•
At the moment, there is a lack of information of the situation of people in police custody
and their needs, e.g. how many of them cannot effectively participate in the proceedings, due
to intellectual and psychosocial disabilities, lack of adequate knowledge of the language, illiteracy,
how many are in an especially vulnerable situation, how many suspects have access to a lawyer,
how many suspects waive their rights and for what reason. This hampers an accurate assessment
of the barriers to equal access to information and justice. Thus, more research and joint efforts
between criminal justice actors and civil society could bring about a better understanding of the
current needs.
•
It is necessary to increase the transparency and regularly evaluate the internal guidance
for the notification on rights and the Letter of Rights. The evaluation should include an external
and independent expert. This will not only lead to higher professionalism in providing effective
information, but also increase the general public’s trust in the criminal justice system.
•
The successful initiatives analysed in this project were also accompanied by training for police
officers on the revised guidance materials, tools and letter of rights. Such training is key to raise
awareness on the importance of the right to information as well as on its benefits for all stakeholders
involved.
•
Mechanisms are put in place to ascertain whether suspected and accused persons understand the
rights of which they are notified, and the implications of waiving their rights;65
•
In addition, it would enhance procedural rights and equal access to justice in EU Member States
if the European Commission started to tackle the issue of appropriate and effective remedies
for the violation of procedural rights, in line with Article 47 EU Charter and the principle of
effectiveness and uniform application of EU law.66
Ultimately, it is necessary to achieve a true shift in police culture and overcome those criminal justice
systems that are still solely based on the obtaining confessional evidence or other information.67 At
the UN level, the guidelines on investigative interviewing offer an example as to how a reform process
of police investigative methods should look like.68 This “non-accusatory” model, based on the model
of the police service of England and Wales of the early 1990s, brings a number of benefits among
which dismantling the myth of the effectiveness of harsh interrogation methods (including ultimately
torture), and replacing it with more effective methods of preventing, detecting, investigating and
solving crimes. As highlighted by CPT, “this in turn has a positive impact on the outcome, fairness,
efficiency and reliability of any subsequent criminal proceedings, and on how the general public
perceives the police service”.69
The right to information can only be truly
strengthened if the whole system of safeguards
is also reinforced
Enhanced and easy to understand oral and written information is crucial, yet neither the best guidance
on how to provide oral information nor the best revised Letter of Rights alone will be sufficient to
achieve an overall fair trial, if implemented in isolation. Rather, we consider the right to information
as part of a delicate system of interdependent safeguards. Thus, the right to information can only be
truly strengthened if the whole system of safeguards is reinforced too. In particular, it is crucial to also
strengthen audio visual recording, access to a lawyer and legal aid.
At the same time, each of these guarantees must be provided at all stages of the proceedings63.
Consequently, the right to information should not be circumvented by giving the information to a
legal representative or person of trust, as information should be provided in such a way that effective
participation can be ensured. On the contrary, the mere representation by a lawyer or person of trust
does not suffice to ensure effective participation. It is crucial to empower the suspect or accused.64
To further strengthen the overall system of procedural rights, it is important that the European
Commission should enter into discussions with the relevant authorities of Member States with a view
to ensuring that:
•
The respective Letters of Rights are drafted in simple and accessible language, fully comply with
the requirements of the Directive, and are available in a range of languages. Ideally, the European
Commission should provide templates for the Letter of Rights at an EU level by taking into account
existing developments and examples across the EU thereby enhancing minimum standards.
63. But see the case law of the ECtHR referring to the overall fairness of the proceedings: Beuze v. Belgium [GC], no.
71409/10 and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others.
64. ECtHR, Stanford vs the UK (11 April 1994); ECtHR, T vs the UK, V vs the UK, Joint decision 16 December
1999, para 88; ECtHR, S.C. vs the UK; Linder/Katona/Kolda, Dignity at Trial (2018), 23.
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65. Ed Lloyd-Cape (2018) p 61.
66. Costa Ramos Vania, Michiel Luchtman, Geanina Munteanu, ‘Improving Defence Rights: Including Available
Remedies in and (or as a Consequence of) Cross-Border Criminal Proceedings’ 2020 in Eurocrim 3/2020, https://eucrim.eu/articles/improving-defence-rights/ ; Fair Trials, ‘Unlawful evidence in Europe’s courts: principles, practice and
remedies’, October 2021 https://www.fairtrials.org/articles/publications/unlawful-evidence-in-europes-courts/.
67. See PEACE model used by the police in England and Wales, Investigative interviewing | College of Policing.
68. See Principles on Effective Interviewing for Investigations and Information Gathering (2021), New Principles on
Effective Interviewing for Investigations and Information Gathering | Association for the Prevention of Torture (apt.
ch); CPT on investigative interviewing and a necessary paradigm in police culture (2018), 28th General Report of the
European Committee for the Prevention of Torture and Inhumane and Degrading Treatment or Punishment, p. 32 ff.
69. See CPT, ‘28th General Report’, CPT/Inf(2019)9, p. 32 <https://rm.coe.int/16809420e3>.
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