Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings (hereafter: Directive 2012/13/EU) recognises the importance of providing suspects and accused persons with information on their rights as well as information on the accusation and access to the materials of the case against them.
The right to information is a crucial building block of the right to a fair trial, and without it other rights which exist in law are, in practice, illusory.
If a defendant does not know that s/he has a right to remain silent s/he is unlikely to exercise that right. This is particularly the case for defendants without prior experience regarding the criminal justice system.
If a defendant does not know that s/he has the right to confidential communication with a lawyer (and to have a lawyer present in interrogations), s/he is less likely to ask for a lawyer. Where countries provide a right to free legal representation, failure to inform defendants of this possibility could prevent them from requesting free legal advice.
If defendants are not informed of this right, they are unlikely to ask for an interpreter or for the translation of key documents.
Despite a clear right to the information above existing under the ECHR and the related case law, a major 2010 study, “An EU-wide Letter of Rights: Towards Best Practice” highlighted an enormous variation across Europe in the level and accessibility of the information provided to defendants about their rights, and showed that an inaccessible, technical language was adopted in many “Letters of Rights” provided to detained defendants.
To address this problem, Directive 2012/13/EU specifically requires both information on procedural rights and also Letters of Rights designed for detained defendants to be provided in “simple and accessible language”.
In 2015, with the participation of Rights International Spain, the Lithuanian Human Rights Monitoring Institute, Fair Trials Europe and the Bulgarian Helsinki Committee, the Hungarian Helsinki Committee launched a two-year international research project to examine how the requirement for simple and accessible language for a Letter of Rights transpires in practice. The project aims to identify examples of transferable good practices, produce alternative Letters of Rights, and raise awareness about gaps in the implementation of the Right to Information Directive.
These aims should be achieved through research, a survey of stakeholders and sociolinguistic surveys. Since the launch of the project, an international desk review was carried out, a survey was conducted among the members of the Legal Experts Advisory Panel (an EU-wide network of experts in criminal justice and human rights), and an empirical research on the accessibility of the Letter of Rights was carried out in Hungary. The latter involved the testing of the accessibility of the current, official Letter of Rights, and the development of an alternative Letter of Rights by the HHC and experts.
DOWNLOAD PDF
The desk research carried out in this Project leads us to the conclusion that, first of all, the transposition of Directive 2012/13 into the Spanish legal system has been performed correctly, generally speaking.
Secondly, the desk research shows that neither the letters of rights for investigated and arrested persons, nor the instructions (from the Interior Ministry or the respective Departments of the Autonomous Regions) which regulate the rights information procedures are available from official publicly accessible sources. The right to information exists from before arrest or investigation in criminal proceedings and the authorities must promote and facilitateawareness of the rights granted by the law in society in general.
The empirical research carried out in the Project enables us to conclude that, although the transposition of the Directive into procedural rules is correct, in practice the rights information procedure is not fully compliant with the provisions of the Directive and the Criminal Procedure Act.
First of all, there is no single letter of rights, neither those used by the police, nor those used at court. The existence of multiple forms can generate significant differences in terms of the degree of detail and clarity of information received by suspects and accused persons, depending on the part of the State in which they are located, the police force that arrested them or the court before which the proceedings against them are brought
Secondly, and with regard to the content of the letters of rights, they reproduce the text of the Criminal Procedure Act verbatim (Articles 118 and 520), as such, they are drafted in legal language. Moreover, it should be noted that the order in which the rights are listed in the letters, while in line with the order in which they appear in the Criminal Procedure Act, makes it hard to comprehend that they form part of a logical process and therefore fails to facilitate exercise of the same.
In addition to the above, the letters omit information that is relevant for comprehending the scope of the rights and exercise thereof. The letters used by the different police forces we have seen do not mention the right of arrested persons to have an interview with their lawyer before making a statement to police. On occasion, the right for the lawyer to be present or intervene in parts of the investigation other than the statement by the investigated or arrested person is not sufficiently clear. Neither do the letters contain specific information on the requirements for applying for and obtaining free legal advice. The wording of the letters does not facilitate exercise of the right to medical assistance. The requirements and procedures for bringing a plea of “Habeas Corpus” are not included in the letters either.
Thirdly, we were able to ascertain that in practice the legal requirement that arrested persons be allowed to keep a copy of the declaration of rights with them for the entire time they are in police custody is not being fulfilled. The option of keeping the copy among the arrested person’s personal effects does not enable them to consult the information at all times, which is precisely the aim of this requirement included in the Criminal Procedure Act.
Finally, the professionals who inform the investigated or arrested persons of their rights have to take into account a series of factors that affect their ability to understand and adapt the manner in which they perform this procedure accordingly. The suspect or accused person is given a huge amount of information, meaning that it is necessary to devote sufficient time to explaining it slowly and in detail. The vocabulary used in the oral information must be adapted to the level ofeducation of the person to whom it is addressed, always looking to avoid legal jargon.
In addition to the above, account must always be taken of the fact that the suspect or accusedperson will probably be nervous and this will hinder comprehension of the information and itsscope, meaning that greater effort must be put into explaining it.
DOWNLOAD PDF
What are we talking about here?
Here, we are concerned with the notification of rights to persons arrested or detained. Speci cally, we are discussing a model developed in the European Union (EU) guaranteeing that all suspects or accused persons who are arrested or detained will be informed of their rights in writing, through a simple and accessible Letter of Rights.
In 2012, the EU enacted Directive 2012/13 on the right to information in criminal proceedings. EU Member States were given until 2 June 2014 to adopt national legislation giving effect to the rights in the Directive.
Where work is still needed
Letters of Rights are not always delivered in practice to all relevant people. In some jurisdictions, like in Bulgaria, suspects do not receive any written letter because the national law does not recognise the status of a “suspect”.
People are often not given enough time to read and understand the Letter. In Spain, for instance, some of the interviewed judges and interpreters said that the suspects or accused persons receive a lot of information in a short time, which makes it hard to assimilate it.
In some EU countries not all rights are included in the Letter of Rights. For example, in France information is not provided regarding the right to legal aid.
Written translations of the Letters of Rights are not always provided to people who do not understand the national language. In Lithuania, for instance, authorities only provide oral translations.
Police authorities continue to try to dissuade people from exercising the rights set out in the Letter of Rights, especially the right of access to a lawyer and the right to silence.
The biggest challenge, however, is the accessibility of the Letters of Rights. In most countries, the documents are too often written in legalistic terms, with complex sentences and confusing formatting, making it extremely dif cult for laypeople to understand their rights. In others, the Letters of Rights are too simple, not providing suf cient information necessary to fully understand the rights.
DOWNLOAD PDF
The right to a fair trial depends also on what happens before the trial, starting from the moment of arrest. At this stage already, it is crucial that the law enforcement authorities inform the arrested person of their rights whilst in custody. In the EU, the notification of rights is regulated by the Directive on the Right to Information, which mandates the Member States to provide a written Letter of Rights to all arrested and detained people, including information about how detention is regulated by the law and how this can be challenged, as well as about their rights, for instance to access a lawyer and to remain silent. The Directive also provides that Letters of Rights be written in “simple and accessible language” for the arrested people to be able to understand and exercise their rights effectively. But is this always the case?
In the framework of the European project “Accessible Letters of Rights in the EU”
a regional research has been concluded into the national legislation and practice surrounding Letters of Rights in 5 EU countries: Bulgaria, France, Hungary, Lithuania, and Spain. The resulting regional report was officially launched on Monday 29th May in the European Parliament at an event hosted by MEP Birgit Sippel (S&D), rapporteur on the EU Directive on the Right to Information. Representatives from partner organizations (Bulgarian Helsinki Committee, Lithuanian Human Rights Monitoring Institute, Hungarian Helsinki Committee, Fair Trials Europe and Rights International Spain) also participated in the event to present the findings and results of the national reports.
Despite some substantive differences, Letters of Rights in all countries were found to be over complicated and lacking crucial information on both the rights and the detention’s process. András Kádár, from the lead partner Hungarian Helsinki Committee, recommended that the authorities work with plain language experts in order to re-write the Letters of Rights in accessible terms and to test its accessibility among laypeople. Such a test was carried out in 2016 in Hungary, where an alternative plain-language Letter of Rights proved to be 24% more accessible to laypeople than the existing one. Similarly, in Spain, Rights International Spain worked with a plain language expert to develop an alternative Letter of Rights, which was discussed with key stakeholders (police, judges, lawyers, court clerks, interpreters/translators and civil society representatives) in Madrid on 16 May.
The regional research was preceded by an international survey of the law and practices around Letters of Rights outside the EU. The findings show that the EU is leading the way in this field, as international and domestic standards abroad fail to provide a comprehensive and enforceable framework of rules on the notification of rights. One positive example is given by the African Union’s Luanda Guidelines, which provide for a comprehensive list of rights that the suspect or accused person deprived of liberty must be informed of orally and in writing. However, the Guidelines have no binding legal value, as opposed to the EU Directive on the Right to Information.
EXPERT SEMINAR
On May 16th, different key actors who are developing an essencial role keeping arrested and investigated people informed about their rights, met in an expert seminar to discuss the results of an investigation made in Spain about this subjet. During the seminar, and besides the Report Launch, these experts could also debate and identify good practices and recommendations, to overcome the obstacles found in this Spanish National Report.
SEMINAR “EXCUSE ME, BUT I DON’T UNDERSTAND YOU” | UNIVERSIDAD DE CASTILLA LA MANCHA | SEPTEMBER 9TH TO OCTOBER 3RD , 2017
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”
Supported by
