© Springer International Publishing Switzerland 2015Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_5
The Right to Information in EU Legislation
Department of Law, University of Torino, Lungo Dora Siena 100, 10153 Torino, Italy
This paper analyzes EU Directive 2012/13 on the right to information in criminal proceedings. This is the second step in the implementation of the EU Roadmap, settled after the Treaty of Lisbon entered into force, aimed at strengthening some of the guarantees envisaged under the ECHR. The aim of the present study is to reflect, first of all, on the meaning of the measures adopted and, second, on the impact that these may have on national systems. This reflection is intended as being general, since its goal is not to constitute a comparative study among the 28 EU domestic legal systems. Many provisions, in fact, although appearing to have highly innovative potential, may be interpreted restrictively.
KeywordsConsequences of a lack of informationInformation regarding the chargeRight to be informed on procedural rights
1 The Fair Trial in the Post-Lisbon Era
The title of this paper suggests, foremost, a preliminary question. Why is it necessary to reflect, today, on EU legislation regulating the right to information in criminal proceedings?
It is in fact well known that this is a fundamental aspect of the general principle of the right to a fair trial, traditionally provided under the covenants and conventions on human rights.
We are used to referring to the procedural rights of individuals involved in criminal proceedings, starting with the general right to a trial,1 within the scope of the regional conventions on human rights and, especially in Europe, of the European convention on human rights, signed in Rome in 1950.2 We are also used to the topic of procedural rights in the area of the constitutional Charters of our countries.3
But the “post-Lisbon era” we now live in has brought with it a new perspective on EU legislation.4 The reference to the post-Lisbon era is not only due to the new legislative framework, which has abolished the third-pillar system, introducing standard legislative tools into the AFSJ. Of course, as we will see below, the adoption of directives and the “other measures” mentioned in article 82(2) and (1) of the standing TFEU will have important consequences. Alongside these developments, furthermore, the particular significance of the post-Lisbon era may seem to derive—as extensive scholarship suggests5—from the implementation of the Tampere program, which led to the introduction of instruments mostly aimed at improving the fight against crime. As has been noted,6 the major aim—not the only one, of course—of EU legislation in the first decade of the 2000s was to speed up police and judicial cooperation.
Probably because the coming into force of the Lisbon Treaty gave binding legal force to the EU FRCh—whose article 47 provides for the right to a fair trial—a new cohesion on the issues of procedural safeguards has finally been achieved among the EU Member States.
Of course, we have to remember that an important initiative by the EU Commission was launched in 2004, aimed at a Council framework decision “on certain procedural rights.”7 This proposal referred to the right to legal assistance (including legal aid), the right to free interpretation and translation, the right to communicate with other persons and to receive consular assistance and the right to information.8
One could thus argue that this is not such a novelty, but this brings us on to the central issue being dealt with in this paper. When the proposal in question was submitted, one of the most frequent arguments against it was that laying down rules on procedural rights would be useless, since these were already set out and established by the ECHR. It was the general opinion that the European system had already strengthened that set of rules through Strasbourg case law.
2 Ineffectiveness in the ECHR System
Since the second half of the first decade of the 2000s, a growing consciousness emerged. Some studies, requested by the EU Commission,9 reported an unsatisfactory level of effectiveness in the Strasbourg system. The main reason for this turned out to be, foremost, the increasing number of Member States to the Council of Europe, which led to a backlog of cases. As a consequence, the number of “repetitive cases” grew enormously, i.e., cases in which the Court had to decide on matters that had already been dealt with.10 This was due to the fact that ECtHR judgments are often not properly executed by the States.11 In fact, only in a few cases did the Court require national countries to modify their legal systems, which are rarely declared as incompatible with the Convention itself.
This has created a vicious circle, in that the Strasbourg system does not seem to be able to adequately enforce “practical and effective rights.”
This does not mean that the ECtHR has been insensitive to the effectiveness of the Convention rights, especially with regard to the topic of the present study. Even if the Convention provides “core rights”—i.e., the guarantee of a fair trial—Strasbourg case law also gives attention to the tools that can help implement these rights, such as the right to be informed about them. For example, in the cases of Mattoccia v. Italy 12 and Salduz v. Turkey,13 the Court (the Grand Chamber, in the latter case) underlined that the Convention does not acknowledge rights that are “theoretical or illusory but rights that are practical and effective,” as had already been stated in the case of Artico v. Italy.14
Since the 2004 general initiative failed, the new post-Lisbon approach to procedural rights was conduced step by step.15 In 2009, the Roadmap, first, and the Stockholm Program, second, focused on several steps to be taken to further implement the enormous impact that the ECHR system had already produced in the field of procedural rights.
Measures from A to F of the Roadmap pointed out six topics on which the EU bodies will submit normative proposals. Among them, measure A dealt with translation and interpretation,16 while measure B dealt with information on rights and information on charges.
The Commission proposal on measure B—under article 82(2) TFEU and considering articles 47 and 48 of the Charter—was submitted in 201017 and finally approved in 2012. During this somewhat long period, some fundamental changes were made to the original text.
3 Reflecting on EU Directive 2012/13
As far as the 2012/13 directive is concerned, it would be superfluous here to set forth its contents, as they are well known. Rather, we should analyze it from the point of view that was adopted at the very beginning of this study: how and to what extent can this new legislative tool effectively implement the rights already enshrined in the ECHR system?
To begin, it must be stressed that, although the original draft proposal only concerned transborder procedures, the solution adopted in the directive concerns all types of criminal proceedings, regardless of the legal status, citizenship, or nationality of the accused person, as written in recital no. 16.
The aim of the directive is multiple:
ensuring the right to information on the procedural rights of the suspected and accused persons, as well as of the arrested and detained persons in domestic proceedings;
ensuring the same information to the persons under EAW proceedings;
ensuring the right to information on charges.
3.1 Dies a Quo of the Right to Be Informed
A preliminary element that helps test the effectiveness of the guarantees laid down in the directive regards when the duty of MS judicial authorities to inform arises. Articles 2, 3 e and 6 are relevant from this point of view.
Article 2 states that the directive applies “from the time persons are made aware that they are suspected or accused” to the end of the proceedings, until a final decision is made, including any appeal.18
Therefore, the duty to inform arises promptly—according to article 3—after the person is made aware of being suspected or accused.19
Under the term “suspect,” the text includes all those who have not yet been officially charged.20
In this first stage, the person is to be informed at least of his/her right to access to a lawyer; of the right to free legal advice; of the right to be informed of the accusation, according to following article 6; of his/her right to interpretation; and, of course, of the right to remain silent.
It is worth noting that the directive proposal launched by the Commission contained no reference to the right to remain silent, a reference that was added in the course of the Council examination.21 Moreover, the Committee on Legal Affairs, to which the draft was submitted, stressed the importance of providing further information22: namely, to inform the suspect of “any implications there may be in exercising that right under the national law,” because of the different consequences related to silence in each domestic system. By the way, this last amendment was not approved.
Concerning the procedural stage at which the suspect must first be informed, it is worth noting that this may vary enormously under the different domestic systems. In fact, under national law, there may be a considerable delay before a suspect is informed that he/she is under investigation.23 Some systems,24 of course, might prefer to safeguard the interest of the secrecy of the pretrial investigation phase, allowing a long delay in informing the accused of the fact that he/she is actually accused!
If the directive, especially its article 2, was interpreted in the sense that the duty of information needs not be anticipated, information provided under article 3 would lose much of its effectiveness.25
3.2 Letters to Arrested Persons
The new directive attaches special attention to the peculiar situation of the arrested person. The limitation of personal liberty requires the accused to be granted stronger guarantees than in normal cases; as provided by article 4, an arrested or detained person must be given further information in writing, by means of a letter in a simple and accessible form, in a language he/she understands. It is noteworthy that the linguistic requirement of information (see art. 4 § 5) must be strictly interpreted in line with the guarantees laid down under directive 2010/64.26 Furthermore, the importance of the linguistic aspect is evident under article 5, which provides the right of the person arrested under an EAW to receive a special letter. This must report the rights and guarantees of the person according to the national law implementing the EAW Framework Decision.27
Of course, the need for additional information is due to the particular situation of the persons who are deprived of their liberty, who, principally, might be in a troubled state of mind and might not understand or remember correctly the information they were given orally. It is thus of great importance that the arrested can keep the letter throughout the detention period, during which the elapse of time makes the single guarantees increasingly important.
The directive contains two annexes, providing indicative models for the two different letters. Although their adoption is not mandatory, the Member States, in following these models, will certainly comply with the obligations set down by the directive.
Analyzing the “minimum” content of the letters, an important innovation seems to be the duty of Member States to expressly inform the arrested or detained person of his/her right to access to urgent medical assistance. Some Member States already provide for this, such as France,28 but others do not.29