Adoption of the new EU Directive on procedural safeguards for children in criminal proceedings

2016 May 13

The Directive of the European Parliament and of the Council on procedural safeguards for children who are suspects or accused persons in criminal proceedings was officially adopted by the European Council on the 21st of April, 2016, following an approval by the European Parliament in December 2015. The document provides for the implementation of a number of procedural safeguards in EU Member States for children (i.e. individuals under the age of 18) who are suspected or accused of having committed a criminal offence.

The directive is another step taken by the EU towards establishing a full catalogue of procedural rights for suspects and accused persons in criminal proceedings. However, the document in question includes various important additional safeguards specific to children involved in criminal proceedings.

The underlying purpose of this legislative act is to ensure that children in conflict with the law are correctly protected, able to understand, follow the proceedings and exercise their right to a fair trial, and, in broader strokes, to prevent children from re-offending and foster their social integration. Additionally, this directive aims to strengthen the trust of Member States in each other’s criminal justice systems and thus improve mutual recognition of decisions in criminal matters.

The main novelty of the directive has to do with the role of lawyers in relation to suspected or accused children. Member States shall ensure that children are assisted by a lawyer where necessary, by providing legal aid, unless assistance by a lawyer is not proportionate in light of the circumstances of the case. Other important conditions outlined by the directive concern the provision of information on rights, and the rights to an individual assessment, to a medical examination and to audio-visual recording of questioning. It also provides special safeguards for children deprived of their liberty, in particular during pre- and post-trial detention.

Member States now have three years to ensure that the directive is correctly transposed into their national legislations. Denmark, the UK and Ireland have opted out of this directive and will not be bound by it.

EU research shows that, at present, children’s rights are not being sufficiently protected at the various stages of criminal proceedings in the EU; numerous judgments against Member States have been handed down by the European Court of Human Rights.

However, despite the large number of international legal instruments in this area, there is no agreed definition of what constitutes a ‘fair trial’ for children, and courts have no choice but to hand down judgments on the basis of an incomplete and fragmented body of law. This directive therefore constitutes a remarkable improvement towards a more child-friendly justice system in all Member States, and towards a better respect of children’s rights in criminal proceedings.

The International Juvenile Justice Observatory welcomes the adoption of the directive with much satisfaction. Between the Commission’s first proposal in 2013 and the adoption of the final text, civil society organisations have been very active in helping bring the draft text to the level of the most stringent standards regarding children’s rights in the juvenile justice system.

The International Juvenile Justice Observatory has drafted two position papers on the subject, with Eurochild on the one hand, and Fair Trials International and the Open Society Foundation on the other, participating in the improvement of the initial proposal text, especially regarding Article 16, concerning the Right of children to appear in person at, and participate in, their trial.

The Directive was also at the heart of the IJJO’s 6th International Conference in Brussels in 2014, entitled "Making Deprivation of Children’s Liberty a Last Resort: Towards evidence-based policies on alternatives".

Moreover, the Final Conference of the Juvenile Offenders Detention Alternatives in Europe (J.O.D.A.) project, organised by the IJJO at the European Parliament in January 2016, focused on Articles 10 and 11 of the new Directive, and brought about a very interesting discussion between experts on the subject, including Rapporteur Caterina Chinnici, MEP.