Protecting Young Suspects in the EU: A Look at the New Directive
If we don’t stand up for children, then we don’t stand for much.
Marian Wright Edelman
Debbie Sayers, Legal Research Consultant, http://interalia.org.uk
Ensuring fair treatment within the criminal justice system is crucial, and this fairness necessitates different safeguards based on individual circumstances. Children, being particularly vulnerable, require special protective measures, as recognized by international standards such as the UN Convention on the Rights of the Child and the Council of Europe Guidelines on child-friendly justice. The European Court of Human Rights (ECtHR) echoes this, emphasizing the need to consider a child’s age, maturity, and intellectual capacity in criminal proceedings.
The European Commission reports that around 1 million children (approximately 12% of the total) undergo criminal justice proceedings in the EU annually, revealing significant variations in procedures across member states. To address this, the EU has approved a new Directive to standardize safeguards for child suspects. This Directive is the fifth in a series aimed at harmonizing criminal procedural rights within the EU. It builds upon the Roadmap for strengthening procedural rights and a Recommendation on safeguards for vulnerable suspects. This post delves into this new Directive, analyzing its key elements and potential shortcomings.
Analyzing the Directive
This complex Directive, with its 39 Recitals and 25 operative Articles, aims to establish procedural guarantees for children suspected or accused in criminal proceedings. These guarantees intend to facilitate comprehension and participation in the proceedings, ensuring a fair trial and working towards preventing re-offending and promoting social reintegration. Although children are already covered by existing human rights guarantees, the Directive acknowledges that these alone haven’t ensured consistent trust in the diverse criminal justice systems across EU Member States. The ECtHR’s standards remain the benchmark for assessing the new Directive’s effectiveness, and the Directive itself emphasizes maintaining protection levels consistent with the Charter of Fundamental Rights of the European Union and the ECHR.
While legislation promoting children’s rights is always positive, a separate Directive focusing on child suspects should ideally enhance and expand upon existing standards in a way that directly addresses the challenges faced by children. It should prioritize their best interests, minimize ambiguity and discretionary powers that could hinder implementation, and ultimately ensure effective enforcement in practice. This analysis will evaluate some key aspects of the Directive and assess whether it truly lives up to these expectations.
Scope
The Directive defines a “child” as anyone under 18 years old at the time they become subject to proceedings. If there’s uncertainty, the individual is presumed to be a child. Interestingly, the Directive’s application extends to instances where a child turns 18 during the proceedings, but only if deemed appropriate considering the individual’s maturity and vulnerability. Even then, Member States can choose not to apply the Directive once the individual turns 21. This deviates from the UN Committee on the CRC’s stance, which advocates for the application of juvenile justice rules to anyone under 18 at the time of the alleged offense.
The Directive establishes “minimum rules” for children involved in both criminal and European Arrest Warrant (EAW) proceedings, effective from the point of being suspected or accused until the case’s final determination, including sentencing and appeal. Notably, it doesn’t impact national laws determining the age of criminal responsibility. The Directive also covers situations where a child becomes a suspect or accused during questioning by law enforcement. However, it restricts its application in cases of minor offenses, only guaranteeing full application when a child is deprived of liberty, regardless of the stage of proceedings. This restriction raises concerns, as the ECtHR doesn’t differentiate between offense types; Article 6 protection applies as soon as a “criminal charge” is levied.
Rights Outlined in the Directive
The Directive sets forth a series of rights for children involved in criminal proceedings.
Right to Information: The Directive mandates promptly informing child suspects about their rights as outlined in the Directive on the Right to Information, as well as general aspects of the proceedings. This information should ideally be provided in a child-friendly format, ensuring comprehension, but the Directive only requires “simple and accessible language”.
Right to Have Parental Responsibility Holder Informed: The Directive requires informing the holder of parental responsibility (PR) “as soon as possible” with the same information provided to the child. However, it allows for an “appropriate adult” to be designated in specific situations, potentially undermining the role of the primary caregiver.
Right to Legal Assistance: Recognizing the vulnerability of suspects during investigations, the Directive reaffirms the right to legal assistance “without undue delay” from the earliest possible point. This includes the right to private consultations, confidentiality of communication, and legal presence during questioning and investigative acts. However, it does allow for exceptions and derogations based on proportionality and “exceptional circumstances,” potentially impacting the consistency of this right’s application.
Right to an Individual Assessment: The Directive mandates an individual assessment of each child to understand their specific needs concerning protection, education, social integration, and any vulnerabilities. This assessment, conducted with the child’s involvement and by qualified professionals, informs decisions made by competent authorities. However, the Directive does allow for proceeding with an indictment even without an early individual assessment, which raises concerns about its effectiveness in safeguarding a child’s best interests.
Right to a Medical Examination: Children deprived of liberty have the right to a medical examination “without undue delay,” which can be requested by the child, their PR holder, appropriate adult, or lawyer. However, limiting this right only to those deprived of liberty is concerning, as medical examinations can be crucial for any child navigating the justice system.
Audio-visual Recording of Questioning: The Directive promotes the audio-visual recording of questioning of children by law enforcement, but only when deemed “proportionate” considering the circumstances. This condition introduces a degree of subjectivity that could compromise the consistent application of this safeguard.
Limitation of Deprivation of Liberty: The Directive reiterates that deprivation of liberty for a child should be a last resort and for the shortest appropriate time, taking into account their age and individual circumstances. However, it lacks a clear definition of “deprivation of liberty” and does not adequately address situations beyond traditional detention, such as restrictions imposed through alternative care arrangements.
Specific Treatment in Case of Deprivation of Liberty: For detained children, the Directive outlines minimum requirements, such as separation from adults (with some exceptions), access to education, health services, family contact, and respect for their religious beliefs. However, it allows for discretion in applying these safeguards, potentially leading to inconsistent treatment.
Timely and Diligent Case Handling: The Directive emphasizes treating cases involving children with urgency and diligence, ensuring respect for their dignity and understanding throughout the process. It also mandates effective remedies for any breach of rights.
Right to Privacy: Protecting a child’s privacy during proceedings is paramount. The Directive promotes holding hearings in the absence of the public unless deemed inappropriate by the court, reflecting existing human rights standards.
Right to be Accompanied by PR Holder: Recognizing the importance of support, the Directive grants children the right to be accompanied by their PR holder during court hearings and, at the discretion of the authorities, during other stages of the proceedings.
Right to Appear and Participate in Trial: The Directive affirms a child’s right to be present and actively participate in their trial, including the opportunity to be heard. It guarantees the right to a new trial or legal remedy if this right is violated.
Right to Legal Aid: The Directive mandates that national laws concerning legal aid ensure effective access to legal assistance, acknowledging the potential financial barriers faced by children and their families.
Other Notable Provisions
Beyond individual rights, the Directive emphasizes training for individuals involved in the criminal justice system, data collection to monitor the Directive’s implementation, and cooperation between Member States in managing cross-border cases.
Concluding Observations: A Mixed Bag?
While the Directive signifies a step towards more robust protection of children in criminal proceedings, several concerns remain:
- Fragmentation of Protections: Placing these safeguards in a separate document risks inconsistencies and complicates their application alongside existing safeguards.
- Reiteration over Innovation: Some provisions merely reiterate existing minimum requirements for all defendants, offering limited advancements specific to children.
- Deviation from International Standards: The Directive falls short of aligning with certain international standards of protection for children in conflict with the law.
- Discretion and Exceptions: Numerous discretionary provisions and exceptions could lead to inconsistent application and undermine the Directive’s overall effectiveness.
Ultimately, the Directive’s true impact hinges on its practical enforcement. The question remains: will these standards succeed where others have faltered? Only time and robust monitoring will tell.
Barnard & Peers: chapter 25
JHA4: chapter II.4
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