Introduction

• Author: European Union Agency for Fundamental Rights (EU body or agency)
• Pages: 15-18

15

Introduction

“In principle, they [defendant s] should be informed,

and get informed. The qu estion is that sometimes,

before lawyers arrive, defendants a re invited to tell

everything what hap pened, to share, because thus they

will allegedly get s maller sentences, or otherwise ‘dire

consequences’ will follow, etc. Those are avenues used

and, if the detained pe rson is more vulnerable, more

shy, as many people are in that situation for the f‌irs t

time, they start writi ng long explanations where they

tell even what they are not asked of or even what is

further from the trut h with the only thought to leave the

detention place as soon as possible .”

(Lawyer, Bulgaria)

Procedural rights a re safeguards that help ju stice to be

done in practi ce. Their goal i s to ensure ultim ate justice

for everyone. Most imp ortantly, everyone is in nocent

until proven guilty. There are oth er crucial requirements

of a fair trial – such as the r ight to remain silent, th e

right to a professional defen ce, and the right to present

exculpatory evid ence. Substantive crim inal law prohib-

its certain beh aviour. Procedural criminal law delin eates

the roles and the ex tent of power of courts – the impar-

tial arbiter – and of the p arties to the proceedings – the

prosecution and de fence, which present evidence for

their case. Crimin al procedural rights e xist to help ensure

that courts senten ce and punish indivi duals only when

evidence of guilt is prese nt and properly presented.

“I have to say that this is a quite unfair prac tice. Off

the record and before the f‌irst hearing , prosecutors,

but mainly police, very of ten encourage defendants to

confess or to make a plea bargain. They also en courage

defendants not to seek lawyers’ h elp, suggesting

that such a lawyer will only cash i n the client and will

complicate the entire proceeding .”

(Lawyer, Poland)

“I didn’t have a lawyer because no one i nformed me

verbally about such a rig ht during the f‌irst questioning.”

(Defendant, Poland)

Persons suspecte d and accused of crimes in th e course

of national proceedin gs, as well as persons arres ted

pursuant to a European a rrest warrant, have a num ber

of procedural rights. These rights should be def‌ined

similarly and ap ply in similar ways in a ll EU Member

States. This not only he lps to ensure the same level of

safeguards for each defend ant, but also to reinforce

mutual trust. To bring th e criminal justice systems of EU

Member States closer tog ether, and in turn contribu te

to the strengthenin g of mutual trust, the E U adopted

the Roadmap for strengthening procedural rights in

criminal proceedings

2

and measures aimed to codi fy, at

EU level, existing proced ural rights stem ming from the

European Convention on Hum an Rights (ECHR).

At the European Commission ’s request, FRA assessed

how these rights are be ing implemented in p ractice

across several Member State s. This report focuse s on

selected right s to address the European Comm ission’s

request and feed into i ts report

3

on the implement a-

tion of Directive 2013 /48/EU on the right of access

to a lawyer.

4

Scope and purpose

The main aim of the research w as to examine how au-

thorities fulf‌il, in practice, their obligations regarding

the procedural righ ts of defendants in certain context s.

With respect to national proceedings, the report focus-

es on two scenarios. Th e f‌irst involves persons who are

suspected of a crime, a re summoned for ques tioning,

but are not deprived of the ir liberty. The secon d in-

volves persons who are sus pected of a crime and a re

arrested, meaning th ey are deprived of their li berty. In

addition, the repo rt presents f‌ind ings regarding per-

sons arrested pursu ant to an EAW.

2 Council of the Euro pean Union (2009), Resolut ion of the

Council on a Roa dmap for strengthen ing procedural righ ts of

suspected or accused persons in criminal proceedings,

OJ 2009 C 295, B russels, 30 November 2 009.

3 European Commi ssion (2019), Report from th e Commission

to the European P arliament and the Co uncil on the

implement ation of Directive 20 13/48/EU of the European

Parliamen t and of the Council of 22 O ctober 2013 on the

right of access to a law yer in criminal proce edings and in

European arre st warrant proceedi ngs, and on the right to

have a third par ty informed upon de privation of liber ty and to

communicate with third persons and with consular authorities

while deprived of liberty’. Reference: COM(2019) 560.

4 Directive 2013/48/EU of the Europ ean Parliament and of t he

Council of 22 O ctober 2013 on the rig ht of access to a lawyer

in criminal p roceedings and in Euro pean arrest warran t

proceedings , and on the right to have a thi rd party informed

upon depri vation of liberty a nd to communicate with t hird

persons and w ith consular autho rities while depri ved of

liberty, OJ 20 13 L 294.

Note on terminology: ‘defendants’

The report uses th e generic name ‘defendants ’ to

refer to suspects who a re not deprived of their

liberty; arres ted persons; and perso ns arrested

pursuant to an EAW. However, it always specif‌ies

whom the specif‌ic f‌indings concern.