(b) any issues relating to the application of the right to a child.
Austria
None
Belgium
No.
Bulgaria
There are several points where changes need to be made as regards the application of this right to a child.
For the time being the law requires that the holder of parental responsibility of the child is to be informed of the deprivation of liberty only but not of the reasons pertaining thereto. So Bulgarian authorities have to transpose this requirement of the Directive into national law.
Another point is the exception formulated by Article 5.2 of the Directive concerning the case where notification of the holder of parental responsibility would be contrary to the best interests of the child. This exception does not exist in Bulgarian law at present, so Bulgarian authorities have to transpose it into national law.
Croatia
No changes are needed, as it is prescribed in Article 63. of Croatian Law on Juvenile Courts.
Cyprus
This is adequately covered by Article 3(2)(b) of the Rights of Persons Arrested and Detained into Custody Law of 2005. There are no issues. (see answer in 6(a) above)
Act no. 218/2003 Coll., on judiciary in cases of youth regulates this issue specifically in Section 46(2), which states that following persons have to be informed: legal representative (by which it is meant a person having parental responsibility), employer, centre of the Probation and Mediation service and authority for social legal protection of children.
The information duty results from the detention, arrest and taking of a juvenile into custody.
Estonia
A new rule must adopted which provides for the obligation to inform the holder of parental responsibility of the child, unless it would be contrary to the best interest of the child.
Finland
No major issues, except for the fact that in our opinion a counsel/public defender should always be appointed when the suspect is under aged, at least in cases where he is deprived of liberty. Now the provision in law only states that the investigation authority needs to file an application to court for a public defender, if this is considered proper when considering the possibilities of assigning a public defender. A public defender must always be assigned if the suspect is minor (less “it’s obvious that he doesn’t need one), but this happens on request by the suspect. In our opinion this shouldn’t be at the discretion of a minor – and in most cases the investigative authorities act quite well in this regard – but rather mandatory when he’s deprived of liberty.
France
No specific issues.
Germany
Greece
There is no information.
Hungary
No proposal.
Ireland
See reply to (a) above.
Italy
Latvia
No changes needed, parents are informed without undue delay.
Lithuania
I have no information in regard to the application of the right to a child.
Luxembourg
No
Malta
Parent present during interrogation, hence a non-issue.
Poland
In the Code of Criminal Proceedings of 1997 as well as in the Code on Proceedings on Petty Offences of 2001 there are no separate and evident provisions relating to the application of the right to a suspected or accused child deprived of liberty. However existing regulations undoubtedly concern also persons who are still children from the point of view of the Polish civil law (the Civil Code of the 23rd of April, 1964 – consolidated text: Journal of Laws of 2014, item 121 with subsequent amendments) and the Convention on the Rights of the Child (it must be noted that in the Polish law the principle is that a person who bears the criminal responsibility or the responsibility for committing a petty offence shall be at least 17 years old). In reference to this issue – if a suspect or accused deprived of liberty is a person between 17 and 18 years old - it seems that there is the necessity to regulate in the normative sphere of CCP or CPPO the issue of obligatory informing (ex officio) - by the entitled authority - a legal representative of such minor. By the way – the separate issue is the detention of a juvenile in case of delinquency (a juvenile – generally – is a person under 17 years old). This issue is regulated in the Article 32g of the Act of the 26th of October, 1982 on the Proceedings on Juvenile Delinquency (consolidated text - Journal of Laws of 2014, item 382 with subsequent amendments). Due to the Article 32g § 5 and § 6 of the mentioned act, police immediately informs parents or a legal guardian of a juvenile about the detention of a juvenile. Police shall also inform the proper family court about the detention of a juvenile within 24 hours from the moment of detention.
Portugal
No information.
Romania
Slovakia
The holder of parental responsibility of the child or body of the social and legal protection of children and social care are informed without delay.
Slovenia
No changes are needed. The right is provided.
Spain
No.
Sweden
There is a need for clarification that the custodian as soon as possible is entitled to information of the deprivation of liberty and that he or she at the same time is entitled to information of the reasons for decision.
The Netherlands
No changes needed, parents are informed without undue delay (article 27 Ambtsinstructie voor de politie, de Koninklijke marechaussee en andere opsporingsambtenaren).
Question 7.
What changes need to be made in your Member State – covering both national law and national practice - with respect to the right to communicate with third persons regarding:
(a) the time when this right is exercised (i.e. without undue delay)?
Austria
None
Belgium
This specific right needs to be introduced in the Belgian law since it does not yet exists.
Bulgaria
Here again the standards set forth in Bulgarian 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 in my country 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, the national Execution of Punishments and Detention Act (EPDA) stipulates that detained accused persons shall be “promptly” informed of their right to communicate with third persons. This obviously goes beyond the standard “without undue delay” in the meaning of Article 6 of the Directive.
Moreover, under Bulgarian law this right is not limited to communications with “at least one third person, such as a relative”, nominated by the detainee. EPDA goes beyond this standard of the Directive and generally allows communications with “relatives and familiars”. No limitations exist on the number of “relatives and familiars” to communicate with and there is no necessity for the detainee to explicitly nominate them.
In my view, the higher standards set forth by Bulgarian law as regards the right to communicate with third persons during deprivation of liberty 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.
Croatia
No changes are needed, as it is prescribed in Article 139. of Croatian CPA.
Cyprus
This is adequately covered by Article 3(2) of the Rights of Persons Arrested and Detained into Custody Law of 2005 (see Question 6 (a) above)
Czech Republic
Such right is not specifically regulated in the domestic legislation. The Act no. 293/1993 Coll., about execution of custody regulates correspondence, phone calls and visits of the accused in custody.
Estonia
Currently, § 217(10) of CCP provides that a person detained as a suspect is given an opportunity to notify at least one person close to him or her at his or her choice of his or her detention through a body conducting proceedings. This means that the person can ask the police to notify another person, and it is a police officer who actually performs this notification. Such notification is not in compliance with Article 6 of the Directive, which provides the right to communicate with a third person. Such right to communication needs to be provided for in order to implement the Directive.
Finland
See question 6, the answer is the same.
France
During custody, the deprived person has no right to directly communicate with a third person but has the right to inform a third person.
When imprisoned, the person has no specific right to inform third parties, especially because of the secrecy duty during judicial investigations.
Germany
Greece
Possibility of Information is provided.
Hungary
No proposal.
Ireland
Irish law in all probability complies adequately with the directive in this regard
There is no such a right directly provided in the law. However, there are no restrictions to communicate with third persons, according to regime of investigative prison (if a person is detained). Restrictions to communicate with specified persons could be applied as a safety measure to suspects and accused persons.
Lithuania
According to Lithuanian law the suspect enjoys a right of one call to a family member or to a close relative when the decision was made to arrest him/her temporarily or to detent him/her in the remand prison. While during the period of arrest the suspect has no right to communicate with the third persons. The law foresees the right for the suspect to make phone calls to family members and relatives from the remand prison and the right to meet with any third person at the remand prison if there is no written prohibition from the prosecutor or the court for the phone calls or the meetings. As the law has changed from the 1st of September in regard of the right to communicate with third persons during the period of remand detention, there is no information about the time when this right is exercised. Time limits are not indicated in the law but it comes from the spirit of the law that this right should be exercised without undue delay. To my opinion, the law should foresee that the right to communicate with the third person should be exercised without delay.
Luxembourg
The legal disposition concerning the interdiction of communication is the following one:
Art 84 (2) Lorsque les nécessités de l'instruction l'exigent, le juge d'instruction peut prononcer une interdiction de communiquer pour une période de dix jours. Il peut la renouveler une seule fois pour une même période de dix jours. En aucun cas l'interdiction de communiquer ne s'applique au conseil de l'inculpé.
Meanwhile in practise the instruction judges very often deliver the Regime A of preventive detention, which offers very low communication, no telephone calls are allowed so that through the practise many preventive detainees suffer a very difficult situation for sometimes months.
Only the accordance of regime B permits communication with the exteriors.
This situation has to improve even though that the attribution of the strict regime A is not motivated by a written decision taken by the investigation judge.
There is though no communication of reasons for maintaining a person under a regime without the possibility of communication.
Also the daily regime of detention in regime A is harder as the cells are closed and a small promenade of 1 hour is only allowed, according to the recitals of preventive detainees.
Neither Polish Code of Criminal Proceedings of 1997 nor the Code of Proceedings on Petty Offences of 2001 provides for regulations concerning the right of a detainee to communicate without undue delay with at least one third person (such as a relative). No specific regulation of the Code of Criminal Proceedings indicates and determines such right in reference to a suspect or an accused deprived of liberty in a consequence of the application of temporary arrest. However the matter of contacts of a temporarily arrested persons with other subjects is regulated in the Executive Criminal Code of 1997. First of all it’s worthy to remark that – according to the Article 210 ECC – if a person temporarily arrested is taken to a custody, he or she shall be immediately informed about his or her rights and duties. In turn, according to the Article 211 § 2 ECC, a temporarily arrested person is entitled to inform (immediately after he or she was taken to a custody) a person closest to him or her, an association, an organization or an institution as well as his or her defence lawyer about the place of stay. Moreover, a temporarily arrested foreigner is entitled to inform about his or her place of stay a proper consular office or a proper diplomatic representative. The Article 215 § 1 ECC states that a person temporarily arrested has the right to communicate – in absence of other persons or by correspondence - with his or her defence lawyer, a proxy (who is an advocate or a legal advisor) or another representative approved by the President of the Chamber of The European Court of Human Rights. The authority can reserve that its official or a person entitled by the authority will be present during the visit of a subject in the custody to meet with a temporarily arrested person. According to the Article 215 § 1a ECC, if a temporarily arrested person is a foreigner, he or she has the right to communicate with a proper consular office or a proper diplomatic representative. If such temporarily arrested person is a stateless person, he or she has the right to communicate with the representative of the state of his or her permanent place of residence. According to the Article 217 § 1 ECC a person who is temporarily arrested gets the opportunity to visit with other subjects (also with a person closest to him or her) by courtesy of the proper authority. Due to the Article 217 § 1a ECC a temporarily arrested person is entitled to have, at least, one visit with his or her closest person per month. The Article 217 § 1b ECC states that the denial of approval is exceptional and it exists if there is the motivated fear that the visit would be used in order to illegal obstructing of the criminal proceedings or the visit would be used to commit a crime (especially to abetting to a crime). The Article 217 § 1c ECC provides for a possibility to challenge to the court the decision on denial of the approval for the visit of a temporarily arrested person by a person closest to him or her. The right to challenge such decision is guaranteed for a temporarily arrested person and a person closest to him or her who applies for the visit. Unfortunately, on the grounds of the Executive Criminal Code it’s not precised that the right to visit (to communicate) with a person closest to a person temporarily arrested (a relative) concerns the possibility to have such visit (communication) without undue delay. By the way, the visit with a relative is just one aspect of the communication with such third person and the other aspects are excluded by the silence of provisions. In my opinion, Polish regulations need to be improved in order to reach the standard of the EU directive 2013/48.
Portugal
This right should be allowed before the first questioning (or in the moment of deprivation of liberty).
Romania
Slovakia
In this respect the time is not explicitly stated.
Slovenia
No changes are needed. The right is provided.
Spain
No changes are needed. This right was implemented in our law through this directive.
Sweden
There is a need for clarification, by legislation, that the suspect´s the right to communicate with a third person shall be provided for without undue delay.
Restrictions in the suspected person´s contacts with the outside world are frequently granted by the court when deciding on detention. Usage of restrictions can obviously be destructive for the suspect, especially in combination with lengthy periods of detention. To emphasize the importance of the matter and in order to comply with the Directive, a legislative amendment must be considered necessary. Such an amendment should expressly declare that the right to communication shall apply without undue delay.
The Netherlands
This specific right needs to be introduced in the Dutch law since it does not yet exists. However, there are no restrictions to communicate with third persons, according to regime of investigative prison (if a person is detained). Restrictions to communicate with specified persons could be applied as a safety measure to suspects and accused persons.
