Question 6.
What changes need to be made in your Member State – covering both national law and national practice - with respect to the right to have a third person notified of the deprivation of liberty regarding:
(a) the time when this right is exercised (i.e. without undue delay);
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Austria
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None
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Belgium
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No substantial changes are needed since the existing Belgian law fulfils the requirements of the Directive (see article 2bis, §3 of the law of 20 July 1990 relating to temporarily detention)
The existing provision of the Belgian law (i.e. article 2bis, §3 of the law of 20 July 1990) does not stipulate that the right to have a third person notified of the deprivation of liberty has to be exercised without undue delay. This should be added in the Belgian law, even if this can be deducted from the existing provision (because it states that the prosecutor or investigating magistrate may “postpone” such notification to a third party if there are serious reason to fear collusion).
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Bulgaria
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No changes need to be made in my country with respect to the right to have a third person notified of the deprivation of liberty. According to the opinion of some judges and academicians, which I fully share, the standards set forth in Bulgarian criminal procedural law go beyond the minimum standards as set forth by the Directive. In my view, the manner in which this right is guaranteed both by law and in practice can be defined as an example of both good legislative approach and good practice because of the following reasons:
Regarding the time when this right is to be exercised, CPC stipulates that notification is to be made “promptly” and this obviously goes beyond the standard “without undue delay” in the meaning of Article 5 of the Directive.
Moreover, in the meaning of Article 5 of the Directive, the right to have a third person notified of the deprivation of liberty fully depends on the will of the detainee. This is not so according to the respective Bulgarian procedural rule, which states that notification of the family of the accused person is obligatory for the competent authorities. As regards the employer, she/he may not be notified only upon the explicit refusal of the accused person to notify the employer.
In my view, the higher standards set forth by Bulgarian procedural law should be preserved in the future process of transposing the requirements of the Directive into Bulgarian law and in this respect Bulgarian authorities could rely on the “non-regression clause” of Article 14 of the Directive.
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Croatia
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No changes are needed, as it is prescribed in Article 108/5. of Croatian CPA that the third person that the deprived person chooses will be notified without undue delay.
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Cyprus
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This is adequately covered by Article 3(2)(b) of the Rights of Persons Arrested and Detained into Custody Law of 2005 which provides that the arrested person has the right immediately after his arrest to communicate in person or by telephone with a relative or a third person of his choosing. In the case that the arrested person is under 18 he/she has the right to communicate with anyone of his parents or legal guardians to inform them of his arrest.
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Czech Republic
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No changes, section 70 CCP uses the term “without delay”.
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Estonia
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No changes need to be made
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Finland
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On paper the system works quite well. In an Act covering the treatment of a detained person in police custody the person in custody has the right to be in contact with third persons, especially family members. However, if the person is suspected of a crime – which quite often is the case – the head of investigation may order restrictions to contacts to third persons by applying Coercive Measures Act, until the suspect either is released or a detention hearing is in court, after which the court decides on the restrictions. Restrictions are often applied, even though the provision in law states that restrictions between family members and consulates may be applied only when there are weighty reasons. Even the courts have a low threshold in applying “weighty reasons” in detention hearings; an announcement by the head of investigation usually suffices. Stricter rules on restrictions should be taken into law.
If no restrictions are applied, the problems are fewer but not non-existent. Cases have reported in which no contact with family members have been allowed when the counsel meets the client perhaps for the first time at the detention hearing, due to whatever reason, even when no restrictions have been applied.
We also wish to refer to the latest CPT report concerning Finland (http://www.cpt.coe.int/documents/fin/2015-25-inf-eng.pdf), in which CPT recommended the following:
Regarding notification of custody, although many detained persons confirmed that they had been able to have their next-of-kin informed shortly after apprehension, the delegation noted that delays in such notification remained frequent and widespread, and could last up to several days, especially when the apprehended person was a foreign national without residence in Finland.
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France
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During custody, the right to inform is limited in a time schedule of 3 hours except in case of insurmountable circumstances (article 63-2).
When imprisoned, the person has no specific right to inform third parties, especially because of the secrecy duty during judicial investigations.
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Germany
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Greece
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Third persons are not informed. Only the parents in case of minors.
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Hungary
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No.
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Ireland
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Even prior to the introduction of this directive it was commonplace for the member in charge of persons in custody to advise them of their entitlement to notify a family member or similar. The particulars of who is notified are recorded on the custody record. A sample custody record is attached. From time to time a person is not permitted to contact a given individual generally because of a belief that that individual is either complicit or in a position to interfere with the evidence gathering process.
The situation is particularly acute when a young person is detained and where rather than having their relation parent attend with them during questioning an independent outside responsible adult is generally selected. This is done on the basis that the parent might be in some way involved in the child's offending but in reality the parent will likely be much more solicitous of the child's welfare than the “responsible adult” generally a person who is on good terms with the police.
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Italy
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No except for children
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Latvia
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No changes needed, this right can be exercised without undue delay.
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Lithuania
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It is indicated in the Lithuanian law that about the deprivation of liberty a third person (i.e. family member or close relative) should be notified without a delay.
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Luxembourg
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The legal disposition are the ones contained in article 39 stipulating
Art 39 (1) Si les nécessités de l'enquête l'exigent, l'officier de police judiciaire peut, avec l'autorisation du procureur d'Etat, retenir pendant un délai qui ne peut excéder vingt-quatre heures, les personnes contre lesquelles il existe des indices graves et concordants de nature à motiver leur inculpation.
(2) Le délai de vingt-quatre heures court à partir du moment où la personne est retenue en fait par la force publique.
(3) A moins que les nécessités de l'enquête ne s'y opposent, la personne retenue est, dès sa rétention, informée par écrit et contre récépissé, dans une langue qu'elle comprend, sauf les cas d'impossibilité matérielle dûment constatés, de son droit de prévenir une personne de son choix. Un téléphone est mis à sa disposition à cet effet.
In practice, the written information is not given to the person.
In addition, the cases of « material impossibility » are not defined nor clearly indicated but the police officers apply standard formulary and vague phrases in order not to grant the possibility to inform a third person concerning the situation of privation of liberty.
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Malta
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More immediate access to this right, desirable
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Poland
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According to the Article 244 § 2 CCP a detainee shall be informed, immediately after detention, about his or her rights. Although this regulation precises some rights of a detainee, there isn’t indicated – among them – the right to inform at least one person nominated by a detainee (such as a relative or an employer) on his or her depravation of liberty without undue delay. (Such right isn’t also indicated in the contents of the Article 607l CCP in aspects concerning the detention of a person upon the basis of a European Arrest Warrant). However both the Article 244 § 5 CCP and the Article 607l § 4 CCP entitle the Minister of Justice to issue ordinances including the determination of model letters of rights of detainees. Such ordinances have already been issued. They are: the ordinance of the 3rd of June, 2015 (Journal of Laws of 2015, item 835) and the ordinance of the 11th of June, 2015 (Journal of Laws of 2015, item 874). Either in the model letter of rights of a detainee or the model letter of a detainee on the basis of a European Arrest Warrant there are included information about the right of a detainee to inform about the detention a person closest to a detainee (for instance a relative, wife or husband) or other nominated person, an employer, a school, a university, a commander, a manager of a detainee’s enterprise or an enterprise a detainee is responsible for. Beside the right to inform a third person about the detention, model letters of rights of detainees include also the rights about which detainees shall be informed immediately. In practice information on the whole set of rights of a detainee is delivered to him or her promptly.
In turn, on the grounds of the Article 261 § 1 CCP the court is obliged to inform immediately a person closest to a suspect/an accused about the application of temporary arrest in reference to such suspect or accused. The regulation provides for that the person who shall be informed by the court may be nominated by a suspect/an accused. According to the Article 261 § 2 CCP, on the request of a suspect or an accused, the court may inform about the application of temporary arrest also another person instead or beside of a person closest to a suspect or an accused. In the light of the Article 261 § 3 CCP the court is obliged to inform immediately about the application of temporary arrest an employer, a school or a university or – in case a suspect or an accused is a soldier – his or her commander, or – if a suspect or an accused is an entrepreneur or a member of managing board of an enterprise – on a suspect’s or an accused person’s request – a manager of an enterprise.
According to the Article 46 § 3 CPPO a detaining authority (police) shall inform – on the demand of a detainee – a person closest to a detainee and an employer about the detention in the proceedings on a petty offence. There is no demand of prompt or immediate information. However, if a detainee is a soldier, the detaining authority shall inform immediately a proper commander of the military unit even a detainee doesn’t require it. According to the Article 46 § 7, the Minister of Justice is entitled to issue the ordinance which includes the model letter of rights of a detainee in proceedings on a petty offence. Nowadays, such ordinance exists (it’s the ordinance on the 20th of May, 2015, Journal of Laws from 2015, item 762). In the model letter of rights of a detainee there is repeated and exposed the right to require the information for a third person (a person closest to a detainee or an employer) about the detention. In practice, letters of rights are delivered to detainees in proceedings on petty offences promptly.
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Portugal
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The Portuguese law gives the right to have a third person notified of the deprivation of liberty as soon as it occurs.
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Romania
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Slovakia
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Sec 74 para 1 CCP: A notification on the remand in custody issued by a court or a judge in the pre-trial proceedings shall be served without delay to a relative of the accused or another person designated by the accused, and to his defence counsel; the notification may be served on the person designated by the accused only if this does not prejudice the purpose of the custody. The notification on taking a member of the armed forces or army corps in custody shall be served on his commanding officer or chief. The notification on the custody of a job applicant shall be delivered to the respective employment office. The court and in pre-trial proceedings the judge for pre-trial proceedings shall notify on the custody of a foreigner also the consular office of a state of his nationality or his residence, unless the international treaty stipulates otherwise.
This applies however only in case of detention (custody), not apprehension of a suspect.
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Slovenia
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No changes needed. The right is provided.
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Spain
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Without undue delay. No issues arise on this regard.
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Sweden
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In order to comply with the Directive, there is a need for clarification that the suspect´s right to have a third person informed shall be exercised without undue delay.
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The Netherlands
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The existing provision of the instructions of the police (article 27 Ambtsinstructie voor de politie, de Koninklijke marechaussee en andere opsporingsambtenaren) does stipulate that on request of the suspect/ accuses a third party will be informed as soon as possible. No changes need to be made.
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