Inside Police Custody: Application of EU Procedural Rights

The project is funded by the European Commission* and will contribute to the successful implementation of EU legislation on the procedural rights of suspects in criminal matters. The core of the project is undertaking observational research with police and lawyers on the practical application of the procedural rights of suspects during police detention, with an aim to develop recommendations for legislative and policy changes to ensure better enforcement of the EU procedural rights’ Directives.

The research will be conducted in nine countries: Hungary, Poland, Italy, Bulgaria, Spain, Lithuania, Romania, Austria, and Slovenia. It is coordinated by JUSTICIA European Rights Network.

Research methodology

This research methodology has been well-tested in other countries. Between 2010 and 2015, the same research methodology was successfully conducted by our partners in another seven jurisdictions, resulting in valuable results: France, the Netherlands, Scotland, England and Wales, Ukraine, Georgia and Moldova.

The empirical component of the project is designed to examine:

1. The extent to which European standards and domestic regulations on procedural rights of suspects in police detention are implemented in practice;
2. The practical obstacles and challenges to the effective implementation of these rights;
3. The wider professional context of defence lawyers, police and other criminal justice actors in facilitating effective provision of suspects’ procedural rights; and
4. Any differences in the provision of these rights in cross-border cases.

In each jurisdiction, we seek access to two research sites for 7 days per month, over 3 months. Researchers will conduct observations at police stations, and will accompany defence lawyers who provide legal assistance to criminal suspects at the stage of police detention.

They will also undertake on-site interviews with the practitioners involved (to include defence lawyers and police personnel). We hope to conduct semi-structured qualitative interviews with criminal suspects, and a practitioner survey will be administered to ensure greater representativeness of the findings.

 

The implementation period of the project is September 2016-August 2018.

Conclusions of the research

Overall, the Romanian legislation concerning the suspects’ and defendants’ rights is compliant with the EU law. However, additional legislative changes and guidelines need to be adopted in order to ensure fair and adequate protection of rights during the first phases of the criminal investigation, namely, the initial police hearings. Significant problems remain concerning the practical implementation of the already existing legal provisions.

Right to interpretation and translation

Researchers did not have the opportunity to observe how interpretation rights are guaranteed by police officers and lawyers during police hearings. All the suspects/defendants in the cases observed were Romanian citizens and presented no vulnerability which would have required interpretation services. Even so, it is very clear that the national legislative framework should be significantly amended in order to cover important requirements of the Directive 2010/64/UE on the right to interpretation and translation.

Interviewed police officers have complained that sometimes it is difficult to find an interpreter during the 24 hours police arrest (and also during later phases of the criminal investigation). One cause for this seems to be the very low interpreter fees (app. 5 euros/hour) and the fact that payment is processed with delay. In many cases there are no sanctions applied if the interpreter fails to respond to the police officers’ calls. Moreover, there are cases when in the absence of an interpreter, informal means of interpretation such as Google Translate are used.

Notification of rights

According to the Romanian legislation, criminal investigation bodies, including police officers are obliged to inform suspects and defendants about their rights and duties in writing. The law does not stipulate with clarity how this communication should be done. This omission/ambiguity of the law permits circumventing the actual information of the person, which may be asked to sign, in a statement, a purely formal sentence, in the sense that he has become aware of his rights (without, in fact, the person being informed of the existence and content of each right provided by law).

As of October 2017, suspects and defendants also have the right to a letter of rights. Unfortunately, during the observational research they were not available/provided in the police stations, therefore no assessment can be made about their impact in helping persons in police custody better understand their rights.  What can be stated with certainty is that the information provided about rights has been done in a formalistic manner. In practice, police officers are slightly more careful when it comes to persons deprived of liberty because failing to notify them of their rights triggers absolute nullity of the procedure (something they want to avoid). With very few exceptions, police officers did not provide further explanations or clarifications regarding the letter of rights put in front of suspects/defendants and in none of the cases did they check whether the suspect or defendant understood their rights.

The right to silence

In none of the observed cases did police officers or even lawyers explain suspects and defendants the meaning of the right to silence or the consequences of remaining silent/failing to do so. In half of the cases, persons in police custody were also orally informed about this right. In two cases this was done in a dissuasive manner. Senior lawyers interviewed claim that the right to silence is presented by police officers in a manipulative way, as if not giving a statement means that one has something to hide.

Access to casefile documents

None of the lawyers present during the observed police hearings had read any documents in the casefile before talking to his/her client. The Romanian legislation is limitative for the suspect, whose right to consult the file is restricted until he becomes a defendant. Lawyers have admitted that it is very difficult to adapt to the way the criminal investigation bodies work, especially their tactic of delaying access to the casefile documents, leading to an initial poor defence. According to current legislation, the possibility of case file restriction during the criminal investigation is formulated in general, ambiguous terms, giving a lot of power to prosecutors to deny access to documents.

Legal aid and the Role of Lawyers

Legal assistance is mandatory for persons who are deprived of liberty and under no circumstance can assistance be waived in these situations. For suspects and defendants who are not deprived of liberty and are investigated for minor offences, the police hearings can be carried out in the absence of a lawyer, if they cannot afford one. This is problematic, especially in cases of vulnerable persons, who cannot read or write. Even if the legislation allows criminal investigation bodies to appoint a legal aid lawyer if they consider a person cannot defend herself, this rarely happens in practice. In some cases, for persons deprived of liberty, some police officers chose to call certain lawyers, despite a well-established randomized appointment procedure.

During the police hearings, the researchers had the opportunity to observe the behaviour of both legal aid lawyers and private lawyers. The consultations before the hearings were very short, ranging from 1 minute to 10 minutes long and they usually happened either on the police station hallway or in the hearing room, in the presence of several police officers. There was no pressure coming from police officers concerning the length of these consultations, although in some situations it was not clear to them if they should allow for consultation breaks while the hearing was taking place. The most striking observation while attending hearings has been the attitude of most lawyers, characterized by lack of professionalism towards their clients. They were either indifferent (with minimal intervention) or arrogant, failing to explain what was going on and disregarding the clients’ opinion.

With one exception, based on the observations made, the legal assistance can be assessed as ineffective, a mere procedural formality.

 

Recommendations

Government and Parliament

• To amend the Criminal Procedure Code and the law regulating the lawyers’ activity in order to clearly specify what the legal assistance activity during the criminal investigation phase means. Detailed legislation should provide for the lawyer’s right to consult his client before answering any question during the hearing as well as their necessary stipulations for the operation in practice of the right to legal assistance.

• To amend the Criminal Procedure Code in order to make clear the maximum number of days for which restriction in a casefile may be ordered by the prosecutor.

• To amend the existing legal framework concerning the right to interpretation and translation during criminal proceedings in order to cover important requirements of the Directive 2010/64/UE. Thus:

• To adopt legislation in accordance with Article 2 (4) of the Directive in order to set in place a mechanism or procedure to determine whether suspects and defendants speak and understand the language of the criminal proceedings and whether they need an interpreter.

• To adopt legislation in accordance with Article 2 (5) and 3 (5) of the Directive to clearly clearly stipulate the right to challenge a decision regarding the need for interpretation/translation and/or its quality.

• To adopt legislation in accordance with Article 2 (8) and 3 (8) of the Directive in order to establish a mechanism for the verification of the quality and accuracy of the interpretation and translation during the criminal proceedings.

• To adopt legislation in accordance with Article 3 (3) of the Directive in order to stipulate that the decision depriving a person of its liberty should also be among the essential documents which need to be translated.

• To adopt legislation which provides that suspects/defendants and their lawyers have the right to submit a reasoned request for the translation of other documents, on the basis that they regard those essential for the given case.

• To adopt legislation in order to increase the fees for interpreters and translators so that quality of their services is ensured.

• To adopt legislation in order to increase the fees of legal aid lawyers so that the quality of legal services is ensured.

Ministry of Internal Affaires

• To adopt guidelines for how police hearings should be carried out, detailing the role of the police officers and how he interacts with the lawyer.

• To ensure that letter of rights are available both in Romanian and other languages at the level of all courts, prosecutors’ officers and police stations.

• To issue guidelines on when and how the letter of rights should be provided, especially in situations when suspects or accused persons do not know how to read or write or find themselves in other vulnerable situations.

• To adopt regulations requiring police officers to explain the consequences of waiver of the right to a lawyer.

• To provide the necessary resources for the equipment of all police stations with audio-video cameras.

The Romanian Police

• To take all measures to ensure that police officers receive trainings in order to increase their skills and knowledge on how to better inform suspects/defendants about their rights. This information should be done in a simple and accessible manner, with consideration given to the specific characteristics of persons participating in the criminal proceedings.

• To take all measures to sanction those police officers who avoid/circumvent the randomised system of appointing legal aid lawyers.

• To habitually collect data in relation to the number of persons who have requested an interpreter during the criminal investigation phase.

• To keep records, in accordance with Article 7 of the Directive 2010/64/UE on the right to interpretation and translation, of the cases when an oral translation or oral summary of essential documents has been provided at the police stations, or when a person has waived the right to interpretation or translation.

• To ensure timely payment for the interpretation and translation services provided at the police stations.

National Union of Bar Associations

• To take efficient measures for the organization and control of the randomised system of appointing legal aid lawyers and sanction those legal aid lawyers who avoid/circumvent it. 

• To set out clear and detailed rules about the role of the lawyer at the investigative stage. Together with regular monitoring and evaluation of the appointment system, this would ensure quality of the legal services.

• To set up a specific course on legal assistance during the criminal investigation for lawyers who choose to provide legal aid and include it in their mandatory curriculum in their first 3 years of practice.

• To offer accreditation to legal aid lawyers advising at the investigative stage.

 

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*The JUSTICIA Network is financially supported by the Criminal Justice Programme of the European Union