PART II – NOTIFICATION OF REASONS FOR ARREST / ACCUSATIONS A. THE ISSUE Tightly linked to the issue of notification of rights is the requirement for notification of the accusation. The suspect will need to make important decisions about how to conduct his defence including whether to seek legal advice, remain silent or answer questions. Such decisions can only be taken effectively if the suspect knows the case against them. Failure to specify the allegations can lead to unwise decisions. For example, defence lawyers report that in drug cases, police may not clarify whether the suspect is suspected of drug possession or trafficking. Not knowing exactly what the alleged crime is greatly impedes, or even prevents, the development of an effective defence strategy – your client might want to confess drug possession, but might not want to do this if it is likely to ease the proof of a subsequent drug trafficking charge. And if facts of the crime are not known it is difficult to provide an alibi or scrutinise the consistency of the allegations, which is not helpful for the client or police. Equally, if the charges are altered during the investigations or the trial, it is very important for the accused and his defence counsel to be informed immediately in order to adapt the strategy. For example, if your client is charged of misappropriations under use of force (robbery) and you can successfully refute the force, you must know if the court is still considering to sentence for theft, or considers the whole charge unsubstantiated. B. THE ECHR BASELINE These issues are already fairly well covered in the case-law of the ECtHR, on the basis of Articles 5(2) and Article 6(3)(a) and (b), which provide: Article 5 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. Article 6 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; On the basis of these provisions, the ECtHR has developed principles relating to the notification of rights to persons ‘charged’ (which, in relation to Article 6, may apply to suspects not yet categorised as such under national law, including those formally deemed witnesses – see Part IV). 24