a selected number of law enforcement and legal practitioners involved in cases of children suspected or accused in criminal proceedings will inform the research while foreign children currently involved in criminal proceedings or having been accused or suspected will share their knowledge, views and opinions in order to accurately depict the situation at both national and European level(s). In turn, foreign children themselves will contribute to the development of tools, including a handbook for legal practitioners to ensure an effective access to the rights of foreign children accused or suspected in criminal proceedings throughout the EU.
This opportunity given to children to share their own experiences and opinions at any moment of the criminal procedure will pave the way for a better understanding of all stakeholders on how best to ensure a child-friendly, age and culturally appropriate judicial treatment of foreign children cases and will contribute to fulfilling their rights to express their views about matters that directly affect them.
The information will be collated and analyzed in five national reports which will in turn be compiled into a regional comparative report, assessing noteworthy practices against each other, including in terms of their transferability to other EU member states, informing the development of the above/mentioned handbook.
Moreover, partners at national level will sensitize key stakeholders to secure access to cases as well as to raise awareness of law enforcement and legal practitioners on the infringements of the rights of foreign children. Sensitized professionals will be continuously consulted throughout the overall project implementation process to maximize the depth and impact of the research findings and analysis.
Workshops will be held and E-digests, articles and contributions to national professional reviews and publications will be developed in each partner country by project coordinators to share the findings with the law enforcement professionals and legal practitioners to raise awareness on the positive sides as well as weaknesses of their national practices.
Finally, study visits and exchanges will be organized between legal practitioners during the last semester of the project in those countries where the judicial treatment of foreign children accused or suspected of having committed crimes will have been positively assessed.
Partners: Terre des hommes [Hungary]; Defence for Children International (Belgium and The Netherlands); Rights International Spain (Spain), Hors La Rue (France); Terre des Hommes International Federation (EU Office).
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This report constitutes one of the 5 national reports developed as part of the PRO-JUS project and deals with Spain. The report is the result of research which has combined desk research, analysis and semi-structured interviews with adult stakeholders and children. Developed according to a common research methodology that was employed in all of the 5 project countries, the report presents the research findings and identifies noteworthy practices and recommendations. In line with the aims of the research, the report also discusses the factors that affect and hamper the effective enjoyment of the rights enshrined in the 3 EU procedural directives (access to a lawyer, right to information and translation and interpretation). The information and findings found in this report and the other national reports will serve as the basis for the development of a regional comparative report that is also envisaged to be developed with the PRO-JUS project.
This research has made it clear that the perceptions held by professionals on the practical application of rights enshrined in the 3 EU directives do not match the views of the children. It is therefore worth delving into how these rights are exercised taking into account the views of both.
On the right to interpretation and translation:
This research has revealed there are deficiencies in the system that prevent the right to interpretation from being fully exercised by children suspected and accused in criminal proceedings. In addition, since parents and/or legal guardians of children have a crucial role in the criminal proceeding, it would be necessary to provide them with interpretation services since, in many cases, they have even more difficulties to understand the language than their children.
On the other hand, the exercise of the right to interpretation is put at risk because there are no rules governing the registry of translators and interpreters, including what the requirements or qualifications should be to guarantee the quality of service. The lack of appropriate resources is forcing the State to hire private companies to provide the interpretation service and the workers of these companies, who are not always qualified, perform some terrible interventions that make it impossible for suspected or accused children to have a fair trial. On the other hand, the lawyers rarely file appeals when the interpretation is of poor quality. There is no clear perception of when a service is of bad quality and unless great difficulty is observed, a review of the proceedings is not considered.
In addition, we have seen that there are no clear criteria clarifying when the interpreter should be present. The absence of this procedure implies that interpreters are absent on many occasions when actually his/her presence would have been necessary. Thus, the fact that children have a basic knowledge of the language (albeit far from sufficient to properly exercise their right of defence), serves to rule out the presence of the interpreter. However, in order to participate fully in proceedings and to understand what the substance is, linguistic skills are required that go beyond a superficial knowledge of the language.
In the same way, and in relation to the right to translation, the lack of resources means that the provisions of Directive 2010/64, which require the most important passages of essential procedural documents to be translated, is inconceivable at this point in time.
On the right to information and access to materials:
As we could verify in Spain, the information of rights to accused or detained children is mainly in oral form. In general, we could see that professionals have difficulties developing a discourse that children can understand. Thus, the use of complex structures and the use of legal jargon, for children, is very difficult to understand. While professionals have a clear conscience regarding the fact that the information must be appropriate for the age of the child, in reality they do not construct a discourse on their rights, that children can understand, enabling them to grasp their meaning. Their testimonies show that children are able to identify their rights, especially, those who have more experience, but all denote difficulties in understanding what their true scope is and the nature of the proceedings in which they are involved. This difficulty is accentuated when facing children that have difficulties with language.
Regarding information on these rights in writing, we observed that during detention, there are some forms in police stations providing written information on the applicable rights. However, we could see that in practice not all police stations provided this document for children so that they have it with them at all times and consult it when appropriate. In addition, these documents are not always available in the mother tongue of the children and, again, the wording and the complexity of the words used generate problems for understanding.
Moreover, despite the fact that the legislation provides for an information rights phase, if this information is not made accessible to children, this procedure is useless. Children interviewed confess that they do not understand exactly what such rights mean and what their true scope is. Consider also that their rights not are always respected, especially, the right to be heard, which generates significant dissatisfaction, as they feel that their opinion is not taken into account in the proceedings and that everything that occurs there is somehow aloof.
Finally, the access to materials for lawyers to prepare the defence of the case has improved, although it is pointed out that such access, nowadays, is only to see and consult, but does not allow for full copies to be made. In addition, and in relation to this right, we ascertained that a good practice would be to deliver all the information on the case to the child once the case documentation has been finalised, as well as providing access to the information desired throughout the proceedings.
On the right to access to a lawyer, to communicate with a third party and the consular authorities:
We noted that sometimes the exercise of the right to access to a lawyer is unduly delayed, with the start of the lawyer’s activity being contingent on the arrival of the legal guardian. Delays also occur in the case of foreign children arrested at night, since the private interview with the lawyer and taking of a statement are postponed until the arrival of an interpreter, who is only available during office hours.
However, the biggest problem is observed in relation to the right to access to a lawyer during the trial. At this point, foreign children who have difficulties with the language, and given the impossibility of interpreter appearing anywhere other than official premises, cannot communicate with their lawyers to prepare the defence of the case. Therefore, in this case, the status of foreigner becomes a condition that violates a basic procedural guarantee and therefore limits the right to a fair trial.
On the other hand, we observed a deficit of expertise in the group of lawyers who have difficulty identifying what their true role is in these proceedings. Thus, overly protectionist, paternalistic attitudes coexist with practices pertaining to the ordinary system for adults, which means lawyers forget that their clients are underage. The end result is that children consider that their lawyers, particularly those working on a legal aid basis, have a passive attitude, which contributes to creating even more distance between the accused youth and the juvenile justice system.
Finally, we were able to verify that juvenile detainees are exercising their right to communicate with their legal guardians. However, the additional guarantee offered by the latest reform to inform and/or contact third parties other than their guardians is not complied with. Moreover, there are doubts as to whether such right can be counter-productive for the progress of the investigation. In the same way, we observed that, in some exceptional situations, the right to communicate with a consular authority could be damaging for the foreign juvenile.
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The three Directives have been or are in the process of being transposed into national law in all five countries. In many cases, the rights in question already exist in national laws and have been reaffirmed or refined by the application of theDirectives. Therefore integration into national law is not the issue for the most part; the critical question is the extent to which these provisions are being applied in practice. The three Directives are interconnected in the sense that Directive 2010/64/EU on interpretation needs to be applied for the other two Directives on rights to information (2012/13/EU) and lawyers (2013/48/EU) to have meaningful effect.
The overall picture to emerge from this research is that the procedural rights in question are observed in a formal sense but challenges remain in implementation. The lack of assured access to quality interpretation is a key impediment to foreign children in terms of their ability to exercise other important rights. Poor or absent interpretation can have a very real impact on the lives of foreign children who are accused or suspected of crimes if they are unable to convey a proper defence or have a fair trial. The study found disturbing cases of foreign children who were not assisted by interpreters, could not explain anything about their circumstances or their age, and ended up being wrongly confined to adult prisons for months at a time. On the other hand, a failure to provide adequate interpretation may also undermine the effective prosecution of a case and undermine the rights of other parties involved. It is therefore in the interests of a fair and efficient criminal justice system that the procedural rights contained in the Directives are observed. The task of assuring proper interpretation support at any point in time across all EU countries is a formidable one given the almost limitless permutations that may arise from trying to match up foreign children speaking any number of the world’s languages and dialects with interpreters who are able to speak the language of the child as well as the country in which the criminal procedure is taking place to a sufficiently high level to ensure a fair process. The challenge is considerable and further exacerbated by the lack of adequate financial and human resources needed to meet these needs. While the Directives assert important and essential rights, and this study identifies critical gaps in provision, the key conundrum facing practitioners and policy-makers is what strategies and methodologies can be devised that are manageable, proportionate and realistic and yet able to meet the needs on the ground.
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It can also be used to develop more in-depth training sessions when used in conjunction with the PRO-JUS Regional Comparative Report and National Reports which give more detailed country information on relevant national legislation and practice. In addition, the annexes to the handbook on a variety of related issues [child and adolescent development; interviewing techniques; code of ethics for interpreters; intercultural understanding and education; migration, asylum and refugee issues; criminal justice processes and terminology] can be used to develop tailored training and awareness-raising sessions.
Following the first part of the project which has focused on research, partners organised a study visit for legal practitioners from Hungary, Spain, Belgium and the Netherlands to France, in order to learn more about an interesting practice which is being applied there in relation to the representation of children in criminal proceedings .
The objective of the study visit is to bring participants from the other 4 project countries to France in order to expose them to an interesting practice which has been identified in France during our research, with the aim to exchange with their French counterparts and explore the transferability of the practice in their respective countries.
Interesing practice identified: The bars of some courts in France have mitigated the difficulties of children being represented by different lawyers at each stage of the process by organizing their juvenile committees to ensure a specialized legal service and the presence of lawyers to assist, within a short period, in the defence of accused children from the first moments of proceedings. Some bars, thus, implement methods to ensure that each child has a lawyer of reference, which avoids children having several lawyers in the event of repeat offences. In addition, some measures include transversal legal aid involving lawyers who specialize in juvenile law, but also working across different legal domains (civil, criminal and administrative). These holistic legal service mechanisms, best demonstrated by the Juvenile Branch Office of Paris (Antenne des mineurs de Paris), ensure an efficient access to legal assistance.
The study visit took place from 30 January to 1 February 2017.
A seminar of experts was held on 17 November 2016 where key actors involved in the protection of the procedural rights of foreign children (lawyers, judges, prosecutors and members of the technical teams, law enforcement officers, members of NGOs, etc.) were invited to participate. The conclusions of the national report were presented and examined, the objective of the seminar being twofold: on the one hand, assess the diagnosis of the situation contained in the report and discuss the possible solutions to the identified problems and, on the other hand, determine and confirm whether the recommendations to the relevant authorities are suitable to ensure that juveniles exercise fully and effectively the rights recognized in the EU Directives.
Rights International Spain ha organizado una mesa de trabajo regional acerca del acceso a la justicia gratuita en el marco del proyecto (co financiado por
Ayer tuvo lugar la Mesa de trabajo nacional en el marco del proyecto “Del derecho a la práctica: reforzando las garantías procesales bajo custodia policial”
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