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Procedural Safeguards in Criminal Proceedings in the European Union in Practice
Estella Baker
Professor of European Criminal Law & Justice
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)