Introduction

“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 

What is the right to information?

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.

What are we talking about here?

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.

What is the problem?

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

How is the issue addressed in the EU?

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.

EU Letters of Rights as a global model

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.

Letters of Rights are working

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

Where work is still needed

• Letters of Rights are not always delivered in practice to all relevant people. In some jurisdictions, like in Bulgaria, suspects do not receive any written letter because the national law does not recognise the status of a “suspect”. People are often not given enough time to read and understand the Letter.
• In Spain, for instance, some of the interviewed judges and interpreters said that the suspects or accused persons receive a lot of information in a short time, which makes it hard to assimilate it.
• In some EU countries not all rights are included in the Letter of Rights. For example, in France information is not provided regarding the right to legal aid. Written translations of the Letters of Rights are not always provided to people who do not understand the national language.
• In Lithuania, for instance, authorities only provide oral translations. Police authorities continue to try to dissuade people from exercising the rights set out in the Letter of Rights, especially the right of access to a lawyer and the right to silence.
• The biggest challenge, however, is the accessibility of the Letters of Rights. In most countries, the documents are too often written in legalistic terms, with complex sentences and confusing formatting, making it extremely difficult for laypeople to understand their rights.
• In others, the Letters of Rights are too simple, not providing sufficient information necessary to fully understand the rights.

How to make Letters of Rights more accessible

1. Use plain language. Plain language is about communicating clearly. In particular, a communication is in plain language if the language, structure, and design are so clear that the intended audience can: easily find what they need; understand what they find; and use that information.
2. Include essential information about all the rights set out in the Directive. This includes details about the implications of exercising the rights, such as the right to silence and the right to a lawyer.
3. Involve a plain language expert and all the relevant stakeholders in the drafting process, including arrested people, police officers, judges and prosecutors.
4. Test the drafts of the Letter of Rights, using the testing model outlined across the page, incorporating the findings of the assessment into future drafts. An accessible Letter of Rights can require several trials to be as understandable as possible.

“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