The right to a
written information upon arrest throughout the EU, as part of the protection
of the right to a fair trial - that is what ministers discussed in a public
session on the basis of a working document.
They welcomed
the progress made in recent negotiations and asked the Council preparatory
bodies to continue work on the outstanding issues.
These issues
include:
- the exact
way in which the suspected is informed about his rights,
- the distinction
among different phases of criminal proceedings which would lead to a
varying extent of the rights in each of these phases,
- the right to
access the case file and the use of the term "case-file" unknown
in some Member States;
- the question
of costs.
The objective
of the Presidency is to reach a general approach on this file at the
Council in December 2010 so as to be able to start negotiations with the
Parliament as soon as possible in the new year. One of the main difficulties
is to take into account the various legal systems, especially the differences
between civil law and common law countries.
Ireland and
the United Kingdom decided to participate in the directive by using the
opt-in option provided for in Protocol 21 of the Lisbon Treaty. Denmark is
not taking part.
On a number of
issues the Belgian Presidency is glad to note a wide agreement among
delegations. While further work has to be done in the Working Party to
refine the text of certain Articles, there is already a large support for the
principles provided for by such Articles.
The following
issues may be highlighted:
- the
principle enshrined in Article 3 of the Directive, whereby the competent authorities should provide the
suspected or accused person with basic information on fundamental procedural
rights linked to the protection of the right to a fair trial, at least
those listed in Article 3 (3) of the draft Directive. This information
should be provided once these procedural rights may be exercised by the
person concerned and in due time to allow him to effectively exercise
them. The information should in principle be provided only once
during the proceedings, it should not be reiterated unless otherwise
required by the circumstances of the case or the specific rules laid
down in national law;
- the
principle provided for by Article 4 of the Directive, according to which a person who is placed under arrest or
detention in the course of criminal proceedings should be provided in writing
with a Letter of rights, containing basic information on his procedural
rights immediately relevant to the situation of arrest or detention. This
right to written information also applies to detention imposed in
relation to the execution of a European arrest warrant;
- the
principle provided for by Articles 6 (3) and 7 (3), according to which, when the accused person is presented or
summoned before a court to answer on the merits of a criminal charge, he
should be provided with detailed information about the offence he is
accused of having committed and with generalized access to documents or
materials which are in the possession of the competent authorities
(save certain exceptions to necessary safeguard other relevant public
interests), so that he may adequately prepare his defence.
On the other
hand, there still are some key issues on which further reflection in the
Council's preparatory bodies will be required. In particular, with relation
to issues such as:
- the
identification of the evidentiary materials and documents which should
be the object of the right of access provided by Article 7, and the
possibility to use in the text, as the original proposal does, the term
"case-file" to designate the object of the right to access;
- the
definition of a commonly acceptable timeframe situated before the trial
phase of the criminal proceedings during which the rights referred to in
Articles 6 and 7 should apply, at least to some extent.
The Belgian Presidency
invites all delegations to continue participating actively in a common effort
to find an adequate solution for these last outstanding issues and to proceed
as rapidly as possible towards an agreement within the Council before the end
of the year on a text of the Directive which could form the basis for further
negotiations with the European Parliament.