Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings: Good Practices Throughout the European Union [1st ed.] 9783030611767, 9783030611774

Table of contents :
Front Matter ....Pages i-vii
Guide to Good Practices Relating to the Right to Translation and Interpretation of Suspected and Accused Persons (Jaime Campaner Muñoz, Nuria Hernández Cebrián)....Pages 1-15
Directive 2012/13/EU, Concerning the Right to Information in Criminal Proceedings. Good Practices for Its Application (Coral Arangüena Fanego, Carmen Rodríguez-Medel Nieto)....Pages 17-37
Access to a Lawyer and Legal Aid (Directives 2013/48 and 2016/1919) (Vânia Costa Ramos, Begoña Vidal Fernández)....Pages 39-55
Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence in Criminal Proceedings (Montserrat de Hoyos Sancho, Salvador Guerrero Palomares)....Pages 57-72
Guide to Good Practices in Procedural Treatment of Minor Offenders. The Procedural Guarantees of Suspected or Accused Minors in Criminal Proceedings (Francisco Javier Garrido Carrillo, Jorge Jiménez Martín)....Pages 73-80
Back Matter ....Pages 81-84

Citation preview

SPRINGER BRIEFS IN LAW

Coral Arangüena Fanego Montserrat de Hoyos Sancho Alejandro Hernández López   Editors

Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings Good Practices Throughout the European Union

SpringerBriefs in Law

More information about this series at http://www.springer.com/series/10164

Coral Arangüena Fanego Montserrat de Hoyos Sancho Alejandro Hernández López •

•

Editors

Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings Good Practices Throughout the European Union

123

Editors Coral Arangüena Fanego Faculty of Law—Procedural Law University of Valladolid Valladolid, Spain

Montserrat de Hoyos Sancho Faculty of Law—Procedural Law University of Valladolid Valladolid, Spain

Alejandro Hernández López Faculty of Law—Procedural Law University of Valladolid Valladolid, Spain

The financial support of the Spanish Ministry of Science, Innovation and Universities is gratefully acknowledged for the research project “Garantías procesales de investigados y acusados: la necesidad de armonización y fortalecimiento en el ámbito de la Unión Europea”—Procedural safeguards of suspects and accused persons: the need for harmonisation and strengthening in the European Union—DER 2016-78096-P. ISSN 2192-855X ISSN 2192-8568 (electronic) SpringerBriefs in Law ISBN 978-3-030-61176-7 ISBN 978-3-030-61177-4 (eBook) https://doi.org/10.1007/978-3-030-61177-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Contents

Guide to Good Practices Relating to the Right to Translation and Interpretation of Suspected and Accused Persons . . . . . . . . . . . . . . Jaime Campaner Muñoz and Nuria Hernández Cebrián

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Directive 2012/13/EU, Concerning the Right to Information in Criminal Proceedings. Good Practices for Its Application . . . . . . . . . . Coral Arangüena Fanego and Carmen Rodríguez-Medel Nieto

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Access to a Lawyer and Legal Aid (Directives 2013/48 and 2016/1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vânia Costa Ramos and Begoña Vidal Fernández

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Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence in Criminal Proceedings . . . . . . . . . . . Montserrat de Hoyos Sancho and Salvador Guerrero Palomares

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Guide to Good Practices in Procedural Treatment of Minor Offenders. The Procedural Guarantees of Suspected or Accused Minors in Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Francisco Javier Garrido Carrillo and Jorge Jiménez Martín Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Contributors

Coral Arangüena Fanego University of Valladolid, Valladolid, Spain Jaime Campaner Muñoz University of the Balearic Islands, Palma, Spain Montserrat de Hoyos Sancho University of Valladolid, Valladolid, Spain Francisco Javier Garrido Carrillo University of Granada, Granada, Spain Salvador Guerrero Palomares University of Málaga, Málaga, Spain Nuria Hernández Cebrián Professional Association of Court and Sworn Interpreters and Translators (APTIJ), Valladolid, Spain Jorge Jiménez Martín Spanish Judiciary School, Barcelona, Spain Vânia Costa Ramos Faculty of Law, Research Centre for Criminal Law and Criminal Sciences, University of Lisbon, Lisbon, Portugal Carmen Rodríguez-Medel Nieto Instruction Court N.º 51, Madrid, Spain Begoña Vidal Fernández Institute of European Studies, University of Valladolid, Valladolid, Spain

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Guide to Good Practices Relating to the Right to Translation and Interpretation of Suspected and Accused Persons Jaime Campaner Muñoz and Nuria Hernández Cebrián

Abstract This chapter points to the importance of ensuring quality in court and lawenforcement translation and interpreting. The absence of quality could undermine fundamental rights of both victims and defendants, namely effective judicial protection, due process and even the right to the presumption of innocence. Since legal translation and interpreting quality is the axis around which Directive 2010/64/EU revolves, it is essential to ensure that translators and interpreters working in this field meet high professional standards and hold suitable qualifications in order to guarantee that quality. Best practices so that legal operators can take the necessary measures to guarantee the right to translation and interpretation will also be discussed. Likewise, the chapter includes recommendations for guiding the work of legal interpreters and translators so that they can meet the quality requirement contained in Directive 2010/64/EU.

1 An Approach to the Issue In Annette Hess’s recent novel, The German House,1 it is described how the protagonist, the efficient interpreter Eva Bruhns, does not attain the desirable degree of precision when carrying out her first task as interpreter of the Frankfurt Public Prosecutor’s Office in the preparatory phase of the first Auschwitz trial:

1 Hess

(2019).

J. Campaner Muñoz University of the Balearic Islands, Palma, Spain e-mail: [email protected] N. Hernández Cebrián (B) Professional Association of Court and Sworn Interpreters and Translators (APTIJ), Valladolid, Spain e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Arangüena Fanego et al. (eds.), Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings, SpringerBriefs in Law, https://doi.org/10.1007/978-3-030-61177-4_1

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J. Campaner Muñoz and N. Hernández Cebrián “That day, which was hot, rather sultry, we had to decorate all the windows. All the windows of hostel number eleven. We decorated them with sandbags and filled all the cracks with straw and earth. We tried our best, as we couldn’t make any mistakes. We finished our work in the afternoon. Afterwards they brought the eight hundred and fifty Soviet guests down into the basement of the hostel. They waited until darkness fell, for the light to be seen better, I suppose. Then they threw the light into the basement, through the air vents, and closed the doors. They forced us to enter first. Almost all the guests were in the light.” The men in the room looked at Eva, who felt slightly unwell. Something didn’t add up, although the woman continued to transcribe without flinching. However, the blond-haired man asked Eva: • Are you sure you have understood correctly? Eva leafed through the specialist dictionary. • Excuse me. I usually translate contracts, that is, financial issues and compensation negotiations … The men looked at one another. The blond-haired man shook his head impatiently, but the stout man by the window made a calming gesture. David Miller looked contemptuously at Eva from across the room. She reached for the general dictionary, which was as heavy as a brick. She opened it and discovered that the guests were actually prisoners. Also, that this was no hostel; it was a block. And the light was not light. Nor the lighting. Eva looked at the man in the chair, who looked back at her as if inwardly he had passed out. Eva said: • Sorry, I translated some things wrong. What he actually says is: “We found almost all the prisoners suffocated by the gas.” There was silence in the room.[…]. • We can be satisfied that we have found a substitute. At such short notice. Better than nothing. To which the other man replied: Let’s continue. What else can we do? The blond-haired man addressed Eva: • But if you are not sure about something, check it out right away. She nodded. She translated slowly, and the woman transcribed just as parsimoniously. • “When we opened the doors, some of the prisoners were still alive. Approximately one third. They had fallen short on the gas. The procedure was repeated doubling the amount, and this time we waited two days until opening the doors. The operation was a success.”

Situations like the one described occur with greater or less intensity and more often than desired in police stations, prosecutors’ offices and courts, and the possible deficits and errors made by those who carry out such important translation and/or interpretation are not always visible. This can curtail, or even directly and irremediably violate, the fundamental rights to effective judicial protection and to a process

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with all the guarantees of both the victim and the accused, and, ultimately, the right to the presumption of innocence of the latter if, due to an error of interpretation or translation, it is considered that there is sufficient evidence to support a conviction. Indeed, facts that are usually rich in nuances are investigated and tried in such a way that the smallest detail is important and the translator/interpreter must stay sharp and make a great effort in order to provide the judicial body with a service that is rigidly precise and context-sensitive. An error can be fatal and, what is worse, go unnoticed by the judicial officials that intervene in the process due to ignorance of the language in question and, even if they know the rudiments of the language, due to the most diverse factors (e.g., the harmful effect of some false friends—consider to pretend, whose meaning in Spanish is “simulate”, even though it tends to be translated as “intend”; to resume, which occasionally is translated as “summarize”, when, in reality, it means “restart”; or “compromiso”, which usually translates as “compromise”, although the correct translation is “commitment”-). The situation is complicated if it is noted, as we will see, that there is absolute indeterminacy regarding the mode and scope of jurisdictional control over the quality of interpretation and translation.

2 Normative and Jurisprudential Framework The right to translation and interpretation in the courts is recognized in many legal texts at international and European level. The International Covenant on Civil and Political Rights establishes in art. 14.3 a) that every person subjected to legal proceedings shall have the right, among other minimum guarantees, “to be informed without delay, in a language they understand and in a detailed manner, of the nature and causes of the accusation brought against them”. In addition, section d) of the same provision recognizes that the right “to be assisted free of charge by an interpreter, if they do not understand or speak the language used in court.” In the framework of the Council of Europe, and following the path of the previous Covenant, the European Convention on Human Rights establishes in its art. 5.2 that “every detained person must be informed, in the shortest possible time and in a language they understand, of the reasons for their arrest and any charges brought against them”; while art. 6.3 recognizes their right “to be informed, in the shortest period, in a language that they understand and in detail, of the nature and cause of the accusation against them” [section a)]; and “to be assisted free of charge by an interpreter if they do not understand or speak the language used in the hearing” [section e)]. In the context of the European Union, art. 2.5 of Directive 2010/64/EU2 of the European Parliament and of the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings, states unequivocally the following: 2 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010L0064.

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“Member States shall ensure that, in accordance with procedures in national Law, the suspect or accused has the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the chance to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings.” The Court of Justice of the European Union (CJEU) has ruled on the content of the right to translation and interpretation enshrined in the aforementioned Directive, although, prior to its implementation, there had already been previous pronouncements related to this question. The historic Court of Justice of the Communities considered that art. 6 of the Treaty establishing the European Economic Community in force at that time “is opposed to national regulations that grant citizens of a particular language, other than the main language of the member State concerned, residing in the region of a given territorial entity, the right to obtain criminal proceedings in their language, without conferring this right on nationals of the same language of the other Member States who travel or remain in this territory”, thereby preserving the principle of equality among community citizens enshrined in the aforementioned article (Judgment of the Court Bickel and Franz3 ). Following the implementation of Directive 2010/64, the CJEU has interpreted the content and scope of the right to translation and interpretation enshrined in the aforementioned rule. The Court determined that, although arts. 1–3 allow the persons concerned to exercise the right of defence and safeguard the fairness of the procedure, this does not imply the translation of all the documents employed in the proceedings. Thus, the Court found it admissible that a State does not allow the passive subject of a criminal trial to object in writing to the accusation in a language other than the language of the proceedings, even if this person does not master the latter language, provided that the competent authorities do not consider that such opposition constitutes an essential document of the procedure (Judgment of the Court Covaci4 ). Subsequently, the CJEU specified what should be understood as an “essential document” in the interpretation of art. 3 of Directive 2010/64, considering that a resolution provided by national law to sanction minor criminal offences issued by a judge after an abbreviated unilateral proceeding constitutes an “essential document” for the purposes of the provisions in the second section of the aforementioned article, and this must, therefore, must be transmitted in writing to the suspects or accused in a language they understand (Judgment of the Court Sleutjes5 ). Moreover, art. 5.1 of Directive imposes on the Member States the following obligation: Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under art. 2(8) and art. 3(9). The quality of interpretation and translation is the key element on which Directive 2010/64/EU hinges. For this reason, it is essential to ensure the professionalism and 3 Judgment

of the Court of November 24, 1998, Bickel and Franz, C-274/96, EU: C: 1998: 563. of the Court of October 15, 2015, Covaci, C-216/14, EU: C: 2015: 686. 5 Judgment of the Court of October 12, 2017, Sleutjes, C-278/16, EU: C: 2017: 757. 4 Judgment

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proper qualification of translators and interpreters, in order to guarantee the quality of the interpretation provided in judicial, fiscal and police headquarters. For such purposes administrations have the authority to apply rigorous selection criteria for translators and interpreters; yet more important is the introduction of measures to effectively supervise and control the quality of the service provided. Not surprisingly, the jurisprudence of the European Court of Human Rights has highlighted that the responsibility of the authorities does not end with the appointment of the interpreter, but goes on to include verification of the quality of the service provided (see Kamasinski v. Austria6 ). In fact, the ECtHR has established the obligation of the judge himself to ensure respect for the rights of the person under investigation. Thus, in Cuscani v. United Kingdom,7 the court stated that “the ultimate guardian of the fairness of the procedure was the Judge, who had been clearly warned of the real difficulties that the absence of an interpreter could cause the plaintiff. Furthermore, it is observed that the domestic courts had already supported the view that, in circumstances such as those in this case, the judges are required to treat the interests of the accused with “scrupulous care” (paragraphs 32 and 33 above).

3 Good Practices in Judicial Actions The parties to the procedure—duly advised, unless they know the language in question—should urge the judicial body to order the necessary verification regarding the quality and precision of the translation or interpretation. The judge or prosecutor in charge of the criminal investigation should also do so ex officio if they have knowledge of the language being interpreted. Moreover, it is essential to adopt several preventative measures aimed at guaranteeing the effectiveness of these checks. Thus, without wishing to be exhaustive, as will be seen later, it is necessary that the oral proceedings are recorded in audiovisual format and that the parties are allowed to appear with an interpreter at their own expense, in order to advise the lawyer so that either the latter might be interested in changing the interpreter, or to try to rectify the interpretation or, on a more limited basis, nuances that could change the meaning of an answer and, perhaps, the result of the procedure. It could be argued that such measures would lead to the parties unduly delaying the procedure by challenging the quality and accuracy of the interpretations and translations. However, in the balance between the right to a fair proceeding (and even the rights to effective judicial protection, presumption of innocence and freedom) and the right to a proceeding without undue delay, the latter option prevails. There are also sufficient legal mechanisms to avoid or, at least, minimize delaying strategies. All European legal systems contemplate the rejection, and even sanction, of procedural 6 ECtHR

ruling of December 19, 1989, case Kamasinski v. Austria, CE: ECHR: 1989: 1219JUD000978382. 7 ECtHR ruling of September 24, 2002, case Cuscani v. UK, CE: ECHR: 2002: 0924JUD003277196.

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behaviour involving abuse of law or procedural fraud, and the intervening parties must respect the rules of good faith.8 In any case, the passive subject of the procedure could never expect an attenuating circumstance of undue delay to be appreciated if the cause of the delays is the latter or his technical defence. It is important not to lose sight of the importance of summary declarations in contemporary European criminal proceedings, where, to a greater or lesser extent, there still remain reminiscences of the inquisitorial system.9 In this scenario, a recording of the examinations in audiovisual format is essential for ensuring the quality of the interpretation of these crucial summary proceedings. And should the interpreter fail to express accurately or exactly what happened during the examinations, the fundamental right to a fair proceeding recognized in art. 6.1 of the European Convention on Human Rights is undoubtedly curtailed. Not “only” that, but also the fundamental right to the presumption of innocence of the accused may be affected in the oral trial recognized in art. 6.2 ECHR, insofar as, if the situation is not redressed, the result of the interpretation will be the burden he has to carry throughout his judicial pilgrimage, and may even be taken as evidence against him in the oral trial, despite the appearance at the hearing of an interpreter who provides an excellent service. The sentencing court can, according to the principle of free evaluation of the evidence, choose between one version (the summary) or another (that of the oral trial) when making its judgment; and it is not uncommon (rather the opposite) that it chooses the former because it is closer in time to the event subject to prosecution. Therefore, if the summary statements have not been recorded, there will be no mechanism to check the quality of the interpretation and the accused will be closer to judicial error (caused by the interpreter, but facilitated by the absence of judicial control mechanisms). It should be borne in mind, however, that, at least in the oral trial phase, the Judge or Court responsible for the procedure must act as a true arbitrator. The contrary is incompatible with the fundamental right to a fair trial, in terms of the right to be tried by an impartial judge, recognition of which in the ECHR is clear (art. 6.1). To guarantee the latter, the accusatory principle is advocated; that is, the conception of the process as a triangular relationship and not that of “two (or more) against one”. There are two usually opposing parties (prosecution and defence) and an impartial arbitrator (the judge). Therefore, the court cannot be subrogated to the role of the prosecution in the case of scant evidence. This is especially important in terms of translation and interpretation since, to a greater or lesser degree, the procedural codes 8 In

Spanish law, for example, art. 11.1 LOPJ establishes that the judges and courts will rightly reject “the petitions, incidents and exceptions that appear with an obvious abuse of the law or entail contravention of the law or procedure”, while art. 552 LOPJ empowers the judicial bodies to correct lawyers when they fail to comply with the obligations imposed by the LOPJ or procedural laws. Among such obligations is, in fact, respect for the rules of good faith. 9 In the Spanish criminal process its introduction has been standardized in proceedings and judgment assessment through the channels provided for in arts. 714 and 730 LECrim, not only in cases in which it is clearly impossible for questioning to take place (disability, death, etc.), but also in particularly common ones involving contradiction between what was said at different times in the proceedings, or even silence in the oral trial.

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of the member states provide for the possibility that the prosecuting body may agree to ex officio evidence in oral proceedings to verify any of the facts included in the10 qualification documents. If the prosecution tries to use documents in court drawn up in a foreign language and, nevertheless, did not request the translation of what, in fact, would be called upon as evidence aimed at destroying the presumption of innocence, the judicial body should not address that deficit. Although it is a “domestic” case, we take this liberty to bring up an assumption that is easily transferable to another European country. Regarding this matter, the judgment of the First Section of the Provincial Court of the Balearic Islands 116/2018, of June 7,11 is paradigmatic. This resolution dealt, by way of appeal, with a scenario in which the complainant had initiated the criminal procedure by providing several messages written in the Dutch language that the accused would have sent along with a translation into Spanish by the complainant herself. The trial, involving an alleged offence of threats, focused, therefore, on evaluating the messages provided by the complainant, as the only possible objective corroboration of her testimony. At the start of the oral trial sessions, the prosecution missed its final chance to provide an impartial translation of the messages. Once the oral hearing had started, and all the personal evidence had been presented, during the documentary evidence phase the judge decided ex officio to suspend the hearing, ordering its resumption the next day with the appearance of a Dutch interpreter. After the appearance of this interpreter, the parties presented their allegations in the form of a report, and the judge issued a sentence of guilty based, essentially, on the content of the messages. The court of appeal, however, accepted the arguments of the defence, which denounced the violation of fundamental rights to the presumption of innocence and to a proceeding with all guarantees. In the opinion of the review chamber, the Instance Judge exceeded their role and agreed to the admission of a means of evidence that “does not intend to verify the veracity or otherwise of a evidence already presented, but rather […] seeks to corroborate the very facts on which the accusation is based, whose initiative and burden corresponds exclusively to the accusations”. The court concluded, elaborating 10 Thus, for example, in Italy art. 242.1 of the Criminal Procedure Code allows the judge to order the translation of documents written in a foreign language and, in addition, art. 507.1 empowers the judge to decide ex officio on the assessment of new evidence following proposals by the parties if he considers it “absolutely necessary”. In the Spanish case, the abundant jurisprudence of the Second Chamber of the Supreme Court shows that art. 729.2º LECrim, which provides for the possibility of the prosecuting authority agreeing to ex officio evidence in the oral trial, limits such power of the court to the so-called «test of the test» (for all, STS No. 740/2013, of October 7, 2013, ES: TS: 2013: 5089). That is to say, the prosecuting body may agree to the submission – according to the law – of «evidence not proposed by any of the parties, which the Court considers necessary for verification of any of the facts that have been the object of the qualification documents». Yet, according to jurisprudence, the aforementioned power of evidentiary initiative should not be used to prove facts, but to verify the existence, scope and veracity of the evidentiary resources provided by the parties. In contrast, the UK Criminal Procedure Code allows the judge to ask clarifying questions [Rule 25.11 (6)], but in no case is it envisaged that he is empowered to agree ex officio to the submitting of new evidence. 11 SAP IB 116/2018, of June 7, 2018, ES: APIB: 2018: 1320.

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in this regard, that “the evidence agreed on ex officio is essential to determine the semantics of the expressions that the complainant attributes to the accused and, ultimately, to define criminal judgment regarding the offence of threats which is the object of accusation”. Practices such as that of the instance judge should be avoided at all costs.

4 Good Practices on Translation and Interpretation We will now point out some good practices addressed to legal operators that can serve as guidance when adopting the necessary measures to guarantee this right. Likewise, we will make proposals for translators and interpreters themselves so as to guide their actions, and these will also be of use to legal operators to ensure the quality of the translation and interpretation required by Directive 2010/64/EU. This chapter refers to the subjects covered by the Directive, the suspected and accused persons, but the measures can be extrapolated to other participants who do not speak the language of the procedure. First of all, it should be borne in mind that the figure of the court/police translator/interpreter is established by the national law of the Member States of the European Union in a non-homogeneous way. This heterogeneous panorama displays situations that range from insufficient consideration of this figure in legislation to the regulation of an authentic legal status. A comparison of the national legal systems shows the absence of a uniform legal treatment of the figure of the court/police translator/interpreter regarding issues such as who is entitled to translate/interpret in legal settings, the requirement or not of professional training and qualifications, the ethical responsibilities that must be fulfilled in the exercise of such tasks, the way in which the competent administrations provide this service, and the official nature of the translations and interpretations carried out in court or police settings, among others. The Directive establishes the quality of the translation and interpretation as the basis for the fulfilment of the right to a fair trial. Under the heading Quality of translation and interpretation, art. 5.3 of the Directive provides as follows: “Member States shall ensure that interpreters and translators be required to observe confidentiality regarding interpretation and translation provided under this Directive.” From the point of view of professional ethics, the simple requirement of confidentiality is a clearly insufficient aspect. National legal systems do not address this issue uniformly. In the absence of another reference, one would have to resort to the deontological codes of the professional associations of translators and interpreters. These codes, despite their limited scope and their not being of a legal nature, can serve as a guide for these professionals and for legal operators regarding how a translator or interpreter should carry out his/her task. There are large similarities between these types of ethical codes of professional associations. Here we briefly highlight the principles contained in the codes of the Spanish Professional Association of Court and Sworn Interpreters and Translators

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(APTIJ) and the European Legal Interpreters and Translators Association (EULITA): accuracy and integrity of the text or speech (the translation or interpretation must be faithful and complete, without adding or omitting anything); impartiality and absence of conflict of interest; confidentiality; professional conduct, acting in good faith, loyalty and respect; and finally, professional practice with limits: the translator and interpreter shall never provide legal advice or express personal opinions or carry out other activities than those specific to his/her work.

5 Good Practices to Work with Translators 5.1 For Legal Operators The judicial/police authority shall first of all resort to the translators, if there are any, who belong to Public Administration staff, and only as a secondary alternative those provided through the corresponding outsourced service provision system. The judicial/police authority shall adopt the necessary measures so that both the parties and the translator can put into practice, where appropriate, the mechanisms of recusal and abstention respectively. The translator appointed, the natural person who assumes the role, shall be warned by the judicial/police authority of the legal responsibility by failure to comply properly with his/her work and the consequences by disclosing to third parties information obtained as a result of this commission. Legal operators should be aware of the differences between direct translation (from the foreign language into the translator’s mother tongue) and reverse translation (from the translator’s mother tongue into the foreign language); the latter is more complex and requires other kinds of skills. Since there are professionals who perform only direct translations, legal operators must ensure that the translator in question is willing to undertake the particular commission. Similarly, legal operators must adopt the pertinent measures to comply with the provisions of the legislation in cases where the translation of certain languages and dialects is not possible because they have no written form. In some Member States, the figure of the official translator is not linked to the figure of the court/police translator; therefore, the mere fact of doing translations for a judicial or police authority does not entail an officiality as such. Should legal operators require the legal effects of an official translation, providing this is in accordance with their internal law, they must verify that the translator who assumes the charge meets the necessary requirements demanded by the national law of the State so as to do translations of this nature. A suspected or accused person can waive his/her right to translation provided there has been sufficient and accessible legal advice which enables him/her to understand the consequences of this waiver. In this regard, it may be necessary to have an interpreter to translate this advice into his/her language.

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Apart from the translation of the documents considered essential, the judicial/police authority shall select the documents that must be translated in order to reduce costs and time, discarding those whose translation is not relevant in the specific case. In addition, and with regard to international legal cooperation, the judicial/police authority must take into account the existing translated standardized forms, which do not need to be part of the commission as they are available on the website of the European Judicial Network, in the event of legal assistance within the EU. In order to reduce costs, the commission to the translator could be limited to the content of the precise sections completed by the requesting judicial authority. In the case of active legal assistance, and in order to act efficiently, the requesting judicial authority shall ensure that the correct legal instrument is used, that the letters of request are addressed to the competent authority, and verify the languages admitted by the requested State within the scope of international legal cooperation. For this same reason, in passive legal assistance, the requested judicial authority must enforce the choice of admissible languages established by its own State in the international rules applicable to the case. When the translation lacks of enough quality, legal operators should file complaints with the Public Administration that provides the translation service if they reasonably consider that the necessary guarantees have not been provided. They could also bring it to the attention of the governing bodies on which they depend.

5.2 For Translators The translator shall master both languages in the working language combination. He/she shall also have a good knowledge of the respective cultures, translation techniques and a solid legal knowledge. The translator should bear in mind the ethical principles that should guide his/her conduct. The translator shall indicate by means of footnotes any difficulty found in the text to be translated, such as, for example, illegibility, unintelligibility, double meanings, etc. The translator should also consult with the legal operator any doubt included in the text that must be clarified, in order to perform the commissioned translation. The identification of the natural person who has done the translation, and not simply the seal of the entity providing the outsourced service, must be stated on the translation sheets. The translation must be carried out within a reasonable period to be determined by the judicial/police authority. The translator should not undertake the commission if he/she is unable to meet the deadline and must inform the judicial/police authority in advance. In the case of extensive commissions, the judicial/police authority should assess the possibility of dividing the assignment among several translators working in coordination to review the whole text and maintain the homogeneity of the final translation.

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6 Good Practices to Work with Interpreters 6.1 For Legal Operators The judicial/police authority shall first of all resort to the interpreters, if there are any, who belong to Public Administration staff, and only as a secondary alternative to those provided through the corresponding outsourced service provision system. The judicial/police authority shall adopt, in sufficient time whenever possible, the necessary measures so that both the parties and the interpreter can put into practice, where appropriate, the mechanisms of recusal and abstention respectively. The interpreter appointed, the natural person who assumes the role, shall be warned by the judicial/police authority of the legal responsibility by failure to comply properly with his/her work and the consequences by disclosing to third parties information obtained as a result of this commission. Providing the competent administration does not develop and apply procedures to control the quality of translation and interpretation in criminal proceedings established by law, the judicial/police authority might allow the parties to appear with their own interpreter so that, through the lawyer, they can make the appropriate observations regarding the quality of the work of the interpreter appointed by that judicial/police authority. In some Member States, the figure of the official interpreter is not linked to that of the court/police interpreter; therefore, the mere fact of acting as an interpreter in court or police settings does not entail an officiality as such. Should legal operators require the legal effects of an official interpretation, providing this is in accordance with their internal law, they must verify that the interpreter who assumes the charge meets the necessary requirements demanded by the national law of the State so as to do interpreting of this nature. If there are several participants who must be interpreted and in view of the length of the hearings, the judicial authority should consider to engage two or more interpreters. In proceedings for offences of ill-treatment or offences involving minor or disabled persons, the judicial/police authority must ensure that the interpreter acting has an specific training in these matters. In cases of gender violence, the judicial/police authority should assess the convenience of the same interpreter attending the aggressor and the victim. The judicial/police authority shall not resort to a relative or friend of the actual declarant to act as interpreter due to the risk that it represents for the reliability and validity of the statements. If it is difficult to find an interpreter, the judicial/police authority should consider resorting to remote interpretation via videoconference, without the physical presence of the interpreter in the room. Especially in the case of minority languages, if the particular foreign community is small in the city where the case is being dealt with, it could be difficult for an interpreter to want to intervene due to the risk of conflicting with the suspected or accused person.

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In the case of remote interpretation over the phone, legal operators should assess whether there are sufficient guarantees to consider the interpretation reliable and safe. They should also take measures to record the declarations of both the declarant and the interpreter. The judicial/police authority shall request and allow the interpreter access to the file prior to his/her intervention with the sole purpose of being prepared in terms of terminology and contextualizing the facts to be interpreted. In the event of secrecy of judicial enquiries, the interpreter should be previously briefed by the judge, prosecutor or police authority on the content of the matter. Interpretation shall be carried out using different techniques (simultaneous interpreting, bilateral interpreting, whispering and sight translation), some of which are included in the laws implementing the Directive. The actual communication requirements in the proceedings shall determine the interpretation technique to be used. The combination of simultaneous interpreting (whispering when technical means are not available) with consecutive interpreting is the only way to guarantee the full participation of the suspected or accused person in the actual hearing, since it allows him/her to be informed of everything declared by all those involved in the proceedings. In practice, the use of simultaneous interpreting is quite exceptional due to the absence of the technical means, either fixed (booths, microphones, headphones), or portable (infoport, bidule), necessary to carry this out in judicial and police facilities. Using this technique also requires a specific training of the interpreter. Considering this is not a commonly-used technique, the interpreter appointed could lack the necessary knowledge to use it. In bilateral or liaison interpreting, the interpreter may, if necessary, use note-taking as a support. In certain parts of the procedure it may also be necessary to resort to sight translation. This consists of passing information from the written code to the oral or signed code. In the hearings legal operators shall ask clear and simple questions. Complex questioning unnecessarily hinders the work of the interpreter and, at times, makes it impossible. The speaker shall pause to allow the interpreter to intervene. All participants should be aware that hearings mediated by the interpreter will be longer. The hearings mediated by an interpreter in the pre-trial phase should be recorded in audiovisual format in order to have a record of the content and quality of the interpreting. If any party does not agree with what has been interpreted, they shall ask the judge for the question to be repeated. If doubts persist regarding the correctness of the interpretation, it is advisable to request that the hearing be paused and that another interpreter be brought in. Controversy between the interpreter and the parties regarding the interpretation carried out should be avoided. Legal operators shall respect the interpreter’s turn to speak to avoid overlapping. Normally, interpretation consists of mentally retaining a speech made in one language and expressing it, after mental processing, in another language. For this process,

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which takes place in tenths of a second, the interpreter employs short-term memory and needs a lot of concentration. For this reason, legal operators shall not interrupt the interpreter, since this creates a mental block and thus may mean that what has just been memorized is forgotten. In those hearings in which the attendance of a foreign person needing interpretation is compulsory, but only to hear the petitions to be made by lawyers and prosecutor to the judge, the latter shall indicate the interpreter when and what content needs to be interpreted. If a full interpretation of what is being said is desired, lawyers and prosecutors should try to speak slowly and in an audible tone of voice in order to facilitate the interpretation. In these cases, it should also be taken into account that the interpreter’s whispering could affect the concentration of the prosecutors and lawyers when putting forward their arguments, especially if the interpreter is very close to their desks. The only way to avoid this inconvenience is to use technical means of interpretation which, for instance, allow the interpreter to be further away. Whispered interpreting for more than two people is not feasible, something which the judicial authority must take into account when there are three or more accused who need interpretation from the same language. In these cases, and when there are no interpreting booths in the room, portable interpreting equipment should be used. If the declarant’s responses in the foreign language are lengthy and the interpreter’s translation short, the interpreter may be asked to review the speech. Legal operators shall address their questions to the declarant, not the interpreter. The main actors in the communicative situation are the legal operator and the declarant, not the former and the interpreter; therefore, questions to the interpreter in the third person to refer to the declarant shall be avoided (“Could you please ask the accused if he was in …”). Sight translation of documents is not recommended when these constitute evidence in the procedure, unless their linguistic content is straightforward. Prosecutors and lawyers are encouraged to provide their contributions beforehand for examination by the interpreter; if this is not possible, it is recommended that a reasonable period of time is allowed for doing a written translation. A written text tends to be more complex in terms of terminology and syntax than a declaration and, depending above all on the language pair in question and the degree of specialization of the text, it is necessary to reflect on the text in a relaxed, unhurried manner for this to be expressed well in the target language. In the case of resorting to an oral summary of a declaration, or of a document when the written translation is replaced by an oral summary, the legal operator, and never the interpreter, shall be the one who provides the summary. It is not for the latter to select the information that should be considered relevant. It would be advisable to use two microphones in the room to ensure the recording of both the interpretation itself and the statements of the foreign person. When locating an interpreter in the room, the acoustic conditions of the room must be taken into account depending on who the interpreter has to interpret. The location of the interpreter is essential in the case of sign language, both with regard to the recording of the camera in the room and to his/her position opposite the person requiring the interpretation.

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In the case of videoconference, it will also be important to correctly locate the interpreter. The interpreter should not be asked to hold the video conference microphone in his/her hand, as this prevents him/her from being able to take notes if he/she needs to. Ideally, he/she should be able to sit at a table on which the microphone is placed. When the interpretation lacks of enough quality, legal operators should file complaints with the Public Administration that provides the interpretation service if they reasonably consider that the necessary guarantees have not been provided. They could also bring it to the attention of the governing bodies on which they depend.

6.2 For Interpreters The interpreter shall master both languages in the working language combination. He/she shall also have a good knowledge of the cultures in question, interpreting techniques and a solid legal knowledge. The interpreter should bear in mind the ethical principles that should guide his/her conduct. The interpreter shall interpret the oral trial in its entirety. In order to do this, he/she shall resort to the different interpreting techniques, fundamentally, bilateral interpreting, whispering and sight translation. The interpreter shall not use the indirect style to interpret the dialogue (“The judge asks you if you accompanied …”, “The accused says that he was in …”), but rather the direct and first-person style (“Did you accompany …? “,” I was in …”). The interpreter shall be faithful to the declarant’s speech, requesting that pauses be made when the speech to be interpreted is too lengthy. The interpreter shall previously agree with the parties and the judge on the way in which breaks are to be requested, for instance, by raising his/her hand. When there are no rooms with simultaneous interpreting equipment, the interpreter shall preferably use notes for liaison interpreting since, for instance, it is difficult to memorize numerical and nominal data as there is no correlative abstract meaning. Note taking also prevents early mental fatigue. These notes, which are only a support for memory, are not an end in themselves and will hardly be of use for third parties or even for the actual interpreter after the interview. They can be handed over to the judicial/police authority once the work has been completed so that they can be destroyed. If there is doubt or either acoustic or conceptual misunderstanding regarding what is being said, the interpreter shall consult or ask the speaker for clarification, indicating this to the party that does not understand the language. Occasionally, the suspected or accused person requiring interpretation voluntarily mixes elements of both languages in his/her speech that, without any intention, may make it difficult for the interpreter to understand. For example, this is likely to occur, but not exclusively, in languages close to Spanish (Portuguese, Italian ...). In this case, the interpreter must inform the legal operators. The judge should indicate to the suspected or accused person the convenience of expressing himself/herself only in his/her language.

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The interpreter should request a break when this is deemed necessary both to drink water (because of continuous speaking) and to recover from mental fatigue. Obliging someone to continue when fatigued will inevitably lead to mistakes being made, for which the interpreter will be held responsible. In a particular language there may be dialectal varieties that differ from the standard form; there may also be the situation in which different languages are spoken within the same country. For this reason it could be expected that the interpreter in question did not have the knowledge to interpret the dialectal variety or the language used by the declarant. For example, this could be the case of Arabic spoken in Morocco and that spoken in Syria; or of the languages spoken in Morocco, some of which are Arabic and others Berber. Here, it is the interpreter’s obligation to express this point, and not venture to interpret a dialect or language for which he/she is not qualified. He/she shall act in the same way when he/she does not understand the jargon used by the declarant. The interpreter shall refrain from speaking to the parties during periods spent waiting, limiting the conversation, as far as possible, to a simple introduction and, where appropriate, to checking the type of accent or linguistic variant of the person who needs to be interpreted.

Reference Hess, A., La casa alemana (M.J. Díez Pérez, Trans.). Barcelona: Planeta, 2019 pp. 38–40.

Directive 2012/13/EU, Concerning the Right to Information in Criminal Proceedings. Good Practices for Its Application Coral Arangüena Fanego and Carmen Rodríguez-Medel Nieto

1 Normative Framework The right to information in criminal proceedings constitutes one of the fundamental components of the right of defence, of which it is instrumental, although its embodiment is with sufficient for it to have specific recognition in the various international texts on the subject: from the International Covenant on Civil and Political Rights within the United Nations (arts. 9.2 and 14.3.a/) to the Human Rights Convention within the Council of Europe (arts. 5.2 and 6.3.a/ ECHR) by which it is also complemented and, within the framework of the European Union, the generic provision in art. 48.2 of its Charter of Fundamental Rights. Directive 2012/13/EU1 aims to establish common minimum standards applicable throughout the territory of the EU with respect to the information to be provided to persons suspected or accused of a criminal offence in terms of the rights at their disposal and the content and nature of the accusation. Norms of general application, without limiting their requirement to cross-border situations (Judgment of the Court Moro2 ). These apply to all persons, regardless of their legal status, citizenship or nationality (recital 16) and throughout the criminal proceedings. 1 Available 2 CJEU

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32012L0013. ruling of June 13, 2019, Moro, C-646/17, EU: C: 2019: 489, §§ 32–36.

C. Arangüena Fanego (B) University of Valladolid, Valladolid, Spain e-mail: [email protected] C. Rodríguez-Medel Nieto Instruction Court N.º 51, Madrid, Spain e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Arangüena Fanego et al. (eds.), Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings, SpringerBriefs in Law, https://doi.org/10.1007/978-3-030-61177-4_2

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Due to the diversity of the laws of the Member States, the concept of “criminal proceedings” can create significant divergence in the interpretation and application of the Directive. For this reason, the Directive explains that the information will be provided from the moment in which the competent authorities (any one of these, with no specification regarding them being a police or judicial authority or possibly one of a different nature) inform a person who is suspected or accused of having committed a criminal offence, and up to the final decision that determines whether or not this person actually committed the crime, including the conviction and resolution of any appeal (art. 2.1). The concept of criminal proceeding also includes the appeals that a criminal court must resolve when the sanction for a minor infraction has been imposed by an authority of a different nature, but only as a result of the appeal before this court (art. 2.2). The Directive distinguishes the three basic aspects that constitute the right to information: First, the right to receive information on procedural rights: generally by suspected or accused persons (art. 3); in particular, by detainees or those deprived of liberty (art. 4) and in the framework of the procedure of the European arrest warrant (art. 5). Secondly, the right to receive information about the accusation (arts. 6.1, 6.3 and 6.4) and the reasons for the arrest (art. 6.2). Finally, and instrumentally in terms of the previous ones, the right of access to the materials of the file free of charge (art. 7.5), where again a distinction is made between those relating to the reasons for arrest or deprivation of liberty (art. 7.1) and those related to the accusation itself (art. 7, sections 2, 3 and 4). In the case of the former ones, the Member States are required to guarantee the delivery to the detainee or their lawyer of the documents related to the specific file held by the competent authorities and which are essential to effectively challenge the legality of the detention. With respect to the non-detained suspected person and the accused, to ensure that they are provided with detailed information about the accusation (including the nature and legal classification of the facts, as well as their participation) and that he or his lawyer have access to the material evidence held by the competent authorities with due notice in order to permit the right of defence. We will follow this structure to identify the Good practices to be adopted so that the requirements of the Directive are properly carried out.

2 Good Practices in Relation to the Right to Receive Information of Suspected and Accused Persons (not Deprived of Freedom) 2.1 Standard to Apply Article 3 of the Directive obliges Member States to ensure that suspects or accused persons receive information promptly regarding a minimum of procedural rights that

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it lists in the provision. In accordance with the jurisprudence of the European Court of Human Rights—cases Padalov v. Bulgaria,3 Tala Tunc v. Turkey4 and Panovitsc v. Cyprus5 -authorities should take an active position in informing suspects of their rights, such as free legal aid, taking all reasonable steps to ensure that suspects have full knowledge of their rights. This information, with the content, form and in the times provided in the Directive, has an objective that is explicitly specified in the articles: to allow the suspect or accused to exercise these rights effectively. This purpose—effective exercise— should serve as an interpretative criterion of the entire norm and, therefore, no interpretation can result in such exercise being hindered or made impossible. For example, it is pointless to inform a suspect of the right to access a lawyer if the effective exercise of this is not allowed in terms of calling the lawyer of his choice to be present when making a declaration before the competent authority (in this regard see the jurisprudence of the European Court of Human Rights in the case Dvorski v. Croatia6 and in the case Lobzhanidze and Peradze v. Georgia7 ).

2.2 Contents Article 3 of the Directive lists some minimum procedural rights: (a) (b) (c) (d) (e)

the right of access to a lawyer; the entitlement to free legal advice and the conditions for obtaining such advice; the right to be informed of the charge the right to interpretation and translation, the right to remain silent.

It is of minimum content, that is, without limiting the information that must be provided on other procedural rights derived from the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, national law and applicable European Union legislation according to the interpretation of the competent courts (recital 20). Thus, for example, if the legislation of a State provides for the immunity of the suspect, he must be informed so that, if he so desires, this may be waived. The minimum rights listed must be applied in accordance with the relevant European law. Thus, the right of access to a lawyer is regulated by Directive 2013/48/EU8 of the European Parliament and of the Council of October 22, 2013, on the right of 3 Judgment

of August 10, 2006, case Padalov v. Bulgaria, CE: ECHR: 2006: 0810JUD005478400. of March 27, 2007, case Talat Tunc v. Turkey, CE: ECHR: 2007: 0327JUD003243296. 5 Judgment of December 11, 2008, case Panovits v. Cyprus, CE: ECHR: 2008: 1211JUD000426804. 6 Judgment of October 20, 2015, case Dvorski v. Croatia, CE: ECHR: 2015: 1020JUD002570311. 7 Judgment of February 27, 2020, case Lobzhanidze and Peradze v. Georgia, CE: ECHR: 2020: 0227JUD002144711. 8 Available at eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0048. 4 Judgment

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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; free legal aid, by Directive 2016/1919/EU9 of the European Parliament and of the Council, of October 26, 2016, on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings; the right to interpretation and translation, by Directive 2010/64/EU10 of the European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings; and the right to remain silent, by Directive 2016/343/EU11 of the European Parliament and of the Council, of March 9, 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. Therefore, only the right to be informed of the accusation is elaborated on in this Directive.

2.3 Form Regarding the form, the information can be provided orally or in writing. The Directive highlights the importance of doing it in simple and accessible language. Such language should not be technical, in order to be easily understood by a lay person lacking knowledge of criminal procedural law (recital 38). In addition, the particular needs of vulnerable suspected or accused persons (of which specific mention will be made subsequently in section 5) must be taken into account.

2.4 Timing and Procedure The information must be provided promptly during the process and, at the latest, before the first official questioning of the suspected or accused person by the police or other competent authority (recital 19). Once this has been provided, the authorities should not be obliged to repeat it, unless the specific circumstances of the case or the specific norms established in national legislation so require (recital 20). For example, if, after taking a statement, at a later point in the investigation, the competent authority agrees to take DNA samples, it may be necessary to inform them again of their rights, and specifically the consequences of consenting or not to the taking of samples, as well as of the possibility that the authority orders procurement without their consent if so provided for by the legislation of the Member State. 9 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L1919. at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010L0064. 11 Available at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343. 10 Available

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2.5 Challenge The right to challenge the fact that the competent authorities have not provided them with the information is exercised in accordance with the procedures provided for in national law. The suspected or accused person or their lawyer must have this guarantee (art. 8). Member States have no obligation to provide for a specific appeal procedure (recital 36), so this may be a claim that is asserted in the general challenges provided for in the legal order for the procedure in question.

3 Good Practices Concerning the detainee’s Right to Receive Information About Their Rights 3.1 Standard to Apply Article 4 of the Directive obliges Member States to promptly provide persons deprived of their liberty with a written declaration of rights that contains information on the basic procedural rights enjoyed by all those investigated, as well as the specific ones that assist them whilst detained. This declaration of rights, which must be written in simple and accessible terms and provided in a language that they understand, may be in the detainee’s possession for the entire duration of the deprivation of liberty. Annex I of the Directive establishes a model (guideline) for the declaration of rights for persons detained or deprived of liberty. A person “detained” or “deprived of liberty” is understood to be someone in any situation involving a criminal proceeding (either in a preliminary investigation or in a European arrest warrant and surrender procedure) is deprived of freedom in the sense of art. 5.1 of the ECHR. In interpreting this precept, the ECtHR has stated that the notion of deprivation of liberty involves both an objective aspect, namely, the internment of a person in a restricted space for a significant period of time, and a subjective aspect, insofar as the person has not consented to it (Storck v. Germany,12 § 74; Stanev v. Bulgaria,13 § 117). In order to determine whether a person is “deprived of liberty”, it is necessary to look at their specific situation and take into consideration various criteria such as 12 ECtHR ruling of June 16, 2005, case Storck v. Germany, CE: ECHR: 2005: 0616JUD006160300. 13 ECtHR ruling of January 17, 2012, case Stanev v. Bulgaria, CE: ECHR: 2012: 0117JUD003676006.

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gender, duration, and the effects and ways in which the measure is carried out (De Tommaso v. Italy,14 § 80; Guzzardi v. Italy,15 § 92; Medvedyev et al. v. France,16 § 73; Creang˘a v. Romania,17 § 91).

3.2 Timing and Procedure Information concerning the rights of the detainee must be made as soon as possible18 ; this will normally take place upon arrival at police stations by means of a written delivery and accompanied (although not expressly required by the Directive) by an oral explanation of its content. It should also include details of how the rights can actually be exercised in the course of the procedure. Advance information can be provided orally with the mention of basic rights (e.g., the right to remain silent and to have legal assistance immediately) during the actual detention and/or in the vehicle that takes the person to the police station, notwithstanding that this will be fully provided upon arrival here with the reading and signing of the declaration. However, it should always be provided well in advance of police questioning, in order to give suspects time to read and understand it. After the rights have been read, the detainee must sign the received written document containing the statement of rights and they will be allowed to keep it in their possession for the entire duration of the deprivation of liberty (art. 4.1. in fine). The detainee’s being in possession of the bill of rights constitutes a requirement of the Directive and a general rule. Only on an exceptional basis and for justified reasons that must be outlined in the police report (e.g., a real risk that the detainee may selfinjure with the sheet) can an alternative solution be used to meet the objective of the requirement included in the Directive: making it possible to consult the information at any time. In order to duly reconcile the requirement of the Directive, avoiding the dangers of possible self-harm, it may be advisable to adopt alternative measures that, instead of 14 ECtHR ruling of February 23, 2017, case De Tommaso v. Italy, CE: ECHR: 2017: 0223JUD004339509. 15 ECtHR ruling of November 5, 1980, case Guzzardi v. Italy, CE: ECHR: 1980: 1106JUD000736776, § 92. 16 ECtHR ruling of March 29, 2010, case Medvedyev et al. v. France, CE: ECHR: 2010:0329JUD000339403. 17 ECtHR ruling of February 23, 2012, case Creang˘ a v. Romania, CE: ECHR: 2012: 0223JUD002922603. 18 On the need to report quickly, ECtHR of December 15, 2016, case Khlaifia et al. v. Italy, CE: ECHR: 2016: 1215JUD001648312, § 115; of October 18, 1994, case Murray v. UK, CE: ECHR: 1994: 1028JUD001431088, § 72; of August 30, 1990, case Fox, Campbell and Harley v. United Kingdom, CE: ECHR: 1990: 0830JUD001224486, §§ 40 and 42. The ECtHR admits that the dissociation between the time of arrest and that of the information does not necessarily jeopardize the guarantee of the art. 5.2 ECHR, provided that it does not exceed a few hours, suggesting as a general rule that of three hours.

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the physical delivery of the written document, guarantee permanent access to information concerning rights; for example, displaying posters or printing the information so that it is permanently visible at the place of custody.

3.3 Contents The catalogue of rights of which the detainee must be informed and that the statement must incorporate is, at a minimum, the one that appears in arts. 3 and 4 of Directive 2012/13/EU. Therefore, and in first place, the basic procedural rights enjoyed by every person being investigated (set out in art. 3 of the Directive and already examined19 ) as well as the specific rights that assist them as a detainee and which are listed below (in sections 2 and 3 of art. 4): (a) the right of access to the materials of the case; (b) the right to inform a third party and/or the consular authorities, later expanded as a result of Directive 2013/48/EU,20 of October 22, 2013, to the right to communicate with them during the deprivation of liberty. (c) the right of access to urgent medical care; (d) maximum duration of the deprivation of liberty before being brought to court; (e) possibilities, under national law, to challenge the legality of the detention, a review thereof or a request for provisional release. It should comprise all those additional ones that are applicable according to national procedural legislation.21 It is appropriate to include, together with the statement of rights, a brief explanation of its content and necessary details to facilitate its exercise. Unified models of information acts must be prepared for all State Security Bodies and Forces in order to avoid divergences in the degree of specification and clarity of the information received by the detainees, depending on the place in the State where they are and the police force that has arrested them.

3.4 Form As stated in recital 22 of Directive 2012/13, “where suspects or accused persons are detained or deprived of liberty, information about applicable procedural rights should be given by means of a written Letter of Rights drafted in an easily comprehensible manner so as to assist those persons in understanding their rights.” 19 See

section 2 of this chapter. 6 and 7 of Directive 2013/48/EU. 21 Cfr. ECtHR ruling of April 5, 2001, case HB v. Switzerland, CE: ECHR: 2001: 0405JUD002689995. 20 Arts.

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The information must be provided in writing, although its content should be explained to the detainee, and care must be taken that this is in language understandable and accessible to the recipient based on their personal circumstances.22 An attempt must be made to reconcile the amount of information given (in many cases this is vast) with the time (duration) spent providing it, since if there is an imbalance between the two there will be considerable difficulty in assimilating it. The statement of rights must be written in “simple and accessible” terms (art. 4.4), using language, structure and style which are so clear that its addresses can: easily find what they need; understand what they find; and use that information. It is appropriate to have a model Letter of Rights that, although exhaustive, systematizes the rights in a logical way and states them whilst avoiding legal language and technical terms in the information on rights records that may impede understanding by the recipient. Different formats/styles/punctuation should be used in order to highlight key information and to provide a clear and visually appealing format that facilitates an understanding of the information. When enumerating the rights, an order consistent with the chronology of the exercising of these should be followed, so as to facilitate their understanding as part of a process.

3.5 Challenge The detainee and/or their lawyer has the right to challenge, in accordance with the procedures provided for in national legislation, the failure of the police authority to fulfil its obligations (art. 8.2). These remedies (the express indication of which must be included in the declaration of rights that should have been provided) can be habeas corpus. Although the respect of the right established in art. 8.2 does not entail for the Member States the obligation to create new mechanisms or appeals (recital 36), it is highly desirable to have a specific and suitable remedy device to denounce the refusal to provide the information or provide it without complying with the requirements of the Directive.

22 Cfr.

ECtHR ruling of December 11, 2008, case Panovits v. Cyprus, CE: ECHR: 2008: 1211JUD000426804; of April 5, 2011, case Saman v. Turkey, CE: ECHR: 2011: 0405JUD003529205.

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4 Good Practices in Relation to the Right to Receive Information Concerning the Reasons for Detention 4.1 Norm to Apply Art. 6 of the Directive includes in its sections 1 and 2 the right of every person detained or deprived of liberty to be informed promptly of the reasons for their arrest, including the criminal offence that they are suspected of having committed or of which they have been accused.

4.2 Timing and Content Information regarding the suspected criminal offence committed must be provided promptly to the detainee, and not later than their first official examination by the police, without limiting the ongoing investigations. A description of the deeds constituting a criminal offence (including, if known, the date and time) as well as the objective reasons justifying the arrest must be provided. Information regarding the deeds attributed to the detainee and the reasons for their deprivation of liberty includes the provisional legal classification, and must relate to the prerequisites of the arrest; this, therefore, requires identification of the indications or suspicions concerning the detainee’s participation in alleged criminal acts and the circumstances that have determined the need for the arrest.

4.3 Form The information cannot be solely verbal, nor can it be replaced by the more generic and habitual “information on rights”. It must be formalized in a document to be delivered to the detainee, and can be the same one in which information about their rights is included. In all events, the date and time when this information was given must also be recorded in the statement. When the detainee does not understand the language, the additional problem arises of how to provide the written document that contains the facts that led to the arrest; although it will be possible to immediately provide information on rights in a language that they understand (if a letter of rights translated into a language that they understand is available), this other information cannot be provided until the interpreter who will assist the person making the statement arrives, along with the lawyer.

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5 Good Practices with Vulnerable Persons Article 3.2 of Directive 2012/13 imposes on Member States the obligation to ensure that the information given “is provided orally or in writing, in simple and accessible language, taking into account the particular needs of vulnerable suspected or accused persons”. Art. 4.5 of the Directive requires States to guarantee “that the suspected or accused person receives a declaration of rights written in a language they understand”. And recital 26 expressly mentions the situation of persons who cannot understand the content or meaning of the information, due, for example, to their young age or their mental or physical condition. The Commission Recommendation of 27 November 2013 on procedural guarantees for vulnerable persons suspected or accused in criminal proceedings23 notes (recital 13) that vulnerable persons are not always able to understand the content of police questioning. In order to avoid any contestation of the content of an interview, and thereby undue repetition of the questioning, these interviews should be audio-visually recorded. Police officers and criminal security forces must receive specific training on how to deal with vulnerable persons (§ 17 section 4 of the Recommendation).

5.1 Due to Unfamiliarity with the Language Compliance with the requirement contained in art. 4.5 of the Directive requires having at least one model Bill of Rights translated into all the languages most commonly used in the European Union. In the absence of a Bill of Rights translated into a language that the detainee understands, the information must be provided through an interpreter and orally (following the technique of sight translation; that is, oral translation of a written text); however, a subsequent attempt should be made to provide this information in writing, for which the assistance of the interpreter will be required. It is highly recommended in these cases that an audiovisual (or at least audio) recording be made of the moment of providing the information with the assistance of an interpreter. In addition to stating that the information has been provided, it will simplify the task of writing down the information provided orally, which must be carried out “without undue delay” (art. 4.5 in fine).

23 Document

2013/C 378/02, DO C 378/8, of December 24, 2013.

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5.2 Due to Young Age The document that includes the rights that assist the individual must be written at a level of readability appropriate to the degree of reading comprehension of a minor, with little academic education, and it is appropriate for a specific model to be developed with the use of visual elements such as pictograms, as these can help a minor in terms of understanding. The declaration of rights must include not only those set out in Directive 2012/13/EU but also other specific ones that assist the minor under Directive 2016/800/EU24 on procedural guarantees for minors suspected or accused in criminal proceedings (established in art. 4 and recital 21 of the Directive); among them, the right to specific treatment during the deprivation of liberty, which is subject to periodic judicial review. When being informed of their rights, it is appropriate for the minor to be accompanied by the legal guardian or (in the event of conflict of interests) of another suitable person designated.25 In all events, information must be provided as soon as possible to the legal guardian (or, where appropriate, to the adult designated by the minor), either in writing, orally or both, and in sufficient detail, on the applicable procedural rights.26

5.3 Due to Mental or Physical Illness In the case of a person affected by some type of mental illness and in line with the CJEU ruling EP,27 their right to information must also be guaranteed, although the extent of their disability may mean that the reading of rights and issuance of the statement do not fulfil their informative purpose. The same precautions must be taken when the detainee suffers from any illness or physical disability that involves greater vulnerability and/or difficulty in understanding the rights that are communicated to them and which assist them, and in terms of how to enforce these rights. It will be especially appropriate in these cases for issuance of the statement to be accompanied by an explanation in easily intelligible terms to help them understand their rights (as indicated in recital 22), and it will be an additional task of the lawyer to provide effective assistance and make sure that the formalities have been complied with and are effective or that they are duly completed. 24 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0800eurlex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0800. 25 Art. 15.4 and recital 59 of Directive 2016/800/EU, of May 11, 2016, on procedural guarantees for suspected or accused minors in criminal proceedings and § 10 of Section Three of the Commission’s Recommendation 2013 (2013/C 378/02). 26 Art. 5 and recitals 22 and 23 of Directive 2016/800/EU. 27 CJEU ruling of September 19, 2019, EP, C-467/18, EU: C: 2019: 765.

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In cases where the disability is especially serious, in order to comply with the requirements of the Directive and in accordance with ECtHR jurisprudence on understanding art. 5.3 ECHR (ZH v. Hungary,28 § 41), information on rights should be provided to the lawyer and to the counsellor/guardian of the detainee.

6 Good Practices in Relation to the respondent’s Right to Receive Information Under a European Detention Order The detainee must be informed in writing of the facts and the reasons for their arrest, which in this case are specified in the European order that leads to their deprivation of liberty, and the content of which must be transmitted to them.29 It is advisable to have a specific model of a bill of rights for a person arrested on the strength of a European arrest warrant, as exemplified in the Directive (Annex II). If a single letter of rights model is used, common to any type of detention, information concerning specific rights information for this type of arrest must be duly discriminated and highlighted.30 The detainee must receive clear and sufficient written information, in simple and understandable language, of the rights at their disposal in the executing State under Framework Decision 2002/584/JHA; rights which, mutatis mutandis, are those included in arts. 3 and 4 of Directive 2012/13/EU with due qualifications. In addition, of the additional ones that assist them once under the responsibility of the competent authority to decide on surrender, and which are mentioned in Directive 2013/48/EU (art. 10), in Directive 2010/64/EU (arts 2.7, 3.6 and 4) and in Framework Decision 2002/584/JHA (art. 11): • the right to the assistance of a lawyer (free of charge where appropriate) in the executing State and the possibility of appointing another lawyer in the issuing State, the function of whom will be to assist the lawyer of the executing State by providing information and advice;

28 Cfr. ECtHR ruling of November 8, 2002, ZH v. Hungary, CE: ECHR: 2012: 1108JUD002897311. 29 The ECtHR has indicated that the information on rights and the facts bringing about the arrest are also applicable in extradition procedures (ECtHR ruling of October 12, 2005, Chamaiev et al. v. Georgia and Russia, CE: ECHR: 2005: 0412JUD003637802, §§ 414–415). 30 Not only because there are specific rights that assist these types of detainees; but also because some of the basic rights vary according to the mode of detention: e.g.: the maximum duration of detention under a European arrest warrant, of which the detainee must be informed (art. 4.2.d Directive 2012/13/EU), may differ from that applicable in the executing State for any another scenario.

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• the right to free intervention by an interpreter, both at the police and judicial headquarters, if this is necessary because they do not understand the language of the executing State; for this purpose, videoconference or any tele-communicative means can be used31 ; • the right to (free) translation of the European arrest warrant; • the right to (voluntary and unequivocal) non-acceptance of the lawyer in the issuing State, as well as the possibility of subsequent revocation. • the possibility of consenting to the hearing procedure before the judge and, irrevocably, surrender to the issuing State and the consequences of this consent. They must also be informed of the rights of the detainee under the law of the executing State. If the detainee suffers from any circumstance that justifies their situation of vulnerability, the additional guarantees included in the Commission Recommendation of November 27, 2013 regarding procedural guarantees for vulnerable persons suspected or accused in criminal proceedings should be observed.32 Specifically, if the person requested is a minor,33 they must be informed of the rights recognized by arts. 4, 5, 6, 8, 10 to 15 and 18 of Directive 2016/800/EU.

7 Good Practices in Relation to the Right of Access to the Essential Elements to Contest Detention or Deprivation of Freedom. 7.1 Norm to Apply Article 7.1 of Directive 2012/13/EU provides that the Member States ensure in their respective legislation “that the documents related to the specific file, which are in the possession of the competent authorities, be delivered to the detained person or their lawyer, as these are essential for effectively challenging the legality of the arrest or deprivation of liberty”.

31 Except

when the physical presence of the interpreter is considered necessary to safeguard the rights of the requested person, art. 2.6 of the Directive. 32 As indicated in recital 15 of the Commission Recommendation (2013/C 378/02). 33 Taking into account the best interests of the minor, which must also be ensured in this type of procedure, as the CJEU (GS) has declared in its judgment of January 23, 2018, Piotrowski, C-367/16, EU: C: 2018: 27.

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7.2 Timing As regards the time when access should be allowed, recital 30 also indicates that such documents must be made available to the detainee or their lawyer no later than the moment in which a competent judicial authority must decide on the legality of the detention or deprivation of liberty, in accordance with art. 5 (4) of the ECHR, and at an appropriate time to allow the effective exercise of the right to challenge the legality of such detention or deprivation of liberty. In the case of arrest, the moment a quo it is possible to exercise this right of access is in the interval occurring after the detainee is informed about the factual and legal reasons for the arrest and before being questioned by the police for the first time; always, therefore, prior to completion of the drafting of the report, of which the suspect’s statement is a key element. Regarding the time ad quem, it may coincide with that immediately prior to when the judicial authority must decide on the legality of the deprivation of liberty, determining their freedom, imprisonment or other precautionary measures of lesser intensity.34

7.3 Person Who Can Request the Exercise of the Right Although the Directive does not clarify this point, it is primarily the responsibility of the detainee, duly informed of their right, to request its exercise; this may be to that part of the proceedings that includes or documents the actions alleged for the arrest. It is also possible for the lawyer to be the one who directly processes the request, which is fully justified given the purpose of access (gathering information to contest the deprivation of liberty) in order to ensure its effectiveness, in view of the detainee’s lack of legal knowledge.35 In cases of special vulnerability (minor, person with a high degree of physical or intellectual disability) in addition to the lawyer, the guardian or person representing them can also make the request.

34 There is even the possibility of requesting access at the hearing in which prison rather than arrest is sought, a scenario analyzed by the Spanish Constitutional Court in its Judgment 83/2019, of July 25, ES: TC: 2019: 83, in a case of sub judice proceedings. 35 This in practice will be the most usual way to make this right effective. Note ECtHR jurisprudence on this point (ECtHR ruling of November 24, 1993, case Imbrioscia v. Switzerland, CE: ECHR: 1993: 1124JUD001397288; of February 8, 1996, case John Murray v. United Kingdom, CE: ECHR: 1996: 0208JUD001873191; of March 12, 2003, case Öcalan v. Turkey, CE: ECHR: 2003: 0312JUD004622199; of November 27, 2008, case Salduz v. Turkey, CE: ECHR: 2008: 1127JUD003639102).

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7.4 Content Regarding the concept of essential documents for the purposes of challenging the legality of the detention, recital 30 of the Directive mentions “the documents and, if applicable, photographs and sound or video recordings”. The listing of those are the fundamental documents is rather casuistic; we must understand them to be those that incorporate elements of evidence or sources of evidence on which the accusation and deprivation of liberty are based. This right does not include access to the attestation in its entirety at the police headquarters, nor does it grant full access to the content of the police or judicial actions carried out prior to arrest. But it does include access to those elements of the report that have to do with the arrest: facts and reasons on which it is based. In the event of discrepancy with the police officers about which elements of the actions are essential in the specific case, the guarantee of habeas corpus can be applied for the judicial authority to settle the dispute. In the case of provisional imprisonment, access should be provided to those documents that contain indications of the commission of crimes that may substantiate incarceration; those which include indications that suggest the person being investigated is the perpetrator; those that justify the concurrence of any legitimizing purposes of the precautionary measure (e.g., risk of absconding or concealment or destruction of evidence). In the cases of secrecy of the proceedings and/or in cases of incommunicado detention or imprisonment, the delivery of some of the elements contained in the police or judicial file may be limited, but never that of those elements essential for contesting the deprivation of liberty.36 Note that the Directive does not admit limitations in the case of such documents (those of section 1 of art. 7).37

7.5 How to Facilitate Access to the Documents This must be carried out effectively, by means of delivery of the document for consultation, exhibiting, delivery of a copy or any other method which, guaranteeing the integrity of the proceedings, allows the detainee to know and verify for themselves, or through their lawyer, the objective bases for their deprivation of liberty. In order to ensure free access (art. 7.5), avoiding or minimizing derived indirect costs (eg, those of photocopies or the sending of documents that may be established 36 As this is a legitimate objective, an efficient investigation cannot be achieved at the expense of substantial restrictions on the rights of the defence that continue while the person under investigation remains in provisional detention: in these cases, and if so requested by the interested party, consideration should be given to what is necessary for an effective defence against the deprivation of liberty to be exercised (ECtHR ruling of September 18, 2012, case Dochnal v. Poland, CE: ECHR: 2012: 0918JUD003162207, §§ 87 and 88). 37 The limitations provided in section 4 of art. 7 and recital 32 are only foreseen for the case of material documents/evidence to be delivered to the accused for preparation of their defence.

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by national legislation, recital 34), it is appropriate to facilitate access for obtaining copies of the documents that are of interest via digital technology, including mobile devices. Imposing conditions that significantly hinder the effectiveness of the right of access should be avoided; for instance, rules that limit the cases in which people or their lawyers may consult information, the type of information to be consulted, or for how long. Its content may be limited only if there is a need to consider other interests that must also be protected during criminal proceedings, such as the special protection of victims and witnesses in cases where this is necessary, or when the secrecy of the proceedings has been determined or should subsequently be declared. Steps must be taken to effectively allow analysis of the documents by the respondent and their attorney. This measure implies, among other points, guaranteeing the confidentiality of conversations between a lawyer and a person under investigation in prison, which requires improving or, directly, changing the conditions in which these occur, as they do not permit such confidentiality (glazed booths adjacent to others; speaking through grilles and intercoms, etc.).

8 Good Practices in Relation to the Right to Receive Information Concerning the Accusation 8.1 Norm to Apply Article 6 of the Directive obliges Member States to ensure that the suspected or accused person receives information about the criminal offence to which the suspicion or accusation relates.

8.2 Timing In relation to the time, the Directive contains a generic provision, as it requires that information concerning the accusation be provided promptly, but with a specific limit: at the latest when the content of the accusation is presented in court (art. 6.3). The CJEU has clarified, regarding the moment a quo, that this is when the accused person (and not only and when appropriate, their legal representative) has effective knowledge of the criminal accusation and can effectively exercise their right of defence.38 38 See

CJEU ruling of October 15, 2015, Covaci, C-216/14, EU: C: 2015: 686 §§ 60–68 and of March 22, 2017, Tranca and Reiter and Opria, C-124/16, C-188/16 and C-213/16, EU: C: 2017: 228, both referring to simplified German procedures leading to the adoption of sanction orders imposing fines.

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8.3 Content The Directive does not specify in its articles the minimum information concerning the accusation that must be provided to the suspect, but this must be comprehensive so as to safeguard the fairness of the process (art. 6.1, in line with the jurisprudence of the European Court of Human Rights, see case Pélissier and Sassi v. France39 ). recital 28 is more specific as it states that a description of the facts constituting the criminal offence must be provided, including whether the place and time are known, as well as the possible legal classification. The amount of detail will depend on the stage of the procedure, but at all events effective exercising of the rights of the defence must be allowed. For example, providing information at the start of the investigation that the suspect is alleged to have pilfered wallets in a certain city in a certain month of the year would not be sufficient for effectively exercising the suspect’s right to defence, since the vagueness of the accusation makes defence impossible; nor should it be necessary to specify the exact time of the theft attributed to the suspect, as it would be sufficient to specify a day, a time range, a street or a defined area of the city, without the need for exhaustive detail in an initial phase of the investigation; this is different at the time of the accusation in court, when greater detail must be provided. Consequently, once the accusation has been formalized in court, the information that must be provided to the accused will have a minimum content: the nature and legal classification of the criminal offence, and the nature of the participation of the accused (art 6.3). By nature of the offence, this can be taken as providing information regarding the fact that it is a criminal offence, minor or serious, against a specific legal interest (freedom, public order or others) as well as the specific legal classification of the criminal offence, informing, where appropriate, of the elements thereof—even by reference to the specific legal precept that typifies this conduct—and the punishment relating to such conduct. In relation to the participation of the accused person, they must be told if they are accused of being a perpetrator, co-perpetrator, necessary co-operator, accessory, accomplice or inducer, for example. The Directive also requires that any changes which may occur in the information provided be reported when necessary in order to safeguard the fairness of the procedure. Therefore, it is not any change that should be subject to additional information (for example, the conditions for obtaining free legal aid have changed, but the suspect continues to meet the conditions for obtaining this benefit). There would, however, be fresh information regarding the accusation if new facts have appeared that give rise to changes in this accusation, for example, in the following cases: • When suspicion extends to further crimes which are different from those that were behind the first piece of information (for example, initially the person was only suspected of a crime against public health and later also of a crime of money laundering). 39 ECtHR

ruling of March 25, 1999, case Pélissier and Sassi v. France, CE: ECHR: 1999: 0325JUD002544494.

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• When the facts are substantially identical, but during the course of the investigation, some circumstance relating to these has been ascertained that compounds the criminal nature of the alleged conduct (for example, the person was initially suspected of a crime against public health due to distribution to a group of people and subsequently it has been found that among those to whom the narcotic substance was provided there were minors). • When the same facts on which the initial accusation was based have consequences that occur during the investigation and compound the criminal nature of the conduct of which he will finally be accused (for example, he was initially suspected of an offence of personal injury, as a result of which the victim has died; therefore, the charge will be one of homicide). Regarding requalification of the criminal act, as a guiding criterion for interpreting the Directive, it should be borne in mind that the jurisprudence of the European Court of Human Rights has accepted that such requalification does not jeopardize a fair trial whilst the accused has sufficient opportunity to defend themselves (Case Dallos40 or Case Sipavicius41 ); this requires the judicial authority to ensure that the accused person has had the opportunity to specifically and effectively exercise their right following the appropriate information (Case Drassich42 ). This may, as the CJEU has indicated (case Kolev and others43 and case Moro,44 eventually require the proceedings to be suspended and postponed to a later date so that the defence is duly prepared.

9 Good Practices Relating to the Right of Access to the Materials of the File for Defence Regarding the Accusation 9.1 Norm to Apply Article 7 of the Directive requires that the accused or suspected person or their lawyer have access at least to all the material evidence in the possession of the competent authorities. Guaranteeing this right aims at safeguarding the fairness of the process and preparing the defence (art. 7.1). The jurisprudence of the European Court of 40 Judgment

of March 1, 2001, Dallos v. Hungary, CE: ECHR: 2001: 0301JUD002908295.

41 Judgment of February 21, 2002, Sipavicius v. Lithuania, CE: ECHR: 2002: 0221JUD004909399. 42 Judgment of December 11, 2007, Drassich v. Italy, CE: ECHR: 2007: 1211JUD002557504, § 34. 43 CJEU 44 CJEU

ruling of June 5, 2018, Kolev et al. (1), C-612/15, EU: C: 2018: 392, § 90. ruling of June 13, 2019, Moro, C-646/17, EU: C: 2019: 489, §§ 52–56.

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Human Rights has elaborated on this right in sentences such as those in the cases Beraru,45 Matyjek 46 and Luboch47 ; the CJEU has done likewise in its judgments Kolev48 and Moro.49

9.2 Form Access will be free (art. 7.5), which does not prevent, in light of recital 34, national legislation from demanding the payment of fees for copying documents from the file or for the costs of sending the materials to the interested person or their lawyer. What would negate the precept, therefore, is to charge an amount to exercise the right to accede to or have knowledge of the materials.

9.3 Timing Regarding the moment in which this right becomes effective, in accordance with the Directive, it must be ensured that the materials are provided in sufficient time for their objective (effective exercise of the rights of the defence), and at the latest when the grounds for the accusation are presented to the court for its consideration.50

9.4 Content In terms of content, the precept states that this right includes access to both evidence in favour and evidence against (for example, the statement of the witness that provides details of the perpetrator of the crime must be provided, even if they do not coincide with the description of the suspect, as well as the recording of the street where it is 45 Judgment

of March 18, 2014, case Beraru v. Romania, CE: ECHR: 2014: 0318JUD004010704. of April 24, 2007, case Matyjek v. Poland, CE: ECHR: 2007: 0424JUD003818403. 47 Judgment of January 15, 2008, case Luboch v. Poland, CE: ECHR: 2008: 0115JUD003746905. 48 CJEU ruling of June 5, 2018, Kolev et al. (1), C-612/15, EU: C: 2018: 392. Similarly, in its subsequent judgment of February 12, 2020, Kolev et al. (2), C-704/18, EU: C: 2020: 92, §§ 20–22. 49 CJEU ruling of June 13, 2019, Moro, C-646/17, EU: C: 2019: 489. 50 The CJEU in its judgment Kolev et al. (1) has indicated that art. 6 (3) of that Directive does not preclude the communication of detailed information regarding the accusation to the defence after the prosecution report has been presented before the judge, but before the latter begins to examine the merits of the accusation and before debating begins, or even once such debates are underway but prior to the deliberation phase in the event of the information thus communicated being subject to further modifications, provided that the judge takes all necessary measures to guarantee respect for the rights of defence and fairness of the process (CJEU ruling of June 5, 2018, Kolev and others (1), C-612/15, EU: C: 2018: 392). 46 Judgment

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reported that the suspect was at the place and time when the criminal act occurred). recital 32 specifies by way of example that materials should be understood as documents and, if applicable, photographs and sound or video recordings. It should be noted that the recordings may refer, for instance, to witness statements if they have been documented as such. There may also be objects in the file (for example, the stolen wallet or the stick used as a weapon) to which the suspect or accused must have access, as this would otherwise harm the stolen wallet or the stick used as a weapon) to which the suspect or accused must have access as otherwise this would jeopardize their right to defence. The right of access to the materials in the file is not designed as an absolute right. However, limitations on access, in view of the stage of the proceedings in which they occur, must be interpreted rigorously and respecting the principle of a fair trial, in accordance with the European Convention on Human Rights and the interpretation of the European Court. of Human Rights jurisprudence (recital 32). The phase of the procedure is relevant, as certain proceedings may be pending during the investigation, and these would be counteracted if certain material is revealed to the suspect or their lawyer, an issue that in no way can occur in the prosecution phase, where the investigation has ended and therefore, such interest in obtaining new evidence does not exist (consider, for example, that a key is found in a vehicle where it is thought that there may be material evidence of the crime: so as not to impede the ongoing investigation, this specific item, the key, may not be provided to the suspect in order to enable the police to find the car and collect the rest of the evidence, but it cannot remain hidden during the trial, since there is no legitimate interest in justifying such concealment.). In this regard, the Directive requires compliance with certain points in order that access to the materials in the file can be denied (art. 7.4): (a) (b) (c) •

that it does not jeopardize the right to a fair trial; that the limitation affects only certain materials (therefore, not the entire file); that one of the following causes occurs: one leading to a serious threat to the life or fundamental rights of another person, or • denial is strictly necessary to defend an important public interest (such as when there is a risk of hindering an ongoing investigation), or • national security could be seriously undermined. (d) that the limitation is adopted due to a judicial decision or, at least, with a judicial review of the decision adopted. Even if no limitation is adopted regarding access to the materials of the file, the Directive considers that in all events protection of personal data and the whereabouts of protected witnesses should be respected (recital 33). It is clear that otherwise such protection would be ineffective. The Directive also recognizes that during criminal proceedings more material evidence may come into the hands of the competent authorities, requiring that access be granted to them in due time so that they can be studied (art. 7.3). For example, if the pilfered wallet appears hidden in the vicinity of the place where the crime was committed but after the declaration of the suspect, it is clear that this must be made

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known to the suspect or their lawyer in advance. as incriminating or, conversely, exculpatory pieces of evidence may appear in the wallet, which are key to guaranteeing that the trial has been fair (if these include the suspect’s fingerprints, it will be more difficult to prove that they had nothing to do with the event; the absence of fingerprints may be decisive for acquittal). It is the responsibility of the national judge to verify that in these cases the defence is offered an effective possibility of accessing this new material evidence to ensure the right of defence and fairness of the trial.51

51 CJEU

ruling of June 5, 2018, Kolev et al. (1), C-612/15, EU: C: 2018: 392 section 2 § 105 and CJEU ruling of February 12, 2020, Kolev et al. (2), C-704/18, EU: C: 2020: 92, § 22.

Access to a Lawyer and Legal Aid (Directives 2013/48 and 2016/1919) Vânia Costa Ramos and Begoña Vidal Fernández

1 Normative Framework Directives 2013/48/EU1 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, together with 2016/19192 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, regulate two sides of the same reality or, in other words, two closely related questions (legal aid and free defence), despite their being embodied in two different instruments. The foreseeable complexity of the negotiations in order to achieve in the first of the Directives cited—the right to legal aid—and also the issue of this being free, made it advisable from an operational point of view to postpone procedure to a later specific rule. The huge differences between 1 Available 2 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0048. at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L1919.

Vânia Costa Ramos is the author of the section referring to Good practices in relation to Directive 2013/48/EU. Begoña Vidal Fernández is the author of the section referring to Good practices in relation to Directive 2016/1919/EU. V. C. Ramos Faculty of Law, Research Centre for Criminal Law and Criminal Sciences, University of Lisbon, Lisbon, Portugal e-mail: [email protected] B. Vidal Fernández (B) Institute of European Studies, University of Valladolid, Valladolid, Spain e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Arangüena Fanego et al. (eds.), Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings, SpringerBriefs in Law, https://doi.org/10.1007/978-3-030-61177-4_3

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the diverse domestic laws and the cost that the new legislation would entail for most of the Member States in a generalized economic crisis, accounted for (but did not justify) the postponing of free legal aid. Returning to the original approach of the strategy, which proposed to cover this issue with a single instrument, we will deal with the question of Good practices jointly in the same chapter. Directive 2013/48 on legal aid establishes the need for a lawyer in all criminal proceedings. However, this is a minimum regulation, and States are empowered to determine the compulsory nature of legal aid beyond the cases required in the community norm. Directive 2016/1919 has its fundamental basis in Directive 2013/48, since art. 3 Directive 2016/1919 defines free legal aid as “the financing by a Member State of the assistance of a lawyer, which allows the exercise of the right to legal aid”. Therefore, in order to claim free assistance it is a prerequisite to have the right to legal counsel. Consequently, it should be concluded that whenever the person entitled to legal assistance exercises this right and requests a lawyer, even if their intervention is not mandatory, this right is fully effective, which means that they can request free assistance in criminal proceedings when it is necessary in the interests of justice should proof exist of insufficient resources (art. 4.1 Directive 2016/1919). And national legislation that does not provide for the assistance of a lawyer for certain cases, or for certain procedural actions, may violate the right of defence when this lack of provision prevents the accused from explaining and refuting the arguments put forward by the prosecution, thereby depriving them of the opportunity to influence the outcome of the case. In these circumstances, legal aid is also the right of the suspect or defendant in criminal proceedings who lacks sufficient resources for litigation, enshrined in art. 6.3-c ECHR (Pakelli v. Germany,3 § 39), and also in art. 47.3 of the Charter of Fundamental Rights of the European Union. Therefore, there is such a close link between Directive 2013/48 on legal aid to suspects and the accused in criminal proceedings and persons requested under a European Arrest and Surrender Warrant, and Directive 2016/1919 on legal assistance to suspected and accused persons in criminal proceedings and wanted persons by virtue of a European arrest warrant procedure, that the area of application of the latter cannot be independent of the former. The limits and problems raised in the section on the study of the Legal Aid Directive (2013/48/EU) reappear in relation to the right to free assistance in Directive 2016/1919/EU, which signifies: that by guaranteeing legal aid free of charge “without delay, as soon as necessary”, this requirement goes hand in hand with the right to a lawyer at the police station; that the right to free legal counselling exists as long as there is the right to legal aid and this has not been validly waived; that the defence, even if it is free, must be effective and one of quality; and that in European Arrest and Surrender Warrant procedures, free legal aid must be guaranteed in the executing and issuing State, so as to give effect to the right to double defence enshrined in Directive 2013/48/EU.

3 ECtHR ruling of April 24, 1983, case Pakelli v. Germany, CE: ECHR: 1983: 0425JUD000839878.

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2 Good Practices Regarding Legal Counselling 2.1 The Importance of Establishing Good Practices for Better Implementation of the Rights of Directive 2013/48/EU (and 2016/1919/EU) Without weakening the details set out in paragraphs 2 and 3, art. 3 paragraph 1 of Directive 2013/48/EU, which establishes the general right guaranteeing legal counselling for effective assistance,4 is rather indefinite in terms of content. Thus, there will be many situations in which questions will be raised as to whether this regulation has specific implications. This lack of definition makes it more difficult to apply the Directive and analyze domestic law in order to conclude whether or not there is a need for transposition by means of legislative changes. However, there is plenty of jurisprudence of the European Court of Human Rights on this issue that may serve as a reference. At all events, the guiding criterion represented by the basis and purpose of the right of legal aid established in the Directive should always be remembered: (i) effective exercise of the rights of defence (art. 3, paragraph 1, and arts. 47 and 48 of the CFREU)—the role of legal aid as a “door” to the exercise of other rights and an essential component of the right to a fair and balanced trial; (ii) protection against torture and inhuman, cruel or degrading treatment (art. 3, paragraph 1 and paragraph 3 c), and art. 4 of the CFREU; recital 29). Implementation does not only consist of establishing norms, but also of ensuring that in jurisprudence and practice these can be applied effectively. This aspect is extremely important in relation to the right of defence and legal assistance. Thus, a manual of good practices in this area can be a much more useful instrument. In this text, we presented some proposals for good practices that we consider applicable in the context of all member States in the European Union.5 4 Member States “shall ensure that suspects and accused persons have the right of access to a lawyer

in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively”. 5 Although the questions will be pertinent in the legislative context of all the member States, the selection of these has been conditioned by my Portuguese empirical perspective. Thus, for example, I will not deal with the question of derogations, since in Portugal this is one of the most positive aspects: the right of assistance by a lawyer is applied in all criminal cases; there is no special legislation for terrorism or another specialized type of crime, and in 1987 the Constitutional Court, with regard to the Penal Procedural Code Bill, which established a possibility of delaying access to a lawyer by 48 h, decided that this would be unconstitutiona – Sentence of the Portuguese Constitutional Court 7/87, of 17 of February 1987, https://www.tribunalconstitucional.pt/tc/aco rdaos/19870007.html. In Portugal, therefore, we have a very far-reaching and very strong right. Furthermore, violations usually result in annulment and the exclusion of evidence. Of course, this is a very complex issue, but in general there is good protection. Finally, there is no possibility of a person being left without a lawyer. As a result of the system of compulsory assistance by a lawyer, at the latest from the moment of the indictment, a court-appointed lawyer is automatically chosen, even if the suspected or accused person can pay. In the event of conviction, the person has to pay

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We will refer to four problems: (i) assistance at the police station and preventing inhuman and degrading treatment; (ii) waiving legal aid; (iii) lack of resources to guarantee effective and quality assistance; (iv) double defence.

2.2 Good Practices in Assistance at Police Stations and in Preventing Inhuman and Degrading Treatment Article 3 (2) (c) of Directive 2013/48/EU establishes that the right to legal assistance must be guaranteed “without undue delay after deprivation of liberty”. Article 4, paragraphs 1, 4 (b), and 5 require a financing system by Member States for legal aid when suspected and accused persons do not have sufficient resources, whereby aid provided to detainees will always be considered “in the interest of justice”, and Member States “shall ensure that free legal aid is granted without undue delay”. In this context, the role of the lawyer as a safeguard against ill-treatment is greatly weakened when the latter is not present from the moment of the arrest, but only during questioning or appearance. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has observed and criticized this practice in various EU Member States (including Portugal6 ). In the Portuguese example, this right is included in the regulations: all those detained, until their first judicial questioning, will immediately have access to a lawyer, who can visit them at any time of day or night.7 But in practice, and since the law only establishes the presence of a lawyer during the questioning (and not from the moment of arrest), the assignment is often made only at the moment immediately prior to questioning by the judge, or by the prosecutor, when the person has not appointed an attorney. In fact, there is a regulatory framework that allows immediate access and—as such—the assigning of a court-appointed lawyer from the start of deprivation of liberty. However, in practice this appointment is not immediate, but occurs only at the time of questioning. This is compounded by the authorities’ (and lawyers’) lack of understanding of the lawyer’s role as a safeguard against inhuman and degrading treatment. In this regard the good practices for any Member State would be:

the costs, but these will be very low compared to private ones. As a result, from a formal point of view there is a very broad guarantee. 6 Visit to Portugal Report 2016, CPT/Inf (2018) 6, § 25. Available at: https://hudoc.cpt.coe.int/eng? i=p-prt-20160927-en-10. 7 Article 124, section 3, of the Code for the Execution of Penalties and Deprivation of Liberty; art. 16 of the Regulation of Material Conditions of Detention in Police Establishments (Order 5863/2015, of the MAI); arts. 5 and 30 of the Regulation on the conditions of detention in judicial police facilities and in the places of detention in the courts and the prosecution services (Office 3 12,786/2009, MJ).

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(i) the detained person must be clearly informed, via the delivery of a letter of their rights (something that already exists but which is not applied in a transversal and systematic way), with clear information on the right to legal services from the moment of deprivation of liberty, and the right to free legal aid (as required by art. 4, paragraphs 1 and 2, and art. 3, paragraph 1 (a) and (b), of Directive 2012/13/EU8 ); (ii) the person should be asked immediately about their intention to contract a private attorney or to be assisted by a court-appointed one, in which case the latter must be immediately appointed using an “emergency on-call” system, in the which lawyers are obliged to appear immediately (for example, maximum 1 h, as in Portugal). As an alternative, the Member States may choose a faceto-face emergency system that guarantees the presence of lawyers 24 h a day at central police stations to provide immediate assistance to the person detained in these cases. Finally, there should be increased training and awareness of police, guards, prosecutors, judges and lawyers regarding the specific role of legal aid in preventing mistreatment, as opposed to the right to a fair trial.9

2.3 Good Practices in Relation to Waiving Legal Counselling Waiving the right to legal assistance is one of the most important issues in this area. Directive 2013/48/EU addresses the issue in art. 9, establishing that the waiver must be preceded by information regarding the right to a lawyer and the consequences of this waiver, and that the latter is voluntary, unequivocal and subject to registration.10 In practice the waiver is often formalized, very simple and automatic, and there is no normative regulation or guidelines with specific requirements. How to adopt a good practice in this area. The best practice in this regard would be the requirement of prior consultation with a lawyer as a condition for the waiver. But if this option is not possible, the following would be recommended: 8 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32012L0013. ECtHR ruling of November 9, 2018, case Beuze v. Belgium, CE: ECHR: 2018: 1109JUD007140910: “The Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Salduz, cited above, § 54; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112)”. See also a clear distinction in the CPT Report of the Visit to Montenegro in 2017, CPT/Inf (2019) 2, § 25. Available at: https:// hudoc.cpt.coe.int/eng?i=p-mne-20171009-en-8. Cfr. also the CPT standards on “access to a lawyer as a means of preventing ill-treatment”. Available at: https://rm.coe.int/16806ccd22. 10 Requirements according to ECtHR jurisprudence in its ruling of September 24, 2009, Pishchalnikov v. Russia, CE: ECHR: 2009: 0924JUD000702504 (unambiguous, voluntary and conscious waiver). 9 See

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Firstly: information on the right of legal aid should be specific and non-generic. Thus, for example, there should be an explanation of the role of the defender11 and in what specific actions the latter can provide assistance. Secondly: information on the possibility of obtaining free (immediate) legal assistance as well as provisional assistance in situations of detention must be clearly indicated. Thirdly: information must be given concerning the consequences of such a waiver (for example, the person will not be able to allege lack of legal assistance to request the annulment of their declarations), and the risk of not acting in a way that would be recommended from a technical point of view, and which only a lawyer can offer. Likewise, the information that a waiver may be revoked later must be accompanied by that relating to the fact that it will not affect proceedings in the interim. Fourthly: the waiver is required for each action, whereby the suspected or accused person could benefit from the assistance of a lawyer, and it is not be a generic waiver at the start of the proceeding that continues automatically, since the consequences of the waiver for each specific act will also be specific. Fifthly: the waiver must be recorded, audiovisually if possible, but at least in audio. A written waiver—when there is no prior consultation with a lawyer—represents the enormous risk that this is a mere formality, and does not guarantee that it is unequivocal, voluntary and informed, which would make it invalid.

2.4 Good Practices to Guarantee Effective, Material and Quality Legal Assistance From my point of view, the most significant problems in Portugal—and probably in other Member States—are the result of adopting an excessively formalistic perspective of the right to legal aid. If, from one point of view, formalism is usually positive—in the sense that all suspects, regardless of their personal situation or specific allegations, will be entitled to legal assistance-, from another point of view, it may be negative—in that in practice the mere presence or appointment of a lawyer, regardless of the latter’s actual performance (assuming that, in order to guarantee the right of defence, the existence of a presential or appointed lawyer is sufficient), prevents any argument to the effect that the right of assistance has been violated. It can be observed that the ECtHR judgments, for example, against Portugal,12 in this matter have, in fact, a very strong focus on the actual assistance provided by the 11 Cfr.

ECtHR ruling of January 13, 2010, case Dayanan v. Turkey, CE: ECHR: 2009: 1013JUD000737703, § 32. 12 E.g. ECtHR ruling of 21 of April 1998, case Daud v. Portugal, CE: ECHR: 1998: 0421JUD002260093.

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lawyer, and on the distinction of the appointment or existence of a presential lawyer on the one hand, and, on the other hand, the assistance that this lawyer has actually provided. In Portugal, for example, the viewpoint is that, if a lawyer is appointed, the latter assumes the role of defence, and the State cannot be held responsible in the event that the defender does not make requests or does not file an appeal within the legal period established, etc. The existence in practice of cases with a deficient level of counselling is not compatible with the obligations of the Directive, in particular art. 3 (1) (legal assistance “at the time and in the way that allows them to exercise their defence rights in practice and effectively”). A particular example of the problems that may arise in this regard is when it comes to replacing the defence counsel (stipulated, in the framework of free legal aid, in art. 7 (4) of Directive 2016/1919/EU). In Portugal, jurisprudence considers that renunciation by a public defender (or other) does not interrupt the time limits in force. Thus, for example, if during the period to file an appeal (30 days), the public defender is challenged and a new defender is appointed, the latter will not have an extension of the period to file their petition. Of course, this legal arrangement seems to us incompatible with art. 3, paragraph 1 of Directive 2013/48/EU and with art. 7, paragraph 1 of Directive 2016/1919/EU.13 Formalism and its consequences for the quality of effective assistance is more serious when there is no specialization among lawyers. For example, in Portugal, any lawyer registered with the College can provide assistance in any criminal matter and there is no compulsory training. This means that a lawyer who has passed the College’s Bar examination in 1980 is under no obligation to update their training and still has permission to practice. From this point of view, there is a lack not only in public but also in private defence (in general, however, lawyers with more private practice invest more in training, for the simple reason that they can do so because their economic situation is more favourable). In this regard, good practices would include demanding specialized training for lawyers in the most complex processes—for example, in cross-border matters, such as the European Arrest and Surrender Warrant, the European Public Prosecutor’s Office, freezing of assets or confiscation, etc.—or for the most serious criminal offences. In any case, an obligation regarding mise à jour must be guaranteed for criminal defence lawyers, that is, one of continuous training in order to be able to litigate in criminal cases. This is required by art-7, section 3, of Directive 2016/1919/EU. In those Member States that have the same limitation as Portugal on the freedom to choose the public defender, the requirement concerning compulsory appropriate training seems very important to us. Although Directive 2016/1919/EU indicates that the quality of free legal aid must be guaranteed, it does not say how. This makes it difficult to analyze compliance with the Directive, but in view of the aim of effective implementation, we believe that it is possible to deduce from the Directive, at least in cases of free legal aid,

13 In Portugal, the situation is more serious, since the victim in a similar situation benefits from more

favorable regulations.

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the establishing of compulsory initial and continuous training, as well as a certain specialization of lawyers in criminal matters.

2.5 Good Practices in Relation to Double Defence Double defence is an essential requirement for effective defence in cross-border situations. This derives from the finding that in the EU the legal and procedural landscape is characterized by a multiplicity of applicable laws and competent authorities, and this legal fragmentation makes it impossible within this framework to have a solely national defence, since it is necessary to act simultaneously and in a complementary manner in (at least) two legal systems, operating with different regulations, practices and languages. Directives 2013/48/EU (art. 10) and 2016/1919/EU (art. 2, paragraph 2, and art. 5) have limited the regulation of double defence to EAW14 procedures. In the matter of double defence, it is essential as a good practice first of all to establish an obligation to inform the requested person about their right to double defence, that is, to assistance by a lawyer in the issuing and executing Member States (pursuant to art. 5 of Directive 2012/13/EU, art. 10, paragraph 4 of Directive 2013/48/EU, and arts. 2, paragraph 2, and 5 of Directive 2016/1919/EU). Secondly, to implement guidelines on how to provide not only information on the existence of the right, but also that which allows the requested person to use it effectively (pursuant to art. 10, paragraph 5, Directive 2013/48/EU). For example, the existence of networks of defence attorneys with experience in EAW matters should be made known to wanted persons and their lawyers (for example, the “Find a Lawyer” of the European Criminal Bar Association15 or the “Legal Experts Advisory Panel” of Fair Trials16 ), since the lists of the Colleges are generic and do not normally contain indications on the practising languages of the lawyers. Furthermore, in all EU Member States where a lawyer is appointed ex officio in the case file in the issuing State, information on their appointment and their contact details should be stated on the EAW form itself [e.g., in field (f)], and thus be transmitted to the requested person and their lawyer at the time of the arrest in the executing State.17 When there is no lawyer appointed, good practice would be to indicate on the EAW form [for example, in field (f)] the procedure to be followed when the detained person wants the assistance of a court-appointed lawyer in the Issuing State. Furthermore, it should be remembered that a truly effective double defence presupposes that the lawyer in the issuing State can intervene immediately following arrest 14 This does not mean that this right is not necessary or does not exist in other cross-border procedures. 15 Available at: https://www.ecba.org/contactslist/contacts-search-country.php. 16 Available at: https://www.fairtrials.org/sites/default/files/LEAP_membership.pdf. 17 For example, in Portugal, from the time of the indictment by the prosecutor, there is always a designated public defender.

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in the executing State, and not only after the physical surrender of the person to the issuing State, so that the legality and proportionality of the arrest of the person requested under a EAW may be investigated. Thus, it is necessary to facilitate immediate intervention—if necessary, by appointing a public defender18 -and to provide the lawyer in the issuing State with immediate access to the documents in this State.19 In all events, in the Member States where, when acting as the issuing State, a lawyer is automatically appointed at the time of physical surrender, the moment of automatic appointment must be before—for the reasons explained above—the time immediately after communication that the person requested by the executing State has been arrested. For example, in Portugal, in EAW cases for “criminal procedure”, a person is appointed as a public defender on their arrival in Portugal, because they will have to be introduced to the judge (attendance is compulsory). Thus, as soon as the issuing authorities receive the information that the person is detained, they must appoint a lawyer in the issuing State. The appointment of a lawyer in the issuing State must be communicated to the requested person and to their lawyer in the executing State. From another perspective, quality legal assistance, in keeping with the nature of EAW procedures, must be guaranteed as far as possible. Here, good practices would involve demanding specialized training for lawyers in EAW procedures, and compulsory mise à jour for criminal defence lawyers, that is, compulsory continuous training so as to be able to litigate in these procedures. This is required by art. 7, section 3, of Directive 2016/1919/EU. Although Directive 2016/1919/EU indicates that there must be a guarantee of quality, it does not say how this should be done. This makes it difficult to analyze compliance with the Directive, but in view of the objective of effective implementation, it is possible to infer from the Directive that it establishes compulsory initial and continuous training with a particular focus on EAW procedures, as well as a certain specialization of attorneys in these proceedings. For example, those Member States that have the same limitation as Portugal regarding freedom to choose a public defence lawyer, the requirement of appropriate compulsory training is very important. The inability to choose your attorney has important implications for EAW procedures, particularly when this is combined with a lack of training requirements. The requested person who in these cases is intercepted in Portugal—or in other Member States with similar characteristics—will 18 The possible challenging of a EAW is a condition of its validity (art. 8, section 1, c) FD 2002/584/JHA), as inferred from the CJEU judgment of June 1, 2016, Bob-Dogi, C-241/15, EU: C: 2016: 385, §§ 55–57. 19 In its judgment Bob-Dogi, §§ 55–57 in fine, the CJEU has considered that a double level of protection of the procedural rights and fundamental rights of the wanted person must be guaranteed, at the first level, against the national resolution of detention and, at a second level, against the decision to issue a EAW. This implies that the right of access to the documents enshrined in art. 7, section 1, of Directive 2012/13/EU, must benefit from a cross-border application in EAW procedures; therefore, to exercise the rights to challenge at these two levels it is necessary for the lawyer in the issuing State to have access to the files; in particular from the moment the requested person has been detained in the executing Member State.

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have a lawyer who often does not even know the law applicable in these procedures. In procedures which are complex and swift, this represents in a significant number of cases an obstacle to effective defence. Finally, an appropriate free legal aid system must be implemented for the EAW, both when a Member State acts as an executing State and when it acts as an issuing one, which implies financing appropriate to this cross-border event, and the guarantee that the intervening lawyers have sufficient legal and linguistic training (a command of English and/or the language of the issuing/executing State, to enable them to communicate with their colleague in the other Member State).

3 Good Practices in the Field of Legal Aid (Directive 2016/1919 in the Courts) 3.1 Extent of Possible State Action The community legislator issues regulations by means of Directives when the aim is to harmonize the national systems of the Member States, and not to replace them with uniform community regulations. The Directive as a normative legal instrument links the recipient States in terms of results, leaving them a more or less wide possibility of action to determine how to achieve those common results, in light of the particularities of each national legal system. Consequently, States can regulate the recognition of free legal aid, given that this is State financing, but within the limits set by Directive 2016/1919: • They can establish that it is upon request of the suspect, accused or wanted person. But the application should not be considered a substantive requirement for the granting of free legal aid (recital 18 Directive 2016/1919 in fine). In this regard, it is of special interest to highlight that they can facilitate access to the online application, implementing a system that allows the applicant for free assistance to request, through a single Internet access point, this legal assistance, thereby reducing the time that it takes to process the requests. • Member States must ensure that the specific needs of vulnerable suspected, accused and wanted persons are taken into account when implementing the Directive (art. 9 Directive 2016/1919). A possible means of guaranteeing this special attention may be to establish in the Bar Associations specific duty systems to provide legal aid to these people who are in a situation of special vulnerability. • For this concession state regulations may require the applicant to undergo an assessment of economic means that takes into account: income, assets, family situation of the applicant, the cost of legal aid and the standard of living of the State (according to art. 4.3 Directive 2016/1919), or an evaluation of merits, that is to say that “the interest of Justice demands it”, understanding as such: the seriousness of the criminal offence, the complexity of the case and the severity

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of the possible sanction (art. 4.4 Directive 2016/1919). Or a combination of both criteria is applied. The community text implies that automatic consideration is given to its requirement in the interests of the Justice whenever the liberty of the person is affected, when placed at the disposal of the judge to decide on their arrest and during detention. And that it is possible to consider that the assessment of merits is not accepted in the case of certain minor offences, provided that the right to a fair trial is respected (recital 13 of Directive 2016/1919). • Applying the criteria established by the norms concerning granting or denying aid, corresponds to the body or service which, in accordance with national legislation, has to resolve the request. The authority with the power to decide on concession must be an independent authority or a judicial authority, and must decide whether or not to allow the concession “without undue delay”. • This must be a quality service, since the mere appointment of a free lawyer does not imply the respect for this right if the former does not provide an effective defence. To ensure this quality, the Directive imposes on the Member States the obligation to adopt the necessary measures, “with due respect for the independence of the legal profession” (art. 7 Directive 2016/1919), which is divided into compliance with two requirements: on the one hand, the existence of an effective national system, which implies the need to provide specialized training to those who intervene, as well as the setting up of appeal procedures for decisions regarding the granting or denial of aid. The States must guarantee that in their legal systems there are remedy channels for when the right to free legal aid is jeopardized, or the assistance is delayed or is denied either in whole or in part, and if these do not exist, they must implement them (recital 27 of Directive 2016/1919). States must ensure that the persons in charge of training judges and authorities who make decisions on free legal aid offer this specialized training. In addition, this free assistance must serve to “guarantee the fairness of the process.” Compliance with this second requirement implies recognition of the power of the judge to rule on the need for and the effectiveness of the assistance provided. It is a duty of the States to ensure the practical and effective respect for the applicant’s defence rights to guarantee the fairness of the process (Vamvakas v. Greece,20 §§ 36 and 43). • The means of payment is also decided by the State. National legislation may choose to regulate it as a subsidy from the budgets of the infra-state district entities. In these cases, it should be noted that decentralization may cause differences between the territories, so it will be necessary to set up a standardization system under the leadership of a coordinating body, where all administrations with jurisdiction over Justice and lawyers and solicitors will be present through their general 20 ECtHR

ruling of September 14, 2015, case Vamvakas v. Greece, CE: ECHR: 2015: 0409JUD000287011.

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corporations, and whose objective is to harmonize, unify and share practices and action criteria. Payment may be considered as compensation, remuneration or compensation. Applying the Directive has raised certain practical issues that we will present below, listing some good practices to deal with these.

3.2 Good Practices in Relation to Assessing the Criterion: “When the Interest of Justice so Requires” (Art. 4.1 Directive 2016/1919) for Granting Free Legal Aid The formulation of the norm automatically considers the interest of justice to be present in all cases in which the suspected, accused or wanted person is deprived of liberty. But it should also be known when the interest of justice requires this in other cases in which the liberty of the person is not affected. The criteria included in art. 4.4 of Directive 2016/1919 (the seriousness of the criminal offence, the complexity of the case, the severity of the possible sanction) derive from the jurisprudence of the European Court of Human Rights. Given the powerful influence of the document of the European Convention on Human Rights in the drafting of this community rule (“When applying this Directive, the Member States must ensure respect for the fundamental right to free legal aid established in the Charter and in the ECHR”: recital 23 Directive 2016/1919), and in the absence of jurisprudence of the Court of Justice of the European Union on this point, it is necessary to resort to the interpretation of this expression made by the ECtHR itself, contained in its art. 6.3-c. Thus, to consider that this is in the interests of justice, the whole question should be considered, not only the situation at the time the application is resolved but also in the appeal phase, when necessary (Granger v. United Kingdom,21 § 47). The criteria for identifying the interests of justice are: the seriousness of the imputed offence and the severity of the corresponding sanction; the complexity of the case, envisaged not so much in relation to the facts but due to the range of possible solutions the court may adopt as a consequence of those facts, and the personality of the agent (Quaranta v. Switzerland 22 ). In relation to the criterion of the seriousness of the offence and the severity of the sanction, the interest of justice is considered to be a factor when the procedure is fraught with “serious consequences” for the person applying for aid (Pham Hoang v. France23 ), and the criterion of the personality of the accused or the suspect in criminal proceedings, or of the person requested under a EAW, refers not only to the possibility that this 21 ECtHR

ruling of March 28, 1990, case Granger v. UK, CE: ECHR: 1990: 0328JUD001193286. ruling of May 24, 1991, case Quaranta v. Switzerland, CE: ECHR: 1991: 0524JUD001274487. 23 ECtHR ruling of September 25, 1992, case Pham Hoang v. France, CE: ECHR: 1992: 0925JUD001319187. 22 ECtHR

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person is in a vulnerable situation, but also to their lack of legal training for putting forward and developing arguments concerning complex legal issues (Pham Hoang v. France), as well as to a lack of linguistic knowledge (Twalib v. Greece24 ). In order to see, therefore, if the interests of justice require the granting of free legal aid to the appellant when they lack financial resources, the court must consider the severity of the proposed sentence, with serious consequences for the person applying, the latter’s limited capacity (Boner and Maxwell v. United Kingdom25 ) and, at the appeal stage, also to the extent of the powers of the court that must return the final decision (Mikhaylova v. Russia,26 §§ 80 and 102). When applying the same criterion of “interest of justice”, national judges have to propose a new examination ex officio in cases of denial of the legal aid requested, when this request has been resolved and denied by the competent body’s final decision, whenever they consider this to be necessary for the fairness of the trial (Granger v. United Kingdom27 § 47). The recognition of this right to free legal aid does not impede that of the right to validly waive legal aid together with its free provision (as stated in recital 9 of Directive 2016/1919), provided that it is an informed waiver, whilst it is not valid to renounce the lawyer chosen by the fact of signing the power of attorney in favour of another lawyer when it has been concealed that the lawyer of choice has tried unsuccessfully to assist (Dvosrky v. Croatia,28 §§ 100–102). And if counselling is waived as a result of the absence of free legal aid, which is necessary for the fairness of the trial, such a waiver is not valid either, and its admission by the court constitutes a violation of art. 6.3-c of the ECHR (Saranchov v. Ukraine,29 §§ 57–59).

3.3 Good Practices Relating to Quality Control of the Free Legal Aid Service Once again resorting to the jurisprudence of the ECtHR, it can be stated that the judicial authorities must have not only the power but also the duty to exercise this control, as it is acknowledged that the right to free legal aid makes possible the right to an effective, and not an illusory, defence (Vamvakas v. Greece,30 § 36). 24 ECtHR

ruling of June 9, 1998, case Twalib v. Greece, CE: ECHR: 1998: 0609JUD002429494. ruling of October 28, 1994, case Boner and Maxwell v. UK, CE: ECHR: 1994: 1028JUD001871191. 26 ECtHR ruling of May 2, 2016, case Mikhaylova v. Russia, CE: ECHR: 2015: 1119JUD004699808. 27 ECtHR ruling of March 28, 1990, case Granger v. UK, CE: ECHR: 1990: 0328JUD001193286. 28 ECtHR ruling of October 25, 2015, case Dvosrky v. Ukraine, CE: ECHR: 2015: 1020JUD002570311. 29 ECtHR ruling of September 9, 2016, case Saranchov v. Ukraine, CE: ECHR: 2016: 0609JUD000230806. 30 ECtHR ruling of September 14, 2015, case Vamvakas v. Greece, CE: ECHR: 2015: 0409JUD000287011. 25 ECtHR

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An example of this quality control in the Directive can be seen in the possibility of requesting the replacement of the lawyer appointed ex officio. It is possible to request the replacement both by another court-appointed lawyer and to appoint a trusted one, although it is not an unlimited right and the court can decide on replacement by another public defender in order to avoid interruptions or postponements and to guarantee proper defence until the end of the trial (Croissant v. Germany31 ). The right of defence includes the right to a change of lawyer when trust in the one initially appointed has been lost (or when there is a wish to appoint a trusted one), but this request can be disregarded, without violating the right of defence, when in the opinion of the court this is arbitrary, that is, unmotivated or unreasonably motivated: because the ex officio defence in the case does not display any professional deficiency before the court, because the deficiencies or disagreements are irrelevant or obviously unjustified, because a delaying strategy is revealed, or because a calculated apathy is appreciated when exercising one’s own right of defence.32 On the other hand, this right is violated when a public lawyer has been appointed from the place of the trial and not from the place where the accused is detained, when the change is denied and permission is not given to appoint a private lawyer, and the trial is not suspended when the assigned counsel is rejected.33 The request by the defendant for substitution is foreseen, but the question arises as to whether, when entrusting the judge with quality control, the latter can decide on this replacement ex officio. In accordance with ECtHR jurisprudence, it is a duty of the judge when he considers that the defence is clearly substandard. The independence of the legal profession means that in principle organising the defence is a matter concerning the lawyer and the client, and therefore the State cannot be held responsible for a substandard defence due to the fact that the lawyer is appointed ex officio. Art. 6.3-c of the ECHR forces States parties to act when the defence is manifestly insufficient, that is, the State cannot remain passive and the competent court has a positive obligation to guarantee practical and effective respect for the right of defence of the applicant, either by replacing or by compelling the lawyer to fulfil their obligation (Vamvakas v. Greece,34 § 37).

31 ECtHR

ruling of September 25, 1992, case Croissant v. Germany, CE: ECHR: 1992: 0925JUD001361188. 32 SAP de Santiago de Compostela No. 14/2019, of February 7, 2019, ES: APC: 2019: 302. 33 STS No. 821/2016, of November 2, 2016, ES: TS: 2016: 4737. 34 ECtHR ruling of September 14, 2015, case Vamvakas v. Greece, CE: ECHR: 2015: 0409JUD000287011.

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3.4 Good Practices in Relation to the Onerous Nature of the Free Legal Aid Service Since its onerousness could impede the effectiveness of this guarantee, the European Economic and Social Committee (ESC) proposed the creation of a European solidarity fund to cover expenses at the level of the European Union, in the Judgment on the Directive Proposal of the European Parliament and the Council regarding free provisional legal assistance to suspected or accused persons deprived of liberty and legal aid in European arrest warrant proceedings.35 It is the responsibility of the national legislator to make regulations concerning which public administrations or organizations are responsible for the implementation, support and functioning of the free legal aid services provided by the Bar Associations, and whether it is either a compulsory or optional service for lawyers. If it is to be a mandatory service for these professionals, and consequently regulation of the payment for services is that of compensation, the amount may not be subject to VAT. On the other hand, if it is regulated as an option, it is subject to tax since this type of service is now considered one of the objectives of the legal profession, and not as a mandatory social service (CJEU ruling Ordre des Barreaux francophones et germanophone and others36 ).

3.5 Good Practices Concerning the Possibility of Acknowledging the Right to Legal Aid to Legal Entities Directive 2016/1919 does not mention these, and seems to refer only to natural persons when it expressly considers that this right is guaranteed whenever the suspect or accused is arrested or this is about to be decided on (art. 4.4 Directive 2016/1919). However, the right to a fair trial on which this regulation is based requires that it be so, especially in view of the criminal liability of legal entities established at the European level, which has forced their incorporation into the legal systems of the Member States. This interpretation is supported in a preliminary ruling of the Court of Justice of the European Union, which recognizes it on the basis of the fundamental right to effective judicial protection enshrined in art. 47 of the EU Charter of Fundamental Rights, particularly in the third section where it is established that legal aid will be provided to those who do not have sufficient resources, when this aid is necessary to guarantee effective access to justice. The Court of Justice understands that nothing precludes this provision from being invoked by legal entities: “The inclusion of the provision regarding the granting of free legal aid in the article of the Charter regarding the right to effective judicial protection indicates that the need to grant 35 [COM

(2013) 824 final – 2013/0409 (COD)] of March 25, 2014, DO C 226, of July 16, 2014.

36 CJEU ruling of July 28, 2016, Ordre des Barreaux francophones et germanophone et al., C-543/14,

EU: C: 2016: 605.

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this assistance must be appreciated taking as a starting point the right of the person whose rights and freedoms guaranteed by Union Law have been violated, and not the general interest of society, although this may constitute one of the criteria for assessing the need for assistance” (CJEU ruling DEB,37 § 42, a doctrine reiterated in CJEU order 156/12,38 albeit both in civil and commercial matters). On the basis of this recognition, perhaps national legislation on this matter will only grant this right to certain legal entities, those that have social purposes such as public utility associations, or foundations registered in the Public Registry, and it may require them to prove they have insufficient resources to litigate or grant it regardless of resources. In this case, and despite both the preparatory work for Directive 2016/1919 whose starting point was always a situation of deprivation of liberty, as well as the difficulties that had to be overcome due to the differences in the national systems, it is appropriate that it should be acknowledged for them as suspects or accused in a criminal trial, provided that they can prove they have insufficient financial resources to litigate and that the interests of justice require it. In this regard, the Legal Aid Directive (2013/48) does not exclude them either.

3.6 Good Practices in Relation to the Right to Dual Defence and Legal Aid of Persons Wanted Under a European Arrest Warrant In the Commission’s initial proposal on provisional free legal aid the need to recognize this was established, at any rate until the final decision regarding surrender or not,39 simply because respect for non-violation of the right of defence depends on ensuring a fair trial. Therefore, this right is also recognized in the Member State issuing the order when the requested person has appointed a lawyer in that State and requested free assistance in order to assist the lawyer of the executing State, for the sole purpose of the enforcement procedure concerning the European arrest warrant in the executing State (Art. 5 Directive 2016/1919). It is a question of enforcing the right to “double defence” enshrined in the Legal Aid Directive. In this case, it is up to the issuing State to bear these expenses, which can serve as a control against the proven abusive and disproportionate issuance of European arrest warrants by some Member States, the practice of which is also found to be centred in certain Member States. This may be conditional on an assessment of the financial means of the requested person. This express recognition was necessary since there is no regulation on this aspect in the Framework Decision on the European Arrest and Surrender Order, nor could it be included under the umbrella of art. 6.3-c of the ECHR, as the procedure of the European arrest warrant is not a criminal process in the sense of ECtHR jurisprudence. 37 CJEU

ruling of December 22, 2010, DEB, C-279/09, EU: C: 2010: 811. order of June 13, 2012, C-156/12, EU: C: 2012: 342. 39 Document COM (2013) 824 final, of November 27, 2013. 38 CJEU

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3.7 Good Practices Concerning Legal Aid “Without Delay and at the Latest Before Questioning or Processes of Investigation or Gathering of Evidence” In urgent cases, when it is not possible to decide on the granting of free counselling assistance before carrying out questioning or taking evidence (art. 4.5 Directive 2016/1919), the competent authority does not need to be a judicial one providing it is an independent authority, and therefore the temporary intervention of the police or the prosecution is possible, insofar as it is necessary to grant free legal aid in a timely manner (recital 24 of Directive 2016/1919). The scenarios for which it must be granted “in any case”, even if this is provisionally until the competent authority decides, are those of attending an act of investigation or obtaining evidence consisting of “identity parades, confrontations or reconstructions of the facts” (Art. 2.1-c Directive 2016/1919). This specification in the text of the directive is not restrictive, but is established to impose free assistance for these “in any case” actions, and leaves it up to the States to decide on others by virtue of the principle of procedural autonomy. The recognition of this right in the initial phase of the procedure, when they are most vulnerable and most need the assistance of a lawyer, is the appropriate response to a situation of special vulnerability detected in practice. Furthermore, it is a determining phase for the subsequent development of the proceedings and its validity (Dvosrky v. Croatia,40 § 76). Yet this right must also be respected throughout the proceedings and be granted whenever necessary (Mikhaylova v. Russia,41 §§ 88 and 94).

40 ECtHR

ruling of October 25, 2015, case Dvosrky v. Ukraine, CE: ECHR: 2015: 1020JUD002570311. 41 ECtHR ruling of May 2, 2016, case Mikhaylova v. Russia, CE: ECHR: 2015: 1119JUD004699808.

Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence in Criminal Proceedings Montserrat de Hoyos Sancho and Salvador Guerrero Palomares

1 Legal and Jurisprudential Framework The presumption of innocence is a fundamental right of suspected and accused persons in criminal proceedings in countries where the rule of the law is established. Its formulation varies slightly in the legal instruments that recognize it, yet it can be affirmed that this right establishes that anyone accused of committing an offence is presumed innocent until their guilt has been declared by a final judicial resolution, in accordance with the Law. This right is codified in international documents applicable in practically the whole world, such as the United Nations Universal Declaration of Human Rights (art. 11), the Covenant on Civil and Political Rights of 1966 (art. 14), adopted by 173 States, or the Rome Statute of the International Criminal Court (art. 66), signed by 124 States. In Europe, the right to the presumption of innocence is established in art. 6.2 of the 1950 European Convention on Human Rights and in art. 48 of the Charter of Fundamental Rights of the European Union. In the sphere of the Council of Europe, the Strasbourg Court has envisaged the presumption of innocence (art. 6.2 ECHR) as a broad concept that aims to guarantee the fairness of the procedure, insofar as the members of the Court cannot start the trial with the preconceived notion that the accused is guilty (Telfner v. Austria,1 § 1 ECtHR ruling of March 20, 2001, case Telfner v. Austria, CE: ECHR: 2001: 0320JUD003350196.

M. de Hoyos Sancho University of Valladolid, Valladolid, Spain e-mail: [email protected] S. Guerrero Palomares (B) University of Málaga, Málaga, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Arangüena Fanego et al. (eds.), Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings, SpringerBriefs in Law, https://doi.org/10.1007/978-3-030-61177-4_4

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15). More specifically, the presumption of innocence implies, according to ECtHR jurisprudence, the following guarantees: (a) The burden of proof of guilt rests with the prosecution (Karelin v. Russia,2 § 72), although in exceptional circumstances it may be transferred to the defence; (b) The doubt benefits the accused (Barberá, Messegue and Jabardo v. Spain3 ; Telfner v. Austria,4 § 15; Lavents v. Latvia,5 § 125; Vassilios Stravropoulos v. Greece,6 § 39; Melich and Beck v. Czech Republic,7 § 49; Tendam v. Spain,8 § 37; Nemtsov v. Russia,9 § 92; Frumkin v. Russia,10 § 166; Tsalkitzis v. Greece (# 2),11 § 60); (c) With certain exceptions, public references to the guilt of the suspect or accused are vetoed (Allenet de Ribemont v. France,12 §§ 37 and 41; Garycki v. Poland,13 § 67; Ismoilov et al. v. Russia,14 § 160; Mikolajová v. Slovakia,15 §§ 42–48), and the defendant’s presentation before the Tribunal and before the general public as guilty (Samoila and Cionca v. Romania,16 § 99); (d) The accused has the right to not to incriminate himself (Murray v. United Kingdom,17 § 45).

2 ECtHR ruling of September 20, 2016, case Karelin v. Russia, CE: ECHR: 2016: 0920JUD000092608. 3 ECtHR ruling of December 6, 1988, case Barberà, Messegué and Jabardo v. Spain, CE: ECHR: 1988: 1206JUD001059083, § 77. 4 ECtHR ruling of March 20, 2001, Telfner v. Austria, CE: ECHR: 2001: 0320JUD003350196. 5 ECtHR ruling of November 28, 2002, case Lavents v. Latvia, CE: ECHR: 2002: 1128JUD005844200. 6 ECtHR ruling of September 27, 2007, case Vassilios Stravropoulos v. Greece, CE: ECHR: 2007: 0927JUD003552204. 7 ECtHR ruling of July 24, 2008, case Melich and Beck v. Czech Republic, CE: ECHR: 2008: 0724JUD003545004. 8 ECtHR ruling of July 13, 2010, case Tendam v. Spain, CE: ECHR: 2010: 0713JUD002572005. 9 ECtHR ruling of July 31, 2014, case Nemtsov v. Russia, CE: ECHR: 2014: 0731JUD000177411. 10 ECtHR ruling of January 5, 2016, case Frumkin v. Russia, CE: ECHR: 2016: 0105JUD007456812. 11 ECtHR ruling of October 19, 2017, case Tsalkitzis v. Greece (# 2), CE: ECHR: 2017: 1019JUD007262410. 12 ECtHR ruling of February 10, 1995, case Allenet de Ribemont v. France, CE: ECHR: 1995: 0210JUD001517589. 13 ECtHR ruling of February 6, 2007, case Garycki v. Poland, CE: ECHR: 2007: 0206JUD001434802. 14 ECtHR ruling of April 24, 2008, case Ismoilov et al. v. Russia, CE: ECHR: 2008: 0424JUD000294706. 15 ECtHR ruling of January 18, 2011, case Mikolajová v. Slovakia, CE: ECHR: 2011: 0118JUD000447903. 16 ECtHR ruling of March 4, 2008, case Samoila and Cionca v. Romania, CE: ECHR: 2008: 0304JUD003306503. 17 ECtHR ruling of February 8, 1996, case Murray v. UK, CE: ECHR: 1996: 0208JUD001873191.

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For the ECtHR, the presumption of innocence not only has validity and application in the oral trial phase, but also when precautionary measures are adopted (Nestak v. Slovakia,18 § 89), and also when the conviction is appealed (Konstas v. Greece,19 § 38). It should also be noted that ECtHR jurisprudence has established that the presumption of innocence protects those acquitted from being treated by the public authorities as guilty (Allen v. United Kingdom,20 §§ 93–94 and 98; Vlieeland Boddy and Marcelo Lanni v. Spain,21 §§ 39–40, among others). However, despite its being established at worldwide, European and national level,22 its effective application is not always satisfactory, not even in the countries of the European Union. Therefore, the Member States of the Union decided to approve Directive 2016/343,23 of March 9, with the express purpose—see its recital 9—to “enhance the right to a fair trial in criminal proceedings by laying down common minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial”, so as to create greater trust among the judicial bodies of Member States, which in turn strengthens the principle of mutual recognition of judicial decisions within the European Union (recital 10). This Directive is also helpful in determining the nature of certain specific requirements implied by the right to the presumption of innocence, since there are many theoretical and practical doubts that arise from reading the simple language of the generalizing international documents that we have cited above. We shall now go on to analyse the aforementioned Directive, focusing on the proposal of certain “good practices” that, in our opinion, should to be followed by all legal professionals within the Union, in order to provide the best and most comprehensive practical application possible for this standardizing regulation.

18 ECtHR

ruling of February 27, 2007, case Nestak v. Slovakia, CE: ECHR: 2007: 0227JUD006555901. 19 ECtHR ruling of May 24, 2011, case Konstas v. Greece, CE: ECHR: 2011: 0524JUD005346607. 20 ECtHR ruling of July 12, 2013, case Allen v. UK, CE: ECHR: 2013: 0712JUD002542409. 21 ECtHR ruling of February 16, 2016, case Vlieeland Boddy and Marcelo Lanni v. Spain, CE: ECHR: 2016: 0216JUD005346511. 22 In Spanish law, the presumption of innocence is recognized – albeit with no definition provided – in article 24.2 of the Constitution, and in arts. 846 bis c) e) of the LECrim and 70.2 of the LOTJ, whilst the jurisprudence of the Supreme Court and the Constitutional Court has made an effort to determine the boundaries, contents and requirements of this fundamental right. In this regard, they have envisaged that the presumption of innocence “represents a rule of judgment and, from the constitutional perspective, the right not to be convicted without valid evidence, which implies that there is a minimum of presenting of evidence, carried out with the necessary guarantees, referring to all the essential elements of the crime, and that as a result of this it is reasonable to infer the deeds and the participation of the accused in these” (STS No. 3/2020, of January 16, 2020, ES: TS: 2020: 92; or SSTC 123/2006, of April 24, 2006, ES: TC: 2006: 123; 68/2010, of October 18, 2010, ES: TC: 1010: 68; or 59/2018, from July 7, 2018, ES: TC: 2018: 58, for all). 23 Available at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343.

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2 Good Practices for Instituting the Burden of Proof Article 6 of the Directive has the heading “Burden of proof ”, establishing in its 1st section that “Member States shall ensure that the burden of proof to determine the guilt of suspects and accused is the responsibility of the prosecution”. The Directive thus codifies this principle and fundamental right in criminal proceedings, recognized by the jurisprudence of the ECtHR—as we have seen supra.24 Nevertheless, and in order to respect legal traditions in countries where the figure of the investigative magistrate still exists, and where a certain margin of ex officio action by the trial court as regards examining evidence is still the case (see recital 23), art. 6.1 of the Directive establishes that “This shall be without prejudice to any obligation on the judge or the competent court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with the applicable national law”. Recital 22 aims to qualify to a certain extent the specificity of the first sentence of the aforementioned art. 6.1, when it indicates that the presumption of innocence is violated if the burden of proof is transferred from the accusation to the defence, without prejudice “to the use of presumptions of fact or law concerning the criminal liability of a suspect or accused person”, provided that such presumptions remain “within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed should be reasonably proportionate to the legitimate aim pursued”, clarifying that “Such presumptions should be rebuttable and in any event, should be used only where the rights of the defence are respected”. Regarding this complex issue of burden of proof, our proposal for good practice is as follows: (a) For the defence, it will suffice not to accept the factual account of the accusation, and no negative impact will ensue for not proposing an alternative factual hypothesis. This is connected with the right not to self-incriminate, to which we will refer later. (b) The evidence presented by the prosecution must be disclosed to the defence in sufficient time for it to be analysed and for an effective procedural and/or material rebuttal to be prepared. Specifically, the admission of new evidence at the request of the prosecution during the oral proceeding must be assessed in a particularly restrictive way. In this regard, the prosecution will have to justify that this evidence was not—nor could have been—previously known and, in any case, the Judge or Court must grant the request for suspension of the hearing requested by the defence if, in fact, the evidence is admitted. 24 And also for the Spanish. For all, and among the most recent, see SSTS No. 338/2015 of June 2, 2015, ES: TS: 2015: 2555; No. 644/2019 of December 20, 2019, ES: TS: 2019: 4286; No. 2/2020 of January 16, 2020, ES: TS: 2020: 179; and SSTC 33/2000 of February 14, 2000, ES: TC: 2000: 33; 185/2014 of November 6, 2014, ES: TC: 2014: 185; o 34/2017, of March 1, 2017, ECLI: ES: TC: 2017: 34.

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(c) The de facto or de iure presumptions against the suspect or accused shall be limited as far as possible. These presumptions must be grounded in “basic facts”, whose burden of proof will rest with the prosecution, and will be supported by objective and generally accepted criteria, based on empirically proven experience or current knowledge. Judges and Courts should be particularly permissive when admitting an examination of the evidence that the defence proposes to rebut the presumption, seeking the help of the State Security Forces and Bodies or of any public institution in order to gather or obtain the requested evidence. (d) The requirement for public authorities involved in the investigation of crimes to gather both adverse and favourable evidence for the suspect or accused should be strengthened. (e) When the defence puts forward an alternative factual hypothesis it should have the means with which to prove its thesis. Here, the authorities responsible for investigating crimes must provide assistance to the defence when it justifies the need to carry out investigative or evidentiary proceedings for which they require the support or intervention of the powers of the State, and should adopt broad and not too restrictive criteria when determining whether or not the evidence is necessary. Similarly, the lawyer of the defence may be given ad hoc powers so as to search for sources of evidence by himself and to examine the evidence, which can contribute directly to the proceedings, without limiting the right to contradict it by the prosecution. (f) There should be a review of the jurisprudential doctrine in force in certain countries, according to which evidence regarding exemptions and mitigating circumstances corresponds exclusively to the defence.25

3 Good Practices in Relation to the Principle “In Dubio Pro Reo” Article 6.2 of the Directive establishes that “Member States shall ensure that any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted.” The principle in dubio pro reo is recognized as an attribute of the presumption of innocence in ECtHR jurisprudence—stated supra-, as well as in the sphere of the UN Human Rights Committee, specifically in reports called General Observations, approved by the Committee in terms of reports submitted by the States relating to the application of the International Covenant on Civil and Political Rights of 1966.26 25 The appropriateness of such a review is even admitted by Spanish jurisprudence (STS 335/2017, of May 11, 2017, ES: TS: 2017: 1851). 26 In this regard, see Observation No. 13, paragraph 7, approved in the twenty-first session (1984): “By virtue of the presumption of innocence […] the accused has the benefit of the doubt”; No. 32, section IV, No. 30, of the 90th session (2007): “The presumption of innocence, which is fundamental for the protection of human rights […] ensures that the accused has the benefit of the doubt”; and resolution (communication) No. 1773/2008, adopted on October 21, 2014, v. Belarus, § 9.8: “The

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The principle in dubio pro reo corresponds to the age-old belief that a just society can tolerate the perpetrator of a criminal act going unpunished but not an innocent person being convicted. Similarly, it plays a part in compensating for the intrinsic inequality that occurs from the start of criminal proceedings between the suspected/accused person and the one supporting the accusation, in favour of the latter. Regarding this specific facet of the right to the presumption of innocence, namely, in dubio pro reo, the best practices proposed are the following: (a) In Member States where the investigation or the intermediate phase of the criminal trial are the responsibility of judicial body, measures should be taken to separate these functions from the function to trial, appointing a different Court than the one which dealt with the investigation or intermediary phase to carry the trial out. Likewise, the judge or trial court should always be composed in a different way from the one that decided on appeals, against judicial decisions adopted in the investigation or intermediate phase. This is in order to avoid any contamination of the trial chamber by actions taken in the investigation phase of the criminal proceedings. (b) The standard of proof applied should always transcend the doubt that might arise objectively in the mind of a qualified legal professional, eliminating any personal conviction about guilt that cannot be supported by evidence provided, with all guarantees and from which the concurrence of the normative and subjective elements relating to the type of crime leading to conviction is plausibly inferred. The hypothesis of the prosecution should: (i) be confirmed by a sufficient amount of evidence that accounts for all the available data and that is appropriate to explain more facts than those expressly stated in the accusatory report; and (ii) be able to refute all other plausible alternative hypotheses, whether they are expressly raised by the defence or not. It is true that the CJEU (CJEU judgment Milev27 and DK28 ) has determined that rather than being governed by Directive 2016/343, and only by the rules of national law, issues such as the degree of assurance regarding the perpetrator of the infringement that the court responsible for adopting that resolution must have, the procedures for examining the different items of evidence, and the motivation the court is to display in response to the allegations laid before it; however, the express inclusion of in dubio pro reo in the aforementioned art. 6.2 of the Directive, obliges us to consider good practices of this type, aimed at making this principle materially and authentically effective. (c) For the sake of preserving the rights of victims against acquittal sentences issued pursuant to in dubio pro reo/presumption of innocence, it is proposed that, as a general rule, declaring proven facts contained in these sentences does not have Committee recalls that the presumption of innocence, which is fundamental to the protection of human rights […] ensures that the accused has the benefit of doubt”. 27 CJEU judgment of September 19, 2018, Milev, C-310/18 PPU, EU: C: 2018: 732. 28 CJEEU judgment of November 28, 2019, DK, C-653/19, EU: C: 2019: 1024.

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prejudicial effects in future proceedings the victim may use in areas of jurisdiction other than criminal. However, the declaration of proven facts contained in a final criminal sentence that establishes the non-existence of fact or the nonparticipation of the accused, will have prejudicial effects in possible subsequent processes. (d) The doubt that favours the accused must also be applied in relation to exonerations and mitigating circumstances once it has been reasonably established that these may exist, and it is not necessary to demand that the defence provides proof of their existence, which, on the other hand, may be assessed ex officio by the Court itself. At the very least, consideration should be given to applying to these assumptions the Anglo-Saxon doctrine of “balance of probabilities” (see Jayesena v R (1970), Lord Devin, at. P. 624), which implies a lower standard of proof than the “beyond any reasonable doubt”, applicable to the facts constituting the criminal offence.29

4 Good Practices Concerning the Right to Remain Silent and not to Incriminate Oneself Article 7 of the Directive is specifically devoted to these aspects of the right to the presumption of innocence. Without prejudice to the fact that the Member States must guarantee the effective validity of these rights (ordinals 1 and 2 of the aforementioned art. 7), the Directive establishes that the right not to incriminate oneself “shall not prevent the competent authorities from gathering evidence which may be lawfully obtained through the use of legal powers of compulsion and which has an existence independent of the will of the suspects or accused persons” (art. 7.3), that the States “may allow their judicial authorities to take into account, when sentencing, cooperative behaviour of suspects and accused persons” (art. 7.4), and that “The exercise by suspects and accused persons of the right to remain silent or of the right not to incriminate oneself shall not be used against them and shall not be considered to be evidence that they have committed the criminal offence concerned” (art. 7.5). In this area the articles of the Directive are supplemented by a considerable number of recitals (from 24 to 32). The “good practices” that are proposed in relation to the right to silence and not to incriminate oneself, are as follows: (a) Abandoning the so-called “theory of explanation”, derived from the Murray doctrine developed by the European Court of Human Rights. We understand that it is contrary to the provisions of art. 7.5 of the Directive. The refusal of the suspect or accused person to testify can never go against them. Evidence for conviction and its assessment by the court must be unrelated to 29 In a similar regard, the Italian Court of Cassation pronounces, for all, in judgment No. 26,869, of

June 18, 2019, IT: CASS: 2019: 26869PEN.

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(b)

(c)

(d)

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the suspected or accused person’s not making a declaration, who can no longer be considered, not even in the situations described by case-law following the Murray doctrine, as an object of evidence but rather as a subject of procedural rights. In the information on rights that the suspect or accused receives, it must be clearly indicated that their exercising these rights will not jeopardize them in any way in the proceedings or in the evaluation of evidence by the decision-making court. The authorities responsible for the investigation shall be expressly prohibited from initiating direct or covert questioning with the suspects without the latter having previously been informed of their rights in the presence of a lawyer, and having had a personal interview with them. Any questioning must also take place with the guaranteed presence and effective assistance of the lawyer. The express or tacit waiver of these rights to remain silent and not to incriminate oneself, together with the consequent acknowledgment of facts, self-declaration of guilt or active collaboration with the ongoing investigation, will determine a reduction in punishment previously established quite clearly in the law, without this being left to the sole discretion of the judicial authorities. Active collaboration shall be understood as that which contributes to the discovery of facts, as yet unknown, relevant to the investigation. Despite the fact that the Directive does not indicate to the States how to proceed specifically with respect to art. 7.4 (see ATJUE C-467/1930 ), we understand that there should be a more explicit and specific regulation of the statute of the informant-accused in the criminal process, in line with the provisions of Directive 2019/1937/EU31 of the European Parliament and the Council, of October 23, 2019, on the protection of persons who report on infringements of Union Law.

5 Good Practices on the Admissibility of Illicit Evidence Article 10.2 of the Directive establishes that: “Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, the rights of the defence and the fairness of the proceedings are respected.” This article is related to recital 45, which indicates that: “When assessing statements made by suspects or accused persons or evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, courts and judges should respect the rights of the defence and the fairness of the proceedings. In that context, regard should be had to the case-law of the European Court of Human Rights, according to which the admission of statements obtained as a result of torture or other 30 CJEU

order of September 24, 2019, C-467/19, EU: C: 2019: 776. at eur-lex.europa.eu/eli/dir/2019/1937/oj?locale=en.

31 Available

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ill-treatment in breach of art. 3 ECHR as evidence to establish the relevant facts in criminal proceedings would render the proceedings as a whole unfair. According to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, any statement which is established to have been made as a result of torture should not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” Thus, the Directive makes a timid reference to an issue that, according to the caselaw of different European countries and the doctrine, is closely linked to the right to presumption of innocence: the admissibility of illicit evidence, understanding as such that obtained or examined in breach of fundamental rights. Similarly, as indicated in recital 45 mentioned above, the Directive follows ECtHR jurisprudence, although this Court has continued with its somewhat vague line regarding the admissibility of illicit evidence, establishing that its function does not cover its determining whether or not evidence is unlawful, but only assessing whether the process as a whole, including the way in which evidence is obtained, has been respectful regarding the right to a fair trial and the principle of proportionality (see among others, Schenk v. Switzerland,32 § 46; Teixeira de Castro v. Portugal,33 § 34; Kahn v. United Kingdom,34 §§ 34–35; Jalloh v. Germany,35 § 95). There are national jurisdictions that, however, have maintained more decisive positions against the estimation of illicit evidence and its derivatives. A Constitutional State of Law cannot afford to take action against criminal offences whilst committing other crimes or taking advantage of them. A lenient approach or flexibility in this regard encourages actions of this type by the authorities responsible for the investigation; these are inadmissible due to the serious consequences for the legitimate confidence citizens should have in such authorities, and with the serious risk that in a context in which (almost) everything can be used, not only are fundamental rights and public liberties bypassed, but the possible contribution of false or unreliable evidence is also promoted.36 32 ECtHR

ruling of July 12, 1988, case Schenk v. Switzerland, CE: ECHR: 1988: 0712JUD001086284. 33 ECtHR ruling of June 9, 1998, case Teixeira de Castro v. Portugal, 1998, CE: ECHR: 1998: 0609JUD002582994. 34 ECtHR ruling of May 12, 2000, case Kahn v. UK, CE: ECHR: 2000: 0512JUD003539497. 35 ECtHR ruling of July 11, 2006, case Jalloh v. Germany, CE: ECHR: 2006: 0711JUD005481000. 36 The issue becomes rather complicated when it is necessary to distinguish between evidence obtained in direct breach of fundamental rights and that resulting indirectly from that breaching the right. Both the classic doctrine of the fruits of the poisoned tree (fruit of the poison tree doctrine) and art. 11.1 of the Spanish LOPJ, establish that the evidence obtained directly or indirectly in breach of fundamental rights must be eliminated from the proceedings. However, the fruit of the poison tree doctrine, of American origin, led to the so-called balancing test, which includes a large number of exceptions to the original principle. In Spain, art. 11.1 LOPJ has been interpreted – de facto, with case-law modifications – by the so-called theory of the connection of illegality which, with complex reasoning that finally ends with subjectivity on the part of the judge, determines that for evidence deriving from illicit proof to be also illicit, the causal connection between them is not sufficient, but that rather a legal connection must exist, in terms of parameters we consider highly evaluative and to a large extent difficult to determine a priori.

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In this regard, as noted above, the Directive makes an insufficient approach, establishing only one possible piece of illegal evidence: the declaration of a suspect or accused person made in breach of their right not to incriminate themselves. However, recital 47 states that: “This Directive upholds the fundamental rights and principles recognized by the Charter and by the ECHR, including the prohibition of torture and inhuman or 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, the integration of persons with disabilities, the right to an effective remedy and the right to a fair trial, the presumption of innocence and the rights of the defence. Regard should be had, in particular, to art. 6 of the Treaty on European Union (TEU), according to which the Union recognizes the rights, freedoms and principles set out in the Charter, and according to which fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, are to constitute general principles of Union Law”; all of which allows us to maintain that, given the validity of the rights to liberty and security, respect for private and family life and the right to a fair trial, the rule of exclusion of illegal evidence should be broader and more generic. Here, the recommended “good practices” can be formulated as follows: The evidence obtained directly or indirectly through the breach of fundamental rights should have no legal effect in legal proceedings, and the complex and subjective theories that relativize and relax the duty of States to respect fundamental rights in the framework of criminal investigations should be abandoned. No-one, not even the State in fulfilment of its obligations to persecute and repress crimes, can be above the fundamental rights assisting all of us.

6 Good Practices Regarding Statements of Public Authorities About Ongoing Investigations or Criminal Proceedings In section 1, Art. 4 of Directive 2016/343, it is stipulated that: “Member States shall take the necessary measures to ensure that, for as long as a suspect or an accused person has not been proved guilty, according to law, public statements made by public authorities, and judicial decisions, other than those on guilt, do not refer to that person as being guilty. This shall be without prejudice to acts of the prosecution which may aim to prove the guilt of the suspect or accused person, and to preliminary decisions of a procedural nature, which are taken by judicial or other competent authorities and which are based on suspicion or incriminating evidence”. Recital 17 adds that “public statements made by public authorities”, “any statement which refers to a criminal offence and which emanates from an authority involved in the criminal proceedings concerning that criminal offence, such as judicial authorities, police and other law enforcement authorities, or from another public

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authority, such as ministers and other public officials, it being understood that this is without prejudice to national law regarding immunity”. The addressees of this provision are the public authorities involved in the investigation and/or criminal prosecution, whether or not they are jurisdictional authorities. Therefore, this provision is not addressed to the media, which would generally operate in such matters as mere transmitters of the information provided by public authorities. As highlighted in recital 16, the important point is that the public authority does not reflect the opinion that the suspect or accused person is guilty. Here consideration would be given—and, of course, it would be fully applicable, also by virtue of the non-regression clause contained in art. 13 of the Directive—to the abundant case law which for decades has been emanating from the ECtHR on this matter. Among other sentences, see those passed in cases Lizaso Azconobieta v. Spain37 ; Celik v. Turkey38 ; Karaman v. Germany39 ; Turyev v. Russia40 ; Trufanov et al. v. Russia41 ; Maslarova v. Bulgaria42 ; Stirmanov v. Russia43 ; Lolov et al. v. Bulgaria44 ; Kangers v. Latvia45 ; Fleischner v. Germany.46 In the firmly established jurisprudence of the Strasbourg Court on the matter, it is concluded, albeit briefly here, that it is possible to report with prudence and discretion on ongoing criminal proceedings. It is also necessary to remember the enforcement of the right to a public process. The recommended “good practices” in this regard are as follows: (a) Special consideration should be given to the choice of specific terms used in public statements by authorities in the course of investigations or criminal proceedings, as well as to the exact moment at which these statements are made. (b) It is also necessary to consider the relevance of the responsibility or position of the authority making the declarations, and the channel via which they are made public. 37 ECtHR

ruling of June 28, 2001, case Lizaso Azconobieta v. Spain, CE: ECHR: 2011: 0628JUD002883408. 38 ECtHR ruling of April 12, 2011, case Celik (Bozkurt) v. Turkey, CE: ECHR: 2011: 0412JUD003438805. 39 ECtHR ruling of February 27, 2014, case Karaman v. Germany, CE: ECHR: 2014: 0227JUD001710310. 40 ECtHR ruling of October 11, 2016, case Turyev v. Russia, CE: ECHR: 2016: 1011JUD002075804. 41 ECtHR ruling of January 10, 2017, case Trufanov and others v. Russia, CE: ECHR: 2017: 0110JUD001813004. 42 ECtHR ruling of January 31, 2019, case Maslarova v. Bulgaria, CE: ECHR: 2019: 0131JUD002696610. 43 ECtHR ruling of January 29, 2019, case Stirmanov v. Russia, CE: ECHR: 2019: 0129JUD003181608. 44 ECtHR ruling of February 21, 2019, case Lolov et al. v. Bulgaria, CE: ECHR: 2019: 0221JUD000612311. 45 ECtHR ruling of March 14, 2019, case Kangers v. Latvia, CE: ECHR: 2019: 0314JUD003572610. 46 ECtHR ruling of October 3, 2019, case Fleischner v. Germany, CE: ECHR: 2019: 1003JUD006198512.

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(c) The actual importance that these statements can have for the public in general regarding the case and specific time they are made must be taken into account. (d) The authority that makes the statements must weigh, in terms of the case and specific moment, how these statements could affect the investigating or judging body that is involved in processing the case, since the presumption of innocence, which is only totally negated with a final sentence, is directly linked to the right to a fair trial, and such statements may influence the competent legal bodies47 or, eventually, result in citizens prejudging resolutions that may be issued at a later date. In any event, section 3 of this art. 4 of the Directive expressly indicates that: “The obligation laid down in paragraph 1 not to refer suspects or accused as being guilty shall not prevent public authorities from publicly disseminating information on the criminal proceedings where strictly necessary for reasons relating to the criminal investigation or to the public interest”. Recital 18 exemplifies that it may be necessary to disclose information about the cause when images are made public and citizens are asked to help to identify the alleged perpetrator, or when information is provided to the inhabitants of an area affected by a possible criminal offence against the environment, or when the information on the state of the criminal case is provided to prevent public disturbances. Such actions “should be confined to situations in which this would be reasonable and proportionate, taking all interests into account”. Furthermore, the aforementioned Directive insists that the manner and context in which the information is disseminated “should not create the impression that the person is guilty before he or she has been proved guilty according to law”. Further “good practices” that may be proposed in this area, relating to the actions of judges and magistrates, and also those of prosecutors, are the following:

47 Of relevance here are the Sentences of the Spanish Supreme Court (Chamber 2) issued in cases with great social impact: STS 344/2019, of July 4, 2019 – Case “La Manada”-, ES: TS: 2019: 2200 and STS 459/2019, of October 14, 2019 – Case “Procés” –, ES: TS: 2019: 2997. In both cases, various relevant political authorities – Minister of Justice, Secretary of State, etc.– held public demonstrations before the sentence was passed, expressly attributing to the accused the commission of the criminal acts being prosecuted. On the allegation by the defence counsels of those subsequently convicted regarding breach of the right to presumption of innocence, the SC resolved that, although there were “anticipatory and unacceptable claims of guilt”, these had not been finally reflected in the evidentiary assessment process by the sentencing court. Moreover, breaches of the presumption of innocence by authorities or political representatives cannot result in a cessation of proceedings, or, obviously, the issuance of an acquittal, for this reason. What is truly decisive in terms of the presumption of innocence – concluded the SC – is that guilt is the outcome of evidence presented in accordance with constitutional principles, that judgment concerning perpetration has been based on the evidence brought forward in the plenary, and not on a collective, anticipatory and indicial perception by certain authorities linked to criminal prosecution, or by the media. Besides – the 2nd Chamber of the Spanish Supreme Court also highlighted – media pressure is already a common element in jurisdictional activity, and the fact that the finding finally coincides with the state of opinion created is irrelevant here.

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(a) It is recommended that declarations or information deemed appropriate to transmit to the public on ongoing cases should be made through the respective “Communication Cabinets”,48 comprising experts in this area. Citizens express particular interest in knowing the state of ongoing investigations or criminal proceedings that have importance or impact in the media; if they are not reported, the information gap is likely to be filled via other less reliable or biased channels. Moreover, the fact that information is channelled through the “Communication Cabinets” makes it possible to avoid focusing interest in the case on the specific judges of the courts and tribunals. (b) A number of practices that we may describe as “judicial ethics”49 are also recommended, such as: in relation to requests by journalists to be received by judges or magistrates in order to obtain information on “media” matters; the information or statements by the latter should be bound by the rights and interests of the parties involved in the case, as well as by the smooth development of the legal proceedings. Moreover, while judicial authorities have the right to freedom of expression, their public statements should always be made “with prudence and restraint”, as they may affect the appearance of impartiality and the image of justice. It should also be borne in mind that there is no obligation as such to provide the information required by journalists, or to give interviews to the media on ongoing or resolved matters, although a positive attitude in terms of transparency is recommended, which can also play a valuable informative role in explaining the law, and how fundamental rights operate in the proceedings. As regards the cases being tried or already tried by the judge or magistrate, it is recommended that relations with the media should be made through the respective Offices or Communication Cabinets. (c) Regarding the possible use of social networks by members of the judicial career—new forms of communication which can also be a useful tool for a broad transmission of judicial information, including assessments-, is of interest in relation to the “good practices” to be followed by these professionals in exercising freedom of expression, to mention that it should be the judge who assesses whether their identification as a judge or magistrate on social networks may affect the perception that others have of their independence, impartiality and integrity, besides taking into account the additional risk that their opinion is considered the common or general opinion of the entire judicial community. The positive informative function of an explanation of the law and fundamental rights through these new channels is not unknown, but it is necessary to maintain a behaviour that reaffirms citizens’ confidence in the administration of justice and, of course, to avoid generating or increasing tension. 48 In

Spain, the courts and tribunals appear in the “Protocol on Communication of Justice”, in its 2018 version. Available at: https://www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunal-Supremo/ Oficina-de-Comunicacion/Protocolo-de-Comunicacion-de-la-Justicia/. 49 In Spain, the Judicial Ethics Commission of the General Council of the Judiciary applies the Code of Ethics for the judicial profession, a document approved by the GCJ Plenary, dated 20 December 2016. Available at: http://www.poderjudicial.es/cgpj/en/Topics/Judicial-Ethics-Commis sion/Documents-of-interest/Principles-of-Judicial-Ethics/.

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(d) As for the cases in which the jurisdictional bodies or also the Public Prosecutors will provide information, it is recommended to avoid reciprocal polemics, either with the parties or with the media,50 considering in all cases respect for the secrecy of the summary, the interests of the parties and individuals involved, and the importance of correctly informing the public without affecting the fairness of the proceedings.

7 Good Practices in Relation to the Drafting of Judicial Resolutions Throughout the investigation and possible prosecution of the acts, different judicial resolutions of a diverse nature are issued: ordering investigation, adopting precautionary measures, indictments, formal charges or their equivalents, the opening of the oral trial is arranged, appeals are resolved against interlocutory decisions, etc.; all of these are procedural acts which are drafted and signed by the competent judicial authorities in each case. If the matter is “highly important”, the decision may be made public, at least regarding the essential part of the resolution. All the aforementioned resolutions must be motivated, since they imply limiting fundamental rights, imputing a criminal act, the possibility of effectively proceeding to prosecution, or resolving a remedy or an appeal, yet all of them must respect the essence of the fundamental guarantee of presumption of innocence. To motivate the need to issue such a resolution does not imply attributing guilt in advance to the suspected or accused person. Once again, the specific choice of terms used to draft the corresponding resolutions or procedural acts in general is decisive. In relation to this issue, we should refer to the CJEU Judgment issued in case Milev,51 which addressed, among other aspects, how a judicial resolution that maintains the provisional detention of a suspect could affect the essential guarantee of presumption of innocence, resolving, pertinently as regards what we are examining, in the following terms: Although Directive 2016/343 is a standard for the harmonization of guarantees “of a minimum nature”, which does not aim to establish all the conditions or previsions for adopting provisional prison decisions, the Luxembourg Court concludes that what is important is that these kinds of preliminary rulings, based on suspicion or evidence, is “do not present the person deprived of liberty as being guilty”.52 In addition, in the CJEU ruling AH and others,53 relating to the approval by the judge of an agreement between the prosecutor and the perpetrator of an offence, in cases of multiple perpetration in which not all of the accused persons opted for the 50 In Spain, see Instruction 3/2005, of the Attorney-General’s Office, “On the relations of the Public

Prosecutor’s Office with the media”. ruling of September 19, 2018, Milev, C-310/18 PPU, EU: C: 2018: 732. 52 In similar terms, the CJEU Order of February 12, 2019, C-8/19, EU: C: 2019: 110. 53 CJEU ruling of September 5, 2019, AH and others, C-377/18 PPU, EU: C: 2019: 670. 51 CJEU

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sentence negotiated with the Prosecutor’s Office, the EU Court of Justice points out that an agreement of this type is not contrary to Directive 2016/343, which expressly mentions the participation of accused persons other than the one who signed the agreement, and who was the only person that admitted their guilt, as long as this reference “is necessary to qualify the legal responsibility of the person who entered into the aforementioned agreement and, what is more, that same agreement clearly indicates that the other persons are accused within the framework of a different criminal procedure and that their guilt has not yet been legally declared”. In this regard—continues the CJEU—in order to verify that the presumption of innocence is respected, it is always necessary to analyze the judicial decision and its justification as a whole, in light of the particular circumstances involved in its being adopted, so that the decision cannot be taken as an anticipatory expression of the guilt of the other accused persons. The “good practices” recommended here are as follows: (a) The reason underlying the judicial decisions must respect the essence of the presumption of innocence, in such a way that they do not consider the person suspected/accused as the perpetrator of and person responsible for the acts that are being investigated or prosecuted. (b) When the judgments or parts of them are going to be made public, consideration should be given to the perception that citizens will have of their content, in order that the suspected/accused person is not publicly presented as a guilty suspect. (c) If there are several suspected/accused persons in the case, generalizations concerning suspicion, indications or responsibilities that may have repercussions for each of them should be avoided.

8 Good Practices Regarding the Public Presentation of Suspected or Accused Persons Art. 5 of the Directive addresses the issue of “presentation of suspects and accused persons”, and requires that States to take appropriate measures to ensure that they are not presented as guilty, in court or in public, “through the use of measures of physical restraint”. In this regard, in recital 20, “handcuffs, glass boxes, cages and leg irons” are expressly mentioned, and in recital 21 it is indicated that, if feasible, the competent authorities will not present suspects or accused persons in court or in public while wearing prison clothes, “so as to avoid giving the impression that those persons are guilty”.

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The “good practices” proposed in this case are the following: (a) Means of reasonable physical restraint may be used in a broad sense, if necessary and proportionate in the particular case, for security reasons—preventing personal or third-party injury or material damage—to avoid escape or contact of the suspected or accused persons with third parties—witnesses or victims-, which, obviously, could jeopardise the aims of the criminal proceedings.54 (b) The possibility of applying such means of physical restraint does not imply that the competent authorities must take a formal decision on their use; that is, it may be considered appropriate and proportionate in the specific case to impose such means as a result of a verbal order from the competent authority at that time to guarantee security. See recital 20 of the Directive.

54 In Spain, we understand that this obligation imposed by the Directive is fulfilled, at least at the legislative level, in view of the provisions of art. 520 LECrim, regarding “treatment of detainees and prisoners”: “Detention and pre-trial detention should be carried out in the manner least harmful to the character, reputation and property of the detainee or prisoner. Those who agree to the measure and those responsible for putting it into practice as well as for subsequent transfers, shall ensure the constitutional rights to honour, privacy and image, in respect of the fundamental right to freedom of information”. Also applicable here the provision of art. 525 LECrim: “No extraordinary security measure shall be adopted against the detainee or prisoner except in the event of disobedience, violence or rebellion, or when they have attempted or made arrangements to escape”. In the framework of entering and searching closed premises, art. 552 LECrim stipulates: “When carrying out searches, useless inspections should be avoided, taking care not to harm or harass the interested party more than necessary, and all kinds of precautions should be taken so as not to adversely affect their reputation, respecting their secrets if these are of no interest for the proceedings”.

Guide to Good Practices in Procedural Treatment of Minor Offenders. The Procedural Guarantees of Suspected or Accused Minors in Criminal Proceedings Francisco Javier Garrido Carrillo and Jorge Jiménez Martín Abstract The Directive 2016/800/EU responds to the need to establish minimum standards and to harmonize the existing regulations on the guarantees of suspected and accused minors in criminal proceedings in the EU Member States. These guarantees are applied from the beginning of the criminal proceeding until the sentence which declares the conviction or the innocence of the minor. In the development and the application of these guarantees, it can identify deficiencies and conflicts but also good practices to follow. The purpose is that minors can understand and adequately follow the criminal proceedings in which they are immersed, exercise their right to a fair trial, prevent their recidivism and promote their social reintegration.

1 Normative Base Directive 2016/800/EU1 of the European Parliament and Council of May 11, 2016, on procedural safeguards for children who are suspects or accused persons in criminal proceedings.

1 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0800.

This study has been carried out within the framework of the R&D Research Project (Ref. DER 2016-78096-P), entitled “Procedural Guarantees of Investigated and Accused Persons: The need for harmonization and strengthening within the scope of the European Union”, and the Network of international cooperation and scientific excellence for the study and analysis of “Justice, Law, Constitution and Proceedings”. F. J. Garrido Carrillo (B) University of Granada, Granada, Spain e-mail: [email protected] J. Jiménez Martín Spanish Judiciary School, Barcelona, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 C. Arangüena Fanego et al. (eds.), Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings, SpringerBriefs in Law, https://doi.org/10.1007/978-3-030-61177-4_5

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2 Starting Point Directive 2016/800/EU responds to the need to establish minimum standards and specifically harmonise existing regulations in the different countries relating to the guarantees of suspected and accused minors. The aim is for minors to have an appropriate understanding and awareness of the criminal proceedings in which they are involved, exercise their right to a fair trial, prevent their recidivism and promote their social reintegration. The idea is to increase mutual trust and to guarantee that these rights are effective for citizens; there is no attempt to create new rights for suspected and accused persons because such rights are already recognized for all EU citizens in the European Convention of Human Rights. The legal basis of Directive 2016/800/EU are arts. 82 and 83 of the Treaty on the Functioning of the EU. The procedural guarantees for children who are suspects and accused persons in criminal proceedings are thus outlined from the beginning of the proceedings until the final judgment of guilty or not guilty.

3 Conflicts and Good Practices to Follow (a) It is essential to decide on a specific procedure for correctly determining age in cases where there is no proof of this or there are obvious doubts regarding legal age. This procedure should be agile, effective, urgent, given preferential action, based on medical forensic evidence, with the recognition of effective legal aid to the alleged minor at all times, and that of other rights acknowledged in the Directive and national legislation, with a specific hearing process and the possibility of reviewing the decision adopted.2 (b) It is appropriate to introduce in national legislation all the rights recognized in the Directive and for this introduction to include the highest standards of protection. (c) It is necessary to determine precisely the way in which children’s right to information will be enforced. The person or persons at all times responsible for enforcing the right, the appropriate and exact language to be used, the specific way in which the information must be given and the means or individuals required to this end. Information on all his rights should be provided to the minor from the outset, in a manner appropriate to their age and personal maturity, orally and in writing by means of documents and texts that are friendly, in understandable language and perfectly clear. A record should be kept of the information provided (art. 4.2 of the Directive); therefore, it must be given orally and duly documented or via a recording in digital format substantiating the oral information. 2 CJEU

ruling of January 23, 2018, Piotrowski, C-367/16, EU: C: 2018: 27.

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Although it is not explicitly determined in the articles of the Directive, since art. 4 only refers to “general aspects of the proceedings”, it is appropriate to provide the child with an explanation of the different stages of the proceedings, and the role of the various intervening authorities (recital 19). Likewise, it is necessary to determine the type and detail of the information that should be provided to those holding parental responsibility or to another adult nominated by the latter and accepted as such by the competent authority (recital 23). In the latter case, it is appropriate to clarify in what circumstances and for what specific reasons the information is to be provided to an adult other than the holder of parental responsibility. Regarding this right of children to information, it should be specified that all professionals relating with them and, therefore, the ones who have to provide them with information at any stage of the proceedings, should have specialized training (recital 63 in relation to art. 20 of the Directive). (d) The recognition of the right of every minor to be heard and to have his or her opinion taken into account at all times during the proceedings should be specified in the domestic law, by establishing real and effective channels. The Directive does not expressly recognize this and deals with it indirectly (art. 16 of the Directive). It is required by art. 12.2 of the Convention on the Rights of the Child, and the minor should be given the opportunity to express their opinion freely. Once this opinion has been given, it should be considered bearing in mind their age and maturity (art. 12.1). This right of the child is waivable, that is, an option and not an obligation. It must be presumed that all minors that have the capacity to form their own judgment have it, without age limits, and the absence of it should be justified on a case-by-case basis. The hearing with the minor should be established as a general rule, and the omission of this—duly justified—should be the exception. In the hearing there should be no type of pressure, either express or tacit, direct or indirect, in an environment which is “friendly”, not intimidating, hostile, insensitive or unsuitable. This will require considerable changes in the spaces and physical elements of the premises. The express hearing of the child should be considered at the very least in the following situations: • • • • •

In determining the educational measures that may be imposed. In the possible modification of the measure initially imposed. In the adoption of precautionary measures. If the suspension of the judgment is to be decreed. When the different measures that have been taken with regard to the child are going to be amended. • In cases in which a non-custodial measure that has been contravened is replaced.

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• In any case in which an educational measure is to be replaced by a more appropriate one. • In events that occur concerning minors who are interned. (e) The opinion expressed by the child when exercising the right to be heard should always be evaluated, and taken into account in subsequent decision-making, with responses in simple language appropriate to the child. (f) The right to translation and interpretation in juvenile criminal proceedings should be guaranteed, with an explanation of how this will be carried out, how its effectiveness and quality will be controlled, and who will be responsible. This right should be closely linked to a child’s right to information, and the use of simple, understandable and clear language, so that the latter cannot be undervalued or impaired.3 All suspected or accused minors who do not speak or understand the language should have the right to an interpreter during questioning by the police or the court, in all the hearings and court hearings that take place during the proceedings, and in all communication they have with their lawyer.4 They should also have the right to have all the essential documents of the proceedings translated into their language.5 Criteria and facilities should be established to evaluate the quality of the translation and interpretation that is carried out, in order to guarantee their effectiveness and the possible removal of the interpreter or translator without prejudice to the right of defence. Also, as regards who should exercise that control. This right to translation and interpretation should also be effectively recognized in the case of parents and legal representatives, who may also have difficulties in understanding the proceedings and their rights. (g) It is necessary to go deeply into the effectiveness of childrens’ right to defence,6 ensuring that they are assisted throughout the entire procedure, in the first and second instance, and in the adoption of measures, as well as advocating a permanent and professionalized public defence; the appropriate specialization of private defence should also be demanded. The right to legal aid should under no circumstances be waivable by children. It is essential for children to be assisted by a lawyer without any justifiable delay (art. 6.3 of the Directive).7 This implies the possibility of interviewing or 3 ECtHR

ruling of January 30, 2001, case Vaudelle v. France, CE: ECHR: 2001: 0130JUD003568397. 4 ECtHR ruling of December 19, 1989, case Kamasinski v. Austria, CE: ECHR: 1989: 1219JUD000978382; of September 24, 2002, case Cuscani v. UK, CE: ECHR: 2002: 0924JUD003277196; of January 14, 2003, case Lagerblom v. Sweden, CE: ECHR: 2003: 0114JUD002689195. 5 ECtHR ruling of November 28, 1978, case Luedicke, Belkacemy and Koç v. Germany, CE: ECHR: 1978: 1128JUD000621073; of January 24, 2002, case Ucak v. UK, CE: ECHR: 2002: 0124DEC00442349; of October 18, 2006, case Hermi v. Italy, CE: ECHR: 2006: 1018JUD001811402. 6 CJEU ruling of June 5, 2018, Kolev et al., C-612/15, EU: C: 2018: 392. 7 CJEU ruling of March 12, 2020, VW, C-659/18, EU: C: 2019: 940.

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communicating in private, even before police questioning,8 and of the lawyer being present and intervening effectively at all times.9 It is necessary to specifically regulate situations and actions in which the child’s lawyer may not be present, respecting the right to a fair trial, such as “body checks, physical examinations, blood, alcohol or similar tests, or the taking of photographs or fingerprints”(recital 28). Member States should give special consideration to stipulating rules when the child may be questioned in the absence of a lawyer (recital 31), a situation provided for in art. 6.8 of the Directive in an absolutely generic way without any specific clarification. Therefore, in the different national legal systems, it should be ensured, at the very least, that the child is informed of their right to remain silent, their right in terms of the questioning sessions not undermining their right of defence, their right against self-incrimination, and that questioning without their lawyer can only take place if it is necessary to obtain information that is essential to avoid serious negative consequences for the life, liberty or physical integrity of a person or so as not to seriously affect the criminal proceedings. Furthermore, relating to good practices, national laws should specify the confidentiality of communications between the child and their lawyer, since art. 6.5 of the Directive is clearly insufficient, with, for instance, recital 33 specifying that “The obligation to respect confidentiality implies not only that Member States refrain from interfering with, or accessing, such communication but also that, where children are deprived of liberty or otherwise find themselves in a place under the control of the State, Member States should ensure that arrangements for communication uphold and protect such confidentiality”. In this recital some reference, albeit insufficient, is made to the secrecy of the correspondence, so a clear, specific and guarantee-based regulation is required. Some means or system should be set up that makes it possible to assess the quality of the defence throughout the entire proceeding, and particularly, with some supervisory system, when measures are adopted.10 8 ECtHR

ruling of September 13, 2016, case Ibrahim et al. v. UK, CE: ECHR: 2016: 0913JUD005054108. 9 ECtHR ruling of April 30, 2002, case Lanz v. Austria, CE: ECHR: 2019: 1003JUD006198512; of November 27, 2008, case Salduz v. Turkey, CE: ECHR: 2008: 1127JUD003639102; of December 11, 2008, case Panovits v. Cyprus, CE: ECHR: 2008: 1211JUD000426804; of April 21, 2009, case Soykan v. Turkey, CE: ECHR: 2009: 0421JUD004736899; of January 13, 2010, case Dayanan v. Turkey, CE: ECHR: 2009: 1013JUD000737703; of January 14, 2011, case Brusco v. France, CE: ECHR: 2010: 1014JUD000146607; of May 30, 2013, case Martin v. Estonia, CE: ECHR: 2013: 0530JUD003598509; of May 12, 2017, case Simeonovi v. Bulgaria, CE: ECHR: 2017: 0512JUD002198004; of November 9, 2018, case Beuze v. Belgium, November 9, 2018; CE: ECHR: 2018: 1109JUD007140910; of January 15, 2020, case Mehmet Ali Eser v. Turkey, CE: ECHR: 2019: 1015JUD000139907; of January 28, 2020, case Mehmet Zeki Çelebi v. Turkey, CE: ECHR: 2020: 0128JUD002758207; of February 20, 2020, case Lobzhanidze and Peradze v. Georgia, CE: ECHR: 2020: 0227JUD002144711; among many others. 10 ECtHR ruling of July 26, 2002, Meftah v. France, CE: ECHR: 2002: 0726JUD003291196; April 14, 2003, Lagerblom v. Sweden, CE: ECHR: 2003: 0114JUD002689195.

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(h) Define clearly how and when the individual assessment of the child will be carried out, as well as corresponding updating throughout the proceedings. This report should be made as soon as possible and at all times prior to the accusation, since it is impossible to understand how the child benefits from arriving at the oral trial or the prosecution proceedings without the individual report. Moreover, if a decision or measure has been adopted regarding the child without the individual assessment, when this assessment becomes available the decision or measure should be re-examined in light of the information now provided. Also, it is necessary to specify in which cases the obligation to carry out an individual assessment can be waived. And finally, it is necessary to determine who will be responsible for this individual report, as they should be qualified and follow a multidisciplinary approach. It should be remembered that this individual evaluation is basic, insofar as the competent body can then adopt the most suitable measure, whilst also being essential for its execution. If the measure is precautionary, provision should be made for it to be reviewed once the individual evaluation report becomes available. It should also be noted that in the case of judicial discretion aiming to favour an individualized measure, and also regarding the way in which it is to be carried out, all of which should respond to the re-educational and re-socializing needs of the minor offender, this individual evaluation report becomes a structural and basic element, which gives substance to the actions of the court, to its flexibility and to its coherence in terms of the best interests of the child. (i) If the decision is taken to introduce in national law the prevision to record police questioning, there should be a detailed stipulation regarding the specific individuals to be present during the questioning, the data gathered, who will take charge of it, the use to which it will be put and when it will be destroyed. The data should be kept to a minimum, with no direct identification of the child, and without the camera recording their image. These recordings should be in the custody of the judicial authorities, or, at least, of the Juvenile Prosecution Service, and they should be destroyed as soon as possible following the filing or completion of the case. (j) Regulate the right of the child to be accompanied by an appropriate adult, apart from their legal representative. Some procedural formality should be established in order to assess the suitability of this adult and provide measures to challenge the possible decision that they are not suitable. This adult may accompany the child during the trial. Thus, at all times, it should be the competent authority—according to the proceedings—that should assess the suitability of the adult nominated by the minor, taking into account the best interests of the child together with two specific circumstances: • Firstly, that it is in the interests of the child to be accompanied by that person. • Secondly, that the presence of this person does not jeopardise the normal course of the criminal proceedings.

Guide to Good Practices in Procedural Treatment of Minor …

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Some kind of procedure and procedural juncture should be established to carry out the assessment, document it, particularly in the case of suitability, and file an appeal. In all events, if the nomination or denial are justified, this has to be communicated to the Judge, who should be the authority responsible for the nomination. It is also important to decide on the legitimacy acknowledged in the case of parents or legal representatives for opposing the nomination. (k) Determine periodic ex-officio control of the precautionary measures that entail deprivation of liberty, and the time frame in which this should be undertaken by the competent judge. (l) Specify aspects relating to the child’s right to a medical examination, which is not regulated by the Directive. In this regard, it is necessary to define who the directive refers to when it states that the examination shall be carried out by a doctor or “other qualified professional”. Furthermore, it should be specified whether the examination can also be performed on suspected or accused minors who are not detained. Likewise, there should be an explanation concerning the most appropriate moment for the examination, since the directive only specifies that it shall be for the duration of the detention. Finally, legislation should be introduced concerning children’s access to these tests, as well as guarantees for the custody, filing, use and availability of this information, since in the case of children it is personal and particularly delicate. (m) As regards the right to be present at and participate in their own trial, (which is based on the right to a fair trial set out in art. 47 of the Charter and art. 6 of the ECHR, in accordance with the interpretation of the Court of Justice and the ECtHR), it is appropriate to define the cases and conditions in which criminal proceedings can continue without the presence of the accused minor, circumstances which should be exceptional. Directive 2016/800/EU (art. 16.2) draws attention to Directive 2016/343/EU,11 whereby the trial could be held without the presence of the suspected or accused minor, provided that the latter has been informed, in due time, of the trial and of the consequences of non-appearance, or, having been duly informed of the trial, is represented by their defence counsel. This referral is insufficient and could give rise to legal uncertainty, which is why more precision and specificity are necessary in order to protect the best interests of the child, and also that of the latter being present at their own criminal proceedings. We should remember that the right to be present at and to participate in one’s own trial is based not only on the importance of the child’s right to be heard, but also on the necessary respect for the right of defence, expressed in the right to intervene effectively in the proceedings of which it is a party, and in the right to have the last word.

11 Available

at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0343.

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However, the educational and reintegrating nature of the juvenile criminal process renders the trial in the absence of the child ineffective. (n) Specific protection measures should be determined to give substance to the right to private protection (art. 14 of the Directive) and facilitate the social reintegration of minors, with specific provisions to encourage the media to take measures of self-regulation, while respecting freedom of expression and information. On the basis of the above, it is to be hoped that each national legislature understands the significance and importance that juvenile justice has for a State, as a means of reintegrating adolescents, who, due to a variety of circumstances, have approached the sphere of criminal justice, and preventing their repeated contact with this system of justice at a later date. It is in these aspects that the democratic and social quality of a State is valued, even more so with the demands for harmonization and strengthening that our European Union seeks for those who are the most vulnerable in the justice system.

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Directives 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, available at eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A32010L0064. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, available at eur-lex.europa.eu/legal-content/EN/TXT/? uri=celex:32012L0013. 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, available at eur-lex.eur opa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0048. Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, available at eur-lex.europa.eu/legal-content/EN/TXT/?uri= CELEX%3A32016L0343. Directive 2016/800/EU of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, available at eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016L0800. Directive 2016/1919/EU of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, available at eur-lex.europa.eu/legal-content/EN/TXT/?uri= CELEX%3A32016L1919. Directive 2019/1937/EU of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, available at eur-lex.europa.eu/eli/dir/ 2019/1937/oj?locale=en.