The Directive on Procedural Safeguards for Children who Are Suspects or Accused Persons in Criminal Proceedings

• Date: 01 April 2016
• Year: 2016
• Author: Steven Cras
• Pages: 47
• DOI: https://doi.org/10.30709/eucrim-2016-014

I. Introduction

On 11 May 2016, the European Parliament and the Council adopted Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings.¹ The Directive is the fifth legislative measure that has been brought to pass since the adoption of the Council’s Roadmap in 2009. This article describes the genesis of the Directive and provides descriptive comments relating to selected articles.

II. Genesis of the Directive 1. Background: Roadmap

In November 2009, the Council (Justice and Home Affairs) adopted the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings.² The Roadmap provides a step-by-step approach – one measure at a time – towards establishing a full EU catalogue of procedural rights for suspects and accused persons in criminal proceedings. The Roadmap invites the Commission to submit proposals for legislative measures on five rights (A–E), which the Council pledged to deal with as matters of priority.

Subsequently to its adoption, the Roadmap has been gradually rolled-out. Until the beginning of May 2016, four measures had been adopted: Directive 2010/64/EU on the right to interpretation and translation,³ Directive 2012/13/EU on the right to information,⁴ Directive 2013/48/EU on the right of access to a lawyer,⁵ and Directive (EU) 2016/343 on the presumption of innocence.⁶

2. The Commission proposal

In November 2013, the Commission submitted its proposal for a Directive on procedural safeguards for children who are suspected or accused in criminal proceedings. The proposal clearly related to measure E of the Roadmap, concerning "special safeguards for suspected or accused persons who are vulnerable". However, since it appeared difficult to find a common definition of "vulnerable persons", and in view of considerations linked to the principles of subsidiarity and proportionality, the Commission decided to restrict its proposal to one category of vulnerable persons that could easily be defined, namely suspected or accused children.⁷

The proposal defines children as persons below the age of 18 years. Drawing inspiration from the case law of the European Court of Human Rights (ECtHR), the Commission in its proposal stated that, due to their age and lack of maturity, special measures need to be taken to ensure that children can effectively participate in criminal proceedings and benefit from their fair trial rights to the same extent as other suspects or accused persons.⁸ Because of its restricted scope, the (proposal for a) Directive was regularly referred to as "measure E-" (E-minus); in the corridors, one also used to refer to "the children Directive".

The nature of the proposal was different from the nature of the other measures of the Roadmap. Whereas the other measures set rules regarding one or more specific procedural rights that apply to all suspects and accused persons, including suspected or accused children, this proposal aimed at setting (more protective) rules regarding various procedural rights benefitting the specific category of suspected or accused children. For this reason, the proposal also formed part of the EU Agenda for the rights of the child, which had been presented by the Commission in 2011.⁹

As regards adult vulnerable persons, on the same day it presented the proposal on "children", the Commission presented a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings and vulnerable persons subject to European Arrest Warrant proceedings.¹⁰ This Recommendation is a non-binding act, which aims at encouraging Member States to strengthen the procedural rights of all vulnerable suspects or accused persons. It was adopted unilaterally by the Commission and hence constitutes solely the point of view of this institution. The future will tell what the influence of this "soft law" measure will be.

3. Discussions in the Council

The proposal for “the children Directive” was generally welcomed by the major stakeholders. In the Council, almost all Member States expressed positive reactions, subject to certain modifications being made to the text.¹¹ This was one of the reasons why the Greek Presidency, which was in charge during the first semester of 2014, decided to start discussions on this proposal (and leave the discussions on the proposals on the presumption of innocence¹² and on legal aid,¹³ which had been simultaneously presented by the Commission, to subsequent Presidencies).

The proposal was discussed in several meetings of the Working Party on Substantive Criminal Law (Droipen). In the margins of one such meeting, representatives of the EU Fundamental Rights Agency (FRA) presented the results of research demonstrating why children should receive special protection in criminal proceedings. Several Member States pointed out, however, that the research carried out by the FRA related to the situation of children who are victims, and that this situation should be distinguished from the situation in which children are suspects or accused persons in criminal proceedings.¹⁴

The Council reached a general approach on the text in June 2014.¹⁵ Criticism was expressed from various sides on this general approach, as the standards of protection it set seemed low.¹⁶ However, as has been observed in respect of other Roadmap measures, in the context of the co-decision procedure the Council has become used to establishing modest standards of protection in its general approach, so as to leave some margin for the negotiations with the European Parliament concerning the final text.

Ireland and the United Kingdom decided not to participate in the adoption of the Directive, in application of Protocol N°21 to the Lisbon Treaty. In addition, Denmark did not participate, in accordance with Protocol N°22 to the Lisbon Treaty.

4. Negotiations with the European Parliament

In the European Parliament, the discussions on the proposal began only after the parliamentary elections had taken place in May 2014. The file was attributed to the Committee on Civil Liberties, Justice and Home Affairs (LIBE), and Ms Caterina Chinnici (Italy, Socialists) was appointed first responsible member ("rapporteur"). Having worked for decades in Italy in the field of juvenile justice, Ms Chinnici was particularly well qualified to carry out this task.

In February 2015, the LIBE Committee adopted its orientation vote on the proposal for a Directive. Subsequently, negotiations started between the European Parliament and the Council,¹⁷ with the assistance of the Commission as "honest broker". In the initial months, the Council was represented by the Latvian Presidency and, as from 1 July 2015, by the Luxembourg Presidency.

The negotiations took place partially in trilogues (in the presence of i.a. rapporteur Chinnici and the shadow rapporteurs or their assistants) and partially in technical meetings (with experts on desk/working level representing the three involved institutions). The technical meetings, which were particularly intense, had the aim of preparing the trilogues, by mutually exchanging points of view and their underlying reasons, and by drafting possible compromise texts for discussion/confirmation in the trilogues.

The negotiations first concentrated on the less controversial issues, such as the right to information, the individual assessment, and the medical examination. The most difficult issue, concerning the right of access to a lawyer, was left to the end, since it was felt that this would be the hardest nut to crack. Some feared, understandably, that this might entail some risks: one wanted to be sure that the provisions on the right of access to a lawyer would be fully agreeable before showing flexibility on the other issues. In order to make progress, however, it was necessary to negotiate and agree, at least provisionally, one article after the other. And it was understood, in any event, that "nothing is agreed until everything is agreed".

During the last weeks, the negotiations were particularly hectic. The aim was to complete the file before Christmas, but there was still a lot of work to be done. In the end, provisional agreement was reached at the 9th trilogue, which took place on 15 December 2015 in Strasbourg. The next day in Brussels, COREPER confirmed the agreement and the habitual letter was sent to the European Parliament.¹⁸

After the usual legal-linguistic examination of the text, the Directive was finally adopted on 11 May 2016. It was published in the Official Journal of 21 May 2016. The Member States have to transpose the Directive into their legal orders by 11 June 2019.

III. Comments Relating to Some Specific Elements of the Directive 1. General observations

The Directive sets minimum rules on several procedural rights for children. In respect of some issues, similar rights exist in other procedural rights directives that are applicable to all suspects and accused persons. Where this is the case, the rights of this Directive, which aims at setting higher standards of protection, take precedence: the Directive is a lex specialis.

The higher standards of this Directive are justified because children are considered to be vulnerable. In the course of the discussions in the Council, however, several Member States pointed out that one should not have a too idealistic view of "children" in the context of criminal proceedings. While these may concern children who are accidentally confronted with the police, they may also concern juveniles aged 16 or 17 years who commit criminal offences on a regular basis.

It would probably be appropriate to call the instrument "the Directive on the child’s best interests". In fact, many times in the text it is said that action of Member States should be compatible with the child’s best interests, or that Member States should take these interests into account. These references could probably be...