Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings

On 27 November 2013, the European Commission submitted to the European Parliament and the Council a proposal for a Directive on procedural safeguards for children suspected or accused in criminal proceedings (COM(2013) 822 final). This proposal sets out specific minimum rules concerning the rights of suspected or accused children in criminal proceedings to ensure that they are able to understand and follow criminal proceedings, including by having mandatory access to a lawyer at all stages. Therefore, it provides that children cannot waive their right to be assisted by a lawyer, as there is a high risk that they would not understand the consequence of their actions (Art.6). The proposal also sets out other safeguards for the child such as being promptly informed of their rights, having the holder of parental responsibility (or other appropriate persons) informed, and receiving medical examination if deprived of liberty (Art. 4, 5, and 8). These measures should also facilitate the reintegration of children into society after being confronted within the criminal justice system. The sensitive question concerning the age of criminal liability is not covered by the proposal.

In its opinion, the European Economic and Social Committee made reference to the narrow definition of the term ‘criminal proceedings’, which is contrary to ECtHR case law.

In June 2014, the JHA Council reached its general approach. The Council made a distinction between the right of access to a lawyer - which children would have in accordance with Directive 2013/48/EU - and the right to be assisted by a lawyer, which children would have when questioned and when deprived of liberty, subject to certain derogations (Art. 6).

On 12 February 2015, the LIBE Committee of the European Parliament (Rapporteur: Caterina Chinnici) adopted its draft report on the proposal. The Committee followed an approach similar to the one suggested by the European Economic and Social Committee in its opinion and proposed, for the purpose of this Directive, to take into account not only the formal classification of proceedings in national law, but also their effects on the lives and development of the children concerned (Recital 6). It extended the scope of the Directive to suspects or accused persons subject to criminal proceedings who are under the age of 21 at the beginning of these proceedings, especially for proceedings relating to offences allegedly committed before those persons had reached the age of 18 (Recital 10 and Art. 2 (3)). It maintained Article 6 of the Commission’s proposal concerning the right to a mandatory access to a lawyer. However, the Committee suggested to use the phrase “right to a mandatory assistance by a lawyer”, explaining that with this formulation it would be clearer that the lawyer must be able to buoy up and help the child in the proceedings, instead of merely being a source of ‘outside’ support. It also introduced a new provision on remedies in the event of a breach of the rights set out in the proposal, and the right of a child, once arrested, to be visited by the holder of parental responsibility or another appropriate adult (Art. 12 (1a)).

The first trilogue took place on 4 March 2015, and the first technical meeting was held on 17 March 2015. A provisional agreement was reached on several provisions during the subsequent trilogues. On 15 December, during the 9th trilogue, an agreement was found. On 16 December 2015, the Permanent Representatives Committee confirmed the final compromise text that had been provisionally agreed during the 9th trilogue between the Presidency and the representatives of the European Parliament. It confirmed that the remaining reservations had been lifted. This was also confirmed by a resolution of the Parliament on 9 March, adopting the test in first reading. Two changes have to be pointed out. Firstly, the agreement does not address anymore the issue of the formal classification of proceedings in national law, the Directive is then limited to criminal procedure without taking any more into account the effects on the lives and development of the children concerned. Secondly, concerning the extension of the scope of the Directive to suspects or accused persons until the age of 21, was considerably weakened. The Member States are only “encouraged” to apply the procedural safeguards to suspects or accused person until the age of 21 (Recital 21). The procedural safeguards applies to persons who were “children when they became subject to the proceedings but have subsequently reached the age of 18”, provided that “the application of this Directive, or certain provisions thereof, is appropriate in the light of all the circumstances of the case, including the maturity and vulnerability of the person concerned” (Art. 2 (3)).

Directive 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings was published in the Official Journal on 21 May 2016 and the deadline for transposition of the Directive is 11 June 2019.