(c) the items on which information is provided (i.e. all the rights listed above)?
Austria
The list is fully covered. In practice, the suspect is given a form listing all the rights he must be informed about.
Belgium
the right of access to a lawyer; YES
any entitlement to free legal advice and the conditions for obtaining such advice: YES
the right to be informed of the accusation: YES
the right to interpretation and translation: YES
the right to remain silent : YES
Bulgaria
In the case of bringing a charge under the rules of CPC (please see the answer to Question 1 (b) above) the investigating organ has the procedural obligation to inform promptly the accused person of all her/his procedural rights, which include the items listed in Article 3.1 of the Directive. In this respect, Bulgarian law and practice fully comply with the requirements of the Directive.
The situation is different as far as arrests by the police are concerned. As it was pointed out above, this is the first contact of the factual suspect with the police. Practically in each case of an arrest by the police, the so-called “informal conversations” between the police representatives and the suspects take place. These “conversations” have nothing to do with the official interrogations of the accused persons, which promptly follow the bringing of charges under the rules of CPC when the accused persons have already been officially informed about their right to remain silent. These conversations are founded on no legal provisions whatsoever but, as already noted, they are common practice. It is beyond any doubt that the information shared by the suspect in the course of these “conversations” has no evidential value because this information is not obtained in compliance with the strict procedural rules of CPC. However, this information is very often recorded (either by audio or by video) and later reproduced before the court during the trial stage of proceedings, or the police officers who have carried out the “conversations” are later summoned as witnesses to testify before the court on the information they had obtained from the suspect during the “conversation”, especially when this information contains confessions in some form or another. The matter is that in practice a considerable number of Bulgarian courts are inclined to accept these recordings or the testimony of the police officers as valid pieces of evidence, thus practically circumventing the right of the accused person to remain silent and not to cooperate with the investigating organs.
Now getting back to the requirements of the Directive, I have to note that the police arrest order should correspond to a number of requirements of MIA concerning its contents. The order must contain, inter alia, information about the rights of the detainee. I shall come back to this point further on when discussing the Letter of Rights of the detainees. Here it should be noted that the obligatory requisites of the police arrest order include no right of the detainee to remain silent and respectively no right to information thereof. From a formal point of view, this could be explained by the fact that the “conversations” with the police representatives are not envisaged by the law. But, from the viewpoint that the arrest of a factual suspect is her/his first contact with the police and taking into account the commonly existing practice of the police to carry out “conversations” with the suspects, which later could be used as evidence before the court, the situation in my country regarding the first contact of the factual suspect with the police is obviously in a serious incompliance with the requirement of the Directive that the suspect has to have a right to remain silent promptly secured and to be promptly informed about this right. This is so because in my view it could be held that the requirement set forth by Article 3.1 (e) of the Directive affects all suspects and accused persons, no matter whether they are deprived of their liberty or not. Concerning this flaw, Bulgarian law has to be amended in accordance with the Directive and national practice has to be respectively changed. This means that the right to remain silent has to be secured by law to those arrested by the police on the suspicion that they have committed a criminal offence because of the informal “conversations” with them that usually follow the arrest. These suspects are also promptly to be informed of this right by the police.
Croatia
The list of rights provides the information on all the rights listed in this Directive, according to the Article 239 of the CPA.
Cyprus
The suspect is informed only about the right to be informed of the accusation, the right to interpretation and translation and the right to remain silent.
See answer in 1 (a) as far as complaints against the Police for not implementing the said legislation
Czech Republic
See the previous answer.
Estonia
The suspect is informed about the following rights (§ 34(1) of CCP) --
A suspect has the right to:
1) know the content of the suspicion and give or refuse to give testimony with regard to the content of the suspicion;
2) know that his or her testimony may be used in order to bring charges against him or her;
21) the assistance of an interpreter or translator;
3) the assistance of a counsel;
4) confer with the counsel without the presence of other persons;
5) be interrogated and participate in confrontation, comparison of testimony to circumstances and presentation for identification in the presence of a counsel;
6) participate in the hearing of an application for an arrest warrant in court;
7) submit evidence;
8) submit requests and complaints;
9) examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes;
10) give consent to the application of settlement proceedings, participate in the negotiations for settlement proceedings, make proposals concerning the type and term of punishment and enter or decline to enter into an agreement concerning settlement proceedings.
The above list covers all the elements required by the Directive.
Finland
All information is in principle provided, the major problem being the right to remain silent, which is described above. The good practice in Finland is that the suspect is informed of his right to a lawyer of his/her choosing.
France
See above.
Germany
Greece
The provided information include, in accordance with the current legislation and in particular with Article 99A of the Greek Code of Criminal Proceedings, as inserted by Law 4236/2014 and national practice, all procedural rights, namely: 1. the right of access to a lawyer, 2. the right and the conditions for providing free legal advice, 3. the right to information about the charge, 4. the right to interpretation and translation and 5. the right to silence.
Information in practice is granted for each of the listed rights. But it is very comprehensive and it has been observed that sometimes, at the stage of police preliminary investigation, it’s not guaranteed, whether the authorities have adequately explained the content of the rights to the arrested person.
Hungary
All the rights listed above.
Ireland
Information given by a Court deals with the right of access to a lawyer, the entitlement to free legal advice, the right to interpretation and translation. It will address the provision of details of the accusation. The right to remain silent is not typically addressed.
Italy
Yes, the jurisprudence, nevertheless, hold that for the validity of the proceeding is enough the delivering of the letter, even if some of the listed information (i.e. the right to interpretation)are not given.
Latvia
All the rights listed above
Lithuania
Information is provided on all the rights listed above.
Luxembourg
No.
The right on legal assistance is rarely communicated.
Mainly the right to see a doctor and a lawyer is communicated as well as the right no to participate in your own incrimination.
Are also communicated the right to keep silent, or the right to make declarations, and the right to enter in relation with consular authorities (for foreigners).
In case a foreign person is heard by the police, or interrogated by an investigating judge, a translator is present who then translates the information concerning the communication of rights in the national language of the person put under proceedings.
Malta
As above
Poland
The Article 244 § 2 CCP indicates that a detainee shall be informed about the reasons of detention as well as about his or her rights like: the right of access to a lawyer, the right to free assistance of interpreter or translator (if a detainee doesn’t speak Polish language in a sufficient degree), the right to make a statement or the right of refusal to make a statement, the right to obtain a copy of the minutes of detention, the right of access to the urgent medical assistance, the right to the prompt and direct contact with a lawyer, the right to challenge the detention, the right to have a contact with consular authorities or diplomatic representation. A detainee shall be also informed about the maximum number of hours he or she may be deprived of liberty before being brought before the judicial authority. In turn, the Article 300 § 1 CCP present the catalogue of the following rights of a suspect (about which a suspect shall be instructed before the first questioning):
- the right to be questioned with the assistance of a suspect’s lawyer.
A suspect shall be instructed not only about rights, but also about his or her duties and certain legal consequences.
All rights listed in the Article 3 of the directive 2012/13/EU are contained in the Article 300 § 1 of the Polish Code of Criminal Proceedings.
A person temporarily arrested – in the light of the Article 263 § 8 CCP – has the following rights:
- the right to depose;
- the right of refusal to depose;
- the right of refusal to answer question;
- the right to information on charges;
- the right to review files of the criminal proceedings in a part containing evidences indicated in a motion for applying a temporary arrest;
- the right of access to the first (urgent) medical assistance;
- the right to free assistance of an interpreter or a translator;
- the right of access to a public defender
- the right to have a contact with consular authorities or diplomatic representation and some other rights.
An accused person – according to the Article 386 § 1 CCP (in relation with the Article 175 § 1 CCP) - is instructed, after presentation of charges, about:
- the right to depose;
- the right of refusal to depose;
- the right of refusal to answer questions.
An accused person - according to the Article 338 § 1a CCP - is instructed, before the presentation of charges, about the contents of some procedural regulations, among others about the Article 80a CCP (which presents the right of access to a public defender). During the proceedings before the court an accused is instructed about other his or her particular procedural rights, too.
Portugal
The information provided includes all the rights listed above, except the right to interpretation and translation.
Romania
Slovakia
According to Sec 34 para 4 CCP, the bodies involved in criminal proceedings and the court shall at any moment be obliged to instruct the accused of his rights, including the advantage of pleading guilty, and give him a possibility to fully exercise his rights.
The following information is provided:
- The right of access to a lawyer, the right to remain silent and entitlement to free legal advice: Sec 121 para2 CCP - before examining the accused he shall be advised of the following: "As accused you have the right to give a testimony or to refuse to do so. No-one will force you to confess. You have the right to elect and consult a lawyer. If you cannot afford a defence counsel, you have the right to ask to have a defence counsel assigned. You have the right to have your defence counsel present during your interrogation and to remain silent in his absence."
- Information on conditions for obtaining legal advice - Questioned person is entitled to legal aid of defence counsel.
If the accused has not sufficient means to afford a lawyer, judge would assign a counsel either in pre-trial or trial stage. Free legal assistance, however, is not always provided. The accused who cannot afford to pay the defence costs shall have the right to a free counsel or to the defence for a reduced legal fee.
If the accused has no counsel in a case where the counsel is mandatory, he shall be given a time limit to elect one. If he fails to elect a counsel within this time limit, he shall be promptly assigned a counsel by the judge, during the period in which the grounds for mandatory defence apply. Court appoints defence counsel from a list of attorneys of Slovak Bar Association. The assigned counsel shall have to accept the appointment.
The accused may elect other lawyer than the one who was assigned.
- Right to interpretation and translation - the suspect or accused have the right to interpretation/translation once they declare that they do not understand the language of the proceeding (Sec 20 and sec 28 CCP)
- Right to be informed of the accusation - According to Sec 34 CCP, the accused, from the commencement of the proceedings held against him, shall have the right to give his opinion on any allegation of his guilt and the supporting evidence without, however, having the obligation to testify. Charges have to be presented in written form and the suspect – already accused has a right to receive copy of charges. If there are grounds for changing or admitting charges the police has to notify in written. There is no time-limitation for filing a charge against the suspect. It is usually the competence of the police to present a charge in pre-trial stage but such a decision can be questioned before the prosecutor.
Suspect should be advised about the consequences of libel.
Slovenia
The information is provided for all the rights listed.
Spain
The information covers all rights of the accused, suspect or detainee. In addition, information is provided on the possibility, upon request by the accused or detained person, of being examined by the public health care services in order to have a written report issued by a doctor.
Sweden
According to Swedish law, the information shall not only contain all the rights set out in Article 3 of the Directive but also the right to be informed continuously of developments in the investigation (see Question 4 (a)-(b) below) and the right to be informed about any changes of the suspicion (see Question 3 (c) below).
The Netherlands
See (a) above.
UK
England and Wales
See answer to (a) above.
Scotland
All of the rights listed above; (c) and (e) “there and then”; the remaining rights would be explained at the police station.
