Question 2.
What is the situation in your Member State – covering both national law and national practice - with respect to the Letter of Rights regarding:
(a) the time when it is provided (i.e. promptly)?
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Austria
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The information must be given immediately after deprivation of liberty (§ 164(4) StPO).
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Belgium
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The requested and pertinent information is indeed given via a written declaration of rights (models attached to the Royal Decree of 16 of December 2011), provided promptly and in due time, i.e. as soon as and before a person being arrested will be interrogated.
- The Belgian letter of rights – Royal Decree of 16/12/2011 – informs the arrested suspect about :
- The right to obtain a brief description of the facts (s)he will be interrogated
- The right to remain silent
- The right to access a lawyer confidentially before the hearing and to enjoy the assistance of the lawyer during his first questioning during the 24hours of deprivation of liberty
- The right to inform a person of trust that (s)he has been arrested
- The right for a free medical assistance
- The right to enjoy the free assistance of a translator
- the maximum number of hours or days suspects or accused persons may be deprived of liberty before being brought before a judicial authority.
The content of the Belgian letter of rights is of course translated verbally to the suspect deprived of liberty who does not understand the language of the proceeding.
Regarding time when provided: As soon as and before a person being arrested will be interrogated
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Bulgaria
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Under the respective rules of MIA, the administrative order imposing police arrest (please see details about the order in the answer to Question 1 (b) above) must explicitly point out certain rights of the arrested person and in this sense, this part of the order may be defined as a Letter of Rights. MIA does not provide for the inclusion of all the items pointed out by Article 4.2 of the Directive in the police arrest order (for details please see the answer to Question 2 (c) below). However, since MIA provides for a prompt submission of a copy of the order to the arrested person, it may be held that the “promptly” requirement of the Directive is satisfied both by law and by practice.
For reasons pointed out below in the answer to Question 2 (b), I am not capable to answer whether the “promptly” requirement is fulfilled as regards the cases where pre-trial detention is imposed as a measure to prevent reoffending or absconding from justice.
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Croatia
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According to the Article 7 of CPA the person deprived of liberty must be provided with the information promptly after deprivation.
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Cyprus
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Every person arrested by the Police is informed immediately after his/her arrest in a language that he/she understands about his/her rights (see article 3(1), Rights of Persons who are Arrested and Detained Law (Law 163(I)/2005).
Additionally, every member of the Police that arrests any person, provides to that person, right after his/her arrest, with a document titled “Rights of Detained Persons”, written in a language he/she understands (article 7 (1A)(a).
It is also worth noting that according to the Law the arrested person has the opportunity to read the document and has the right to keep it in his/her possession throughout his/her detention (article 7 (1A)(a).
When the document is not available in language that the person understands, the person is informed about his/her rights orally, in a language he/she understands. The document is provided to the person subsequently with undue delay in a language he/she understands (article 7 (1A)(c).
Lastly, in every detention cell the document entitled “Rights of Detained Persons” and “Detention Center Rules” are placed in the Greek, English, Turkish and any other language is considered necessary by the person responsible for the Detention Center. Additionally, the person responsible for the detention center is obliged to inform every detainee, in a language he/she understands as soon as possible about the detention center rules.
As regards persons who are arrested on the basis of a European Arrest Warrant (L. 133(I).2004), they are immediately provided with a document titled “Rights for Persons Arrested on the basis of a European Arrest Warrant”, in a simple and understandable language.
See answer to Question 1 (a) as far as complaints against the Police for not implementing the said legislation.
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Czech Republic
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See the answer to the question 1(b).
The new implementing legislation states in Section 33(6) CCP that that the letter of rights shall be provided after arrest or detention and shall be provided “without undue delay”.
The official written justification of the amendment of the legislation implementing the Directive contains the information that the written letter of rights will be implemented into the internal police regulations (which are not publicly available) and that a special letter of rights form will be prepared for the purpose of the Police. I do not have a personal experience whether suspects or accused persons who are arrested or detained are receiving such written letter of rights, I have experience only with the practice described in the answer to the question 1(b).
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Estonia
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According to § 351(2) of CCP, a suspect or accused who is detained or taken into custody shall be immediately submitted a written declaration of rights concerning his or her rights in the criminal proceedings.
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Finland
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According to the Criminal Investigation Act, the information needs to be provided promptly and in a written form in a language that the suspect understands. No specific time frames exist in law. In practice the information and the letter is given when the suspect is brought to the police station after the arrest.
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France
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The information can be provided if the accused is summoned by the police with a writ of summon. The writ can either mention the information on the date and location of the offence, the legal references, or not if it is not seen as possible according to the investigations.
If the accused is arrested, information is not provided as soon as the deprivation of liberty but when the accused arrives at the police station according to article 63-1.
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Germany
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Greece
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Under current legislation and in particular Article 99A par. 3 of the Greek Code of Criminal Proceedings, as inserted by Law 4236/2014 and practice, this Letter of Rights is provided directly to the accused or suspect who is arrested or detained.
In practice this document is not always available immediately.
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Hungary
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There is no Letter of Rights in the Hungarian criminal procedure, the rights of the suspect/accused is translated by the interpreter.
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Ireland
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Even prior to the passage of directive 2012/13/EU it was a requirement under the Treatment of Persons in Custody Regulations 1986 that detained persons be provided with a written notice of rights upon their reception at a police station. A copy of the notice of rights currently in use is attached. This notice does not address all the items covered by the directive and is currently being revised.
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Italy
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Together with the execution of the arrest. In case the arrested person does not appoint a lawyer, police or Prosecutor appoint a duty lawyer, chosen by an electronic random system.
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Latvia
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Immediately
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Lithuania
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Letter of rights is being provided to the suspect just before his/her first questioning under the Notification of Suspicion at the pre-trial investigation stage.
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Luxembourg
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No letter of rights is provided by national authorities.
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Malta
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As in Answers to Questions 1(a) and 1 (b)
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Poland
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As it was mentioned above, the Article 244 § 2 CCP concerning the right to information of a detainee (a suspected person as well as potentially suspected person) states that a detainee shall be promptly informed about the reasons of detention and about his or her rights. So, the information on rights is announced (or a letter of rights is handed over a detainee) immediately after detention. According to the Article 300 § 1 CCP stating that a suspect shall be instructed about his or her rights before the first questioning, the written letter of rights shall be handed over a suspect without undue delay. Observations which were made let to make a conclusion that the practice in Poland fulfills this postulate and standard. A suspect (an accused) who is temporarily arrested also shall be informed immediately about his or her rights. It is not clearly expressed by the concrete regulation of the Polish Code of Criminal Proceedings of 1997, but it is interpreted from the normative context concerning the issue of instructions provided to both detainees or suspects. In practice such information appears promptly after a court decided to apply a temporary arrest of a suspect (an accused).
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Portugal
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Suspects or accused persons who are arrested or detained are provided with the letter of rights immediately.
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Romania
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Slovakia
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Sec 34 para 5 CCP: Law enforcement authorities shall without undue delay provide the accused who was deprived of liberty with the information of his rights in written form, and it is also noted in the official record (Minutes). The accused has the right to keep it throughout the whole time of his arrest or detention.
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Slovenia
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The Letter of Rights shall be provided promptly at the arrest or detention.
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Spain
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Inmediately.
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Sweden
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When a prosecutor has decided to arrest a suspected person, that person shall be provided with written information on the procedural rights. In addition to the information described under Question 1, the information shall also contain information about the rights referred to in Article 4 (a)–(d) of the Directive. Furthermore, at this stage the suspect shall also be provided with written information on his or her right to access to the information upon which the decision of arrest is based (see Article 7.1 of the Directive).
In regards to the requirements set out in Article 4.3 the following shall be clarified. According to Swedish law there is no possibility to challenge the lawfulness of an arrest order. An arrest order is automatically followed by a detention hearing. The detention hearing should not be held later than four days after the suspected person was apprehended or the arrest order was executed (provided that the suspect is still arrested at this point in time). A court decision on detention can be reviewed by a higher court.
The Swedish National Police Board has drafted a letter of rights containing the information about the suspected person´s procedural rights. The document has been translated into different languages.
According to general guidelines of the Swedish Prosecution Authority the letter of rights shall, in normal conditions, be presented to the suspected person by the police promptly after the arrest order.
It can be questioned whether Swedish practice fully meets the requirement of speediness as set out in Article 4.1 of the Directive. As the suspected person is entitled to written information about the procedural rights only when an arrest order has been issued, and as such order in many cases is preceded by an apprehension, situations could occur where a person is deprived of his or her liberty for several hours before he or she is provided with a letter of rights.
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The Netherlands
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The notification of rights when a suspect is arrested, as referred to in article 4 of the Directive, is implemented in article 27c NCCP. The national legislator has chosen not to prescribe a mandatory format. Therefore, it is not mandatory to use the format referred to in the annex to the Letter of Rights. The national government issued a brochure which has been put on its website. The police officer in charge is responsible for printing the brochure and providing it to the suspect. The brochure has been made in multiple languages and focuses on several target groups such as visually disabled and minors and can be found on https://www.rijksoverheid.nl/onderwerpen/rechtspraak-en-geschiloplossing/documenten/brochures/2014/10/20/mededelingen-van-rechten-aan-de-verdachte.
There are some differences between the Directive and the way it goes in practice in The Netherlands:
The Directive reads (article 3) that it should be pointed out to the suspect that he has a right of access to a lawyer.
In The Netherlands the suspect has the right to have a confidential conversation with a lawyer prior to the first interrogation. Thus the extend of participation of the lawyer seems to be more restrictive in The Netherlands. The suspect does not have the right of full access to a lawyer, in the sense that he is informed that he can contact a lawyer at any stage of the proceedings and that he can communicate con-fidentially and in person with his lawyer any time he wishes. He is only informed that he can have a confidential meeting with his lawyer prior to the first interrogation. The suspect has not the explicit right to have another confidential meeting with his lawyer before the next interrogation. In case the suspect is a minor he is entitled to have access to his lawyer at any moment during the proceedings, each interro-gation included.
The Directive reads (article 4.2.(b)) that the Member States should see to it that every suspect who is detained has the right to inform a third person that he is detained.
The government brochure reads that the suspect is 'entitled to request that a family member or a housemate is informed of the fact that he is detained'. The wording of the brochure does not guarantee that that request indeed is awarded; it might be refused. Further, according to the Directive the person that should be inform about the detention can be any person where the Brochure is limited to family members or housemates.
According to the Directive the Member States should safeguard that a suspect who has not the Member State's nationality and who is not a resident of that Member State is entitled to have the consular author-ities of his nationality informed without undue delay about his detention and to communicate with those consular authorities. Here, again, the Dutch brochure seems to restrict this right by only guaranteeing that the suspect has the right to request the consular authorities to be informed.
According to the Directive the suspect has the right to urgent medical assistance (article 4.2.(d)).
Here, again, the wording of the Dutch brochure is less imperative and , therefore, not sufficiently close to the wording of the Directive: the suspect may inform the police when he feels ill and may ask for a doctor.
Pursuant to article 4.3 of the Directive the Letter of Rights should contain basic information about the opportunities to challenge the arrest and the detention or to apply for release.
This has been incorporated in the Dutch brochure as follows: "Ask your lawyer or the judge what your possibilities are in case you do not agree with your arrest or with the fact that your detention is extend-ed." In other words: the brochure only refers to the lawyer or the judge without presenting the suspect how he can actually challenge his detention. Such plain referral seems insufficient.
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UK
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England and Wales
A written Notice of Rights and Entitlements (NoRE) is given to detainees who have been brought to the police station under arrest or who have attended a police station voluntarily and subsequently been arrested. The items on which the information is provided are:
the right of access to a lawyer and entitlement to free independent legal advice [§§3.2(a)(i)-(ii) and 3.1(a)(i)]
the right to be informed of the accusation [§§3.2(a)(i) and 3.1(b)]
the right to interpretation and translation [§§3.2(a)(i), 3.1(a)(iv), 3.12]
the right to remain silent [§3.2(iv)]
the right of access to materials of the case including records about their arrest and detention and the offence [§§3.2(a)(iii), 3.4(b), 2.4, 11.1A, 15]
the right to have consular authorities and someone else informed [§§3.2(a)(i), 3.1(a)(ii), 3.12A
the right of access to medical assistance [§3.2(a)(vii)]
the maximum period of detention, release and reviews [§3.2(vi)]
the right to have access to materials and documents essential to effectively challenging the lawfulness of their arrest and detention [§§3.2(a)(v), 3.4(b)].
An easy read illustrated version should be provided if available. Currently available NoRE and easy read versions are accessible via the UK Government website. [§3.3A, C Note 3A]
The NoRE must be provided in a language the detainee understands. If a translation is not available, the information in the NoRE must be given through an interpreter and a written translation provided without undue delay. [C§3.12(c)-(d); H§3.14(c)-(d)] Audio versions of the NoRE which were available in different languages are no longer in use. A survey of national practice found that the preferred option of most police forces was to use telephone interpretation services to assist in explaining the NoRE to detainees with English language difficulties.
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Scotland
Regulation 3 of the 2014 Regulations provides that “The person must be provided as soon as reasonably practicable with such information (verbally or in writing) as is necessary to satisfy the requirements of Articles 3 and 4 of the Directive.”
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Northern Ireland
promptly at time of arrest police will advise the offence arrested for. At custody suite when decision re detention is being taken.
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