Procedural Rights at the Investigative Stage of the Criminal Process in the European Union
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1 Editors: Ed Cape Jacqueline Hodgson Ties Prakken Taru Spronken Suspects in Europe Procedural Rights at the Investigative Stage of the Criminal Process in the European Union INTERSENTIA METRO AGIS 2005 WithfinandalSupport from the AGIS Programme European Commission - Directorate-General Justice, Freedom andsecurity
2 TABLE OF CONTENTS IUS COMMUNE EUROPAEUM PREFACE TABLE OF CONTENTS BIOGRAPHIES V VII TX XIX 1. MlCHELE CAIANIELLO XIX 2. EDCAPE XIX 3. STEF DE DECKER XX 4. ZINOVIA DELLIDOU XX 5. JANFERMON XX 6. JACQUELINE HODGSON XX 7. GlULIO ILLUMINATI XXI 8. PlOTR KRUSZYNSKI XXI 9. CHRISTOS NAINTOS XXII 10. TIES PRAKKEN XXII 11. FRANZ SALDITT XXII 12. TARUSPRONKEN XXII 13. FRANK VERBRUGGEN XXIII 14. THOMAS WEIGEND XXIII PROCEDURAL RIGHTS AT THE INVESTIGATFVE STAGE: TOWARDS A REAL COMMITMENT TO MINIMUM STANDARDS 1 1. INTRODUCTION 1 2. THE EU AND EUROPEAN CONTEXT 2 3. THREE MAJOR LEGAL TRADITIONS 5 4. THE SIGNIFICANCE OF THE INVESTIGATIVE STAGE 8 5. THE RESEARCH PROJECT EMERGING THEMES Theory and practice Problems of definition 15 IX
3 6.3. Understanding roles and functions The importance ofpolice interrogation Protecting the rights of the suspect Resourcing legal assistance Challenges to the defence lawyer's wie Conclusions BlBLIOGRAPHY 266 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS INBELGIUM INTRODUCTION POLICE POWERS IN THE INVESTIGATIVE STAGE Relations between police, prosecutor and investigating judge Arrest, limitations on and conditions ofdetention, and bau Interrogations Coercive methods ofinvestigation Secret investigative measures RIGHTS OF THE DEFENDANT Information about suspects' rights The Right to silence and caution The Right to an interpreter The Right to be informed about the charge and existing evidence Legal assistance Legal aid The Right to disclosure Juveniles THE IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL The relationship between the investigative stage and the trial phase Exclusion of illegally obtained evidence THE ROLE OF THE DEFENCE LAWYER LIST OF ABBREVIATIONS BlBLIOGRAPHY 56 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS IN ENGLAND AND WALES INTRODUCTION POLICE POWERS IN THE INVESTIGATIVE STAGE Relations between police, prosecutors and defence Arrest and detention Duration andreview ofdetention; bail Police interview Coercive methods ofinvestigation Terrorism powers RIGHTS OF THE DEFENDANT Information about the suspect's rights Right to silence and the caution Right to an interpreter 70
4 3.4. Right to be informed about the reason for arrest Legal assistance Legal Aid Right to disclosure Specialprotection ofjuveniles and other vulnerable persons IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL THE ROLE OF THE DEFENCE LAWYER BlBLIOGRAPHY 77 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS INGERMANY INTRODUCTION POLICE POWERS IN THE INVESTIGATIVE STAGE Relations between prosecutor, police and defence Arrest and Pre-trial Custody Interrogation Coercive Methods ofinvestigation Secret Investigative Methods Wiretaps Surveillance of Live Conversations Special Powers in Cases ofsuspected Terrorism or Organised Crime RIGHTS OF THE DEFENDANT Information about Suspect's Rights including Right to Silence The Right to an Interpreter The Right to Bail Right to be Informed about the Charge Legal Assistance Compulsory Defence and Legal Aid Right to Disclosure Special Rules for Juveniles Special Rules in Terrorism Cases THE IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL Pre-trial and Trial Stages Exclusion of illegally obtained evidence THE ROLE OF THE DEFENCE LAWYER Qualification Rolewithin the Justice System Regulations and Limitations Professional Standards and Restrictions CONCLUSION BlBLIOGRAPHY 99 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS INGREECE INTRODUCTION POWERS OF THE INVESTIGATING AUTHORITIES AT THE PRE-TRIAL STAGE Relations between police, prosecutor and investigating judge 103 XI
5 2.2. Arrest and detention Police interview Coercive methods ofinvestigation Secret methods ofinvestigation RIGHTS OF THE SUSPECT OR DEFENDANT Information about suspect's rights The right to silence The Right to an interpreter Detention and bau The right to be informed about the reason for arrest and the existing evidence Legal assistance Legal Aid The Right to disclosure Special protection ofjuveniles and other vulnerable persons THE IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL The principles of 'immediacy' and 'orality' and the use of pre-trial Statements The exclusion ofillegally or unfairly obtained evidenced THE ROLE OF THE DEFENCE LAWYER LIST OF ABBREVIATIONS BlBLIOGRAPHY 126 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS INITALY INTRODUCTION: THE CRIMINAL PROCESS IN THE ITALIAN SYSTEM: THE CHOICE FOR AN ACCUSATORIAL MODEL The Separation between investigation and trial. The orality principle providedfor by the Constitution in the criminalprocess Exceptions to the accusatorial model Alternative meansfor resolving criminal cases inspired by the inquisitorial model POLICE POWERS IN THE INVESTIGATION PHASE The relation between the Prosecutor and the police Arrest The interrogation of the suspect Coercive methods Secret investigative methods Terrorism and organized crime RIGHTS OF THE DEFENDANT DURING INVESTIGATIONS The right to be informed ofbeing a suspect The Right to silence and caution The right to an interpreter The right to bail or the right to be released on conditions pending trial Right to counsel The availability of legal assistance 142 XII
6 3.7. Disclosure '. Diversion injuvenile cases Restrictions on the rights ofthe defence in cases of terrorism and/or organized crime IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL: ACTUAL RELEVANCE OF THE INVESTIGATIVE PHASE IN THE ITALIAN CRIMINAL PROCESS The principle ofimmediacy Exclusion ofillegally or unfairly obtained evidence THE ROLE OF THE DEFENCE LAWYER Self-perception of criminal lawyers Statutory regulations and limitations Professional Standards and restrictions LIST OF ABBREVIATIONS BlBLIOGRAPHY 150 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS IN THE NETHERLANDS INTRODUCTION POLICE POWERS IN THE INVESTIGATIVE STAGE Relations between police, prosecutor, investigating judge and defence Arrest andpreliminary detention Arrest and firstperiod of questioning Police custody Detention on remand Interrogation ofthe suspect Coercive investigative methods Measures against arrested persons Searchand seizure DNA, body-searches and mental examinations Proactive and secret investigation methods Organised crime and terrorism Organised crime Terrorism RIGHTS OF THE DEFENDANT Information about suspects' rights The Right to silence and caution The Right to an interpreter The Right to bau or release under conditions The Right to be informed about the charge and existing evidence Legal assistance Legal aid The Right to disclosure Specialprotection ofjuveniles and other vulnerable persons Juveniles Mentally disturbed persons Different rights in the case ofsuspected organised crime and terrorism Organised crime 171 XIII
7 xrv Terrorism THE IMPACT OF THE INVESTIGATIVE STAGE ON THE TRIAL The use of pre-trial Statements ofthe accused or by witnesses as evidence at trial The exclusion ofillegally or unfairly obtained evidence THE ROLE OF THE DEFENCE LAWYER Perception ofthe role ofthe defence lawyer Statutory regulations and limitations Professional Standards and restrictions CONCLUDING REMARKS BlBLIOGRAPHY 178 THE INVESTIGATIVE STAGE OF THE CRIMINAL PROCESS INPOLAND INTRODUCTION POLICE POWERS IN THE INVESTIGATIVE STAGE The relations between police, prosecutors and defence Arrest and detention 'Suspectedperson'versus 'suspect' Police interview Preliminary detention; duration andbail Coercive methods ofinvestigation Secret methods ofinvestigation Terrorism and organizedcrime THE RIGHTS OF THE DEFENDANT Information concemingsuspects' rights Presumption ofinnocence The right to silence and caution The right to an interpreter Legal assistance Legal aid Legal assistance before and duringpolice interview The right to Information as to the charge and evidence Access to and the content ofthe casefile Specialprotection ofjuveniles and other vulnerable persons THE IMPACT OF THE INVESTIGATIVE STAGE ON THE COURSE OF THE TRIAL The boundaries ofthe indictment and theprinciple ofimmediacy Exclusion of evidence THE ROLE OF THE DEFENCE LAWYER Perceptions ofthe role ofa defence lawyer Statutory regulations and restrictions Professional Standards and restrictions BlBLIOGRAPHY 203 CASESTUDY INTRODUCTORY INFORMATION CASESTUDY 208
8 CASE STUDY: BELGIUM RIGHTS WHILST DETAINED The arrest Prisoners' rights ACCESS TO AN INTERPRETER ACCESS TOA LAWYER PRIOR TO (POLICE) INTERVIEWS PRESENCE OF A LAWYER DURING INTERVIEWS SECRET AND NON-CONTRADICTORY CHARACTER OF THE INVESTIGATION Access to the casefile Additional inquiries Search warrants DOCUMENTATION OF THE INTERVIEW ASSESSMENT OF EVIDENCE RELEASE ON BAIL 217 CASE STUDY: ENGLAND AND WALES ARREST DETENTION -RIGHTS AND PROCEDURE Jean Sid LEGAL ADVICE SEARCH OF PREMISES INTERVIEW Confessions/Silence BAIL/CONTINUED DETENTION 226 CASE STUDY: GERMANY ARREST AND PRE-TRIAL CUSTODY RLGHT TO AN INTERPRETER ACCESS TO A LAWYER ACCESS TO THE PROSECUTION FILE SEARCH OF PREMISES POLICE INTERVIEW RIGHT TO SILENCE PRE-TRIAL CUSTODY-BAIL 233 CASE STUDY: GREECE ARREST DETENTION AT THE POLICE STATION - RIGHTS AND PROCEDURE POLICE INTERVIEWS ACCESS TO LEGAL ADVICE AT THE POLICE STATION SEARCH OF PREMISES PROCEDURE BEFORE THE ATTORNEY GENERAL PROCEDURE BEFORE THE INVESTIGATING JUDGE PROCEDURE BEFORE THE COURT THE USE OF SURVEILLANCE METHODS 241 XV
9 10. BAIL/CONTINUED DETENTION 242 CASE STUDY: ITALY CHARGES THE SEPARATION OF THE CRIMINAL PROCEEDINGS INVOLVING JEAN THE ASSIGNMENT OF COUNSEL AND THE RIGHTS OF THE ARRESTED PERSON VALIDATION OFTHE ARREST The main issues dealt with at the arrest validation hearing The role of defence counsel at the arrest validation hearing THE LIKELY OUTCOME OF THE ARREST VALIDATION HEARING Arrest validation Detention pending the proceeding INDICTMENT AND TRIAL Sid Jean Georges 247 CASE STUDY: THE NETHERLANDS ARREST DETENTION-RIGHTS AND PROCEDURE Police interview Caution and evidential value of police records Interpreter Police custody and legal advice Detention on remand Georges Jean Sid 257 CASE STUDY: POLAND FIRST STAGE: RIGHTS DURING ARREST AND CUSTODY RLGHT TO AN INTERPRETER RIGHT TO SPEAK TO A LAWYER BEFORE THE FIRST INTERVIEW PRESENCE LAWYER DURING POLICE INTERVIEW ACCESS TO THE FILE SEARCH AT GEORGES' PREMISES RECORDING OF THE INTERVIEW USE OF POLICE INTERVIEWS AT TRIAL RELEASE ON BAIL AND COMMENCEMENT OF CRIMINAL PROCEEDINGS 265 TIMELINE ARREST AND PRE-TRIAL DETENTION BELGIUM 267 TIMELINE ARREST AND PRE-TRIAL DETENTION ENGLAND AND WALES 268 TIMELINE ARREST AND PRE-TRIAL DETENTION GERMANY 270 XVI
10 TIMELINE ARREST AND PRE-TRIAL DETENTION GREECE 271 TIMELINE ARREST AND PRE-TRIAL DETENTION ITALY 274 TIMELINE ARREST AND PRE-TRIAL DETENTION THE NETHERLANDS 276 TIMELINE ARREST AND PRE-TRIAL DETENTION POLAND 279 COMPARATIVE OVERVD2W TIMELINES 281 XVII
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Editors: Ed Cape Jacqueline Hodgson Ties Prakken Taru Spronken Suspects in Europe Procedural Rights at the Investigative Stage of the Criminal Process in the European Union AGIS 2005 With financial support
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