Guidebook TERMINOLOGY TERMINOLOGY What do we mean by NHRIs? As shown in Annex 2 there is a great diversity of NHRIs in the EU. This makes it difficult to categorise them, since depending on the model and the additional specialised mandates enjoyed, their powers, functions and aims may vary considerably. As the main aim of this Guidebook is to give practical guidance on how to strengthen procedural rights, the Guidebook adopts a broad understanding of NHRIs. Hence, although looking primarily at NHRIs accredited by GANHRI through its Sub-Committee on Accreditation (SCA) and defined under the Paris Principles,11 it also covers ‘equivalent institutions’ in countries where accredited NHRIs are lacking. Given that many NHRIs in the EU were designated as national mechanisms under the Optional Protocol to the UN Convention against Torture (OPCAT) and the Convention on the Rights of Persons with Disabilities (CRPD), the Guidebook also considered the work that NHRIs can conduct under these additional specialised mandates. Taking into account the different rationales, perspectives and functions arising from the various models and specialised mandates, the Guidebook will inevitably contain some Guidelines that will be more relevant for certain institutions and less for others. On the other side, this Guidebook wants to show how the combination of these different mandates can give a broad array of tools to strengthen the rights of suspects and accused. What do we mean by procedural rights of suspects and accused? ‘More and more people are making the link between procedural rights in criminal proceedings and torture prevention. We call it differently, we call it “safeguards” in the initial phase of detention instead. But we also refer to the right to information, right to a lawyer, right to medical examination, right to inform a third person.’ (SPT Representative, 1.9.2019) 14 The argument that criminal procedural rights are key components to prevent torture and ill-treatment is not new. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has been highlighting the importance of ‘fundamental safeguards’ from as early as 1992.12 Similarly, also the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and the CAT Committee have been continuously referring to ‘legal safeguards’ or ‘fundamental legal safeguards’.13 Even though torture prevention bodies refer to these rights as “safeguards”, in practice they refer to the same list of rights regulated by the EU instruments.14 The rationale is however partially different. While standards enshrined by the main torture prevention treaties prescribe these safeguards to prevent torture and illtreatment, EU secondary law instruments aim primarily to safeguard the rights to fair trial, especially to overcome the divergences in the different EU Member States and create a functioning EU criminal justice area based on mutual recognition and mutual trust (see below, Chapter 1). International standards provide that procedural safeguards should apply from the first hours of the detention, when the risk of torture and ill-treatment is highest. In other words, this means that safeguards should apply irrespective of the precise legal status of the persons concerned, for example, also to persons that are obliged to attend and stay at a law enforcement establishment as ‘witnesses’ or for ‘informative talks’. Depending on the circumstances of the case concerned, safeguards may become operative at an even earlier stage.15 Also EU instruments explicitly make clear that procedural rights apply to persons who have been arrested and/or detained from the moment that a person is suspected or accused in a criminal proceeding. They may also apply to persons who are suspected of having committed an offence but have not (yet) been detained.16 In practice, their application should not be made strictly dependent on a formal act17 and should not be circumvented by informal talks, or by the practice of witnesses becoming suspects in the course of questioning by the police or other law enforcement authorities (see below, Chapter 1.2). EU instruments apply until the final determination of the question whether the suspect or accused person has committed a criminal offence.18 15