Data tell us that there are more than one million minors in the EU who are involved to some extent in police investigation or judicial proceedings as suspects or accused. There are some fundamental rights that these children should fully enjoy no matter where they live but this is not the reality yet, since Member States (MS) have different rules on this issue. This is why the European Commission presented on the 27th of November 2013 a package on the procedural rights to guarantee fair trial for all citizens, suspected and accused in criminal proceedings. This package is being discussed now in the European Parliament (EP) and in the Council but the outcome is still uncertain. The proposal for directive regarding Procedural safeguards for children suspected or accused in criminal proceedings is a part of the package, however there are some issues which pose a great challenge to the achievement of a common agreement.
The right to a fair trial is recognised in all the MS nevertheless this principle is not applied in a uniform manner. This is of crucial importance now since people are free to move from a MS to another and also due to existence of the European Arrest Warrant (EAW). Minimum common standards in this field are needed, provided that the MS remain free to set higher protection levels.
The package proposed by the Commission contains three proposals which regard: the presumption of innocence, special safeguards for children as vulnerable group when they face judicial proceedings, and access of suspects and accused to provisional legal aid at the early stages of proceedings.
They also specifically refer to people subjected to the EAW which will not be fully applied without minimum common standards because judicial authorities do not trust the conditions that their citizens might face in other European countries. This initiative will also help to improve mutual recognition of decisions in criminal matters and represents a complement to EU law which already guarantees the right to translation and interpretation, the right to information, and the right to access to a lawyer.
Why a specific directive for children and which are the safeguards included?
The right to an effective remedy, to a fair trial and right to defence are provided for in the Charter of Fundamental Rights of the European Union articles 47, 48 and in Art. 6 of the European Charter of Human Rights but the ability to effectively exercise these rights depends on the capacity of suspect or accused person to follow and fully participate in the procedure which may be limited due to the age, lack of maturity and disabilities. It is clear that children may not have the capacity to effectively participate in the proceedings and benefit from fair trial rights, therefore additional protection should be granted to them.
The proposal contains provisions which aim “to ensure that the highest possible standards are guaranteed for children”.
One way to achieve this goal is by strengthening the right to mandatory legal assistance. The Commission decided that children cannot waive their rights to a lawyer because they might not fully understand the consequences of their actions.
An additional guarantee is to assure that children and the holder of parental responsibility are swiftly informed of their legal rights and that minors should not be questioned in public hearings. The questioning should be filmed in the case of children deprived of liberty. Detention before conviction should be a measure of last resort and children should be detained separately from adults in order to prevent ill-treatment and abuse. Furthermore, it recognises the rights to an individual assessment, to be carried out before the indictment, in order to identify the child’s specific needs in terms of protection, education, training and re-integration in the society. Children deprived of their liberty should also have right to medical examination, carried out by a medical expert, upon request by the holder of parental responsibility, the appropriate adult or the lawyer.
The proposal also specifies that children are not to bear the cost of individual assessment, medical examination or audio-visual recording of interviews, even if they are found guilty. In the Commission’s view a differentiated regime for reimbursement could have the impact of preventing a child from exercising his/her rights.
Other provisions envisaged by the proposal regard the necessity to treat criminal proceedings with due diligence and a sense of urgency, the right for the children to appear in person at the trial, and their right to be accompanied by the holder of parental responsibility.
Report of the previous rapporteur Carmen Romero López presented to LIBE Committee the 31st March 2014
This proposal has been discussed by the previous European Parliament in LIBE Committee and there is also a report of the former rapporteur on this matter which may represent a guideline for the current debate. This report focuses on some aspects of the Commission’s proposal which should be better specified or clearly spelled out by the final text of the directive. The directive should specify the maximum period of time for detention, the fact that also the lawyer must be informed about the rights under this directive and also what are the procedural consequences and remedies in the case of breach of the these rights.
Mrs. Romero López considered also necessary for the directive to specify the period of time for audio-visual registrations to be kept by the authorities before destroying them.
The proposal establishes that when the holder of parental responsibility is not suited to exercise this role other appropriate adult should be appointed, without mentioning the practical consequences and also who decides who this “appropriate adult” should be.
The report raises some concerns with respect to the way the individual assessment should be carried out and who should be the appropriate person to do so. The final text of the directive should indicate the exact type of evaluation to be carried out, who is in charge to do so, the phase of the proceedings most suited, in any case it should be carried out before the minor is deprived of his liberty. In her views it is also crucial to specify that “the assessment can also lead to the dismissal of the proceedings for minor offences under the condition that the child has gone through conciliation which brought to an agreement with the victim and restorative measures”.
The rapporteur also considers the necessity to gather global data on the modality in which the proceedings are being carried out in the MS in order to elaborate efficient policies in this area. MS should be encouraged to use alternative measures to judicial proceedings in any phase of the proceedings to move away children from the judicial system.
European Council’s note on procedural safeguards for children 22 May 2014
The 22nd May 2014 the Council published a note on this proposal which narrowed the scope of application of the directive but also tried to harmonise this new proposal with the existing directives in this area.
According to the Commission’s proposal, the directive should be applied to persons under the age of 18 at the time when they become suspected or accused of having committed an offence, regardless of their age during the criminal proceedings until the final judgement. The Council decided that the directive should regard persons under the age of 18 when the authorities notify that they are suspected or accused of having committed a criminal offence. It added that MS may decide to apply it to persons who were children when they become subject to these proceedings but who then have become of age.
The Council established that not all the rights of the directive should be applied in the case of minor offences when there is not deprivation of liberty and that there should be “no application in the case of offences subject to proceedings which may not lead to the imposition of any criminal sanction, but impose restrictive measures”.
With regard to mandatory access to a lawyer, the Council included the principle of proportionality. The proportionality test should take into account three variables:
- i) the complexity of the case;
- ii) the seriousness of the alleged offence;
iii)the maximum penalty that can reasonably be expected to be imposed
In the Council’s view the child may be questioned without a lawyer, if not available at the moment, when there is “an urgent need” to protect the life, liberty of physical integrity of a person; and also when immediate action by the investigating authorities is “imperative” to protect the criminal proceedings from jeopardy. The presence of the lawyer in the case of short time deprivation of liberty, which can happen in order to surrender the child to the holder of parental responsibility, should be not mandatory. It goes further and specifies that the lawyer is not to be present in each investigative or evidence gathering act. All these exceptions are already envisaged by the directive regarding the right to access legal assistance and the Council considered that these exceptions should apply also to minors.
With regard to the right to individual assessment, the Council established that it should be done at the “earliest possible stage and at the latest, in due time for it to be taken into account by the Court when sentencing”, while for the Commission at the latest was before the indictment.
The Council also included an amendment to the right of medical examination which can be avoided if the child desires to do so. This can be a guarantee for the child’s right not to be subjected to undesired medical examination but it can also represent an obstacle to the proceedings.
States may decide not to record the questioning if it takes place in the presence of a lawyer and considered that recording the questioning may result menacing to the child therefore proportionality should be respected when deciding whether or not to record the questioning.
The Commission considered that hearings should be public only if it is in the best interests of the child, whereas the Council introduced the principle of balancing the right to privacy of the child and child’s family with the general principle of public hearing.
In case of deprivation of liberty, the Commission wanted to specify that children subject to detention should be kept separated from adults “unless it is considered in the child best interest not to do so”. The Council introduced the possibility for children to be detained with young adults and considered that MS should decide which persons are considered young adults.
The 6th of October 2014 LIBE Committee met and hold a first exchange of views involving also representatives of the Council and the Commission.
The Representative of the Council declared that the package on procedural rights is one of the priorities of the Italian presidency and that they want to reach an agreement by December.
Now it seems that the debate in the Council regards the mandatory legal assistance, the obligation to record the questioning and also who is the recipient of this directive. There is not a total agreement if persons who were minors at the time of committing the offence but are of age at the moment of the proceedings are included or not.
The Commission’s representative welcomed the fact that the Council was able to reach a first agreement on the text in June 2014 but complained about the fact that some provisions were diluted by the Council.
This month LIBE Committee will discuss again this proposal with the new rapporteur, Mrs. Caterina Chinnici. We are very interested to see how the new rapporteur will deal with this proposal but probably the discussion will be focused on the same issues which seem to split the Council.
Pour en savoir plus:
-. Council of the European Union 22 May 2014 http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010065%202014%20INIT
-. Opinion of the European Economic and Social Committee, 25 March 2014 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52014AE0347&from=EN
-. Press release European Commission 06 June 2014 http://europa.eu/rapid/press-release_IP-14-636_en.htm
-. Proposition de la Commission du 27.11.2013 COM:2013 822 final (FR) http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:52013PC0822&from=en(EN)http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:52013PC0822&from=en