Guidebook
that EU laws and procedures offer to promote and protect human rights.
INTRODUCTION
NHRIs are not alone in this task but share the responsibility with a number of other stakeholders active in the field of criminal justice, including
inter alia other domestic human rights bodies, professional associations
and practitioners and civil society organisations. Precisely the existence
of other human rights bodies with specialised mandate (e.g. National
Preventive Mechanisms (NPMs), Ombudsinstitutions for children or persons with disabilities) was mentioned as a reason by several NHRIs not to
engage with procedural rights. Yet the intervention of NHRIs in the field
of procedural rights of suspects and accused may bring an added value
because NHRIs may have powers and expertise that could be particularly
useful to reinforce and complement the work of other domestic human
rights bodies and contribute to the strengthening of procedural rights. In
this sense, our research showed that increased coordination, cooperation
and exchange are necessary.
Why a Guidebook on procedural rights for
National Human Rights Institutions?
Although this will always depend on the national context, there are a
number of areas where the work of NHRIs in the field of procedural rights
of suspects and accused may bring a specific added value, including:
promotional activities, activities promoting an adequate legal framework (e.g. giving opinions on proposals and existing laws, power to start
proceedings before the Constitutional Court for an abstract constitutional
review of the laws and other acts); monitoring places of detention, especially if no specialized monitoring body exists; but also order to conduct
joint visits with other specialized departments if the NHRIs is entrusted
with the NPM or CRPD mandate; participating before courts, e.g. third
party interventions before national, regional and international courts.
Professional associations and lawyers have also been identified as a particularly strong partner in the promotion and protection of procedural rights,
but many NHRIs mentioned that cooperation is often lacking or difficult.
Similarly, several NHRIs found that there is not sufficient exchange on the
topic of criminal procedural safeguards on an EU level and expressed interest in receiving information on good practices from other countries.
Hence, initiatives facilitating exchange with professional associations
as well as among EU NHRIs should be encouraged as they can further
enhance the promotion and protection of those rights.
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EXECUTIVE SUMMARY / INTRODUCTION
Procedural rights are ‘gateway rights’ or in other words crucial safeguards
to ensure the respect of numerous human rights, including the prohibition
of torture and ill-treatment, the right to a fair trial, and the right to liberty
and security.
Access to procedural safeguards from the first hours of custody is the most
effective measure to prevent torture, as recently confirmed by a global
research study.1 The study has reinforced the importance of procedural
rights in criminal proceedings as not only components of the right to a fair
trial per se, but also as a measure to prevent torture and other forms of illtreatment. At the same time, it highlighted that these safeguards are not
emphasized strongly enough in international instruments.2
On the other hand, procedural rights in criminal proceedings have been
a key priority for the European Union (EU), which since 2009 has adopted
a series of secondary law instruments, covering numerous procedural
rights, including the right to information, the right to interpretation and
translation, the right of access to a lawyer and legal aid, the right to presumption of innocence as well as the rights of persons in especially vulnerable situations, such as children and persons with psychosocial and/or
intellectual disabilities (hereinafter the procedural rights of suspects and
accused or procedural rights).3
Moreover, challenges often arise in the practical application. In this
regard, a recent project analysing the suspects’ rights at the investigative
stage of the criminal proceedings in nine EU countries identified gaps and
challenges in the practical application of all procedural rights mentioned
above.4
Despite the growing literature on the importance of procedural safeguards, there is little information on the role and practice of National Human
Rights Institutions (NHRIs) in the EU in this regard. For this reason, the present project explored how NHRIs position themselves as well as how they
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