Procedural Safeguards in Criminal Proceedings in the European Union in Practice

Estella Baker

Professor of European Criminal Law & Justice

ebaker@dmu.ac.uk

Contents

• The procedural rights directives

• Why they are being introduced

• The rights in more detail

• Directives & their obligatory force

• Obtaining assistance from the Court of Justice of the EU (CJEU) & consequences of failure to apply

The procedural rights directives: introduction & background

The directives so far

• Directive 2010/64 on the right to interpretation & translation

• Directive 2012/13 on the right to information

• Directive 2013/48 on the right of access to a lawyer

• Directive 2016/343 on the presumption of innocence

• Directive 2016/800 on procedural safeguards for children

Previous (unsuccessful) initiatives

• European Commission

– “Green Paper” on procedural safeguards for suspects and defendants: COM(2003) 75 final;

– Proposal for a framework decision: COM(2004) 328 final

• Council of the European Union

– Commitment in section III.3.3.1 of the Hague Programme to adopt a framework decision on procedural rights by the end of 2005 (OJ 2005 C53/01);

– Proposal for the framework decision, 10287/07, 5 June 2007

The breakthrough

• Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C295/01)

• The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens (OJ 2010 C115/01)

• Article 82 TFEU from 1st December 2009

The Roadmap measures

• Measure A: Translation and Interpretation

• Measure B: Information on Rights and Information about the Charges

• Measure C: Legal Advice and Legal Aid

• Measure D: Communication with Relatives, Employers and Consular Authorities

• Measure E: Special Safeguards for Suspected or Accused Persons who are Vulnerable

• Measure F: A Green Paper on Pre-Trial Detention

Why are the directives being introduced?

Protection of fundamental (human) rights

• EU Charter of Fundamental Rights, Title VI

• Article 6 TEU– (1) Charter has “same legal value as the Treaties”;

– (3) enshrines fundamental rights, as guaranteed by the ECHR & as they result from the constitutional traditions of the Member States, as general principles of Union law

• CJEU doctrine of fundamental rights protection

• All Member States are signatories to ECHR & certain of its Protocols

Judicial cooperation & mutual recognition

• The Tampere Programme (1999): mutual recognition as the “cornerstone”

• Mutual recognition programme (OJ 2001 C 12/10)

• Examples:

– Council framework decision 2002/584/JHA on the European arrest warrant (pre-Lisbon legislation);

– Directive 2011/99 on the European protection order (post-Lisbon based on Article 82 TFEU)

• Premise: mutual trust

• (See also victims’ rights measures)

The rights in more detail

Directive 2010/64

• Right to interpretation & translation of “essential” documents in criminal proceedings & proceedings for execution of European arrest warrant

• Aim: to enable exercise of right of defence & safeguard fairness of proceedings

• Quality of interpretation/translation

• Costs to be met by Member State, regardless of outcome

• Implementation deadline: 27 October 2013

• Case C-216/14 Covaci

Directive 2012/13

• Right to information relating to rights in criminal proceedings & to accusation

• Right to information of persons subject to an EAW

• Letter of rights

• Right of access to materials of the case

• Implementation deadline: 2 June 2014

• Case C-216/14 Covaci

Directive 2013/48

• Right of access to a lawyer –criminal proceedings & those subject to an EAW

• Right to have a third party informed of deprivation of liberty

• Right to communicate with third persons & with consular authorities while deprived of liberty

• Implementation deadline: 27 November 2016

Directive 2016/343

• Presumption of innocence for natural persons only

• Restrictions on public references to/indications of guilt of suspects/accused persons

• Right to remain silent & privilege against self-incrimination

• Right to be present at trial

• Implementation deadline: 1 April 2018

Directive 2016/800

• Applies to children (those under 18)• Rights to information of child & party with

parental responsibility• Significant number of other rights, e.g. legal

assistance, medical examination, audiovisual recording of questioning, limitations on deprivation of liberty, protection of privacy

• Right to be accompanied by party with parental responsibility

• Implementation deadline: 11 June 2019

Directives & their obligatory force

Key points about directives

• “binding as to the result to be achieved” but leave to the Member States “the choice of form & methods”: Article 288 TFEU

• Must be transposed into national law by the stated deadline

• Compare framework decisions: Article 34(2)(b) TEU (Amsterdam version)

Obligations on national courts

• Bound to apply EU law by the principle of “sincere cooperation” in Article 4(3) TEU

• Must refrain from “seriously compromising” the objectives of a directive during its implementation period: Case C-212/04 Adeneler

• Should apply domestic implementing law rather than the parent directive

Obligations on national courts 2

• Where:(i) the implementation deadline has expired &

(ii) there is no domestic implementing law or implementation is incorrect

• national courts must seek to give effect to a directive by applying the doctrines of:– Direct effect or

– Indirect effect –also known as the “interpretive obligation”

Enforcement proceedings

• European Commission (& other Member States) can bring enforcement proceedings against a Member State for failure to implement: Articles 258 & 259 TFEU

• Further proceedings can be brought for failure to remedy a breach, resulting in the Member State being fined: Article 260 TFEU

Obtaining assistance from the CJEU & consequences of failure to

apply the directives

Obtaining assistance from the CJEU

• Preliminary rulings procedure: Article 267 TFEU

• Expedited procedure in cases where individuals are in custody

• Compare 6 rulings in criminal cases delivered by CJEU between January 2013 & June 2014:

– Ordinary procedure: average time = 22 months

– Expedited procedure: average time = 8.5 weeks

Final points

• Consequences of failure to apply:

– Loss of substantive rights for individuals

– State liability in damages: Joined Cases C-46 & C-48 Brasserie du Pêcheur; Case C-224/01 Kőbler

– Loss of mutual trust & confidence, impact on AFSJ, etc..

• Special arrangements: Denmark, Ireland & UK

Thank you for listening!

• 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 (OJ 2016 L 132/01)