Published in the Clarity Journal 81 – 2020
Lili Krámer, Zsófia Moldova, and Vera Gergely
The Letter of Rights is a text that informs suspects of their fundamental rights (such as the right to remain silent or the right to have a lawyer). If you are suspected of something the police will either read out your rights, or provide you with the text so you can read it. The police must inform you about your rights at the beginning of your police interview as a suspect or your arrest.
Even if you are highly educated, being notified of your rights might not mean you will fully understand them because:
- when you’re in custody or just simply sitting in front of a police officer you’re probably extremely stressed, therefore your cognitive capacities are limited; and
- the language used in the Letters of Rights is often complex and technical.
As a result, many people are not able to understand their rights. It is self evident that suspects who do not speak the language of a country have the right to an interpreter. But how are people with lower literacy expected to understand the texts written in “legalese”?
Moreover, if people can’t understand their rights, they won’t be able to exercise them, which means they can’t properly defend themselves. Since the Letter of Rights contains the most basic information you need to know if you become a suspect, it’s of paramount importance that it is comprehensible. The right to information is a crucial building block of the right to a fair trial. Without it, other rights which exist in law are, in practice, illusory.
Letters of Rights in the EU
A study in 2010 showed that in the European Union:
- the Letters of Rights are vastly different in their accessibility and their level of detail, and many of the Letters of Rights use an inaccessible, technical language.
The EU has been working on developing common minimum rules, so that procedural rights and guarantees linked to basic human rights are protected in all member states. One of the measures taken is the Directive 2012/13/EU on the right to information in criminal proceedings, which requires both information on procedural rights and the rights of detainees to be provided in “simple and accessible language”.
The Directive also provides an “indicative model” of the Letter of Rights in the Annex and lists which rights must be included in them:
- assistance of a lawyer
- entitlement to free legal aid
- information about the accusation
- interpretation and translation
- right to remain silent
- access to documents
- informing someone else about your arrest or detention / informing your consulate or embassy
- urgent medical assistance
- [information about] period of deprivation of liberty
A case study: the Hungarian Letter of Rights
A typical paragraph of the current Hungarian Letter of Rights reads:
“As per Article 185 (1) b) of the CC [Code of Criminal Procedure], I warn you that if you refuse to testify, this fact does not interfere with the continuation of the proceedings. The refusal to testify shall not affect your right to ask questions, or to make objections or motions.”
The Hungarian legal tradition prefers texts written in “legalese” and the use of foreign (mainly Latin) phrases. The Letter of Rights is in line with this tradition. It was written by lawyers for lawyers:
- It contains information important for legal professionals and not the most vital information suspects need if charged with a crime;
- It is written in a technical legal language;
- It contains a massive amount of references to particular articles of the Code of Criminal Procedure, without explaining what the given article means.
- It is clear to us that the Letter of Rights is not accessible, but in order to advocate for change we needed hard evidence.
In cooperation with our partners we developed a new research methodology to test the accessibility of the Letter of Rights. We wanted to measure how much people understand it, and which parts they understand. We had to answer several questions first, such as:
- How to reflect the socio-economic characteristics of the potential “target audience”? Who are the potential suspects?
- How can we simulate the stressful situation in which the suspect receives the information?
- How do we measure the comprehensibility of the text?
We also drafted another, plainer version of the Letter of Rights, and tested it with the same methodology. The results have clearly shown that the official version is not accessible. Our version fared better, but there is still a lot of room for improvement.
How can we make Letters of Rights more accessible?
Building on our previous research, we partnered up with other human rights organizations for the EU-funded project called “Demystifying Justice: Training for justice actors on the use of plain language and developing clear and accessible Letters of Rights”.
During the project we:
- meet up with plain language experts and criminal justice stakeholders from 15 EU countries to share experiences and assess training needs,
- write alternative, plainer versions of the national Letters of Rights in 15 member states with the help of national experts,
- get feedback about the alternative Letters from local lawyers, and
- create an e-learning module about plain language for lawyers in 10 member states.
In each participating country we have a plain language expert and a criminal defense lawyer working together on the national Letter of Rights. Although the national legislations and practice differ significantly, the main rights are the same, as laid out in the Directive. We did not want to reinvent the wheel each time, therefore we discussed best practices at a meeting where all the expert partners were present.
We are also developing an e-learning module about plain language, targeting legal professionals. The module will be localized by the plain language experts, and it will be available for free to anyone interested.
Afterwards, the local experts who worked on the Letter of Rights will organize national workshops. Legal professionals with an interest in plain language will be invited to take the e-learning module and then participate in the workshops. A crucial component of each workshop will be collecting feedback on the re-drafted Letter of Rights.
Our major goal with this project is to contribute to the development of an open and accessible legal culture in Europe that works in the interest of the people. We want to achieve this goal by sparking a movement to promote the use of plain language in criminal procedures.
We believe in our success because:
- legal and plain language experts cooperate with each other,
- more than half of the EU member states are participating in the project,
- more and more organizations strive for plain language not only because they are obliged to, but also because they recognize its advantages in their daily work, and
- we will be advocating for the full implementation of these new Letters of Rights all across Europe.
We strongly believe that access to justice starts with understanding your rights. Strengthening cooperation between different professions across Europe and creating accessible Letters of Rights are significant steps on the long journey of making European legal culture more accessible to all.