Question 9.
Has the directive brought important changes on the right to information in criminal proceedings in the legislation and practice of your Member State? what are the main aspects that could be improved, both at EU and national level?
|
Austria
|
The presentation of a “letter of rights” to the suspect was an improvement due to the directive.
|
Belgium
|
No the directive did not brought important changes.
The main aspect that could be improved in Belgium :
a) the information provided to the suspect (deprived or not of liberty) should need to be more precise and complete, in order to give to the latter the possibility to exercise more effectively his right of defense during the questioning (in place of discovering the exact scope and subjects of the facts under investigation through the questions raised in course itself of the questioning.
b) the introduction of an appeal against the decision of the Prosecutor to refuse access to his file.
|
Bulgaria
|
I am afraid it has not. As I tried to explain in the previous answers, no measures to transpose the Directive into national law were taken, which resulted in a number of discrepancies between national law and practice, on the one hand, and the requirements of the Directive, on the other. Changes could have been brought, if all the requirements had been transposed. For the time being I do not feel ready to answer what aspects could be improved at EU level in a situation where Bulgarian law does not correspond to all the requirements of the Directive as it is now.
|
Croatia
|
These kind of rights and procedures defined by this concrete Directive, were already inherent part of the Croatian criminal procedure.
|
Cyprus
|
The Directive that was transposed in Cyprus by Law (see law L. 163(I)/2005), brought important changes in our legislation and practice. It included many additional rights, and existing rights were better clarified and enhanced, such as the obligation to provide information as to the right of free legal aid, the right to remain silent, and the right to have access to the materials of the case.
As mentioned above in my answer in Question 1(a) there is no obligation on the part of the police to warn the suspect before arrest and before the taking of a statement and/or questioning about his/her right to legal advice. This in my opinion is an omission of Cyprus Law which should be remedied. The scope of the Rights of Persons who are Arrested and Detained Law (L. 163(I)/2005) should be extended to include the right to information of criminal proceedings to the suspect before he/she is arrested.
Also i believe that Article 2 of the Directive (Scope) should apply not only to suspects or accused persons but also apply to every person that is questioned by the Police (or any other competent authority) even though at the time they are not suspect or accused. This is because during police questioning the person may give evidence which is self-incriminating. Also the Directive should apply when a person is not yet suspect or accused but there is court order for search of his/her premises.
Also the Directive should cover not only free access to information about criminal proceedings but also provide the suspect or accused with the right to obtain free copies of the material that is going to be used against him/her in Court.
See also my answer to Question 5 (c).
|
Czech Republic
|
The implementation of the Directive is effective since 1. 8. 2014, it has not brought important changes. Specifically it has included information about several new rights as information about urgent medical help, maximum time-limit of deprivation of liberty etc. and about receiving and keeping of letter of rights.
|
Estonia
|
The Directive did bring important changes -- the introduction of the letter of rights, and the possibility to get access to the case file before the close of pre-trial investigation (previously, there was no possibility for such access at all). However, the way our government has implemented the Directive is clearly not in accordance with the Directive (the prosecutor's wide discretion to refuse access, even in situations where the subject matter of such refusal is detention-related material). As a minimum, the state must bring its regulations to accordance with the Directive.
|
Finland
|
At this stage it is still a bit early to say. We hope that especially concerning access to material, the situation would be improved in Finland, since at least detention hearings have been for a long time “mock-trials”, because the defence has not been able to acquaint themselves with the proper material. Some improvement has already been noted, but we need to follow up on this.
At national level, the access to material especially at the investigative stage is still not in a very good shape. The investigative authority usually refuses access based on the fact that access could jeopardize the investigation. Also the appeal to the Administrative Court is not an effective remedy and there were some criticism even from the Constitutional Committee regarding this way of arranging the judicial review, but it was considered to fulfil the minimum requirements.
|
France
|
The directive in itself was supposed to bring a very important change but the French implementation by the law of the 27 th of May 2014 cancelled all the predictable effects.
The French law is not at the present time conforming with the aim and the requirements of the directive.
|
Germany
|
|
Greece
|
Effective changes: a) information on the accusation and the suspect, and b) the Letter of Rights.
|
Hungary
|
In case of persons in detention, it is a novelty that the materials underlying the detention shall be provided to the suspect and the legal counsel before the decision of the court on detention.
|
Ireland
|
The directive has not yet changed the previously applying practice in relation to the right of information. This is likely to be of particular importance in the future as lawyers at the point of detention will be looking for access to the entire case file in order to give their clients fuller advice as to how they should deal with the situation in which they find themselves. It is likely that there will be quite an amount of litigation in Ireland as to what the true meaning of information is. The broad view which defence practitioners favour is that this includes all the facts relevant to the prosecution. The narrow view is that a person is simply entitled to be informed as they are presently, of the nature of the accusation but not informed of the materials stated to exist to support the accusation.
|
Italy
|
|
Latvia
|
Most important change is regarding the right to become familiar with the materials of the case which constitute the basis for the proposal to apply a security measure related to deprivation of liberty insofar as such access does not infringe the fundamental rights of other persons, the interests of the society and does not interfere with reaching of the objective of the criminal proceedings. Unfortunately this right does not work in national practice and familiarization with the materials of the case which constitute the basis for the proposal to apply a security measure related to deprivation of liberty is almost always is refused.
|
Lithuania
|
The main change in the national law on the right to information which has been brought to Lithuania by the directive is the obligatory provision that obliges the prosecutor to ensure for the suspect or/and the lawyer access to the case material that was presented to the judge while deciding upon the detention of the suspect. To my opinion, very concrete grounds under which the prosecutor can refuse the access to any case material should be indicated in the law.
|
Luxembourg
|
No the directive in itself was ignored by the practice till the recent decision in the afore mentioned AT case.
Lets see how the practise will improve
|
Malta
|
Yes
|
Poland
|
Yes, it has. Generally the change of legal standards has extorted the change of practice in the area of the right to information in criminal proceedings (the new practice has just started but it seems to correspond well with the procedural law standards). However, in some procedural aspects the implementation of the EU directive 2012/13 made by the Polish law-maker, exceeded the deadline indicated in the directive (some regulations of the Polish Code of Criminal Proceedings implementing the provisions of the directive entered into force on the 1st of July, 2015). In some other procedural aspects – what has been already mentioned above – the implementation in Poland needs to be slightly corrected. I don’t postulate to improve the aspects of the detainee’s, suspect’s or accused person’s right to information in its normative dimension at the European Union level. Current European Union model in this matter (corresponding with the regional standard of the European Convention on Human Rights) seems to have a good quality.
|
Portugal__No,_in_which_concerns_the_Portuguese_legislation.__Romania'>Portugal
|
No, in which concerns the Portuguese legislation.
|
Romania
|
|
Slovakia__The_Directive_has_not_been_transposed_yet.__Slovenia'>Slovakia
|
The Directive has not been transposed yet.
|
Slovenia
|
The directive has not brought important changes on the right to information in criminal proceedings in the legislation and practice in Slovenia.
|
Spain
|
In Spain There are not important problems with the information in judicial stages. In that sense, the directive does not add too much. Problems are found in police’s station, as explained above.
|
Sweden
|
The Directive has primarily been implemented into Swedish law by application of existing legislation and by reference to basic principles of law. The legislative amendments basically concern the right of access to information on certain procedural rights and the right of access to the materials of the case when the suspected is arrested or detained. The amendments have entered into legal force 1 June 2014.
Although a higher level of awareness of the rights to information on procedural rights can be noted within the investigative authorities, it is too early to point out specific areas where systematic changes has been made. The Swedish Prosecution Authority has initialized a following up on how the new rules are applied within the authority.
On a national level mainly the following aspect could be improved:
- In regard to the rights set out in Article 7.1 there is a need for coherent practice on how the material shall be provided to the suspected person/lawyer to allow the exercise of the right to challenge the lawfulness of the deprivation of liberty.
- With reference to article 7.1 and recital 30, there is a need for coherent practice ensuring that the material is provided to the defence promptly, and at least in due time before a detention hearing at court.
- In regard to Article 7.1-3 there is a need for a more frequent use of providing the suspect and the lawyer material during an ongoing investigation, especially in cases with extensive investigation material.
|
The Netherlands
|
Observation 1: the defense's rights should be better known within the police organization
Observation 2: a non-motivated withholding of the file should be faster challenged before an independ-ent judge
Observation 3: the information provided to the suspect when he is arrested or detained is too concise. It seems that this is not in compliance with recital 28 of the Directive's preamble where it is assumed that the suspect should be informed in as much detail as possible about time, place and facts of the offence he allegedly committed.
|
UK
|
England and Wales
Many of the rights set out in the Directive already formed part of national practice in the Codes of Practice prior to amendment. However, implementation of the Directive has had the effect of expanding and clarifying the scope of these rights in two important ways. First, a Notice of Rights and Entitlement was already provided to detainees but implementation of the Directive has resulted in a more detailed NoRE providing written notice to detainees of their rights. In particular, it incorporates the right to information about the offence and reasons for arrest and detention. This right also has to be explained orally. Second, implementation of the Directive has increased the scope of pre-interview disclosure. Sufficient information has to be disclosed, whether or not the suspect is legally represented.
The difficulty, however, is that the Directive has been implemented by way of amendment to the Codes of Practice issued under the Police and Criminal Evidence Act 1984 rather than by legislation. The Codes of Practice are not statutory instruments and the Notes for Guidance which assist in clarifying some of the amendments brought about by implementation of the Directive have an even lesser status. Failure to comply with any provision of a Code does not of itself render the individual concerned liable to criminal or civil proceedings. [PACE 1984, s.67(10)] Remedies for breaches of the Codes of Practice lie by way of complaint to the Independent Police Complaints Commission and, more importantly, may result in the inadmissibility of evidence obtained in breach of the Code in subsequent criminal proceedings.
|
Scotland
There has been a right to disclosure of information at common law since at least the case of McLeod, Petition in 1998. The nature and extent of that right was considered in a number of subsequent cases (notably Holland and Sinclair in 2005). The provisions of the 2010 replace the common law.
|
Northern Ireland
|
