Right to Fair Trial

I. Rights of Suspects

In 2013-2014, Lithuania had to transpose two directives setting out the minimum standards for the right to interpretation, translation and information of suspects during criminal proceedings, into national law: Directive 2010/64/EU on the right to translation in criminal proceedings (Translation Directive) [1] and Directive 2012/13/EU on the right to information in criminal proceedings (Information Directive). [2]

The Translation Directive provides that, from the moment of becoming a suspect and until the conclusion of the criminal proceedings, a person has the right to translation if he cannot speak or understand the language of the proceedings (for example, if he requires a sign-language translator). Interpretation and oral summaries of documents must be provided at each procedural step and during court hearings, with written translations also available for the most important procedural documents. Translation services under this Directive are to be provided free of charge.

The Information Directive ensures that right of a person to, from the moment of becoming a suspect, receive information on the main procedural and defence rights available to him, as well as to know what he is suspected of. With some exceptions, the suspect or his counsel also have the right to access the materials of the case. Should the suspect be arrested or detained, he must be given a written Letter of Rights explaining his procedural rights, what they entail and how they may be exercised.

In addition, the EU also adopted the Directive on the right of access to a lawyer in criminal proceedings (the Access to a Lawyer Directive) in 2013.[3] The Access to a Lawyer Directive provides that suspects have the right to access a lawyer (defence counsel) without undue delay after their arrest or before they are first questioned, whichever comes first. Among other things, the right of access to a lawyer includes the right to meet and communicate with the lawyer in private, as well as the right of the lawyer to be present and participate in the questioning of the suspect or during any other proceedings and court hearings. Lithuania must transpose this directive into national law by 27 November 2016.

In 2014, the Prison Department approved arrangements under which a lawyer may only meet with a detained client if there is prior notification from the pre-trial investigation institution or court confirming that he is indeed that particular suspect's defence counsel. These arrangements caused an outrage among lawyers.

The transposition of the Translation Directive and the Information Directive was carried out under the assumption that the fundamental criminal procedure law in Lithuania – namely, the Code of Criminal Procedure (CCP) – in essence met all of the main requirements of the two directives. As such, the aim was to amend national legislation as little as possible.[4] This approach, in turn, raises serious doubts regarding the proper implementation of the directives.

The contents of the CCP were left unchanged by the transposition of the Translation Directive. [5] The CCP does actually satisfy the basic requirements of the Translation Directive – it provides that persons who do not speak Lithuanian are entitled to interpretation and (in some cases) translation free of charge. [6]

However, not all of the requirements of the Translation Directive were taken into account. Unlike the directive,[7] the CCP does not provide for any procedure for assessing whether the translation is necessary, with the decision on whether to call a translator resting fully in the hands of the investigating officer. The CCP contains a narrower duty to provide written translations of documents: whereas the CCP does not require written translations of decisions to detain a person, all decisions restricting personal liberty are considered to be essential procedural documents and therefore must be translated under the Translation Directive.[8]

The recommendations included in the Translation Directive – for example, to allow for translation services to be provided using communication technologies – were also ignored.[9] This is not provided for under the CCP, which may lead to problems in cases where translators for languages rarely spoken in Lithuania happen to live outside the country. There was also no thought given to the possibility of establishing a register of qualified translators[10] to ensure better quality of translations in criminal proceedings. It should be noted that criminal lawyers stress that, in practice, there are problems related to the quality of translation services.[11]

There were slight amendments to the CCP and other legislation in order to transpose the Information Directive: the list of rights that suspects had to be informed of was expanded, explicitly including the right to silence; [12] the Prosecutor General approved the form of the written Letter of Rights in Lithuanian and other languages. [13]

However, one of the greatest problems relating to the right to information in criminal proceedings still survives – namely, the extensive and oft-abused ability of the prosecution to interfere with the defence's right to access the materials in the case.[14] This situation runs contrary to the provisions of the Information Directive, which set out that the ability of the suspect or his counsel to access the materials in the case may only be restricted in exceptional circumstances. [15]

Even though the deadline for the transposition of the Access to a Lawyer directive into national law is still a ways off, the actions of the authorities are already moving further and further away from its requirement to ensure the right of access to a lawyer without undue delay. In 2014, the Prison Department approved arrangements under which a lawyer may only meet with a detained client if there is prior notification from the pre-trial investigation institution or court confirming that he is indeed that particular suspect's defence counsel. [16] These arrangements caused an outrage among lawyers. [17]

In many cases, such arrangements could lead to difficulties for the defence, especially in circumstances where the defence counsel urgently needs to meet with his client, since counsel himself has to obtain said notification from the pre-trial investigation institution or court. Persons are often not tried in the same city they are detained in. In those circumstances, in order to meet with the defendant, his lawyer must first travel to another city to procure the necessary documents and then return for the meeting, essentially spending a full working day this way.

It is important to note that neither pre-trial investigation institutions nor the courts are under a duty to promptly and on their own initiative submit such notifications to places of detention. Therefore the ability to procure the notification may be further hampered by administrative obstacles, the work schedule of the officials concerned or the judge's workload. This also enables pre-trial investigation bodies to abuse the situation by delaying the notification, which can be a deciding factor in situations where the defence must act quickly.

Findings and Recommendations

  • When transposing the two EU directives on the minimum standards for the procedural rights of suspects into national law, Lithuania did not sufficiently amend it to ensure their effective implementation. In addition, the requirements of the Directive on Access to a Lawyer were ignored in the period set for its transposition into national law, with national legislation passed that contravenes the standards it purports to establish.  
  • It is necessary to review the results and shortcomings of the implementation of the Translation Directive and the Information Directive, and to adopt amendments to national legislation that are necessary to achieve their effective implementation.
  • It is necessary to change the arrangements for meetings between suspects and counsel put in place by the Prison Department, removing unreasonable restrictions to the right of defence.

[1] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, http://eur-lex.europa.eu/legal-content/LT/ALL/?uri=CELEX:32010L0064

[2] Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 of the right to information in criminal proceedings, http://eur-lex.europa.eu/legal-content/LT/TXT/?uri=CELEX:32012L0013

[3] Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, http://eur-lex.europa.eu/legal-content/LT/TXT/?uri=CELEX:32013L0048

[4] Table showing compliance between Directive 2010/64/EU and national legislation, 31 July 2013, No. XIIP-885, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=454321; Table showing compliance between Directive 2012/13/EU and national legislation, 19 December 2013, No. XIIP-1390, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=462701

[5] Law Amending the Code of Criminal Procedure, 26 November 2013, No. XII-617, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=460861&p_tr2=2

[6] Code of Criminal Procedure, 14 March 2002, No. IX-785, Articles 8 and 44, http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=494011

[7] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, Article 2(4), http://eur-lex.europa.eu/legal-content/LT/ALL/?uri=CELEX:32010L0064

[8] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings., Article 3(2), http://eur-lex.europa.eu/legal-content/LT/ALL/?uri=CELEX:32010L0064

[9] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, Article 2(6), http://eur-lex.europa.eu/legal-content/LT/ALL/?uri=CELEX:32010L0064

[10] Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, Article 5(2), http://eur-lex.europa.eu/legal-content/LT/ALL/?uri=CELEX:32010L0064

[11] Human Rights Monitoring Institute, round table discussion with advocates on 31 July 2014, http://www.hrmi.lt/naujiena/971/

[12] Law Amending Articles 21, 22 of and Supplementing the Annex to the Code of Criminal Procedure, 15 May 2014, No. XII-891, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=471247&p_tr2=2

[13] Order No. I-288 of the Prosecutor General "On the Approval of the Forms of Documents in Criminal Proceedings", Annex "Protocol for Explaining Rights to the Suspect", dated 29 December 2014, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=493514&p_tr2=2

[14] Human Rights Monitoring Institute, round table discussion with advocates on 31 July 2014, http://www.hrmi.lt/naujiena/971/

[15] Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 of the right to information in Criminal Proceedings, Article 7, http://eur-lex.europa.eu/legal-content/LT/TXT/?uri=CELEX:32012L0013

[16] Order No. V-361 of the Director of the Prison Department "On the Amendment of 6 May 2002 Order No. 57 of the Ministry of Justice of the Republic of Lithuania "On the Approval of Work Instructions for the Record-Keeping Services in Places of Detention"', 10 September 2014, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=481239&p_tr2=2

[17] Lithuanian Bar Association, information from the conference on 20 September 2014, http://www.advoco.lt/lt/advokatams-padejejams/naujienos-advokatams/pasitarime-ieskota-iseiciu-qbyc.html?backlink=%252Flt%252Fpaieska%252Fresults%252Fp0.html