Inside Police Custody 2 1.2.4 Common issues under the three Directives All three Directives apply to persons from the time that they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, until the conclusion of the proceedings. This formulation accords with the autonomous interpretation of the concept of ‘charge’ adopted by the ECtHR, initially in the case of Eckle v Germany: ‘Charge’, for the purposes of Article 6 par. 1 (Art. 6-1), may be defined as the ‘official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, a definition that also corresponds to the test whether ‘the situation of the [individual] has been substantially affected’.8 Attempts to circumvent the application of procedural rights by, for example, delaying notification that a person is alleged to have committed an offence, the inappropriate use of administrative rather than criminal powers, or by treating a suspect as a witness, have been repeatedly, and consistently, disapproved of by the ECtHR.9 Thus, broadly, the Directives apply to persons who have been arrested and/or detained on suspicion of having committed a criminal offence, and may also apply to persons who are suspected of having committed a criminal offence but who have not (yet) been arrested or detained; although in either case there may be further conditions to be satisfied before any particular right under a Directive is applicable. Whilst procedures at the early stages of the criminal process, and relevant terminology, differ as between member states, most of the countries in the study have implemented the Directives in accordance with this approach; so that the procedural rights encompassed by the Directives apply to suspected persons who have been arrested or detained, and to those who, for example, attend at a police station voluntarily in connection with a suspected offence. However, Bulgaria stands out as an exception to the common understanding of the application of the Directives. The category of ‘suspected person’ does not appear in the Bulgarian Criminal Procedure Code that was introduced in 2006. Police detention (which may last for up to 24 hours before requiring judicial sanction) is not regarded as being part of criminal proceedings. This is despite the fact that one of the grounds for police detention is that they are in possession of information that indicates that a person has committed a crime. As a result, many of the procedural rights required by the Directives do not apply to persons detained by the police on suspicion of having committed a criminal offence. The police are entitled to conduct an ‘investigative’ or ‘exploratory’ conversation with a person in police detention, and whilst the results of such a ‘conversation’ do not amount to evidence, evidence of the ‘conversation’ can be put before a court through the evidence of the officers conducting it. This, in our view, amounts to a clear failure to faithfully transpose the Directives in Bulgaria. The position in Romania has some similarities to that in Bulgaria. Whilst the criminal procedure code provides for persons to be subjected to police arrest, to whom the relevant procedural rights apply (at least in principle), there is also provision for ‘administrative leading to the police station’. This amounts to a deprivation of liberty, which may last for up to 24 hours. However, it is not regarded as a criminal procedure, and the procedural rights that follow from an arrest do not apply to persons subjected to this procedure. Again, in our view, this amounts to a clear breach of the provisions of the Directives. ECtHR 15 July 1982, Eckle v Germany, No. 8130/78, para. 73, when the formulation was first adopted. See, for example, ECtHR 21 April 2011, Nechiporuk and Yonkalo v Ukraine, No. 42310/04, and ECtHR 14 October 2010, Brusco v France, No. 1466/07. 8 9 17