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Judicial cooperation in criminal matters: proposal for a directive on the safeguards for children suspected or accused in criminal proceedings discussed by LIBE committee on the 11th of November.

pdf mise en ligne :14 11 2014 ( NEA say… n° 152 )

COOPERATION JUDICIAIRE CIVILE > Perspectives financières

In November 2013 the European Commission presented a package of three proposals for directives which will enforce the procedural rights of suspects and accused persons in EU. This package aims at building mutual trust between the Member States (MS) in the field of judicial cooperation. These proposals regard safeguards for children involved in criminal proceedings, the presumption of innocence and access to provisional legal aid. LIBE Committee met on the 11th of November in order to discuss the achievements and the way forward on these matters. The session on procedural safeguards for children was chaired by Ms. Caterina Chinnici, the special rapporteur for this proposal.

In November 2013 the European Commission presented a package of three proposals for directives which will enforce the procedural rights of suspects and accused persons in EU. This package aims at building mutual trust between the Member States (MS) in the field of judicial cooperation. These proposals regard safeguards for children involved in criminal proceedings, the presumption of innocence and access to provisional legal aid. LIBE Committee met on the 11th of November in order to discuss the achievements and the way forward on these matters. The session on procedural safeguards for children was chaired by Ms. Caterina Chinnici, the special rapporteur for this proposal.

Ms. Chinnici declared that EU legislation is needed because the fair trial for minors is not sufficiently guaranteed in a uniform manner throughout the EU. This proposal aims at defining minimum standards for protection of minors involved in judicial proceedings, provided that Member States (MS) are free to set up higher protection standards.

The directive proposal envisages some important guarantees for minors suspects or accused in criminal proceedings, such as: the right to information, the right to be assisted by a lawyer which cannot be waived, the right to an individual assessment and also to a medical assessment, the right to a special treatment in the case of deprivation of liberty, the right to private life, the right to be present at the proceedings, both for the minor and for the holder of parental responsibility.

 Ms. Chinnici’s opening remarks were followed by the intervention of Mr. Daniel Pical, President of the European Section of the International Association of Youth and Family Judges and Magistrates. He expressed disappointment because the proposal for directive looks at training for legal authorities and prison staff in the field of criminal law but it sidelines the matter of youth and family courts. He considered a big mistake not having judges and magistrates specially designed to deal with family law and matters.

Mr. Pical pointed out that the proposal does not contain any referral to a minimum age of criminal responsibility. The age issue is crucial, since it can limit or expand the scope of application of the directive. He also expressed concern with regard to ambiguities regarding the maximum age of minors concerned by the directive. In his views it is not clear if the directive should apply to persons who were under age at the time they have committed the offence, or only to persons who are under age when they become suspected or accused of a criminal offence. If the child is suspected of a crime and prosecuted at the moment there is no problem. What happens instead when the perpetrator of the act is identified months after the crime and he or she is not any more under age? Mr. Pical considered that the directive should apply to persons who are less than 18 at the time they committed the offence, regardless their age during the proceedings.

Another matter of great concern is represented by restrictions put in place in the Council. According to art. 6 the directive is not applied to children who have committed an infraction if the infraction will not give rise to conviction by a criminal court. This is problematic since the judge is forced to seek an alternative to criminal proceedings. If that is the case, the directive will not be applied and there are no procedural guarantees. In Belgium you cannot have criminal sanctions for a child below the age of 16 but you can deprive that person of liberty by putting him or her in a closed centre and this is not considered as criminal sanction.

When it comes to right to legal aid provided by art. 6, the child cannot waive that right. The Council introduced derogations which allow questioning without the presence of lawyer if its presence is not proportionate, taking into account the complexity of the case and seriousness of the alleged offence. Mr. Pical stressed the fact that it is impossible to assess in every case. There is left too much room for discretion for the authorities and it may end up meaning that the directive will not be applied.

Another sensible issue concerns the period of incarceration. This should be brief but we do not know what this means. It can be weeks or months so this point should be clarified by the directive. In addition, the detaining conditions are not well developed. The draft says that children should be detained separated by adults but it does not give more details.

Mr. Pical’s concerns were enforced also by the intervention ofProf. Vania Patané in charge of Criminal Law in University of Catania. She started stressing the idea that any safeguard represents a limit on the exercise of power and must be regulated in relation to the value that we want to protect. In the case of criminal justice this means to impose a sacrifice on the inquiry system in order to protect certain rights. This also means that the techniques of the inquiry must not conflict with the fundamental rights of the individual. When there are derogations, these should not regard wide concepts, such as “the best interest of the child”, since it is a too vague concept and a derogation would give the judge a broad discretion. Secondly, it is important to consider that the criminal trial, even if is judging a minor, it is aimed to establish criminal liability and has not a socio-pedagogical aim.

She considers that a major problem of this directive is the field of application. Article 2. of the proposal establishes that procedures about educational measures are not to enter the field of application of the directive, neither minor offences that don not come before a criminal judge.  Other cases which are not covered by the directive regard situations when the minor has committed a criminal offence, according to national law, but may lead to alternative measures and not to a criminal conviction. She warned about the risk to lower the guarantees. Whatever the context is, if the personal freedom is limited, no matter the name of the measure, the safeguards of the directive should be applied. She declared that we need to be careful that formal labels do not undermine the substantive safeguards. When there is a measure restricting liberty which has an effect on the development of child’s personality, or implies an attribution of responsibility, the directive must be applied. Furthermore, compulsory participation in educational measures is another sensible issue because in her views if there has not yet been a decision of responsibility, there cannot be any compulsory educational measure.

Ms. Patané focused on some other delicate issues, such as the right to an individual assessment which must be really individualised. The directive needs to spell out the consequences of assessment.

A further consideration must be given also to the right, for the minor and the holder of parental responsibility, to attend the proceedings. This is fundamental also for the judge that sees the minor and can have some more indications with regard to the personality of the child. The holder of the parental responsibility must receive all the information regarding the purpose and consequences of the proceedings in order to be fully aware of what is happening. Only in this was he or she can accompany the minor in the choices available and give psychological assistance. Besides the holder of parental responsibility, also the lawyer must be present at any stage of the proceedings.

Some members of the Parliament, such as Pàl Csàky, demanded for harmonization of the minimal age for criminal responsibility, while Ms. E. Vozemberg asked at least for a differentiation regime of treatment on the ground of age of the alleged perpetrator.  If the child is 10, 12 or 14 the approach should be different and here again we need a common approach.  Another issue raised was the assessment of age of children who are sans papiers. When the child age is overestimated that child might not get the suited protection.

Mr. Pical replied that there is a great variety in the EU of the minimum age of criminal responsibility. In Belgium it is felt that until the age of 18 educational measures should apply. But from 16 of age it is possible to send a perpetrator to criminal court. In his views the Commission avoided to deal with this issues because it would be almost impossible to find an agreement. It would have been desirable to have age thresholds. A child of 10 is not the same of teenager of 17 years and a half. He made the example of France where a minor of 10 to 13 years old cannot be convicted by applying a sentence and where a minor of 16 years old has an attenuating excuse so the sentence will be less heavy.

Ms Patané pointed out that the age limit for criminal responsibility is of great importance but the major issue, in her views, is the treatment reserved to minors. It is possible that the minimum age for criminal liability is 14. This is not a substantial safeguard if there is the possibility to adopt “educational measures” which infringe the child’s liberty. What should be done, is to widen the scope of directive also to offences which are not considered as “criminal” if we really want to assure appropriate safeguards.

With regard to treatment given to minors of uncertain age, in Italy it is possible to forcibly identify a minor using AFIS database for fingerprints or by doing a study of bone development. Where there are still doubts, the individual is considered a minor.

The concerns expressed by the two experts were very similar and were also in line with the report of the former LIBE rapporteur on this proposal, Carmen Romero López. It seems that there is a wide agreement on the problems raised by the text of the proposal. What is lacking, and there is no surprise, is the will of the MS to engage themselves in these issues. The representative of the Council declared in front of LIBE Committee that by December there will be an agreement on this text. Considering the nature of the conflicting points and their number, there are doubts about the possibility to reach such an agreement by that time. The alternative, even less desirable than a delay in delivering a response, is that of lowering the “minimum common standards” in order to allow reluctant MS to accept the text.

(Ana Daniela Sanda)

To know more:

The long Path towards minimum common Standards for procedural rights of Minors involved in criminal Proceedingshttp://europe-liberte-securite-justice.org/2014/11/03/

The European Commission wants more safeguards for citizens in criminal proceedings http://ec.europa.eu/justice/newsroom/criminal/news/131127_en.htm