To recall, in 2004 the European Commission proposed a draft framework decision on certain procedural rights in criminal proceedings. However, Member States were divided on whether the EU had competence to legislate on purely domestic proceedings or whether the legislation should only cover cross-border cases, consequently it was not possible to reach agreement on the proposal by unanimity. Then, in July 2009 the Commission has decided to adopt a “step-by-step approach”, and presented a proposal for a Council framework decision aiming at establishing common minimum standards as regards the right to interpretation and translation in criminal proceedings in the EU. The labour Government has accepted that this instrument will apply to purely internal situations.

This measure is the first of several specific measures intended to replace the 2004 proposal. It is important to mention, that last November, the Justice and Home Affairs Council adopted a resolution on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. The Member States agreed, therefore, that the rights included in the road map are “fundamental procedural rights” therefore “action in respect of these rights should be given priority at this stage.” The Commission was invited to present proposals concerning the following rights: Translation and Interpretation, Information on Rights and Information about the Charges, Legal Aid and Legal Advice, Communication with Relatives, Employers and Consular Authorities and Special Safeguards for Vulnerable Persons. Moreover, the Commission should also present a Green Paper on the Right to Review of the Grounds for Detention. The Resolution states that “The Council will examine all proposals presented in the context of the roadmap and pledges to deal with them as matters of priority.” It seems that all the member states have politically committed themselves to adopt such measures.

In the meantime, the Lisbon Treaty entered into force providing for a clear legal base for such measures. In fact, the ‘Community method’ now applies to police and judicial cooperation in criminal matters, meaning that the ordinary legislative procedure (co-decision procedure), qualified majority voting and the ECJ’s jurisdiction will be extended to those areas. Hence, the draft proposal for a Council framework decision aiming at establishing common minimum standards as regards the right to interpretation and translation in criminal proceedings in the EU had been replaced by a proposal for a Directive, and, in fact, it has been already endorsed by the Council and European Parliament.

The principle of mutual recognition is the keystone of judicial cooperation in both civil and criminal matters within the Union whereby Member States are supposed to trust each other. The Lisbon Treaty enhances mutual recognition of judicial decisions and judgements which will be respected and enforced throughout the Union. The Member States have different criminal systems, some Member States have low standards of the rights of the accused, and hence, suspected or accused persons might not have access to proper advice and can be prevented from conducting an effective defence. Therefore, mutual recognition raises concerns of fairness and there are risks to British citizens accused of crimes abroad of having fewer rights. Moreover, such measures based on the principle of mutual recognition of judicial decisions which affect fundamental issues of sovereignty are subject to the ordinary legislative procedure and will be adopted by QMV rather unanimity.

The European Commission has recently adopted a draft directive setting common minimum standards as regards the right to information in criminal proceedings throughout the European Union. This proposal is, therefore, the second step in several measures in the procedural rights roadmap. The Council welcomed the Commission proposal, nevertheless several member states, including the UK, have raised concerns over the provision on the access to the case file and implementation costs.

In order to enhance mutual trust, the draft proposal lays down common minimum standards to be applied in the field of information about rights and about the charge to be given to persons suspected or accused of having committed a criminal offence.

According to the Commission “Having common minimum standards in relation to these rights should facilitate the application of the principle of mutual recognition, thereby improving the functioning of judicial cooperation between Member States of the EU.” However, to foster mutual trust and to improve the rights of suspects, Brussels just have one solution – harmonisation.

The proposal is based on Article 82(2) of the Treaty on the Functioning of the European Union (TFEU) which provides for the establishment of minimum rules applicable in the Member States in order to facilitate mutual recognition of judgements and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. The so called minimum rules may be established as regards “the rights of individuals in criminal procedure.” This minimum rules apply to cases with cross border implications but they are likely to affect pure national cases.

The Commission proposal is likely to enhance the rights of suspected and accused persons abroad as it will ensure that they have access to information on their rights as well as information about the charges. On the other hand, as Timothy Kirkhope MEP, European Conservatives and Reformists group justice and home affairs spokesman, said, “(…) it must not be seen as a move towards an EU common criminal system.” However, unfortunately, that is what Brussels has in mind. The measures mentioned in the roadmap are the first step towards the harmonisation of criminal procedural law, entailing the codification of the rights of defendants across the EU. It is important to recall that there is already a proposal being discussed establishing common EU rules of criminal procedure on the collection and transfer of evidence – the European Investigation Order.

The European Convention of Human Rights provides for the right to a fair trial and defence as well as the Charter of Fundamental Rights of the European Union. The right to information about rights is not explicitly established on the ECHR but it is inferred from the European Court of Human Rights case law.

The draft directive explicitly establishes the right to information about rights, it goes, therefore, beyond what is currently provided by the ECHR. The draft directive aims to strengthen the procedural rights of suspects in criminal cases in all EU member states. It establishes rules concerning the rights of suspected and accused persons to information about their rights and information about charges in criminal proceedings against them. The draft directive would apply from the time that a person is made aware by a Member State’s competent authorities, that he/she is suspected or accused of having committed a criminal offence until the conclusion of the proceedings.

Under the draft directive, Member States must ensure that that all suspected and accused persons are promptly informed, in their own language, orally and in writing, about their procedural rights in cases where they are deprived of their liberty by their competent authorities in the course of the criminal proceedings on suspicion of having committed a criminal offence. Member States would be therefore required to inform these persons of their relevant rights in writing, through the so called Letter of Rights.

The Letter of Rights will be translated into all the EU's official languages and must be drafted in simple and accessible language so it can be easily understood. Those arrested by the police have the right to be informed to the right of access to a lawyer, the right to be informed of the charge and, where appropriate, to be given access to the case-file, the right to interpretation and translation, the right to be brought promptly before a court if the suspected or accused person is arrested. The Letter of Rights does not create these rights, but the Member States' obligations arise from the Charter, the ECHR, and applicable EU legislation.

The EU Member States are free to draft their own Letters of Rights providing they include accurate information about the above-mentioned fair trial rights. However, in order to ensure consistency in the written information throughout the EU, the European Commission has also proposed an indicative model of the Letter (Annex I to the proposal). Member States are not obliged to use the model provided by the Commission, they may decide on exact wording of the letter, nevertheless those that adopted it will be presumed to have implemented the relevant Directive provisions.

Police officers in all EU Member States police stations will have to provide suspected and accuse persons, whether they ask for it or not, with the Letter of Rights in their language at the time of arrest. Police officers would have to keep letters in all commonly spoken languages in their locality, in electronic form so it can be printed where necessary. Hence, it seems police officers will not have to carry more than 20 different linguistic versions of the Letter of Rights with them.

If there is no Letter of Rights available in the language of suspected or accused persons, they should be, orally, informed of their rights, in a language they can understand, and then the Letter should be given to them without delay.

Member States are also required to put in place a mechanism to transmit information to persons who are partially sighted or blind, or who cannot read.

There are 12 Member States, including the UK, which already inform suspects of their rights through a letter system. For instance, Germany produces the letter in 48 languages, the UK in 44, Austria in 20, but the Czech Republic in one. Belgium, Bulgaria, Malta, Portugal and Romania, do not have a Letter of Rights but provide information about procedural rights through other written notification as well as orally whereas France, Greece and Slovenia just provide information orally. All arrested persons detained at a police station in England, Wales and Northern Ireland are provided with a 'Notice of Rights and Entitlements', however in Scotland the suspects’ rights are provided orally, consequently the proposal will have a bigger impact in Scotland, which would have to amend its legislation to implement the directive.

Viviane Reding, the EU's Commissioner for Justice, Fundamental Rights and Citizenship said "We all have seen police officers read rights to suspects on TV series. It makes good TV, but it also serves a very serious purpose: it gives people a chance to know and assert their rights. It gives them confidence that justice will be served, wherever they are in Europe." The Commission proposal if adopted by the Council and European Parliament it will introduce in all EU member states a Letter of Rights similar to the so called 'Miranda Warning' used in the US. It seems the Letter would be called, in the EU, 'Reding Warning'.

The draft directive also provides for the right to information about the charge. If a person has been charged with a criminal offence, Member States must ensure that suspected or accused persons are given sufficient information about the charge promptly, and in a language they understand, so they can prepare their defence. As a minimum requirement, such information must include a description of the circumstances in which the offence was committed, as well as the nature and legal classification of the offence.

Moreover, Brussels is trying to regulate how criminal evidence is disclose as the right to access to the case-file is also foreseen in the proposal. Under the draft proposal, where suspected or accused persons are arrested at any stage of the criminal proceedings, their lawyer must be granted access to the documents contained in the case-file which are important for the determination of the lawfulness of the arrest or detention. Moreover, Member States are also required to grant access to the case-file to accused persons or their lawyers once the investigation of the criminal offence is concluded. However, in exceptional circumstances, the competent national authority may exclude access to certain documents where it may lead to serious risk to the life of another person or may harm the internal security of the Member State in which the proceedings take place.

Accused persons or their lawyers may be provided with an index of the documents contained in the case-file to enable them to decide which documents they wish to be given access.

Such provision providing for access to the case file will have a considerable impact in the UK. The Government has raised concerns over this provision, as the UK would have to change its law to implement it. In fact, Brussels should not be regulating over this issue. Member States have different legal systems and legal traditions and the present directive would have an impact on the structure of criminal proceedings as defined by each member state’s national laws.

Member States would be required to set up a procedure to ascertain whether suspected or accused persons have received the information that they are entitled to.

Moreover, Member States must provide for an effective remedy where this information has not been provided. In cases where the information is provided orally it must be recorded so that the content of the notification can be verified.

 Moreover, the Commission wants to impose a training obligation on Member States. Under the draft proposal, Member States would have to ensure that their police officers, prosecutors and judges receive the necessary training to perform adequately their obligations arising from the Directive provisions. Hence, they must have detailed knowledge of the procedural rights of suspected and accused persons so they can provide effective information on these rights.

The European Arrest Warrant is expressly covered by the proposal. The draft directive provides for the right to written information about rights in European Arrest Warrant proceedings. In fact, under the draft proposal, any person subject to proceedings for the execution of a European Arrest Warrant must receive an appropriate Letter of Rights setting out their rights as laid down in the Framework Decision on the European arrest warrant and the surrender procedures between Member States. There would be a specific version of the Letter of Rights for persons subject to those proceedings (Annex II to the proposal). The European Arrest Warrant has already lead to extremely injustice situations, thus the Commission proposal is too little too latte.

The Indicative model Letter of Rights for persons arrested on the basis of a European Arrest Warrant, provides that those arrested by the police on the basis of a European Arrest Warrant have the following rights: to know why they have been arrested, to the assistance of a lawyer, to an interpreter and translation of documents, to be informed of their right to agree to surrender, to a hearing if they do not agree to surrender, to be released once the relevant deadline has passed. Member States are not obliged to use this model but those who do it will be presumed to have implemented this provision of the Directive.

The UK has the right to choose whether to take part in judicial and police cooperation in criminal matters. Nevertheless, once opting in, UK is subjected to the Commission enforcement powers and to the ECJ jurisdiction. Once it has decided to opt-in there is no right to opt-out even if the outcome of the negotiations is not acceptable. It has in some cases the ‘emergency brake. Article 82 (3) provides for an emergency brake but just on draft directives establishing minimum rules on criminal proceedings. Hence, if one member state considers that a draft directive would affect fundamental aspects of its criminal justice system, it may request the draft to be referred to the European Council and the ordinary legislative procedure will be temporarily suspended. The European Council would decide by consensus.

This proposal would have an impact on Member States administrative burden as they will have to face an increase to the administrative and financial burden drafting and translating the Letter of Rights. Moreover, Member States will have to train officials (police officers, judges, prosecutors, court officials) about distribution of the Letter.