1. Directive 2016/800 on procedural safeguards for children suspected or accused in criminal proceedings
Steven Cras
Political Administrator, General Secretariat
DG JAI – Judicial Cooperation in Criminal Matters
Council of the European Union
London, 2 October 2018

2. Approximation of procedural criminal law in the EU – why we do it
Judicial cooperation in criminal matters in the EU mostly operates through instruments based on the principle of mutual recognition
Effective application of this principle requires mutual trust
Mutual trust can i.a. be enhanced by setting minimum standards on procedural rights in criminal proceedings
Procedural rights can also help in getting the balance straight with measures aimed at facilitating prosecution (EAW)
Need for approximation despite Charter and ECHR 2

3. Legal Basis: Art. 82 (2) TFEU
Council and European Parliament may adopt Directives setting minimum rules regarding :
(a) (…)
(b) the rights of individuals in criminal procedure;
(c) (…)
(d) (…)
Ordinary legislative procedure (294 TFEU)
Qualified majority voting, co-decision with the EP 3

4. Work on basis Art. 82(2)(b) TFEU: Council Roadmap of 2009 (I)
Council Resolution of on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ C 295, ).
Step-by-step approach. Council calls on the Commission to present proposals on :
a) Interpretation and translation
b) Information on rights and Information about the charges
c) Legal advice and legal aid
d) Communication with relatives, employers and consular authorities
e) Special safeguards for vulnerable persons
f) [Green-Paper on pre-trial detention] 4 4

5. Work on basis Art. 82(2)(b) TFEU: Council Roadmap of 2009 (II)
Order of the rights is indicative; the list of the Roadmap is non-exhaustive
Roadmap was made part of the Stockholm programme (2009, point 2.4): the European Council invited the Commission to assess whether other issues, for instance the presumption of innocence, would need to be addressed. 5 5

6. Work on basis Art. 82(2)(b) TFEU: Roll-out of the Council Roadmap (I)
Adopted Directives (I):
Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings (OJ L 280, , p. 1) (“measure A”) (UK in)
Directive 2012/13/EU on the right to information in criminal proceedings (OJ L 142, , p. 1) (“measure B”) (UK in)
Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, , p. 1) (“measure C1 + D”) (UK out) 6 6

7. Work on basis Art. 82(2)(b) TFEU: Roll-out of the Council Roadmap (II)
Adopted Directives (II):
Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, , p. 1) (“Stockholm measure”) (UK out)
Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (+ recommendation) (OJ L 132, , p. 1) (“measure E-”) (UK out)
Directive (EU) 2016/1919 on legal aid for suspects or accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (+recommendation) (OJ L 297, , p. 1) (“measure C2”) (UK out) 7 7

8. Directive (EU) 2016/800 Special safeguards for children
Directive adopted on 11 May 2016, to be implemented by 11 June 2019
Special character: no specific rights applicable to all suspects and accused persons, but additional safeguards applicable to one category of persons only: children
Children are persons under 18 year
Lot of inspiration derived from other texts (UN, CoE), and from the Charter (‘child’s best interests’)
Recommendation for other vulnerable persons 8 8

9. Directive (EU) 2016/800 : scope
Applies to children who are suspects or accused persons in criminal proceedings
Until final determination on guilt: not during execution phase
When persons where younger than 18 when they became subject to criminal proceedings, but become of age, the Directive continues to apply when appropriate. Member States may decide not to apply the Directive anymore when persons become 21.    9 9

10. Directive (EU) 2016/800 : rights (I)
Right to information + Right to have the holder of parental responsibility informed (Art. 4+5) *
Assistance by a lawyer (Art. 6) *
Right to an individual assessment (Art. 7) *
Right to a medical examination (Art. 8) *
Audio-visual recording of questioning (Art. 9) *
Limitation of deprivation of liberty (Art. 10)
Alternative measures (Art. 11)
Special treatment in case of deprivation of liberty (Art. 12) 10 10

11. Directive (EU) 2016/800 : rights (II)
Timely and diligent treatment of cases (Art. 13)
Right to protection of privacy (Art. 14) *
Right for the child to be accompanied by the holder of parental responsibility during the proceedings (Art. 15)
Right for the child to appear in person at, and participate in the trial (Art. 16)
European Arrest Warrant proceedings (Art. 17)
Right to legal aid (Art. 18) * 11 11

12. Directive (EU) 2016/800 : right to information
Top up of rights in Directive 2012/13/EU
Right to information of the rights set out in this Directive
Gradually provided (‘promptly’, ‘at the earliest appropriate stage’, ‘upon deprivation of liberty’)
Also to holder of parental responsibility (hopr), or to another person, where providing information to the hopr
would be contrary to the child’s interest;
is not possible because no hopr can be reached;
could substantially jeopardise the criminal proceedings. 12 12

13. Directive (EU) 2016/800 : assistance by a lawyer
Top up of right of access to a lawyer in Directive 2013/48/EU
Right of ‘access to a lawyer’ is an opportunity
Here, for children ‘assistance by a lawyer’: should be provided, unless this would not be proportionate in the light of the circumstances of the case
However, always assistance, including legal aid,
when a court or judge takes a decision on detention;
during detention.
No deprivation of liberty can be imposed as a criminal sentence, unless the child has been assisted by a lawyer 13 13

14. Directive (EU) 2016/800 : right to individual assessment
Specific needs of children concerning protection, education, training, and social integration should be taken into account
Hence: individual assessment of suspected or accused children
Extent and detail depend on the circumstances. Assessment is to be carried out by qualified personnel, following a multidisciplinary approach if possible
On the basis of the assessment, it can i.a. be evaluated whether any specific measure has to be taken in respect of the child
Presentation before indictment, or later when that is in the child’s best interests, but before the trial starts
Escape clause for Member States 14 14

15. Directive (EU) 2016/800 : right to a medical examination
A medical examination shall be carried out on the initiative of the authorities, or on request of
the child;
the holder of parental responsibility;
the child’s lawyer.
The results shall be taken into account when determining the capacity of the child to face questioning, and for other measures taken or envisaged against the child
Where required, medical assistance shall be provided 15 15

16. Directive (EU) 2016/800 : audio-visual recording of questioning
Audio-visual recording of questioning: should it be done, and if so, when?
Questioning of children by police or law-enforcement authorities shall be audio-visually recorded when this is proportionate in the circumstances of the case, taking account i.a. whether a lawyer is present or not, and whether the child is deprived of liberty or not, provided the child’s best interests should always be a primary consideration. 16 16

17. Directive (EU) 2016/800 : right to protection of privacy
Should court hearings involving children be closed for the public, or not?
Member States shall provide that hearings are usually held in the absence of public, or allow courts or judges to decide that a hearing involving children is held in the absence of the public.
So ‘in camera’ should al least be a possibility. 17 17

18.  Steven Cras General Secretariat
DG JAI – Judicial Cooperation in Criminal Matters
Council of the European Union
October 2018