PURPOSE: to strengthen the rights of children suspected or accused in criminal proceedings.

LEGISLATIVE ACT: Directive (EU) 2016/800 of the European Parliament and of the Council on procedural safeguards for children who are suspects or accused persons in criminal proceedings

CONTENT: the Directive establishes procedural safeguards to ensure that children, meaning persons under the age of 18 , who are suspects or accused persons in criminal proceedings, are able to understand and follow those proceedings and to exercise their right to a fair trial, and to prevent children from re-offending and foster their social integration.

The text recalls that on 30 November 2009, the Council adopted a resolution on a roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings, and the Directive is part of the roadmap.

The roadmap calls for the adoption of measures regarding: (i) the right to translation and interpretation, (ii) the right to information on rights and information about the charges, (iii) the right to legal advice and legal aid, (iv) the right to communicate with relatives, employers and consular authorities, and (v0 special safeguards for suspected or accused persons who are vulnerable.

The main provisions of the Directive are as follows:

Right to information : children should receive information about general aspects of the conduct of the proceedings. To that end, they should, in particular:

be given a brief explanation about the next procedural steps in the proceedings in so far as this is possible in the light of the interest of the criminal proceedings, and about the role of the authorities involved; the right to an individual assessment and the right to a medical examination at the earliest appropriate stage in the proceedings, at the latest upon deprivation of liberty where such a measure is taken in relation to the child.

Member States should inform the holder of parental responsibility about applicable procedural rights, in writing, orally, or both.

Assistance by a lawyer : Member States shall ensure that: (i) children are assisted by a lawyer without undue delay once they are made aware that they are suspects or accused persons; (ii) national law in relation to legal aid guarantees the effective exercise of the right to be assisted by a lawyer.

Children shall have the right to meet the lawyer privately and communicate confidentially, including before they are questioned by the police or by another law enforcement or judicial authority. They must be assisted by a lawyer:

when they are questioned, and during investigative or evidence-gathering acts, such as identity parades, confrontations, and reconstructions of the scene of a crime where those acts are provided for under national law; when they are brought before a competent court or judge in order to decide on detention at any stage of the proceedings, as well as during detention.

Provided that this complies with the right to a fair trial, Member States should be able to derogate from the obligation to provide assistance by a lawyer where this is not proportionate in the light of the circumstances of the case, it being understood that the child's best interests should always be a primary consideration.

Right to an individual assessment : the specific needs of children concerning protection, education, training and social integration must be taken into account. The individual assessment shall, in particular, take into account the child's personality and maturity, the child's economic, social and family background, and any specific vulnerabilities that the child may have.

The individual assessment shall be carried out at the earliest appropriate stage of the proceedings, and in principle, before indictment, by qualified personnel, following, as far as possible, a multidisciplinary approach and involving, where appropriate, the holder of parental responsibility, or another appropriate adult and/or a specialised professional.

Right to a medical examination : children who are deprived of liberty must have the right to a medical examination without undue delay with a view, in particular, to assessing their general mental and physical condition. The medical examination shall be as non-invasive as possible and shall be carried out by a physician or another qualified professional.

Audiovisual recording of questioning : questioning of children by police or other law enforcement authorities during the criminal proceedings must be audio-visually recorded where this is proportionate in the circumstances of the case, taking into account, inter alia, whether a lawyer is present or not and whether the child is deprived of liberty or not, provided that the child's best interests are always a primary consideration.

Limitation of deprivation of liberty : the Directive contains particular safeguards for children during deprivation of liberty, in particular detention.

Deprivation of liberty, shall be imposed on children only as a measure of last resort , and limited to the shortest appropriate period of time. Due account shall be taken of the age and individual situation of the child, and of the particular circumstances of the case. Children who are detained must be held separately from adults , except in exceptional circumstances.

When children are detained, Member States shall take appropriate measures to: (i) ensure and preserve their health and their physical and mental development; (ii) ensure their right to education and training, including where the children have physical, sensory or learning disabilities; (iii) ensure the effective and regular exercise of their right to family life; (iv) ensure respect for their freedom of religion or belief.

Children who are deprived of liberty should be able to meet with the holder of parental responsibility as soon as possible, where such a meeting is compatible with investigative requirements.

Member States shall ensure that the privacy of children during criminal proceedings is protected, and that children have the right to be present at their trial, including by giving them the opportunity to be heard and to express their views.

Denmark, the United Kingdom and Ireland will not participate in the adoption of the Directive and will not be bound by it.

ENTRY INTO FORCE: 10.6.2016.

TRANSPOSITION: by 11.6.2019.

The European Parliament adopted by 613 votes to 30, with 56 abstentions, a legislative resolution on the proposal for a directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in criminal proceedings.

Parliament’s position, adopted in first reading following the ordinary legislative procedure, amended the Commission proposal as follows:

Scope : this Directive applies to children who are suspects or accused persons in criminal proceedings . It applies until the final determination of the question whether the suspect or accused person has committed a criminal offence, including, where applicable, sentencing and the resolution of any appeal. It applies to suspects or accused persons in criminal proceedings, and to requested persons, who were children when they became subject to the proceedings, but who have subsequently reached the age of 18, and where the application of this Directive is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned.

This Directive shall not apply in respect of certain minor offences (e.g. road traffic offences). However, it should apply where a child who is a suspect or accused person is deprived of liberty

Right to information : children should receive information about general aspects of the conduct of the proceedings. To that end, they should, in particular, be given a brief explanation about the next procedural steps in the proceedings in so far as this is possible in the light of the interest of the criminal proceedings, and about the role of the authorities involved.

Information shall be provided at the earliest appropriate stage in the proceedings as regards the right to a medical examination, including the right to medical assistance; the right to limitation of deprivation of liberty and to the use of alternative measures; the right to be accompanied by the holder of parental responsibility during court hearings; the right to effective remedies and the right to specific treatment during deprivation of liberty.

Children must be informed promptly – in writing and orally, by procedures appropriate to their age , understanding, and intellectual ability, in a simple language which they understand – about the charges against them, the conduct of the proceedings and their rights.

Where the child has not nominated another appropriate adult, or where the adult that has been nominated by the child is not acceptable to the competent authority, the competent authority shall, taking into account the child's best interests, designate, and provide the information to, another person.

Assistance by a lawyer : the provisions on assistance by a lawyer should apply without undue delay once children are made aware that they are suspects or accused persons. Member States shall ensure that children have the right to meet in private and communicate with the lawyer representing them , including prior to questioning by the police or by another law enforcement or judicial authority.

Member States shall ensure that children are assisted by a lawyer when they are questioned, and that the lawyer is able to participate effectively during questioning. Such participation shall be conducted in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise or essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure under national law.

Member States shall respect the confidentiality of communication between children and their lawyer in the exercise of the right to be assisted by a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law.

Member States shall respect the confidentiality of communication between children and their lawyer in the exercise of the right to be assisted by a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law. Provided that this complies with the right to a fair trial, Member States may derogate from the rules where assistance by a lawyer is not proportionate in the light of the circumstances of the case, taking into account the seriousness of the alleged criminal offence, the complexity of the case and the measures that could be taken in respect of such an offence, it being understood that the child's best interests shall always be a primary consideration.

Member States shall also ensure that deprivation of liberty is not imposed as a criminal sentence, unless the child has been assisted by a lawyer in such a way as to allow the child to exercise the rights of the defence effectively and, in any event, during the trial hearings before a court.

In exceptional circumstances, and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights as regards the assistance by a lawyer on the basis of one of the following compelling reasons: (i) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (ii) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings in relation to a serious criminal offence.

Right to an individual assessment : the individual assessment shall serve to establish and to note, in accordance with the recording procedure in the Member State concerned, such information about the individual characteristics and circumstances of the child as might be of use to the competent authorities when: (i) determining whether any specific measure to the benefit of the child is to be taken; (ii) assessing the appropriateness and effectiveness of any precautionary measures in respect of the child; (iii) taking any decision or course of action in the criminal proceedings, including when sentencing.

The individual assessment shall be carried out at the earliest appropriate stage of the proceedings and, in principle, before indictment. It shall be carried out by qualified personnel , following, as far as possible, a multidisciplinary approach and involving, where appropriate, the holder of parental responsibility, or another appropriate adult, and/or a specialised professional.

Right to a medical examination : children who are deprived of liberty shall have the right to a medical examination without undue delay with a view, in particular, to assessing their general mental and physical condition. The medical examination shall be as non-invasive as possible and shall be carried out by a physician or another qualified professional.

Audio-visual recording of questioning : Member States shall ensure that questioning of children by police or other law enforcement authorities during the criminal proceedings is audio-visually recorded where this is proportionate in the circumstances of the case and provided that the child's best interests are always a primary consideration.

Limitation of deprivation of liberty : Member States shall ensure that deprivation of liberty of a child at any stage of the proceedings is limited to the shortest appropriate period of time . Detention, shall be imposed on children only as a measure of last resort and should be based on a reasoned decision, subject to judicial review by a court.

Unless in exceptional circumstances, children kept in custody shall be held separately from adults .

When children are detained, Member States shall take appropriate measures to: (i) ensure and preserve their health and their physical and mental development; (ii) ensure their right to education and training, including where the children have physical, sensory or learning disabilities; (iii) ensure access to programmes that foster their development and their reintegration into society; (iv) ensure respect for their freedom of religion or belief.

Children who are deprived of liberty shall be able to meet with the holder of parental responsibility as soon as possible , where such a meeting is compatible with investigative and operational requirements.

Children shall always be treated in a manner which protects their dignity and which is appropriate to their age, maturity and level of understanding. Member States shall ensure that the privacy of children during criminal proceedings is protected.

Right of children to appear in person at, and participate in, their trial : children shall have the right to be present at their trial and have the opportunity to be heard and to express their views.

Remedies : Member States shall ensure that children who are suspects or accused persons in criminal proceedings and children who are requested persons have an effective remedy under national law in the event of a breach of their rights under this Directive.

The Committee on Civil Liberties, Justice and Home Affairs adopted the report by Caterina CHINNICI (S&D, IT) on the proposal for a directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in criminal proceedings.

The committee recommended that Parliament’s position adopted in first reading following the ordinary legislative procedure should amend the Commission proposal as follows:

Scope: the Directive applied to suspects or accused persons subject to criminal proceedings who had reached the age of 18 but were still under the age of 21 at the beginning of those proceedings, which related to offences allegedly committed before those persons had reached the age of 18.

Right to information : children must be informed promptly – in writing and orally, by procedures appropriate to their age, understanding, and intellectual ability, in a simple language which they understand – about the charges against them, the conduct of the proceedings and their rights.

Right to mandatory assistance by a lawyer: a lawyer must assist children at every stage in the proceedings. The right to be assisted by a lawyer cannot be waived.

Right to an individual assessment : this assessment must (i) take particular account of the personality and maturity of the child, its family, economic and social background, its living environment and any specific vulnerabilities; (ii) take place at the earliest appropriate stage in the proceedings and in any event before indictment or the ordering of measures involving deprivation of liberty, except where this is impossible; (iii) establish and record such information about the individual characteristics and circumstances of the child as might be of use to the competent authority; (iv) be carried out by qualified persons.

Right to medical examination : where a child has been deprived of liberty, where the proceedings so require, or where it is in the best interests of the child, the child must have access without delay to a medical examination and medical care in order to evaluate, protect and, where necessary, improve the health and well-being of the child.

Questioning: the questioning of children must carried out in a manner that takes account of their age, level of maturity and any other needs determined during the individual assessment conducted

Right to liberty : children may be deprived of liberty before their conviction only as a measure of last resort, ensuring in every case respect for the human dignity and the rights of the child in custody. Due account shall be taken of the age, individual situation and personality of the child and the particular circumstances under which the offence was committed. Every child deprived of liberty shall have the right to challenge the legality of the deprivation of liberty before a court or other competent, independent and impartial authority. Children placed in provisional detention must be kept separately from adults and convicted children.

Right to specific treatment : arrests of children must be carried out on the basis of procedures and with safeguards appropriate to the child’s age and degree of maturity. Once arrested the child must have the right to meet the holder of the parental responsibility or another appropriate adult promptly and in any event prior to questioning.

During the period of deprivation of liberty , Member States must take all appropriate measures to: (i) preserve the health and physical and mental development of the child, (ii) protect the dignity and identity of the child (iii) ensure that the special requirements of those children with physical, sensory, and learning disabilities are provided for, (iv) ensure the freedom of the child to express his or her religion or belief; (v) ensure that independent inspections are carried out on a regular basis to check the state of the detention facilities and the treatment of detainees.

Right of children to appear in person at, and take part in, the trial : children must be entitled to be present and to participate in the trial and shall take all necessary steps to enable them to participate fully, including by giving them the opportunity to be heard and to express their views.

Remedies : suspected or accused children in criminal proceedings, as well as children subject to European arrest warrant proceedings, must have an effective remedy under national law in the event of a breach of their rights under the Directive.

Non-discrimination : Member States shall: (i) respect and guarantee the rights set out in the Directive as regards any child within their jurisdiction without discrimination of any kind; (ii) promote training of all the professionals involved in the administration of juvenile justice, specifically in the light of particularly vulnerable groups, such as street children, children belonging to racial, ethnic, religious or linguistic minorities, migrant children, indigenous children, girls, children with disabilities.

Derogations : the committee considered that in general, derogations should be allowed only on the basis of assessments of the best interests of the child.

The Council held a policy debate on the proposal for a directive on procedural safeguards for children who are suspected or accused in criminal proceedings. The proposal aims to ensure that children are able to understand and follow the criminal proceedings to which they are subject, and that they can exercise their right to a fair trial.

It also seeks to prevent reoffending by children and foster their social integration.

The debate was focused on the following issues:

scope : according to the proposal, the directive also applies to suspects and accused persons who are adults, if these persons were children when they committed the criminal offence and the criminal proceedings started when they were children. While certain Member States consider that the directive should no longer apply when the suspect or accused person comes of age, other Member States consider that certain rights should continue to apply in that situation; right of access to a lawyer : the proposal provides that Member States must ensure that children are assisted by a lawyer throughout the criminal proceedings in accordance with Directive 2013/48/EU and that the right of access to a lawyer cannot be waived. A large majority of Member States confirmed that children should not be able to waive their right of access to a lawyer, independently of whether or not they are deprived of liberty. Some exceptions for minor cases should however apply; right to protection of privacy : according to the proposal, Member States must ensure that criminal proceedings involving children take place in the absence of the public, unless, after due consideration of the best interests of the child, exceptional circumstances justify a derogation. A large majority of Member States favour, or can at least accept, the option whereby the directive would not contain any principle on the issue of the protection of privacy, but that Member States should ensure such privacy, taking the interests of children duly into account.

On the basis of this guidance, the preparatory bodies of the Council will continue the work on the proposal. The Presidency aims to reach agreement on a general approach on the text in June, which will then constitute the basis for the negotiations with the European Parliament.

PURPOSE: to establish common minimum standards on procedural safeguards for children suspected or accused in criminal proceedings

PROPOSED ACT : Directive of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.

BACKGROUND: the Stockholm Programme put a strong focus on the strengthening of the rights of individuals in criminal proceedings. The European Council asked the Commission to put forward proposals setting out a step by step approach to strengthening the rights of suspects and accused persons.

Up to now, three measures have been adopted: Directive 2010/64/EU on the right to interpretation and translation, Directive 2012/13/EU on the right to information and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

The proposal continues this work and is part of a series of measures on criminal justice which includes: (i) a directive on strengthening certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; (ii) a directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings.

This measure also forms part of the EU Agenda for the Rights of the Child to which the European Parliament, the Council of Europe and UNICEF have contributed. It is presented together with a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings and vulnerable persons subject to European arrest warrant proceedings.

By establishing minimum rules on the protection of procedural rights of suspects or accused persons, this Directive should strengthen the trust of Member States in the criminal justice systems of other Member States and can thus help improve mutual recognition of decisions in criminal matters.

IMPACT ASSESSMENT : the Commission has undertaken an impact assessment to support this proposal.

CONTENT : the draft directive aims to:

· establish procedural safeguards to ensure that children who are suspected or accused in criminal proceedings are able to understand and follow those proceedings;

· enable such children to exercise their right to a fair trial and to prevent re-offending by children and foster their social integration .

The directive will apply to children, meaning persons under the age of 18 , subject to criminal proceedings from the time when they become suspected or accused of having committed an offence and until the conclusion of the criminal proceedings.

Children will have the following procedural guarantees :

Right to information : the child should be informed promptly of the rights under the Directive. In proceedings involving children, the urgency principle should be applied to provide a rapid response and protect the best interests of the child.

Right to information of the holder of parental responsibility : further complementary safeguards are provided with regard to the information of the holder of parental responsibility or an appropriate adult in order the take into account the specific needs of children provided that this does not prejudice the due course of the criminal proceedings.

Right to an individual assessment : such an individual assessment is needed in order to identify the child's specific needs in terms of protection, education, training and re-integration into society, to determine to what extent he or she would need special measures during criminal proceedings. The individual assessment should be carried out at the latest before the indictment.

Right to a lawyer : the directive aims to ensure mandatory access to a lawyer for children who are suspected or accused in criminal proceedings. It also provides that children may not waive this right. However, there are exceptions that include certain minor offences in relation to general municipal regulations and minor public order offences.

Right to medical examination : if the child is deprived of liberty, the child should have the right to medical examination upon request by the holder of parental responsibility, the appropriate adult or the child's lawyer. If the medical examination of a child leads to the conclusion that the measures envisaged during the criminal proceedings against the child (e.g. questioning of the child, detention) are incompatible with the general mental and physical condition of the child, the competent authorities should take appropriate measures in accordance with national law.

Questioning of children: if a child is deprived of liberty, questioning should always be recorded. Such records must be accessible only to the judicial authorities and the parties of the proceedings to ensure their content and context.

Right to liberty : in accordance with United Nation’s rules on the rights of the child, any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time. Taking into account these international standards, this Directive sets minimum rules as regards detention.

In order to avoid deprivation of liberty for children, competent authorities should take any alternative measures to deprivation of liberty whenever this is in the best interests of the child.

Right to specific treatment in case of deprivation of liberty: children in particular should have the right to: (i) maintain regular and meaningful contact with parents, family and friends; (ii) receive appropriate education, guidance and training; (iii) receive medical care; (iv) be kept separately from adults in order to take into account their vulnerability.

Right to protection of privacy: children should be judged in the absence of public. In exceptional cases the court may decide that a hearing is held publicly after it has taken due account of the best interests of the child. In order to ensure proper assistance and support of the child during court hearings, the holder of parental responsibility should be present.

Right of children to appear in person at the trial: the right to be present at trial applies to any trial aiming at assessing the question of the guilt of the accused person (both conviction and acquittal decisions).

European arrest warrant proceedings : the proposal applies to children subject to proceedings pursuant to Framework Decision 2002/584/JHA from the time they are arrested in the executing State. The competent authorities in executing Member States shall apply the rights set out in the directive, which will promote mutual trust and mutual recognition.