Right to be informed of the accusation

The right to be informed of the charge is a universal right recognized by the vast majority of countries in the world. The exception to that universality is in the details. It is in the content of the right and in the “actual practical” observance of the right to be informed of the charge.

If you are interested in this topic, we can also suggest to gather more information on: The right to remain silence (to not testify).

What does the European Convention on Human Rights say about the right to be informed of the accusation?

The Convention could not be clearer. And it answers all the big questions that can be asked about this issue:

Every accused  has at least the following rights:

1.To be informed, as soon as possible, in a language that he understands and in detail, of the nature and cause of the accusation made against him;

2. To have the time and facilities necessary for the preparation of his defense;

3. To defend himself/herself or to be assisted by counsel of his/her own choosing and, if he/she lacks the means to pay for it, to be assisted free of charge by a public defender when the interests of justice so requires;

4. To examine or have examined the witnesses who testify against him and to obtain the summons and examination of witnesses who testify on his behalf under the same conditions as witnesses who testify against him;

5. To have the free assistance of an interpreter if he/she does not understand or speak the language used in the hearing.

This is the rule. But …what do the Courts say?

What does the European Court of Human Rights say about the right to be informed of the accusation?

The ECHR recognizes the right to be informed of the accusation:

For all cases of deprivation of liberty, including police custody, and for all types of proceedings. Detention refers not only to criminal cases but also to other provisional forms of deprivation of liberty (Fox, Campbell and Hartley v. the United Kingdom and Van del Leer v. the Kingdom of the Netherlands).

The right to be informed of the charge requires the following:

• It should be a quick information (Fox, Campbell and Hartley v. United Kingdom case)
• Must be complete (Lamy v. Kingdom of Belgium)
• Shall be intelligible (Fox, Campbell and Hartley v. United Kingdom)

Article 6 of the European Convention on Human Rights: https://www.boe.es/buscar/doc.php?id=BOE-A-1979-24010

What does Spanish law say about the right to be informed of the accusation?

Article 118 of the Law of Criminal Prosecution

Any person to whom a punishable act is attributed may exercise the right of defense, intervening in the proceedings, as soon as he or she is informed of its existence, has been detained or subjected to any other precautionary measure, or has agreed to be prosecuted, to which end he or she shall be instructed, without undue delay, of the following rights:

a) The right to be informed of the facts attributed to him, as well as of any relevant change in the subject matter of the investigation and the facts charged. This information shall be provided in sufficient detail to enable the effective exercise of the right to defense.

b) The right to examine the proceedings with due notice to safeguard the right of defense and, in any event, prior to the taking of a statement.

• (…)

Instructions to Prosecutors on the Right to Be Informed of the Accusation.

1^st The right of the suspect or the person under investigation to be informed of the alleged criminal acts under investigation and the indications and evidence that exist about their perpetration, constitutes one of the essential manifestations of the right to a fair trial and the right to defense, which are the pillars of the criminal process.

2^nd The provisions of the Criminal Prosecution Act relating to the right to information and access to the proceedings of persons under investigation, detained or imprisoned must always be interpreted in accordance with the ECHR and the case law of the ECHR on the protection of human rights.

3^rd The right to information in criminal proceedings can be broken down into two distinct aspects: in relation to persons in detention, linked to the fundamental right to liberty; and in relation to those under investigation/accused, linked to the right to defense. Hence its different scope, as interpreted by the European Court of Human Rights and the Constitutional Court.

4^th The three aspects of the right to information in criminal proceedings examined in Directive 2012/13/EU are reflected in the regulations contained in the Criminal Procedure Law, according to the wording derived from 5/2015 and 13/2015 Acts.

On the one hand, it includes the right to be informed of procedural rights, both of any person to whom a punishable act is attributed (Article 118) and of any person detained or imprisoned (Article 520). It also recognizes the right of those under investigation to be informed of “the facts attributed to him, as well as any relevant change in the object of the investigation and the facts charged” (Article 118(1)(a)) and the right of detainees or prisoners to be informed of “the facts attributed to him and the reasons for his deprivation of liberty” (Article 520(2)). Finally, and in an instrumental and complementary way to the previous right, there is the right to examine the actions of those under investigation (Article 118.1.b) and the right of the detainees or prisoners to have access to the elements of the proceedings that are essential to challenge the legality of the detention or deprivation of liberty (Article 520.2.d).

5^th The Prosecutors shall ensure at all times that the persons detained are provided, in the manner indicated in this document, with the necessary information and precise access to the elements existing in the proceedings that may be necessary to challenge the legality of the detention. The information on the facts attributed to him/her and the reasons for his/her deprivation of liberty includes his/her provisional legal qualification and must be put in relation to the assumptions of the detention, and therefore requires the identification of the indications or suspicions of the participation of the detainee in allegedly criminal acts and the circumstances that have determined the need for it.

The specification of the essential elements of the proceedings must be carried out in each case, considering the concurrent circumstances.

6^th It corresponds to the detained person, duly informed of his right, to urge the exercise of the same, being able to request access to that part of the proceedings that collects or documents the actions adduced for the detention. Once requested, the access must be produced in an effective way, through exhibition, delivery of a copy or any other method that, guaranteeing the integrity of the proceedings, allows the detainee to know and verify by himself or through his lawyer, the objective bases of his deprivation of liberty. In any case, the procedure must record the access provided.

7^th The right of access of the detained person does not include the access to the whole report in the police headquarters, nor does it grant a power of full access to the content of the police or judicial actions carried out before the detention.

The content of the right to information of the detainee will only include those aspects of the report that have to do with the detention, the facts and the reasons that justify it and those whose knowledge may contribute to the exercise of the right of defense against such detention. In any case, one should not lose sight of the need to weigh other interests that must also be protected in the processing of the criminal proceedings, such as the special protection of victims and witnesses in cases where it is necessary or the cases in which the secrecy of the proceedings must subsequently be declared.

8^th In cases of detention in marine spaces under the conditions set out in article 520 ter LECrim, the Prosecutors will ensure that the detainees are instructed on their rights and informed of the facts attributed to them and the reasons for their detention from the outset, always ensuring that the information is provided in a timely manner, translated if necessary. Similarly, always considering the specific circumstances and the personal and material means available on board the vessel or aircraft making the arrest, the Prosecutors must ensure that in any case the detainee has been released or brought before a court within a maximum period of seventy-two hours. They shall also ensure that  the access to the elements of the proceedings essential to contesting the legality of the detention is facilitated as soon as possible, by the same telematic means, avoiding, if possible, delaying their delivery at the moment when the detainee or his lawyer appears personally in court.

9^th The Prosecutors shall promote and ensure compliance with the obligation to instruct the investigated party in his rights, under the terms established in Article 118 LECrim, from the first moment of the criminal charge and always prior to making any statement. The Prosecutors shall prevent hasty accusations, and should assess as criteria for determining the moment when to  carried out the accusation, the indictive degree of certainty about the commission and the authorship of the punishable act and the content of the right of defense in the particular case, in the event of acts of investigation that could demand defensive actions

10^th The Prosecutors will ensure that in any judicial investigation, the investigated party is given access to the entire content of the procedure (except for the exceptions provided for by law). Such access shall be free of charge, without prejudice to the cost that may result from making copies, when necessary. Access to the proceedings must always be provided sufficiently in advance, according to the circumstances of each specific case, for the proper exercise of the right to defense and, in particular, when it comes to taking statements.

11^th The right to information and access to the proceedings of persons under investigation, detained or imprisoned, is exhausted in the procedure itself, not including the right to access information contained in police databases that has not been incorporated into the procedure.

12^th The Prosecutors shall ensure that any substantial modification in the object of the investigation are communicated to the investigated party, urging a further statement of the investigation on these new facts.

13^th In the cases in which the secrecy of the proceedings was declared, the Prosecutors shall also ensure that the prisoner is given access to those elements of the proceedings that are essential to challenge his deprivation of liberty prior to the appearance provided for in Article 505 Criminal Prosecution Act and in the terms set out in this Circular.

The access must take place in an effective way, by means of exhibition, delivery of a copy or any other method that, guaranteeing the integrity of the proceedings, allows the investigated to know and verify by himself or through his lawyer, the essential elements to contest the deprivation of liberty.

14^th Prosecutors shall ensure, in accordance with the provisions of Article 527.1 Criminal Prosecution Act, that the right of detained or incommunicado prisoners to have access, by themselves or through their lawyer, to the elements of the proceedings that are essential to challenge the legality of their detention is made effective.

15^th In the process of acceptance of a decree, the right to information of the investigated person would be satisfied as long as, before the celebration of the appearance foreseen in article 803 bis h) Prosecution Act, access to the proceedings is allowed.

16^th Prosecutors shall ensure that any person detained with the purpose of enabling the execution of a European arrest warrant is aware of the reasons for his detention and can have access to the proceedings that have been carried out on the basis of the European arrest warrant that is executed.

17^th The prescriptions about the right of information gathered in the new articles 118 and 775 Prosecution Act will have to be observed by the Prosecutors in the processing of the investigation diligences, in the terms gathered in this Circular. The same must be said of the rights set forth in Article 520 Prosecution Act in relation to an arrest agreed upon by the Prosecutor, pursuant to Article 5.2 EOMF. (EOMF = OSPPO: Organic Statute of the Public Prosecutor’s Office.

18^th Considering that the persons to whom the LORPM (Organic Law regulating the criminal liability of minors) applies enjoy all the rights recognized in the Constitution and in the legal system (art. 1.2 LORPM) and the duty to monitor the observance of the procedural guarantees in the proceedings (art. 6 LORPM), the Prosecutors will ensure the observance of the guidelines of action set forth in this Circular in the jurisdiction of minors.

19^th As a general guideline of action, when the Prosecutors find any infringement of the rights of information or access to the actions of the investigated, detained or deprived of liberty in a criminal process, will promote the pertinent resources or procedures or will adhere to those already promoted, so that the infringed or limited rights are guaranteed”.

What relevance does the right to be informed of the accusation have in the subsequent process against the accused?

1. The person against whom the accusation is directed cannot be altered

2. The facts must remain unaltered in their essential aspect, although there may be not significant changes and/ or new circumstantial elements may be added

3. The legal qualification of the facts cannot be more serious in the subsequent process than that of the facts previously informed. Indeed, “the sentencing court may not impose a penalty greater than the most serious of those specifically requested by the charges, regardless of the type of proceedings in which the case is heard”.

What does the Supreme Court say about the right to be informed of the Accusation?

Judgment of the Supreme Court of November 20, 2014 (Mr. Miguel Colmenero Menéndez de Luarca)

(Literal transcription of an extract from the Supreme Court Resoltion)

(…) Although it is not expressly formulated in the Constitution, the Constitutional Court, in Rulings 17/1988, 168/1990, 47/1991, 14 February 1995, and 10 October 1994, has enshrined a constant doctrine that is reflected, inter alia, in Resolutions of this Chamber of 14 February 1995, 14 March, 29 April, and 4 November 1996, which reads as follows: “the rights to judicial protection without defenselessness, to be informed of the accusation, and to a process with all the guarantees recognized by Article 24 CE lead us to point out that this precept enshrines the principle of accusation in all criminal proceedings, such that no one can be convicted unless he has been charged and has had an opportunity to defend himself in a contradictory manner, which obliges the Court to rule on the terms of the debate as formulated by the prosecution and the defense. This also means that there must be a correlation between the accusation and the ruling. (STS nº 1590/1997, of 30 December).

In the same way, emphasizing once again the need to know the accusation in order to avoid defenselessness, this Chamber has pointed out in STS No. 1954/2002, of 29 January, that “the inherent content of the accusatory principle is that no one can be convicted unless an accusatory party outside the prosecuting body has made an accusation against him, in such terms that he has had the opportunity to defend himself in a contradictory manner, the judge or court being obliged to rule within the scope of the terms of the debate, as formulated by the prosecution and the defense, which means that there must be a correlation between the prosecution and the ruling of the conviction”.

This correlation is evident in the Court’s attachment to certain aspects of the indictment, specifically the identity of the person against whom it is directed, which cannot be changed in any way; to the facts that constitute its subject matter, which must remain substantially unchanged, although the Court may dispense with factual elements that it does not consider sufficiently proven or add circumstantial elements that would allow for a better understanding of what happened according to the assessment of the evidence presented; and to the legal qualification, so that it cannot condemn a more serious crime or, if it is not, it is not consistent with the content of the indictment. The question of the link to the penalty concerned by the accusations was addressed by this Second Chamber of the Supreme Court in the non-jurisdictional plenary session of December 20, 2006, in which it was agreed that “the sentencing court may not impose a penalty greater than the most serious of those specifically requested by the accusations, regardless of the type of proceedings in which the case is heard”.