Discussion-paper "Procedural safeguards of the suspect/accused in Europe"



Art. 1:    Information about rights
Art. 2:    Presumption of innocence
Art. 3:    Right to remain silent
Art. 4:    Right for defence
Art. 5:    Information
Art. 6:    Right for freedom
Art. 7:    Respect for private and family life
Art. 8:    Right for personal integrity
Art. 9:    Right for remedy
Art. 10:  Fair trial
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 responsibility
Art. 15:  Effective legal protection
Art. 16:  Right for prosecution by only one penal power
Art. 17:  Right for multinational defence-counsel-teams


Art. 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.

Sources:
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.


Sources:
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.


Sources:
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 not lawful.

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.


Sources:
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.

Sources:
Art. 3 ECHR, Art. 7, Art. 55 Abs. 1 b) ICC-Statute, convention against torture 1984


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.

Quelle:
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 without law

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 rights

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 law.

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 power

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 executed.

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.

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