Regional challenges According to the 2018 implementation report of the European Commission, there were still difficulties in the implementation of the Directive on information, especially in those EU Member States where the right to information did not previously exist or was not as detailed. Challenges included, in particular, the Letter of Rights in criminal and European arrest warrant proceedings, the right to information about the accusation, and the right to access to materials of the case. The Commission warned that unless remedied, divergences may weaken the effectiveness of the rights provided by the Directive, jeopardising equal access to information across EU Member States.16 Previous research showed that the Directive on information has been mostly correctly transposed into law, but that there continue to be several challenges in its practical implementation.17 In the framework of this project, a survey circulated by Fair Trials through its network of criminal law practitioners confirmed it: even where the right to information has been transposed into law, many suspects and accused persons are still not effectively informed of their rights and thus not able to effectively exercise them.18 Numerous actors put forward concrete recommendations as to how the right to information should be improved.19 These include, inter alia: a) ensuring that Letter of Rights are drafted in a simple and accessible language; b) setting up mechanisms or guidance to ascertain whether the suspect and accused person understands their rights and the implication of a waiver; c) paying attention to situations in which suspects and accused persons may be disadvantaged through a language barrier, a lack of education or a physical, psychosocial or intellectual disability. However, most EU Member States have yet to fully implement these recommendations and face several challenges in doing so as identified in the following. Few attempts to ensure that procedural rights are effectively understood: The Directive requires that the suspect or accused person should be informed about their rights orally and/or in writing in an accessible manner.. Research shows that even if the notification of rights is ensured, it is, in practice, sometimes only a formality. Few attempts are undertaken to ensure that the suspect or accused person effectively understands the rights and consequences of waivers.20 Often, in fact, in court it must be proven that the information on rights was provided, not that it was understood.21 16. European Commission (EC), ‘Report from the Commission to the European Parliament and the Council on the implementation of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings’, COM(2018) 858 final, 18 December 2018 (Commission Implementation Report). Since 2014, the EC opened infringement proceedings against seven Member States who had not communicated the necessary measures for transposition, namely Cyprus, the Czech Republic, Luxembourg, Malta, Slovenia, Slovakia, and Spain. All proceedings were closed between 2014 and 2018. 17. Ed Lloyd-Cape, ‘Inside Police Custody 2: Comparative Report’ (2018) 30ff <https://www.iccl.ie/wp-content/ uploads/2018/12/Inside-Police-Custody.pdf> accessed on 9 December 2022; FRA, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings‘, (2019) pp 23ff <https://fra.europa.eu/ sites/default/files/fra_uploads/fra-2019-rights-in-practice-access-to-a-lawyer-and-procedural-rights-in-criminal-and-european-arrest-warrant-proceedings.pdf> accessed on 9 December 2022. 18. The objective of the survey was to assess how the procedural rights guaranteed by the EU Directives were implemented in practice in police custody. 19. Ed Lloyd-Cape (2018) pp 92; see also FRA (2019) pp 11ff and FRA (2022) pp 32ff. 20. Ed Lloyd-Cape (2018) p 40; FRA (2019) pp 23ff. 21. Regional Consultation, Vienna. 12 Inaccessibility of the information provided in the Letter of Rights: Where Letters of Rights are handed out to suspects or accused persons,22 they tend to be lengthy and complex, not drafted in accessible language, and often simply copied from the criminal procedure code or similar legislation.23 Furthermore, in practice, suspects or accused persons are not always given an opportunity to read the Letter of Rights and worse, sometimes police officers actively discouraged them from exercising their rights.24 As a result, suspects or accused persons may not understand the notification of their procedural rights, which ultimately leads to a violation of the right to a fair trial.25 In some Member States, suspects or accused persons are handed the Letter of Rights to read, but are not always allowed to keep it in their possession,26 or are provided with it only after the interview has started, or even when it has already been concluded.27 Rarely are alternative formats used to convey the rights, especially to those who are in an especially vulnerable situation (e.g., children, persons with intellectual and/or psychosocial disabilities). Children and adults in vulnerable situations: Moreover, the needs of children and adults in vulnerable situations are not always taken adequately into account. Children run a higher risk of being overwhelmed and negatively impacted by the experience of criminal proceedings, and violations of their procedural rights can have devastating implications on their lives. Thus, their particular needs must be met in order to ensure their effective participation and that their rights are respected. However, in many countries, the Letter of Rights provided is often not adapted in a child-friendly language.28 Lawyers often also lack training in the procedural adjustments necessary when representing suspected or accused children, such as adapting their communication so that the child understands the process and their rights.29 Police officers generally do not receive such communication training either.30 In addition, there is often no regulation or protocol dealing with notifying suspects or accused persons in 22. It was indicated by respondents to Fair Trials’ regional survey that in some states, there is still no proper Letter of Rights provided to suspected persons before the interview. It was for example reported that in Bulgaria, rights are mentioned in the questioning protocol, which is only provided after questioning. 23. Ed Lloyd-Cape (2018) p 41; See also Fair Trials, ‘Where’s my lawyer – Making legal assistance in pre-trial detention effective ‘ (2019) p 15 <https://www.fairtrials.org/articles/publications/wheres-my-lawyer/> accessed on 9 December 2022; Commission Implementation Report p 9f. 24. Ed Lloyd-Cape (2018) p 41. 25. Ibid. 26. Ibid, p 32ff. Eg in Lithuania or Spain (in the latter ostensibly on the grounds of safety). 27. Ibid. 28. All respondents to Fair Trials’ regional survey indicated that in their country of practice, there was no version of the Letter of Rights adapted to children; See also Agne Limante et a, ‘LA Child – Legal Aid for Children in Criminal Proceedings: Report on Current European National Frameworks‘ (2021) p 63 <https://lachild.eu/the-projects/la-child/ guidelines-on-legal-aid-for-children/> accessed on 9 December 2022. 29. Fair Trials, ‘Advancing the Defence Rights of Children – Manual for Practitioners‘ (2018) p 3 <https://www.fairtrials.org/sites/default/files/publication_pdf/ADRC%20Training%20Manual%20-%20Sep%202018.pdf> accessed on 9 December 2022. See also the findings from the 2021-23 CLEAR-Rights Project on legal assistance for children, led by terre des hommes <https://childhub.org/en/series-of-child-protection-materials/clear-rights>. 30. As confirmed by all respondents to Fair Trials’ regional survey as regards their country of practice. 13