Discussion-paper "Procedural safeguards
of the suspect/accused in Europe"
Art. 1: Information
Presumption of innocence
Right to remain silent
Right for defence
Right for freedom
Respect for private and family life
Right for personal integrity
Right for remedy
Art. 10: Fair
Art. 11: Nulla
poena sine lege - no punishment without law
Art. 12: Ne
bis in idem
Art. 13: Most-favoured nation-clause
in cases of border-crossing cooperation
Art. 14: Common
Art. 15: Effective
Art. 16: Right for prosecution by
only one penal power
Art. 17: Right for multinational
1 Information about rights
1. A suspect who is arrested by the Prosecutor or prosecution
authorities and/or is to be questioned shall be informed, prior to being
questioned, in a language he understands and speaks about his rights and
about the following at least
a) of the nature and cause of the accusation against him;
b) the right to defend himself or immediately to be assisted by defence-counsel
of his choice or to have assigned defence-counsel immediately and without
payment if the suspect does not have sufficient means to pay for it;
c) the right to have the free assistance of an interpreter if the suspect
cannot understand or speak the language to be used for questioning;
d) the right to remain silent, without such silence being a consideration
in the determination of guilt or innocence;
e) to be cautioned that any statement the suspect makes shall be recorded
and may be used in evidence against him.
2. Questioning of a suspect shall not proceed without the presence of defence-counsel
unless the suspect has voluntarily waived the right to counsel. In case of
waiver, if the suspect subsequently expresses a desire to have counsel, questioning
shall thereupon cease, and shall only resume when the suspect has obtained
or has been assigned counsel.
3. Any evidence obtained by violation of one of the aforementioned regulations
or the following articles leads to the ban of evidence of the giving of evidence
by the suspect and cannot be used as evidence against him.
Art. 55 Abs. 2 ICC-Statute, Rule 42 Rules of Procedure and Evidence (ICTY/ICTR)
Art. 2 Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court
in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt
of the accused beyond reasonable doubt.
Art. 6 Abs. 2 European Convention on human rights (=ECHR), Art. 14 Abs. 2
INTERNATIONAL COVENANT ONCIVIL AND POLITICAL RIGHTS (=ICCPR), Art. 48 Abs.
1 European Charta of fundamental rights, Art. 66 ICC-Statute
Art. 3 Right to remain silent
Everyone has the right to remain silent, without such silence being a consideration
in the determination of guilt or innocence
Sources: Art. 14 Abs. 3g ICCPR, Art. 55 Abs. 2 b) ICC-Statute
Art. 4 Right to defence
1. Everyone has the right to defend himself in person or through defence-counsel
of his own choice, or, if the person does not have a defence-counsel, to
have a defence-counsel assigned to him without payment by the person in any
such case if the person does not have sufficient means to pay for it.
2. At any stage of the proceedings the suspect has the right to have adequate
time and facilities for the preparation of his defence. Prior to any decision
of the court he has the right to be heard. After arrest otherwise with the
delivery of the indictment to the (pre-trial-)court the Prosecutor’s Office
has to disclose all incriminating and all exonerating evidence.
3. Everyone has the right for access to the files through his legal assistance.
In the case of an accused defending himself the accused is provided with
copies of the files. With respect to subpoenas access to the files, at least
concerning those parts of the file which shall justify the subpoena has to
be granted in a timely manner prior to the court’s decision about the lawfulness.
4. Everyone has the right to free contact to his defence-counsel. The records
of the accused and of the defence-counsel produced in the course of defence
cannot be seized.
Sources: Art. 6 Abs. 3c ECHR, Art. 14 Abs. 3 ICCPR, Art. 47 S. 2,3 European
Charta of fundamental rights, Art. 55 Abs. 2 c, 66 Abs. 1 ICC-Statute
Art. 5 Information
1. Everyone charged with a criminal offence, especially a detained person
shall be informed promptly, in a language which he understands, of the reasons
for his arrest and of any charge against him before being questioned.
2. The suspect has the right to have the free assistance of an interpreter
if he cannot understand or speak the language of the prosecution authorities
or the language used in court.
Art. 6 Abs. 3 a), e) ECHR, Art. 14 Abs. 3a ICCPR, Art. 55 Abs. 1 c) ICC-Statute
Art. 6 Right for freedom
1. Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or in order to secure the fulfilment of any obligation
prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered necessary
to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before
the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts;
f) the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
2. All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.
3. Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate
to their status as unconvicted persons; accused juvenile persons shall be
separated from adults and brought as speedily as possible for adjudication.
The penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be accorded treatment appropriate
to their age and legal status.
4. Everyone arrested or detained shall be brought promptly before a judge
or other officer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
5. Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall
be decided speedily by a court and his release ordered if the detention is
6. Everyone who has been the victim of arrest or detention in contravention
of the provisions of this article shall have an enforceable right to compensation.
Sources: Art. 5 ECHR (without sec. 1 e „vagrants“), Art. 10 ICCPR, Art. 47
S. 1 European Charta of fundamental rights
Art. 7 Respect for private and family life
1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise
of this right except such as is provided by the law, is in accordance with
the law and is necessary and commensurable according to the standards
of a democratic society.
3. In the case of an arrest the relatives of the arrested have to be informed
immedia-tely about the arrest.
Art. 8 ECHR
Art. 8 Right of personal integrity
No one shall be subjected to any form of coercion, duress or threat, to torture
or to any other form of cruel, inhuman or degrading treatment or punishment.
The freedom of will shall not be harmed in any way.
Art. 3 ECHR, Art. 7, Art. 55 Abs. 1 b) ICC-Statute, convention against torture
Art. 9 Right for remedy
Everyone has the right for proceedings to an independent and impartial tribunal
established by law to decide about the lawfulness of any measures in criminal
proceedings which directly or indirectly violate his rights or his freedom
within reasonable time.
Art. 2, 3, 5 Abs. 4, 13 ECHR
Art. 10 Fair Trial
1. In the determination of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law
2. The accused and his defence counsel have the right to be present at trial
and to give statements to any evidence and statement presented to the court
within a reasonable time.
3. The accused and his defence counsel have the right to examine or have
examined witnesses against the accused and to obtain the attendance and examination
of witnesses on the behalf of the accused under the same conditions as witnesses
against the accused.
Sources: Art. 6 Abs. 3 d ECHR, Art. 14 Abs. 1,3 ICCPR, Art. 47 S. 2 European
Charta of fundamental rights
Art. 11 Nulla poena sine lege - No punishment
No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the criminal
offence was committed.
Quelle: Art. 7 Abs. 1 ECHR, Art. 15 ICCPR, Art. 49 European Charta of fundamental
Art. 12 Ne bis in idem
No one shall be liable to be tried or punished again for an offence for which
he has already been finally convicted or acquitted in accordance with the
Sources: Art. 14 Abs. 7 ICCPR, Art. 50 European Charta of fundamental rights,
Art. 54 SDÜ, Art. 20 Abs. 1 ICC-Statute
Art. 13 Most-favoured nation-clause in cases
of border-crossing cooperation
None of the aforementioned rights shall be granted in a smaller extent or
be restricted in a higher degree because authorities or courts also of another
state being involved in criminal proceedings.
Art. 14 Common responsbility
In cases subject to Art. 13 all states involved have responsibility to take
care for fundamental rights in border-crossing measures.
Art. 15 Effective legal protection
Before border-crossing measures are performed or enforced transnational effective
legal protection for persons concerned has to be given.
Art. 16 Right for prosecution by only one penal
In the case of one or more penal powers with respect to a criminal offence
Art. 15 is applicable for the determination of the one penal power to be
Art. 17 Right for multinational defence-counsel-teams
In cases of Art. 13 the person concerned/ haunted has the right for multinational
defence-counsel-teams of the states involved.