Selected defence rights: information about rights and their exercise in practice

• Author: European Union Agency for Fundamental Rights (EU body or agency)
• Pages: 23-36

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Selected defence rights:

information about rights and their

exercise in practice

1.1

nAuthorities in th e eight EU Member States covered by this rep ort inform defenda nts about their p rocedural

rights in crimi nal proceedings in dif ferent ways. The informa tion differs in both i ts scope and how it is con-

veyed. This ranges from p roviding complete informa tion, both in writing a nd orally, to handing out o nly a

simple written l eaf‌let about righ ts without giving defendants any fu rther information.

nDefendants may not be fu lly aware of their procedural rights owi ng to several factors. These inclu de relevant

authorities treatin g the defendants other than as a suspect a t the initial stage of t he criminal proceed ings; a

lack of practices to imp rove the accessibility of inform ation, taking in to account defendants’ vu lnerabilities;

and a lack of practices fo r verifying defend ants’ underst anding of the informa tion provided by the relevant

authorities.

nIndividuals a re sometimes quest ioned as a witness or a re ‘informally’ asked qu estions by law enforcement

authorities, wh en in fact there are pla usible reasons to suspec t the person’s involvement in a cr ime. Hence,

they should be provide d with comprehensive information abo ut their rights – in particu lar, the right to remain

silent, as required by th e legislation. In ad dition, law enforcement au thorities someti mes establish info rmal

practices so that defen dants’ self-incriminatory st atements, which they make as witnesse s, can be later used

against them leg ally in the course of the p roceedings. For exam ple, they questio n former witnesses ag ain,

this time as defenda nts, and ask them if they stand by their previo us statements.

KEY FINDINGS

This chapter examin es the views of the inter viewed

professionals and defen dants on the information pro-

vided about defence rights in national proceedings,

and on how these right s are exercised in practice. The

defence rights discus sed are, and as outlined in Direc-

tive 2012/13/EU, the right to info rmation, the right to

be informed about t he accusation, the rig ht to be in-

formed about the reaso ns for arrest and the rig hts of

defendants to defend t hemselves or to remain sil ent

and not incriminate themselves.

2.1 Legal overview

The right to information in criminal proceedings aims

to ensure that defendant s receive the necessary in -

formation concerning t he accusation and reason for

their arrest, so that t hey are able to effectively exer-

cise their rights a nd defend themselves ef fectively.

The right to information in criminal proceedings origi-

nates from Article s 5 and 6 of the ECHR, which are re-

f‌lected in Art icles 6, 47 and 48 of the Char ter. Article

6 (3) (a) of the ECHR specif‌ically list s the right to infor-

mation about the a ccusation as a minimum safeguard

in criminal proceed ings, while Ar ticle 5 (2) provides

for the right of arrested p ersons to be informed of