Explanatory Memorandum to COM(2013)822 - Procedural safeguards for children suspected or accused in criminal proceedings - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)822 - Procedural safeguards for children suspected or accused in criminal proceedings. |
|---|---|
| source | COM(2013)822  |
| date | 27-11-2013 |
1. This proposal for a Directive of the European Parliament and the Council aims to set common minimum standards throughout the European Union on the rights of children who are suspected or accused in criminal proceedings and of children subject to proceedings pursuant to Framework Decision 2002/584/JHA ("European arrest warrant proceedings").
2. The Stockholm Programme i put a strong focus on the strengthening of the rights of individuals in criminal proceedings. In its point 2.4, the European Council invited the Commission to put forward proposals setting out a step by step approach to strengthening the rights of suspects and accused persons by setting common minimum standards on fair trial rights. This measure forms also part of the EU Agenda for the Rights of the Child to which the European Parliament, the Committee of the Regions, the Economic and Social Committee and the Council of Europe as well as key stakeholders such as UNICEF, the Ombudspersons for Children in the Member States, and civil society have contributed[2].
3. Three measures have already been adopted: a Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings[3] in October 2010 and Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings in May 2012 i and Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty[5]. Measures on the right to provisional legal aid for suspects or accused persons while deprived of liberty are presented as a package with the present initiative together with a Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings.
4. This proposal for a Directive sets out specific minimum rules concerning the rights of suspects or accused who are children in criminal proceedings. In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 24, 47 and 48, relying on Articles 3, 5, 6 and 8 of the ECHR, as interpreted by the European Court of Human Rights, which, in its case-law sets standards on special safeguards for vulnerable persons, in particular children. This case-law provides inter alia that the fairness of proceedings and the right to a fair trial require a person's ability to understand the minimum stakes of the procedure and have the ability to participate and effectively exercise his rights and benefit from the protection of privacy. Under these conditions, the strengthening of procedural safeguards of children should be explicitly provided for in this Directive.
5. These measures should be implemented taking into account the best interests of the child as set out in Article 24 of the Charter of Fundamental Rights.
6. Suspects or accused who are children are recognised and treated with respect, dignity, professionalism, in a personal and non-discriminatory manner, whenever they are in contact with the competent authority acting in the framework of criminal proceedings. This should also facilitate the reintegration of children into society after they were confronted with the criminal justice system. The rights set out in this Directive apply to children suspected or accused in a non-discriminatory manner, including with regard to their residential status.
7. This measure is presented together with a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings and vulnerable persons subject to European arrest warrant proceedings.
8. The proposal is based on Article 82(2) of the Treaty on the Functioning of the European Union (TFEU).
9. The right to an effective remedy, to a fair trial and a right of defence are provided for in the Charter of Fundamental Rights of the European Union (the 'Charter'), Articles 47 and 48, and in Article 6 of the European Convention of Fundamental Rights (the 'ECHR'). The ability to effectively exercise these rights largely depends on the ability of the suspect or accused person to follow and fully participate in the procedure, which may be limited due to age, lack of maturity or disabilities. This means that for children and vulnerable adults special measures need to be taken to ensure that they can effectively participate in the proceedings and benefit from their fair trial rights to the same extent as other suspects or accused persons.[6]
10. Due to the lack of a common definition of vulnerable adult persons and with a view to considerations linked to the principles of subsidiarity and proportionality the Commission has refrained at this stage from extending the scope of this Directive to vulnerable adult persons. Instead, the Commission will adopt a Recommendation calling upon Member States to put in place a number of safeguards for vulnerable persons.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- budgetary implications
- Article 12 - Right to specific treatment in case of deprivation of liberty
- Article 16 - Right of children to appear in person at the trial aiming at assessing the question of their guilt
- 4. subsidiarity principle
- 5. proportionality principle
11. On 23 September 2011, 26 April 2012 and 11 December 2012 three meetings with experts were held. Representatives of Member States as well as a panel of experts from the Council of Europe, International Association of Youth and Family Judges and Magistrates, the United Nations, medical and legal practitioners specialising in children cases discussed measures that could be taken at EU-level to increase the protection of children and vulnerable adults in criminal proceedings.
12. The Commission carried out an Impact Assessment to underpin its proposal. The report on the impact assessment is available at ec.europa.eu/governance.
Article 1 – Subject matter
13. The subject matter of the Directive is to lay down minimum rules concerning the rights of suspects or accused persons in criminal proceedings who are children and of children subject to 'European arrest warrant proceedings.'
Article 2 – Scope
14. The Directive applies to children meaning persons under the age of 18 at the time when they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings.
15. National rules on the age of criminal responsibility for children will not be affected by this Directive. This is the age when a child becomes criminally responsible for his or her actions.
16. In certain Member States children who have committed an act qualified as an offence are not subject to criminal proceedings according to national law but other forms of proceedings which may lead to the imposition of certain restrictive measures (for instance protection measures, education measures). Such proceedings do not fall within the scope of this Directive.
Article 3 – Definition
17. In accordance with international law instruments[7], any individual below the age of 18 will be considered as a child.
Article 4 – Right to information of children
18. The child should be informed promptly of the rights under this Directive, complementing the rights foreseen in Articles 3 to 7 of Directive 2012/13/EU with the exception of minor offences as provided for by Article 2(2) of Directive 2012/13/EU.
19. If the child is deprived of liberty, the Letter of Rights which shall be provided to the child in accordance with Article 6 of Directive 2012/13/EU shall contain also reference to the rights provided by this Directive.
20. This Directive should be implemented in accordance with the standards set out in Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings.
Article 5 – Right to information of the holder of parental responsibility
21. This Directive provides further complementary safeguards with regard to the information of the holder of parental responsibility or an appropriate adult in order the take into account the specific needs of children provided that this does not prejudice the due course of the criminal proceedings against the person concerned and any other criminal proceedings.
22. The term 'holder of parental responsibility' means any person or institution having parental responsibility over a child as defined by Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
23. The role of the holder of parental responsibility is important to ensure moral and psychological support and adequate guidance to the child. The holder of parental responsibility is well placed to enhance the protection of the rights of defence of the suspected child (e.g. to appoint a lawyer or to decide to appeal a decision). Moreover, the parents are also legally responsible and can be held civilly liable for the behaviour of the child.
24. This provision reflects international rules, such as the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the Beijing Rules and the 2007 UN CRC General Comment N°10 on Children's rights in juvenile justice.
25. If the information of the holder of parental responsibility would be contrary to the best interests of the child, this right should not be applied. This could be the case, for example, if the holder of parental responsibility has been involved in the same offence as the child and there is a conflict of interest. In this case, another appropriate adult shall be informed and asked to be present. The term 'another appropriate adult' refers to a relative or a person (other than the holder of parental responsibility) with a social relationship with the child who is likely to interact with the authorities and to enable the child to exercise his or her procedural rights.
Article 6 – Right to a lawyer
26. This Article ensures mandatory access to a lawyer for children who are suspected or accused in criminal proceedings.
27. Article 6 (3) lit.c) ECHR and Articles 47 and 48 of the Charter guarantee the right of an individual to have access to a lawyer. The Directive 2013/48/EU lays down general rules on such a right for all suspects or accused persons in criminal proceedings. However, it allows suspects or accused persons to waive their right to be assisted by a lawyer. This Directive foresees as an additional safeguard that children may not waive this right.
28. The ECtHR has repeatedly underlined the importance of assistance by a lawyer for children from the outset of the proceedings and during police questioning thereby suggesting that a waiver can represent significant risks for them. The importance of access to a lawyer for children is also recognised by all relevant international rules, such as the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice[8], the Beijing Rules[9] and the 2007 UN CRC 2007 General Comment N°10 on Children's rights in juvenile justice[10].
29. However, with regard to certain minor offences, mandatory access to a lawyer would be disproportionate. This concerns in particular minor traffic offences, minor offences in relation to general municipal regulations and minor public order offences, which are considered to be criminal offences in some Member States. For such offences, the competent authorities other than a public prosecutor or a court having jurisdiction in criminal matters do not need to ensure the right of mandatory access to a lawyer granted under this Directive.
Article 7 – Right to an individual assessment
30. This Article ensures that a child has the right to an individual assessment. Such an individual assessment is needed in order to identify the child's specific needs in terms of protection, education, training and re-integration into society, to determine if and to what extent he or she would need special measures during the criminal proceedings. The personal characteristics of a child, his or her maturity and economic and social background may vary significantly.
31. The individual assessment should be carried out at an appropriate stage of the proceedings and at the latest before the indictment. It should be recorded in accordance with national law.
32. Without prejudice to Article 8 of Directive 2011/36/EU, in the course of an individual assessment particular attention should be given to children involved in criminal activities which they have been compelled to commit as victims of trafficking in human beings.
33. The extent and detail of such an assessment may be adapted according to the seriousness of the offence and the penalty imposed if the child is found guilty of the alleged offence. For example, it is envisaged that a more in-depth assessment may be warranted in the case of a serious offence such as robbery or murder.
34. The individual assessment should be updated throughout the criminal proceedings and individual assessments that have been previously carried out with regard to the child may be used, if they are updated.
35. Member States may derogate from this obligation when it is not proportionate to carry out in an individual assessment taking into account the circumstances of the case and whether or not the child has previously come to the attention of Member State authorities in the context of criminal proceedings. In such cases, an authority for the protection or welfare of children should be informed that an individual assessment is not carried out.
Article 8 – Right to medical examination
36. Access to medical examination by a physician and adequate medical care throughout a child's stay in detention is recommended by international legal instruments, such as the 2007 UN General Comment N°10 on the children's rights in juvenile justice. Children, due to their young age and physical and mental immaturity, are more strongly exposed to ill-treatment and health problems than other suspects or accused persons. Often they may not even able to properly express their health problems. Particular care is needed to ensure their integrity, in particular in detention.
37. If the child is deprived of liberty, the child should have the right to medical examination upon request by the holder of parental responsibility, the appropriate adult or the child's lawyer. Such a medical examination should be carried out by a medical expert.
38. In case of prolongation of deprivation of liberty or extension of measures taken against the child, a medical examination may also be repeated.
39. If the medical examination of a child leads to the conclusion that the envisaged measures during the criminal proceedings against the child (e.g. questioning of the child, detention) are incompatible with the general mental and physical condition of the child, the competent authorities should take appropriate measures in accordance with national law (e.g. postponement of questioning, medical treatment of the child). Due account should be taken of the best interests of the child.
Article 9 – Questioning of children
40. The questioning of children is a potentially risky situation where their procedural rights and dignity may not always be respected and their vulnerability may not be duly taken into account.
41. In order to ensure sufficient protection of children who are not always able to understand the content of interviews they are subject to, including during any questioning by the police, interviews should be audio-visually recorded. However, it would not be proportionate to require that the competent authorities should ensure the audio-visual recording in all cases. Due account should be taken of the complexity of the case, the seriousness of the alleged offence and the potential sanction that can be incurred. However, if a child is deprived of liberty, questioning should always be recorded.
42. Such records must be accessible only to the judicial authorities and the parties of the proceedings to ensure their content and context. Any public dissemination of the records should be prevented. Moreover, the length, style and pace of interviews should be adapted to the age and maturity of the child questioned.
Article 10 – Right to liberty
43. The right to liberty and security of a person is enshrined in Article 5 i ECHR and Article 6 of the Charter.
44. In accordance with international rules, such as Article 37 UN CRC, 2007 UN General Comment N°10 on Children's rights in juvenile justice, point 79 and the Recommendation of the Committee of Ministers of the Council of Europe[11], any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time[12].
45. Taking into account these international standards, this Directive sets minimum rules as regards detention. This is notwithstanding the compliance by Member States with these international standards as regards detention, in particular the separation of children from adults and access to educative measures, beyond conviction.
Article 11 – Alternative measures
46. In order to avoid deprivation of liberty for children, all measures alternative to deprivation of liberty should be taken by the competent authorities whenever this is in the best interests of the child. Such measures should include for instance reporting obligations to the competent authorities, restrictions on contacts with specific persons or participation in therapeutic treatment or educational measures[13].
47. In certain cases deprivation of liberty might be necessary, for example to avoid the risk of tampering with evidence, influencing witnesses, when there is a risk of collusion or flight etc. In such cases, particular attention should be paid to the way detained children are treated.
48. Moreover, given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should respect and actively support the fulfilment of the rights of the child as set out in international and European instruments. In addition to other rights, children in particular should have the right to:
(a) maintain regular and meaningful contact with parents, family and friends. Restrictions on this right should never be used as a punishment;
(b) receive appropriate education, guidance and training,
(c) receive medical care.
49. In accordance with international standards[14] children should be kept separately from adults in order to take into account their needs and vulnerability. When a detained child reaches the age of 18, the person should have the possibility to continue the separate detention. For that purpose, the individual circumstances of the case should be taken into account. The measures foreseen by this Directive do not require, however, the creation of separate detention facilities or prisons for children.
Article 13 – Timely and diligent treatment of cases
50. In proceedings involving children, the urgency principle should be applied to provide a rapid response and protect the best interests of the child. Courts should exercise particular diligence to avoid any risk of adverse consequences on the family and social relations of the child.
Article 14 – Right to protection of privacy
51. The requirement to protect the privacy of children suspected or accused in criminal proceedings is arising from international standards[15]. The involvement in criminal proceedings stigmatises the individuals concerned and may have in particular for children a detrimental impact on their chances for reintegration into society and their future professional and social life. The protection of privacy of children involved in criminal proceedings is a critical component of the youth rehabilitation.
52. Children should be judged in the absence of public. In exceptional cases the court may decide that a hearing is held publicly after it has taken due account of the best interests of the child.
53. Moreover, with regard to the best interests of the child and the family, authorities should prevent that information that could lead to their identification is publicly disseminated (e.g. name and the image of the child and family members)
Article 15 – Right of access to court hearings of the holder of parental responsibility
54. In order to ensure proper assistance and support of the child during court hearings, the holder of parental responsibility or another appropriate adult as referred to in Article 5 should be present.
Article 16 - Right of children to appear in person at the trial aiming at assessing the question of their guilt
55. If children are not present during the trial, their rights of defence are at stake. The defendants are in such case neither able to give their version of the facts to the Court, nor are they able to present evidence accordingly. They might therefore be found guilty without having had the opportunity to rebut the grounds for such a conviction.
56. The right to be present at trial, or being able to waive such right after having been informed of it, is indispensable for the exercise of the rights of defence.
57. Article 16 provides that Member States must ensure that the right to be present applies to any trial aiming at assessing the question of the guilt of the accused person (both conviction and acquittal decisions) in line with ECHR case-law. The presence of the child at this moment in the criminal proceedings is of particular importance given the consequences that moment could have.
Article 17 –European arrest warrant proceedings
58. This Directive applies to children subject to proceedings pursuant to Framework Decision 2002/584/JHA from the time they are arrested in the executing State. Improving the EAW system is a central tenet of the Commission's third report on implementation of the Council Framework Decision on the EAW[16].
59. The competent authorities in the executing Member States shall apply the rights as foreseen by the current Directive. This will promote mutual trust and mutual recognition by providing a minimum level of protection to children in the executing Member State as exists in the issuing Member State.
60. Proceedings for the execution of the EAW will not be delayed since this Article is without prejudice to the time-limits set out in the Framework decision.
61. With regard to the best interests of the child and in accordance with international rules that any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time (see above, Article 10), the competent authorities shall take all measures to limit the duration of the deprivation of liberty of children covered by such a EAW.
Article 18 – Right to legal aid
62. Although this Directive does not seek to regulate the issue of legal aid, it requires Member States to ensure that their domestic legal aid regimes guarantee the effective exercise of the right of access to a lawyer.
63. The right of suspected or accused children to have provisional legal aid when deprived of liberty or when subject to European arrest warrant proceedings will be covered by the [proposal for a] Directive on the right to provisional legal aid for suspects or accused persons in criminal proceedings that are deprived of liberty and for requested persons in European arrest warrant proceedings and by the [proposal for a] Commission Recommendation on the right to legal aid for suspects and accused persons in criminal proceedings. In the latter, the situation of children is specifically referred to as regards the means test and the merits test[17].
Article 19 – Training
64. Judicial authorities, law enforcement authorities and prison staff dealing with cases involving children should be aware of the particular needs of children of different age groups and should take care that the proceedings are adapted to them. For that purpose they need appropriate training with regard to children's legal rights and the need of children of different age groups, child development and child psychology, pedagogical skills, communicating with children at all ages and stages of development and on children in situations of particular vulnerability.[18] Also defense lawyers specialising in children’s cases should benefit from such training.
65. Those providing children with support or restorative justice services should also be trained to an appropriate level to ensure that children are treated in a respectful, impartial and professional manner.
Article 20 – Data collection
66. In order to monitor and evaluate the effectiveness and efficiency of this Directive, there is a need for collection of data by the Member States with regard to the exercise of the rights set out in this Directive. Relevant data include data recorded by the judicial authorities and by law enforcement authorities and, as far as possible, administrative data compiled by healthcare and social welfare services.
Article 21 – Costs
67. The costs resulting from the application of this Directive with regard to the assessment of the child, the medical examination and audio-visual recording are to be met by Member States, even in the event of conviction of the suspected or accused child.
Article 22 – Non-regression clause
68. This Article ensures that setting common minimum standards in accordance with this Directive does not have the effect of lowering standards in certain Member States and that the standards set in the Charter and in the ECHR are maintained. Since this Directive provides for minimum rules, Member States remain free to set standards higher than those agreed in this Directive.
Article 23 – Transposition
69. Member States must implement the Directive [24 months after its publication] and, by the same date, transmit the text of the provisions transposing it into national law to the Commission.
70. Member States should notify their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.
Article 24 – Entry into force
71. This Article provides that the Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union.
72. The objective of the proposal cannot be sufficiently achieved by Member States alone, since the aim of the proposal is to promote mutual trust between them and it is therefore important to agree on common minimum standards on procedural safeguards for children suspected or accused in criminal proceedings across the European Union. The need for EU action and explanations on why the EU is better placed to take action on special safeguards for children confronted to criminal proceedings is further developed in the Impact Assessment accompanying the proposal for a Directive.
73. The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose. Measures aimed at achieving more harmonisation of standards were discarded, such as the age of criminal responsibility, establishment of youth courts, rules on diversion from justice systems, which would have lead to substantial changes of criminal justice systems in Member States. For reasons of proportionality of EU action, the Directive does not therefore propose a comprehensive set of rules for children in criminal proceedings. It only sets up minimum rules that are considered indispensable to meet the objective of achieving an effective standard of protection for children and to enhance mutual trust and judicial cooperation.
74. This proposal has no budgetary implications for the budget of the EU.