PURPOSE: to establish common minimum standards on
procedural safeguards for children suspected or accused in criminal
proceedings
PROPOSED ACT : Directive of the European Parliament
and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European
Parliament decides in accordance with the ordinary legislative
procedure and on an equal footing with the Council.
BACKGROUND: the Stockholm Programme put a strong focus
on the strengthening of the rights of individuals in criminal
proceedings. The European Council asked the Commission to put
forward proposals setting out a step by step approach to
strengthening the rights of suspects and accused
persons.
Up to now, three measures have been adopted: Directive 2010/64/EU on the
right to interpretation and translation, Directive 2012/13/EU on the
right to information and Directive 2013/48/EU on the
right of access to a lawyer in criminal proceedings.
The proposal continues this work and is part of a
series of measures on criminal justice which includes: (i) a directive on strengthening
certain aspects of the presumption of innocence and of the right to
be present at trial in criminal proceedings; (ii) a directive on provisional
legal aid for suspects or accused persons deprived of liberty and
legal aid in European arrest warrant proceedings.
This measure also forms part of the EU Agenda for
the Rights of the Child to which the European Parliament, the
Council of Europe and UNICEF have contributed. It is presented
together with a Commission Recommendation on procedural
safeguards for vulnerable persons suspected or accused in criminal
proceedings and vulnerable persons subject to European arrest
warrant proceedings.
By establishing minimum rules on the protection
of procedural rights of suspects or accused persons, this Directive
should strengthen the trust of Member States in the criminal
justice systems of other Member States and can thus help improve
mutual recognition of decisions in criminal
matters.
IMPACT ASSESSMENT : the Commission has undertaken
an impact assessment to
support this proposal.
CONTENT : the draft directive aims to:
·
establish procedural safeguards to ensure
that children who are suspected or accused in criminal proceedings
are able to understand and follow those proceedings;
·
enable such children to exercise their right
to a fair trial and to prevent re-offending by children
and foster their social integration.
The directive will apply to children, meaning
persons under the age of 18, subject to criminal proceedings
from the time when they become suspected or accused of having
committed an offence and until the conclusion of the criminal
proceedings.
Children will have the following procedural
guarantees :
Right to information:
the child should be informed promptly of the rights under the
Directive. In proceedings involving children, the urgency
principle should be applied to provide a rapid response and
protect the best interests of the child.
Right to information of the holder of parental
responsibility: further complementary
safeguards are provided with regard to the information of the
holder of parental responsibility or an appropriate adult in order
the take into account the specific needs of children provided that
this does not prejudice the due course of the criminal
proceedings.
Right to an individual assessment: such an individual assessment is needed in order to
identify the child's specific needs in terms of protection,
education, training and re-integration into society, to determine
to what extent he or she would need special measures during
criminal proceedings. The individual assessment should be carried
out at the latest before the indictment.
Right to a lawyer: the
directive aims to ensure mandatory access to a lawyer for
children who are suspected or accused in criminal proceedings. It
also provides that children may not waive this right. However,
there are exceptions that include certain minor offences in
relation to general municipal regulations and minor public order
offences.
Right to medical examination: if the child is deprived of liberty, the child
should have the right to medical examination upon request by the
holder of parental responsibility, the appropriate adult or the
child's lawyer. If the medical examination of a child leads to the
conclusion that the measures envisaged during the criminal
proceedings against the child (e.g. questioning of the child,
detention) are incompatible with the general mental and physical
condition of the child, the competent authorities should take
appropriate measures in accordance with national law.
Questioning of children: if a child is deprived of liberty, questioning should
always be recorded. Such records must be accessible only to the
judicial authorities and the parties of the proceedings to ensure
their content and context.
Right to liberty: in
accordance with United Nations rules on the rights of the
child, any form of deprivation of liberty of children should be a
measure of last resort and be for the shortest appropriate
period of time. Taking into account these international standards,
this Directive sets minimum rules as regards detention.
In order to avoid deprivation of liberty for children,
competent authorities should take any alternative measures to
deprivation of liberty whenever this is in the best interests
of the child.
Right to specific treatment in case of deprivation of
liberty: children in particular
should have the right to: (i) maintain regular and meaningful
contact with parents, family and friends; (ii) receive appropriate
education, guidance and training; (iii) receive medical care; (iv)
be kept separately from adults in order to take into account
their vulnerability.
Right to protection of privacy: children should be judged in the absence of public. In
exceptional cases the court may decide that a hearing is held
publicly after it has taken due account of the best interests of
the child. In order to ensure proper assistance and support of the
child during court hearings, the holder of parental responsibility
should be present.
Right of children to appear in person at the
trial: the right to be present at
trial applies to any trial aiming at assessing the question of the
guilt of the accused person (both conviction and acquittal
decisions).
European arrest warrant proceedings: the proposal applies to children subject to
proceedings pursuant to Framework Decision 2002/584/JHA from the
time they are arrested in the executing State. The competent
authorities in executing Member States shall apply the rights set
out in the directive, which will promote mutual trust and mutual
recognition.