Guidebook STANDARDS the EU instruments should not be circumvented for example by informal talks. In this regard, however, worrying practices have been reported in some EU Member States. In particular, in certain countries, the rights enshrined in the Directive are not applied when persons are de facto arrested or detained. This is for example the case when the police have the power to take a person to the police station prior to an official arrest or in the initial 24 hours of police detention, which are seen as an administrative procedure to which the Directives do not apply.40 Similar practices on informal questionings were reported from other countries too.41 While the first Directives42 were silent about witnesses becoming suspects, the subsequent Directives, first in the Recital43, then also in the text of the articles make clear that cases of witnesses becoming suspects are covered by the Directives.44 The Directive on the right of access to lawyer further clarifies what are the consequences if a witness becomes a suspect, specifying that the person has the right: »» »» »» Not to incriminate him or herself To remain silent That the questioning is suspended immediately. However, the questioning can be continued where the person has been made aware that he or she has become a suspect or an accused person and is able to fully exercise the rights provided for in the Directives.45 Even though the latest EU Directives envisage the situation of witnesses becoming suspects in criminal proceedings, issues may arise in practice since it is up to the law enforcement authorities when to interrupt or inform the persons who become suspected of having committed a crime. 46 Hence their practical implementation must be scrutinized as well. Further, the statements given as a witness often become part of the file and are used irrespectively of the fact that the witness became a suspect.47 The Directives are silent about the use of these statements and possible remedies. The EU instruments apply until the final determination of the question whether the suspect or accused person has committed a criminal offence, including, where applicable, sentencing and the resolution of any appeal.48 22 Minor offences The application of Directives is limited in the context of minor offences. To assess whether EU Directives are applicable to minor offences one should look at what procedure is foreseen under national law (i.e. involvement of a court having criminal jurisdiction); at what sanction can be imposed in such national proceedings (i.e. deprivation of liberty as a sanction).49 As a general rule the EU Directives apply to all criminal offences if the court competent to deal with the offence has criminal jurisdiction. However, when an administrative authority can decide over a criminal offence but such decision can be appealed or referred to a court with criminal jurisdiction, the Directives only apply to the proceedings before the court (eg, minor traffic offences).50 The EU Directives do not apply where the police, other administrative authorities or courts having jurisdiction in non-criminal matters are competent to deal with the minor offence. However, the EU Directives apply in these cases if the competent authorities for the minor offences can impose deprivation of liberty as a sanction.51 In this situation, the severity of the sanction envisaged requires the Member State to guarantee the same procedural rights standards, regardless from the fact that the national law defines the procedure as administrative.52 Thus, if the authority can impose deprivation of libery as a sanction, the Directives apply throughout the proceedings. 1.3. The added value of EU law Compared to other international instruments, especially soft law, the use of EU instruments may bring several advantages.53 At the outset, it is to be noted that procedural rights established by the EU Directives have an independent status. This means that violations of individual procedural rights are not linked to the question of the overall fairness of the proceedings like before the ECtHR.54 In addition, EU law often provides a very detailed framework spelling out many important aspects of the rights of suspects and accused. This may provide NHRIs with more 23