Europe Moving to Strengthen Arrest Rights

The European Union has taken a significant step towards guaranteeing the arrest rights of suspects—with the approval by the European Commission, the group’s executive body, of a proposed set of legal requirements that would be binding on all of its 27 member states.

Key provisions of the proposal, known as a draft directive, include:

  • All people suspected or accused of crimes are entitled to access a lawyer “as soon as possible” and “at the latest upon deprivation of liberty.”  If the police want to question a person, or take any procedural step or evidence gathering such as a search, they must generally be given access to a lawyer.  The proposal bans the use of any evidence obtained from a person who was not given a lawyer.
  • A person who is deprived of their liberty is entitled to contact a third person  such as a relative or employer.  This right arises immediately upon arrest.  People should not be held in detention without being able to let somebody know of their whereabouts.
  • If a person is a foreigner, their consular authorities should be informed of their detention.
  • Countries who currently try to avoid their obligations by formally calling a person a “witness” instead of a suspect will no longer be able to deprive that person of their rights.  The proposal specifically states that it provides protection for all people who are “in reality” suspected of a criminal offense, regardless of what they are called by the authorities.

If the proposal is passed by the European Parliament and by the Council of Ministers, which represents member governments, it will set common minimum standards on the rights of all suspects and accused persons in criminal proceedings in every country in the European Union.  It will be binding and enforceable throughout the European Union.

This proposal is the latest step towards the EU Council’s  plan to implement comprehensive legislation covering all of the most important rights of defendants in criminal proceedings.  The "road map" was developed after the Council recognized that not enough has been done at the European level to safeguard these fundamental rights.

Europeans may be surprised to hear that basic rights, such as the right to a lawyer or a phone call, are only now being debated at the European level. Yet at the moment many countries in the region fail to provide them.

Last year the Open Society Justice Initiative, in collaboration with Maastricht University, JUSTICE, and the University of the West of England produced a study, Effective Criminal Defence in Europe, which compared access to effective defense in criminal proceedings across nine European jurisdictions.  The book highlighted some of the systemic failures of countries to protect the fundamental rights of defendants and made recommendations for change.

The Justice Initiative previously reported on unprecedented reforms across Europe in the first part of 2011.  European countries including France, the Netherlands, Scotland, Belgium and Switzerland are in the process of overhauling their criminal justice systems to bring their justice systems in line with minimum standards established by Europe's human rights laws.

At this stage, the draft directive is just a proposal.  It may face opposition from a number of governments who will seek to negotiate away these rights.  But with recent developments in many European countries, and with the EU Commission pushing for reform, there is every reason to be optimistic.  Change is coming, for certain.

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maybe the EU hasn't covered this, but aren't these rights already covered in Europe by Strasbourg & art.5 of their convention?

Hi Sandy,

Yes, you're absolutely right. Many of these rights are already "guaranteed" by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. Indeed, there is nothing really new in the proposed Directive, just a consolidation of already existing rights and rules.

Unfortunately, there is a real problem with implementation of the ECHR and ECtHR. Many States ignore their obligations. The real power of this proposed Directive is that it is directly binding and enforceable against States who do not implement it. States can get taken to the ECJ if they fail to bring it into force and can even be forced to pay compensation to individuals who have suffered because of their failure. It's got real teeth!

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