Explanatory Memorandum to COM(2013)821 - Strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings - Main contents
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| dossier | COM(2013)821 - Strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal ... |
|---|---|
| source | COM(2013)821  |
| date | 27-11-2013 |
1. This proposal for a Directive of the European Parliament and the Council aims to strengthen certain aspects of the right of suspects or accused persons in criminal proceedings throughout the European Union to be presumed innocent until proven guilty by a final judgment and to strengthen the right to be present at one's trial.
2. In the light of Article 82(1) of the Treaty on the Functioning of the European Union ("TFEU"), mutual recognition should be the cornerstone of judicial cooperation, that is, that judicial decisions taken in one Member State should be considered as equivalent to each other wherever that decision is taken, and so enforceable anywhere in the EU. Judicial cooperation needs to be founded on mutual trust and confidence between the different judicial systems and the perception that the rights of suspects or accused persons are not respected in every instance has a disproportionately detrimental effect on mutual trust and, in turn, on judicial cooperation.
3. In this context, the Stockholm Programme[1] put a strong focus on the strengthening of the rights of individuals in criminal proceedings. In its point 2.4, the European Council invited the Commission to put forward proposals, setting out a step by step approach to strengthening the rights of suspects or accused persons by setting common minimum standards on fair trial rights.
4. Three measures have already been adopted: 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[2], Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings[3] and Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 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 i. Measures on the protection of vulnerable persons suspected or accused in criminal proceedings are presented as a package with the present initiative, together with a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings.
5. Moreover, the Commission published, on 14 June 2011, a Green Paper on the application of EU criminal justice legislation in the field of detention to reflect on ways to strengthen mutual trust and the application of the principle of mutual recognition in the area of detention, in accordance with and within the limits of the EU's competence.
6. The purpose of the whole exercise of the Commission's agenda on procedural rights is to ensure the respect of the right to a fair trial in the European Union. The principle of presumption of innocence, together with its related rights, contributes to ensuring the right to a fair trial. Various rights of suspects or accused persons in criminal proceedings established by the above-mentioned EU Directives over the past few years, such as the right to interpretation and translation, the right to information and the right to access to a lawyer are not objectives themselves. They have a wider aim; they are rather tools to materialise the principle of the right to a fair trial. Presumption of innocence and its related rights contribute to it. In case of persistent breach of presumption of innocence in the Member States, the objectives of the procedural right's agenda could not be fully achieved.
7. It is for this reason that, in the Stockholm Programme, the European Council expressly invited the Commission to address the issue of presumption of innocence.
8. The Commission made a thorough examination of the issue in its impact assessment and concluded that a measure on certain aspects of presumption of innocence is needed to strengthen this fundamental right. The overarching objectives of the measures already adopted in the area of procedural rights in criminal proceedings, including its key instrument which is the Directive on the right to access to a lawyer, still require that a certain minimum level of protection of the principle of presumption of innocence is guaranteed in all EU Member States.
9. This proposal is based on Article 82(2) TFEU. That Article provides that, ‘[t]o the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d)[…].’
10. The current proposal will also contribute to strengthening the legal safeguards that protect individuals involved in proceedings conducted by the European Public Prosecutor's Office. The recently presented Proposal for a Council Regulation[5] clarifies that the suspected person has all rights granted by EU legislation as well as other rights which derive directly from the Charter of the Fundamental Rights of the European Union ("the Charter"), to be applied in accordance with applicable national law, and it explicitly refers to the right to be presumed innocent. By introducing strengthened standards on presumption of innocence in the current proposal, the procedural safeguards applying before the European Public Prosecutor's Office are also reinforced.
11. Article 6(3) of the Treaty on European Union ("TEU") provides that fundamental rights, as guaranteed by the European Convention of Human Rights and Fundamental Freedoms ("the ECHR") and as they result from the constitutional traditions common to the Member States, constitute general principles of EU law. Article 6(1) TEU provides that the European Union recognises the rights, freedoms and principles set out in the Charter, which has the same legal value as the TFEU and the TEU. The Charter is addressed to EU institutions and Member States when they implement EU law, such as in the field of judicial cooperation in criminal matters in the European Union.
12. Article 47 of the Charter stipulates the right to a fair trial. Article 48 guarantees the right to be presumed innocent and has the same meaning and scope as the right guaranteed by Article 6(2) of the ECHR[6]. Article 6(2) of the ECHR stipulates that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Article 11(1) of the Universal Declaration of Human Rights safeguards this principle by the same wording. Article 14(2) of the International Covenant on Civil and Political Rights ("ICCPR")[7] contains a very similar provision.
13. The European Court of Human Rights (ECtHR) has clarified the scope of Article 6 of the ECHR. The Court has repeatedly held that it applies as well to the pre-trial stage of criminal proceedings[8] and that suspects or accused persons have the rights under Article 6 of the ECHR at the initial stages of police questioning[9]. The Court has also ruled that these guarantees must apply to witnesses whenever they are in reality suspected of a criminal offence, as the formal qualification of the person is immaterial[10].
14. The principle of presumption of innocence has been developed over the years. The ECtHR has held that Article 6(2) of the ECHR encompasses three key requirements[11]: the right not to be publicly presented as convicted by public authorities before the final judgment[12], the fact that the burden of proof is on prosecution and that any reasonable doubts on guilt should benefit the accused and the right of the accused to be informed of the accusation. The ECtHR also recognises the existence of a clear link between the presumption of innocence and other fair trial rights, in the sense that when such rights are breached, the presumption of innocence is inevitably also at stake: the right not to incriminate one-self, the right not to co-operate and the right to silence[13] and the right to liberty (and not to be placed in pre-trial detention)[14].
15. The right to be present at trial is an essential right of defence. The right of the accused person to appear in person at the trial is part of the right to a fair trial provided for in Article 6 of the ECHR, as interpreted by the ECtHR[15]. Strengthening this right will therefore contribute to reinforce the right to a fair trial.
16. The right to be informed of the accusation is covered by the Directive 2012/13/EU on the right to information in criminal proceedings and is therefore not covered by this Directive. Pre-trial detention is the subject of separate initiatives[16] and is therefore not addressed in this Directive. All other above-mentioned aspects of the principle of the presumption of innocence or related to it are dealt with in this proposal.
17. This Directive lays down minimum requirements at EU level governing certain aspects of the right of suspects or accused persons to be presumed innocent, in line with the Stockholm Programme and the ECtHR case law. It thus promotes the application of the Charter, and in particular Articles 6, 47 and 48 therein, by building upon Article 6 of the ECHR as interpreted by the ECtHR.
18. Stakeholders were consulted on several occasions.
19. In 2006 the Commission published a Green Paper[17] on the presumption of innocence. At that time, 11 Member States replied to the consultation and independent experts and practitioners took this opportunity to point out an erosion of the principle of presumption of innocence and to underline, in particular as regards investigations against non-nationals or non-residents, that a principle of 'presumption of guilt' seems to be more and more tolerated in national systems.
20. The Commission has also had contact with major stakeholders and has benefitted from consultations on the other initiatives attached to this package.
21. In the meeting of the Expert Group on EU Criminal Policy of 23 January 2013, the Commission gathered views from academics, practitioners, judges, defence lawyers and prosecutors on the topic.
22. Moreover, a meeting with Representatives of Ministries of Justice of Member States and Croatia specifically devoted to the presumption of innocence was held on 19 February 2013.
23. In addition to this, in the framework of the study carried out for the preparation of the Impact Assessment accompanying this proposal, an on-line survey was launched on 27 February 2013 and published on the DG Justice and EJN website. All major stakeholders were informed about this survey via e-mail and more than 100 responses were received. The survey focused not only on the legal situation as regards the protection of the right to be presumed innocent in the Member States, but above all on its functioning in practice. The findings of this survey were included in the Annex III of the Impact Assessment accompanying this Proposal. The Impact Assessment is available at [ec.europa.eu/governance]. It has shown that the level of safeguards in Member States' legislation is, in a general way, acceptable and there does not seem to be any systemic problem in this area. However, there still exist points in which legal safeguards should be improved. Moreover, breaches of presumption of innocence do still occur too often across the EU.
Contents
Article 1 — Subject matter
24. The objective of the Directive is to lay down minimum rules concerning certain aspects of the right of suspects or accused persons to be presumed innocent until proved guilty by a final judgment. This Directive covers the following rights: the right not to be presented as guilty by public authorities before the final judgment, the fact that the burden of proof is on prosecution and that any reasonable doubts on the guilt should benefit the accused, the right not to incriminate one-self, the right not to cooperate and the right to remain silent. The right to be present at one's trial is also addressed by this Directive.
Article 2 — Scope
25. The Directive applies to suspects or accused persons in criminal proceedings from the very start of the criminal proceedings, even before the time when the suspects are made aware by the competent authorities of the fact that they are suspected or accused of having committed a criminal offence. It applies until the conclusion of such proceedings, i.e. until the final judgement is delivered.
26. The right to be presumed innocent encompasses different needs and degrees of protection regarding natural persons and legal persons, as recognised in the case law of the Court of Justice on the right not to incriminate one-self[18]. This Directive takes into account these differences and therefore only applies to natural persons.
27. Protection of the right of legal persons to be presumed innocent is nevertheless ensured by the existing safeguards of national and Union legislation, as interpreted by national courts and by the Court of Justice, and by the ECHR as interpreted by the ECtHR.
28. The 'step-by-step' approach of intervention of Union law, in particular in the area of rights of individuals in criminal procedure, is therefore kept and respected. Future initiatives in this field will be considered depending on the evolution of national legislation and of the case law.
Article 3 – Presumption of innocence
29. This provision lays down the right to the presumption of innocence.
Article 4 — Public references to guilt before conviction
30. The ECtHR established as one of the basic aspects of the principle of presumption of innocence the fact that a court or public official may not publicly present the suspects or accused persons as if they were guilty of an offence if they have not been tried and convicted of it by a final judgment[19]. This principle should furthermore apply, following the ECtHR case law, to all public authorities[20]. Both situations might encourage the public to believe that person is guilty and prejudge the assessment of the facts by the judicial authority.
31. This principle should be without prejudice to the possibility of publication, according to national law, of decisions imposing sanctions following administrative proceedings.
Article 5 – Burden of proof and standard of proof required
32. Presumption of innocence presupposes that the burden of proof is on the prosecution and any doubt on the guilt should benefit the suspects or accused persons (in dubio pro reo). This presupposes that a court's judgment must be based on evidence as put before it and not on mere allegations or assumptions. This is without prejudice to the independence of the judiciary when assessing the suspect or accused's guilt. Furthermore, the ECtHR has admitted that in specific and limited cases the burden of proof can be shifted to the defence. This Article reflects the ECtHR principle[21], which is considered as a correct balance between the public interest (the needs of prosecution) and the right of the defence. This Directive is without prejudice to the possibilities for the defence to present evidence in accordance with the applicable national rules.
Article 6 and Article 7 – Right not to incriminate one-self and not to cooperate, right to remain silent
33. These two Articles establish the right not to incriminate oneself and not to cooperate and the right to remain silent. The right not to be compelled to testify against oneself and not to confess guilt and not to cooperate and the right to remain silent are generally recognised international standards which lie at the heart of the notion of a fair trial under Article 6 of the ECHR[22]. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 of the ECHR. The 'degree of compulsion' imposed on suspects or accused persons with a view to compel them to provide information relating to charges against them cannot destroy, even for reasons of security and public order, the very essence of their right not to incriminate one-self and their right to remain silent[23]. Article 3 ECHR, on the prohibition of torture, as interpreted by the ECtHR, should in any case be respected.
34. The right not to incriminate one-self is primarily concerned with respecting the will of suspects or accused persons to remain silent and, in particular, presupposes that the prosecution in a criminal case seeks to prove the case against the suspects or accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the suspects or accused. Moreover, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been directly overborne in some way[24]. In this sense, according to the ECtHR, the right in question is closely linked to the presumption of innocence contained in Article 6(2) of the ECHR.
35. Suspects or accused persons should be promptly informed of their right to remain silent, as according to Directive 2012/13/EU. Such information should also refer to the content of the right to remain silent and of the consequences of renouncing to it and of invoking it.
36. Any inferences drawn from the fact that suspects or accused persons make use of these rights should be excluded. Without this, the right would be merely illusory if the suspects or accused had to fear that their non-cooperation or their silence will be used against them later in the criminal proceedings. This is the sole way to ensure the effective exercise of these rights by suspects or accused persons without a fear that such exercise can be used against them at a later stage. Therefore, the Directive also provides a specific and immediate remedy that any use of evidence obtained in breach of these rights is not allowed, save in those very exceptional cases where the use of such evidence will not prejudice the overall fairness of the proceedings[25].
37. The fact that no inferences should be drawn from the exercise of these rights and that the exercise of these rights should not be used against suspects or accused persons at a later stage of the criminal proceedings should not prevent Member States from taking into account cooperative behaviour when deciding the concrete sanction to impose.
Article 8 and Article 9 – Right to be present at one's trial
38. If a person is not present during the trial, his right of defence is at stake. The defendant is in such case neither able to give his version of the facts to the Court, nor is able to present evidence accordingly. He might therefore be found guilty without having had the opportunity to rebut the grounds for such a conviction.
39. The right to be present at trial, or being able to waive such right after having been informed of it, is indispensable for the exercise of the rights of defence.
40. Article 8 provides that Member States must ensure that the right to be present applies to any trial aiming at assessing the question of the guilt of the accused person (both conviction and acquittal decisions). The presence of the suspects or accused at this moment in the criminal proceedings is of particular importance given the consequences that moment could have.
41. Article 8 stipulates the right established by the ECtHR of an accused to be present at the trial and also establishes limited exceptions to this right, in line with the Charter, the ECHR and EU law[26]. Provided that the conditions laid down in Article 8 are respected, nothing prevents Member States to make use of 'simplified procedures' for the most common minor offences. Article 9 establishes that a remedy (as established by the ECtHR) in cases where the right to be present at trial has not been observed is an obligation to provide for a re-trial[27].
Article 10 – Remedies
42. The ECtHR has consistently held that the most appropriate form of redress for a violation of the right to a fair trial in Article 6(2) ECHR would be to ensure that suspects or accused persons, as far as possible, are put in the position in which they would have been had their rights not been disregarded[28].
Article 11 –Data collection
43. In order to monitor and evaluate the effectiveness and efficiency of this Directive, there is a need for collection of data by the Member States with regard to the exercise of the rights set out in this Directive. Relevant data include data recorded by the judicial authorities and by law enforcement authorities regarding which remedy is applied whenever there has been a breach of presumption of innocence and of the right to present at trial.
Article 12 – Non-regression clause
44. The purpose of this Article is to ensure that setting common minimum standards in accordance with this Directive does not have the effect of lowering standards in certain Member States and that the standards set in the Charter and in the ECHR are maintained. Since this Directive provides for minimum rules, in line with Article 82 TFEU, Member States remain free to set standards higher than those agreed in this Directive.
Article 13 – Transposition
45. This Article requires that Member States must implement the Directive by xx/xx/201x and, by the same date, transmit the text of the provisions transposing it into national law to the Commission. Given the simplicity of the transposition measures to be implemented, the Commission does not require explanatory documents to carry out its task of overseeing the transposition of the Directive. The individual transposition measures to be notified should be sufficiently self-explanatory.
Article 14 – Entry into force
46. This Article provides that the Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union.
47. There is a significant variation in the legislation of the Member States on the right to be presumed innocent and to all its aspects. Case law of the ECtHR shows that violations of presumption of innocence and its related fair trial rights have steadily taken place. This leads to the lack of mutual trust between judicial authorities of different EU Member States. As a result, judicial authorities are reluctant to cooperate with each other. The impact assessment attached to this proposal shows that the ECtHR alone does not ensure a full protection of presumption of innocence: some aspects of presumption of innocence have not been recently or extensively considered by the ECtHR, and the redress procedure at the ECtHR intervenes only ex post, after exhaustion of all internal remedies. This Directive will complement the safeguards provided for by the ECtHR and ensure that presumption of innocence is protected from the start of the criminal proceedings, including the possibility of recourse to EU redress mechanisms.
48. The objective of the proposal cannot be sufficiently achieved by Member States alone as the aim of the proposal is to promote mutual trust; it has to be action taken by the European Union, which will establish consistent common minimum standards that apply throughout the whole of the European Union. This has been confirmed by the Stockholm Programme, in which the European Council invited the Commission to address the issue of presumption of innocence. The proposal will approximate Member States’ procedural rules regarding certain aspects of the right to be presumed innocent and regarding the right to be present at one's trial in criminal proceedings, the aim being to enhance mutual trust. The proposal therefore complies with the subsidiarity principle.
49. The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose. The proposal only deals with certain aspects of presumption of innocence, that are more directly linked to the functioning of mutual recognition instruments and to police and judicial cooperation in criminal matters. Furthemore, it is limited to natural persons. This is in line with the 'step-by-step' approach of EU intervention in the area of procedural rights in criminal matters and the need for proportionate action.
50. This proposal does not have any impact on the EU budget.