Question 3.
What is the situation in your Member State – covering both national law and national practice - with respect to the right to information about the accusation regarding:
(a) the time when it is provided?
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Austria
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The information must be provided “as soon as possible” (§ 50 StPO, applicable if there is no detention) or “immediately” (§ 171(4) StPO, applicable in case of detention).
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Belgium
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The suspect receives before the questioning by the police a brief description of the facts (s)he will be interrogated about.
In the written invitation for interrogation sent to the suspect not deprived of liberty, or verbally to the suspect deprived of liberty, but in any case before the questioning and, according the situation (deprived or not of liberty) a couple of days (written invitation for interrogation) or half an hour (information about the facts provided before the confidential meeting of the arrested suspect with the lawyer.
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Bulgaria
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In answering this question, I am again recalling the peculiarity of the Bulgarian legal system as pointed out in my answer to Question 1 (b).
As far as the official bringing of a criminal charge is concerned, I reiterate that “official bringing of a criminal charge” means that the investigating organ is to inform in writing the respective person that she/he is accused of a concrete criminal offence or offences. The criminal offence is to be depicted in full details in the act of bringing the charge. This act is then to be promptly submitted to and undersigned by the accused person. From this moment on that person acquires the procedural position of “an accused person” in the meaning of both CPC and the Directive. In this case, the right to information on the accusation is provided in full compliance with the Directive as far as the time is concerned, i. e. “promptly”.
As it was pointed out in my answer to Question 1 (b) above, the arrest by the police of a person suspected to have committed a criminal offence is ordered in writing by an administrative order delivered by a police officer especially authorized by law to deliver such orders. The arrest order is to be promptly submitted to the arrested person. The arrest order must, inter alia, contain data about the factual and legal grounds of the arrest, including the depiction of the specific criminal offence that the arrested person is suspected to have committed. Therefore, in the case of an arrest by the police of a factual suspect, the right to information on the suspicion is also provided in compliance with the Directive as far as the time of provision is concerned, i. e. “promptly”.
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Croatia
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The information must be provided immediately.
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Cyprus
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In case the suspect or accused is not deprived of his/her liberty then the Judge’s Rules apply and the suspect before arrest when interrogated by the police should always be cautioned about his right to remain silent pursuant to the Judges Rules (Rule N.II). See my comments and opinion in answer to Question 1 (a) above.
In case the suspect or accused is deprived of his/her liberty then article 3(1) of the Rights of Persons who are Arrested and Detained Law (Law 163(I)/2005) applies. Every person arrested by the Police is informed immediately after his/her arrest in a language that he/she understands about his/her rights
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 Person”, 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 that person subsequently without undue delay in a language he/she understands (article 7 (1A)(c).
If the arrest is carried out, outside the police station and the member of the Police does not know the language understood by the arrested person or does not have the necessary means to inform the arrested person, he is obliged, right after his/her admission to the Police Station, to inform the person in charge of the questioning, who is obliged to inform the arrested person, before the questioning starts (article 7 (2)).
Every person arrested by the Police is informed right after his/her arrest in a language he/she understands, inter alia, about:
- The reasons of his/her arrest or detention and about the offence that he/she is accused of having committed.
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. Among the rights listed in the document the arrested person has the right to be informed about the content of the European Arrest Warrant on the basis of which he/she have been arrested.
See answer in 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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Criminal prosecution starts when a suspect receives the resolution on the commencement of the criminal prosecution issued by a police authority. Since that moment the suspect is called the accused. Section 160(1) CCP states that the resolution on the commencement of the criminal prosecution contains description of the facts, legal qualification of the criminal offences, identification of the accused; justification of the resolution shall precisely stipulate facts which justify the criminal prosecution.
The stage of the police investigation follows. At the end of the investigation stage the police submits a proposal to the public prosecutor to submit an indictment to the court. The indictment of the public prosecutor has to precisely identify the date, place, time and mode of the commitment of facts, legal qualification, contain justification, list of evidence proposed for the court´s hearing and legal considerations (see Section 177 CCP).
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Estonia
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Basic details of the merits of the case (the alleged facts, and legal classification) are given to the suspect before he/she is interviewed the first time as a suspect, and this is repeated (usually with more details added) every time the suspect is interviewed during pre-trial detention.
After the close of pre-trial proceedings, the prosecutor shall prepare a statement of charges (indictment), and submits it to the accused and his/her counsel, as well as to court.
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Finland
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If the suspect is not arrested/detained, the information is provided either when called for questioning or at the beginning of the interrogation. If the suspect is arrested/detained, the information is usually provided at the same time when the arrest takes place.
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France
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Information is provided during the police interrogation, but the main problem is that the police are entitled to change the legal qualification of the facts. Then in such case, the formal a prior notification is unvalid, without a second and subsequent notification.
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Germany
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Greece
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It is provided during the stage of preliminary investigation or the main interrogation, before the apology.
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Hungary
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The accusation filed by the prosecutor is delivered to the accused by the competent court.
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Ireland
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In cases where a person is not taken into custody, they are informed in writing by summons of the nature of the allegation against them. They are not provided at that stage with particulars of the evidence to support the allegation. That material is only supplied following their first appearance in Court and as a result of the direction by the judge.
Persons taken into custody are informed at the time of their arrest of the details of the offence for which they are suspected. It becomes a matter of police tactics as to the extent of disclosure that is made to them during detention of the strength of the case that the authorities have. This is considered an unfair practice by defence practitioners because they believe that if full information is provided at an early stage to a suspect they are put in a stronger position to make reasonable decisions in relation to how they are going to deal with the allegation and in particular if appropriate and a confession is warranted, to make a confession and extend cooperation to the authorities at the earliest possible time.
This can become very material at a later stage in relation to sentence particularly for instance in cases of drug trafficking where a mandatory 10 year sentence will apply unless meaningful cooperation was extended at the earliest possible time. The withholding of information from suspects during detention compromises their ability to make fully informed decisions.
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Italy
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See the answer to question 2
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Latvia
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Immediately, but not later than 48 hours after the person has been arrested
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Lithuania
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The information about the accusation is provided to the accused person in the form of the Act of Indictment when the pre-trial investigation stage is finished. According to the Lithuanian Law the Act of Indictment should be delivered to the accused person before the case material is being sent to the court of first instance.
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Luxembourg
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Information concerning the charges are made by the police in presence of a lawyer if the person choose on.
This information is given before audition.
The investigation judge also provides information concerning the offenses or crimes supposed to be committed by the person under proceedings, before the hearing so that the person is summarily informed of the charges held against him.
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Malta
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Before the accused is arraigned
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Poland
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A detainee – according to the Article 244 § 2 CCP – shall be promptly informed, among others, about the reasons of his or her detention. This activity needs to prepare minutes by an investigation body (especially police) and the information on the reason of detention (an information on criminal act a concrete person is suspected of having committed) shall be necessary contained in the minutes (Article 244 § 3 CCP). In Polish law the category of ‘reasons of detention’ contains information on a crime and circumstances substantiating a possibility that a detained person has committed a crime. In practice the demand of ‘prompt information’ is fulfilled by investigation authorities. Investigation authorities inform a detainee immediately both about the regulations of law empowering these authorities to detain a person and about the reasons of detention (i.e. about a crime as well as about circumstances substantiating a possibility that a detained person has committed this crime). The opinion is that in practice the information about the accusation is sufficiently precise to safeguard the fairness of the proceedings as well as to safeguard the effective exercise of the right to defence. The same regards to a person detained on the basis of a European Arrest Warrant.
A suspect – according to the Article 300 § 1 CCP – shall be informed before the first questioning about the contents of submitted charges as well as about their modifications. To be more precise, a suspect is informed by the police or prosecutor about charges, supplement of their contents, their modifications and about legal qualification of the crime - see appropriate Articles of the Polish CCP: 313 § 1, 314, 325a § 2 and 325g § 2 (such scope of the information is presented in a model letter of rights and duties of a suspect in the proper ordinance of the Minister of Justice). Information about charges, their supplement and modification as well as about legal qualification of the crime are detailed and they are provided without delay (not only in the light of the formal interpretation of proper legal provisions of Polish Code of Criminal Proceedings but also in fact, in practice).
A suspect (an accused) temporarily arrested shall be informed, among others, about charges (as well as about the supplement of their contents, their modifications and about legal qualification of the crime) at the latest together with receiving a court decision on application of the temporary arrest. However it is not indicated expressis verbis by a concrete regulation of the Polish CCP.
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Portugal
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It depends; suspects or accused persons are provided with information about the criminal act that they are suspected or accused, in certain cases promptly and in certain cases with delay.
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Romania
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Slovakia
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Authority acting in criminal proceedings has an obligation to present a charge of committing the offence and proceed with criminal prosecution immediately after it will establish facts indicating that a criminal act was committed and if there are reasonable grounds to believe that it was committed by a particular person. Charges have to be presented in written form and the suspect – already accused has a right to receive copy of charges. 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. If the person is suspected, the authorities acting in criminal proceeding must communicate him his personal rights before first questioning.
The accused is informed upon delivery of the copy of the ruling on laying the charges (Sec 206 CCP).
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Slovenia
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The suspects (arrested or not arrested) are provided with a general information about the criminal act they are suspected or accused of having committed as soon as they are made aware by the police that they are suspected or accused of having committed a criminal offence. Suspects or accused persons who are arrested or detained are also informed of the reasons for their arrest or detention.
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Spain
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For detainees the information given is oral. The police do not show the file. In investigation Courts, the suspect has full access to the file. The Investigation Judge has to inform orally about the provisional charges, but normally, he/she fails to do so. At the trial stage, the accused receives this information through the indictment.
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Sweden
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Suspicions when not deprived of liberty
When a preliminary investigation has advanced so far that a person is reasonably suspected of committing the offence, he or she shall be informed about the suspicion. The information is usually given by the leader of the interrogation to the suspect initially during the first interrogation.
Suspicions when deprived of liberty
When a person is apprehended or arrested, he or she shall be informed about the suspicion and the legal grounds for the deprivation of liberty. The information shall be provided to the suspect in direct connection to the apprehension or the execution of the arrest order.
Charges
When the preliminary investigation is completed and the indictment, containing the charges, is submitted to the court, the court shall deliver a copy of the indictment to the accused person and his or her lawyer. When the accused person is deprived of liberty, the indictment is delivered promptly.
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The Netherlands
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It is common practice that the suspect is only concisely informed, prior to his first interrogation, about the reason he is under suspicion. This concise notification mostly is limited to mentioning the qualification of the offence ("theft"). Further factual, relevant information is disclosed as little as possible based on the genera assumption that disclosing those facts would be detrimental to the investigation. It is not always mentioned on what date the crime was committed, whether the offence was committed within a longer period of time, whether the offence has been committed before or whether there are any accomplices.
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UK
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England and Wales
As soon as practicable after the arrival at the police station of an arrested person or after the arrest of a person who voluntarily attended the police station, the detainee’s solicitor and appropriate adult (if applicable) must be allowed to inspect the custody record setting out the reasons and grounds for the detainee’s arrest and detention. [§2.4] The information contained must include the circumstances and reasons for the detainee’s arrest [§2.4(a)] and the grounds for each authorisation of detention [§2.4(b)].
The same information is provided to persons who voluntarily attend the police station or persons who have been cautioned but not arrested [C§3.21]. It is not clear whether this is equally applicable to suspects in terrorism cases. Code H does not have an equivalent provision.
Before a suspect is interviewed, they and their legal representative (if applicable) must be given sufficient information to enable them to understand the nature of any offence and why the detainee is suspected to have committed it. The decision of what information to disclose rests with the investigating officer who may withhold details which might prejudice the criminal investigation. [C§11.1A; H§11.1] Guidance Notes to Codes C and H clarify that what is sufficient depends on the circumstances of any given case but it should normally include, as a minimum, a description of the facts relating to the suspected offence that are known to the officer, including the time and place in question. The aim is to avoid suspects being confused or unclear about what they are supposed to have done and to help an innocent suspect clear up the matter more quickly. [Note 11ZA]
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Scotland
Information is provided by the police at the time of detention and arrest. As noted above, as a matter of practice, in Scotland, when a person is detained on suspicion of having committed an offence, he is (i) advised of the nature of the offence he is suspected of having committed, and (ii) cautioned that he need not say anything but that anything he does say will be noted down and may be used in evidence. Similarly, at the time of arrest, he is advised of nature the crime for which he has been arrested, cautioned, and asked whether he wishes to make any reply to the charge. Any reply given is noted. Details are recorded in detention and arrest forms.
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Northern Ireland
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