Inside Police Custody 2
The three Directives contain a similarly worded exception regarding minor offences: where the law of a
member state provides for the imposition of a sanction regarding minor offences by an authority other than
a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed to
such a court, the Directive only applies to the proceedings before a court following such an appeal. The
Directive on the right of access to a lawyer also provides that the exception applies to minor offences
where deprivation of liberty cannot be imposed as a sanction.
It should be noted that the approach to articulating rights differs slightly both between, and within, the three
Directives. Sometimes the rights of suspected and accused persons are expressed as an obligation on
member states to ensure that a particular right is provided; for example, ‘Member State shall ensure that
suspects and accused persons have the right of access to a lawyer…’ (Directive on the right of access
to a lawyer, Art. 3(1)). On other occasions they are expressed in the form of an obligation on a member
state without expressly stating that they concern a right; for example, ‘Member States shall ensure that
suspected or accused persons who do not speak or understand the language… are provided, without
delay, with interpretation…’ (Directive on the right to interpretation and translation, Art. 2(1)). Such
variances in drafting may be interpreted as reflecting nuanced differences between various aspects of
the Directives which may have practical implications. For example, the obligation of a state to ensure that
interpretation is provided to a person who does not speak or understand the language may suggest, or be
treated as suggesting, that a mere claim by a suspect or accused that they do not speak or understand the
language is not sufficient, by itself, to put the state under an obligation. However, whilst it is not expressed
as a right in Article 2(1), Article 2 is headed ‘Right to interpretation’ and it is expressed as a right in Article
2(3). It is argued, therefore, for the purposes of this research at least, that such differences in wording are
irrelevant, and that a provision of a Directive will amount to a right of the suspected or accused person
whether or not it is directly expressed as such.
1.2.5
Other procedural rights Directives
Although the research project was primarily concerned with the practical implementation of the first three
Directives under the EU procedural rights roadmap, it should be noted that three further Directives have
been adopted, one of which came into force during the period that the project was being conducted, and
two of which come into force in 2019.
The first of these, the Directive on the presumption of innocence and the right to be present, was adopted
on 9 March 2016, with a transposition date of 1 April 2018.10 This provides that suspects and accused
persons are to be presumed innocent until proved guilty according to law. In support of this principle, the
Directive imposes a number of obligations on member states, including a prohibition on public references
to guilt, and provisions regarding the public presentation of suspects and accused persons, the burden
of proof, and the right to silence and the right of a person not to incriminate themselves. In addition, it
includes a number of provisions regarding the right of an accused to be present at their trial.
The Directive on procedural safeguards for children who are suspects or accused persons was adopted
on 11 May 2016, and comes into effect on 11 June 2019.11 This is the longest and most complex of the six
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of
certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.
11
Directive (EU) 2016/800 of the European parliament and of the Council of 11 May 2016 on procedural safeguards
for children who are suspects or accused persons in criminal proceedings.
10
18
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