“The right to information is a crucial building block of the right to a fair trial. Without it, other rights which exist in law are, in practice, illusory.”
- Hungarian Helsinki Committee
The right to information in criminal proceedings ensures that every arrested person knows why they have been arrested and what evidence has been collected against them (access to the case-file). It also includes information on one’s own rights in case of arrest, such as the right to remain silent or the right to consult a lawyer. Without this information, no one would be able to defend themselves and challenge the arrest.
Here, we are concerned with the notification of rights to persons arrested or detained. Specifically, we are discussing a model developed in the European Union (EU) guaranteeing that all suspects or accused persons who are arrested or detained will be informed of their rights in writing, through a simple and accessible Letter of Rights. This document presents the findings from an EU-wide study on this carried out by the Bulgarian Helsinki Committee, Fair Trials, the Hungarian Helsinki Committee (as project coordinator), Human Rights Monitoring Institute Lithuania, and Rights International Spain.
If people do not know their rights, they will not be able to exercise them. Even if they are notified of their rights, many people will not be able to fully understand them because custody is a high stress situation and because the language used is often complex and technical. Moreover, police authorities too often try to make people waive their rights. For instance, many arrested people report that police officers try to dissuade them from calling a lawyer or remaining silent, saying that exercising these rights would show them in an bad light or extend their time in custody.
“If arrested, you cannot appeal your detention if you do not understand how you should do it, or that you’re even entitled to it. Knowing your rights during your detention is fundamental to a fair trial”
- Plain language expert, Hungary
“Very often the police authorities try to motivate the persons arrested to waive their rights, especially the right to access a lawyer”
- Criminal defence lawyer, Bulgaria
In 2012, the EU enacted Directive 2012/13 on the right to information in criminal proceedings. EU Member States were given until 2 June 2014 to adopt national legislation giving effect to the rights in the Directive. The Directive requires that suspects and accused persons are provided promptly, both orally and in writing, with information concerning their rights. This information needs to be delivered in simple and accessible language, taking into account any particular needs of vulnerable suspects or accused persons, such as minors, foreigners and people with mental disabilities. As outlined in the table across the page, information on certain rights must be provided both orally and in writing, while other rights can be simply notified only in writing.
The EU Directive on the Right to Information and the African Commission on Human and Peoples’ Rights Guidelines on Conditions of Arrest, Police Custody and Pre-trial Detention (Luanda Guidelines) are the only international or regional instruments requiring the use of Letters of Rights in criminal proceedings. Unlike the EU Directive, however, the Luanda Guidelines are not legally binding and enforceable. We surveyed 58 countries worldwide and found that Letters of Rights do not often exist outside the EU. This is why the EU should promote its model around the world.
Our study shows that Letters of Rights can have a positive impact on the understanding of rights by people arrested or detained by the police, particularly where the letters are simple and accessible, people are provided adequate time to read them and, ideally, have someone available to explain the rights to them who is not trying to encourage the person to waive their rights. In Ireland, for example, Letters of Rights are delivered and explained by a person independent of the underlying police investigation resulting in better informed suspects or accused persons.
“A suspect being placed in custody is a stressful moment for everyone. The emotional state of the suspect does not enable him or her to necessarily understand everything verbally. The Letter of Rights enables him or her to delve into it more, in particular during breaks and to change a decision taken quickly (the right to silence, to a lawyer, to contact the family, etc.).”
- Police Officer, France
“The right to a fair trial is one of the cornerstones of a just society. Without fair trials, innocent people are convicted and the rule of law and public faith in the justice system collapse. Fair Trials is a unique human rights charity that helps people facing criminal charges all over the world to protect this basic right and campaigns for fairer criminal justice systems.”
- Fair Trials
If you are a journalist interested in this story, please call the media team on +44 (0) 7749 785 932 or email [email protected]