Brussels, 27 November 2013
Frequently Asked Questions: Fair Trial Rights
What is the European Commission proposing?
The Commission is proposing three directives: (1) on the respect for the presumption of innocence and the right to be present at trial; (2) to make sure children involved in criminal proceedings have special safeguards; and (3) on the right to provisional legal aid and especially for people subject to a European Arrest Warrant.
-The Directive on presumption of innocence will guarantee that suspects are not considered guilty simply because they exercise their right to remain silent. It also asks Member States to ensure that, before a final conviction, public authorities should refrain from public statements that could damage the person's reputation or influence the jury or the court's final decision ("innocent until proven guilty"). The Directive sets out that the burden of proof is on the prosecution and any doubt benefits the suspect or accused person. It also lays down the principle that everyone has the right to remain silent as regards the facts he/she is accused of. Finally, the Directive provides that the accused has the right to be present at the trial.
-The Directive on special safeguards for child suspects will make sure that children are able to understand and follow criminal proceedings, including by having mandatory access to a lawyer at all stages. This means that children cannot waive their right to be assisted by a lawyer, as there is a high risk that they would not understand the consequence of their actions. Children are also set to benefit from other safeguards such as being informed promptly about their rights, being assisted by their parents (or other appropriate persons), not being questioned in public hearings and the right to receive medical examination if deprived of liberty.
-The Directive on the right to provisional legal aid will complement the existing right to access to a lawyer by guaranteeing provisional legal aid (for assistance at the early stages of proceedings when suspects or accused persons are particularly vulnerable, especially if deprived of liberty). It will also guarantee legal aid for people arrested under a European Arrest Warrant (EAW).
These legislative proposals are complemented by two Commission Recommendations to Member States:
-On procedural safeguards for vulnerable suspects: ensuring that vulnerable persons (for example people with disabilities) are detected and recognised, and that their special needs are taken into account appropriately in criminal proceedings. If citizens don't understand the proceedings or the consequences of actions such as confessing, this leads to "inequality of arms". The Recommendation proposes that vulnerable suspects benefit from special safeguards such as mandatory access to a lawyer, assistance by an appropriate third person and medical assistance.
-On the right to legal aid for suspects and those subject to a European arrest warrant: providing common factors to be taken into account in the assessment of whether a person has a right to legal aid, and ensure the quality and effectiveness of legal aid services and administration.
Why are procedural rights important?
More and more Europeans travel, study and work outside their home country. Around 14.1 million EU citizens reside permanently outside their home country, 10 % of EU citizens have lived and worked abroad at some time in their lives and 13 % have gone abroad for education or training.
http://europa.eu/rapid/press-release_MEMO-10-70_en.htm - footnote-1 Increasing mobility means there is a greater chance that people may find themselves involved in criminal proceedings in a country other than their own. There are 9 million criminal proceedings in the European Union every year. It is important to make sure that there is a level playing field on procedural rights in criminal proceedings and that citizens receive a fair trial - no matter where they are in the EU.
Legal practitioners and Member States agree that a prerequisite for mutual trust is that national criminal justice systems guarantee suspects and accused persons, whatever their nationality, minimum safeguards.
The right of accused persons and suspects to a fair trial is a fundamental right which is laid down as a general principle under Article 6(3) of the Treaty on European Union (TEU) and Article 48(2) of the EU Charter of Fundamental Rights.
Who will benefit from this?
In a European area of justice, citizens must not only have the right to a fair trial anywhere in the European Union, but also be confident that this right is effective everywhere in the EU whenever they travel. For mutual recognition instruments such as the European Arrest Warrant to work, judicial authorities in the Member States need to be able to trust each other’s justice systems. Fair trial rights are thus a win-win situation for citizens and national police and judicial authorities.
Today around 9 million people are confronted with criminal justice proceedings every year in the European Union.
The number of children facing criminal justice is about 1.086.000 across the EU, that is 12% of the total of the European population facing criminal justice. For vulnerable adults, about 4 - to 8% of the total population facing criminal justice could face any kind of impairment that prevents them to fully participate in criminal proceedings (this would be approximately 358.000 to 719.000 persons, but in the absence of a standard definition of who is vulnerable, it is difficult to indicate precise figures).
The number of European Arrrest Warrants is on the rise. Statistics for the years 2005 to 2010 record 68.580 issued European Arrest Warrants and 15.923 executed in that time. Taking into account provisional figures for 2011, the total number of issued European Arrest Warrants is 78.364 out of which 19.076 have been executed.
All these figures are unlikely to decrease by any significant amount in the coming years. Therefore the strengthening of criminal procedural rights and safeguards is important and relevant for many European citizens.
Why is the European Commission making proposals?
To develop a European area of justice based on mutual recognition and mutual trust, the Commission received a political mandate for a strong focus on strengthening citizens’ rights in criminal proceedings, to ensure that the right to a fair trial is upheld in courts across the EU.
In 2010, EU leaders meeting in the European Council provided a political mandate to the Commission asking it to submit proposals to strengthen the procedural rights of suspects and accused persons in their Stockholm Programme , which endorsed the Council’s 2009 Roadmap for Procedural Rights .
This resulted in the Commission’s Procedural Rights Agenda. As a continuation of this work, today's package of five measures complete the Commission’s Procedural Rights Agenda.
Which procedural rights have already been guaranteed in EU law?
To date three procedural rights Directives have been adopted already. In 2010, the European Commission made the first steps in a series of measures to set common EU standards in all criminal proceedings. The Commission proposed rules that would oblige EU countries to provide full interpretation and translation services to suspects ( IP/10/249 , MEMO/10/70 ). The proposal was adopted in a record time of nine months by the European Parliament and Member States in the Council ( IP/10/1305 ). EU Member States have had three years to adopt these rules, rather than the usual two years, to give authorities time to put translated information in place ( IP/13/995 ).
The right to translation and interpretation was the first in a series of fair trial measures to set common EU standards in criminal cases. The law was followed by a second Directive on the right to information in criminal proceedings, adopted in 2012 ( IP/12/575 ), and by a third Directive on the right to access to a lawyer and communication upon arrest, adopted in 2013 ( IP/13/921 ). With today's proposals the Commission is now continuing with its procedural rights roadmap to make the European area of justice a reality for citizens.
Why do we need a Directive on presumption of innocence?
The fair trial rights referred to in the existing EU instruments, including the right to be given information, the right to be able to understand and follow the proceedings and the right of access to a lawyer, are complementary to and inseparable from the presumption of innocence in securing a fair trial and mutual trust.
The Stockholm Programme called on the Commission to examine further elements of minimum procedural rights for suspects or accused persons, and mentioned, in particular, the presumption of innocence.
Despite the fact that the European Court of Human Rights has already set out fair trial standards in its case law, protection for accused people is still too often not good enough in practice: 11 EU Member States (Austria, Belgium, Bulgaria, Croatia, France, Greece, the Netherlands, Poland, Romania, Slovakia, Spain) have been declared in violation of the presumption of innocence by the European Court of Human Rights between 2007 and 2012. And this is only the 'tip of the iceberg', given that only a very small percentage of cases reach the Court of Human Rights. Making the presumption of innocence more effective through EU law is about ensuring the right balance: criminals should be brought to justice. But possibly innocent citizens deserve to have a fair trial too. This is the bedrock of the rule of law.
What will the Directive on the presumption of innocence do?
The Directive makes it a firm principle that, before final conviction, official decisions and public statements by, for example, police and judicial authorities must not refer to or present the suspect or accused person as guilty. It hereby protects the reputation and privacy of those facing criminal proceedings.
In criminal proceedings, the burden of proof should be on the prosecution and any doubt should benefit the suspect or accused person, without prejudice to the full independence of the judiciary when assessing the suspect or accused's guilt.
The right to remain silent, the right to not incriminate oneself and the right not to cooperate are generally recognised international standards which lie at the heart of the notion of a fair procedure. They ensure that a suspect or accused person cannot be improperly forced to produce evidence, which might lead to unfair convictions and would moreover breach the principle that the burden of proof is on the prosecution.
In addition, the Commission's proposal aims to ensure that the right not to cooperate and the right to remain silent cannot be used against the suspect to infer he or she is guilty. Today, in some Member States the exercise of the right to silence allows authorities to infer guilt from this. Examples include: Ireland, UK, Finland, Latvia, Sweden, Cyprus and the Netherlands.
Finally, if a suspect or accused person is tried ‘in absentia’, the right of defence is jeopardised: defendants are denied the opportunity to give their version of the facts to the court, and to rebut evidence. The fundamental right of the accused to be present at the trial, established by the European Court of Human Rights, becomes a minimum EU standard.
Why are specific safeguards needed for children?
Around 1 million children in the EU are estimated to come into formal contact with the police and judiciary every year.
All relevant international standards (the UN Convention of the Rights of the Child, EU Charter of Fundamental Rights and the European Convention on Human Rights) recognise that children are vulnerable due to their insufficient maturity. It is also generally recognised that they need specific safeguards in criminal proceedings which should enable them to understand and follow the proceedings.
The fair trial rights of children throughout the various stages of criminal proceedings are, at present, not sufficiently guaranteed within the EU. Breaches of their fair trial rights have been raised and acknowledged in many cases before the European Court of Human Rights.
In this context the Stockholm Programme explicitly foresees a specific measure to provide common minimum rules for vulnerable suspects in addition to the other procedural rights measures. Without such an instrument, the protection of suspects or accused persons in criminal proceedings would not be complete.
This proposal forms part of the EU Agenda for the Rights of the Child that aims to promote child-friendly justice.
What will the Directive on safeguards for children do?
The proposed Directive will ensure:
-that the procedural safeguards apply to children from the time they are suspected or accused of having committed an offence (scope);
-that children cannot waive the right to be assisted by a lawyer, as there is a high risk that they would not understand the consequence of their actions; mandatory access to a lawyer is the core measure of the proposed Directive;
-that children are assisted by their parents or other appropriate persons when arrested, and that both children and their parents are informed of their rights;
-that their personal and family situation and needs are properly assessed before judgment and that children receive a medical examination if deprived of liberty;
-that throughout the proceedings, questioning is carried out in circumstances that take into account the child’s age and level of maturity and questioning by police is audio-visually recorded unless it would not be proportionate;
-that children cannot be tried in their absence; to ensure that children cannot be found guilty without having had the opportunity to rebut the grounds for such a conviction, and understand the grounds of a possible conviction to prevent re-offending by children and to foster social integration.
-that judicial authorities dealing with children receive specialised training;
-that the child’s privacy is protected in order to facilitate reintegration into society, e.g. by ensuring that the proceedings are in principle not open to the public.
Today, the legal situation in Member States varies. For example, not all Member States provide in their national law the safeguard that children may not waive their right of access to a lawyer. Some do not at all provide for mandatory defence (Cyprus, Ireland, Luxembourg and the United Kingdom), others provide for a mandatory defence at court but not at police stations (France, Netherlands and Slovenia), and others leave it to the competent judge to decide on mandatory defence (Germany, Finland and Sweden). This means that at present a considerable amount of children do not have access to a lawyer.
Why is legal aid important?
The right to legal aid is intrinsically linked to the right of access to a lawyer. The Directive on access to a lawyer provides for the right of access to a lawyer but remains silent on what happens if the accused cannot afford a lawyer. For persons who lack resources, or who are deprived of liberty and do not know a lawyer, access to a lawyer cannot be effective unless the state provides legal aid to ensure legal assistance.
Thus, for the right of access to a lawyer to be effective and to further strengthen mutual trust in the European Union to ensure that mutual recognition works smoothly, legal aid needs to be available to those who need it.
What will the Directive on provisional legal aid do?
The Directive focuses on the two most pressing issues to ensure access to a lawyer. First it guarantees legal aid for access to a lawyer when it is most needed in the form of ‘provisional legal aid’.
At the early stages of proceedings, the suspect or accused person is particularly vulnerable, especially if deprived of liberty. Access to a lawyer at those stages is of paramount importance to protect fair trial rights, including the right to not incriminate oneself, as stated in the case law of the European Court of Human Rights. Article 6 of the European Convention on Human Rights requires that, as a rule, suspects or accused persons are granted access to legal assistance from the moment they are taken into police custody or pre-trial detention, and that such assistance is assigned officially if need be. They should not have to wait for access to a lawyer until their application for legal aid has been processed and their eligibility assessed.
Therefore, the proposed Directive provides for suspects or accused persons who are deprived of liberty to have access to provisional legal aid at these early stages of the proceedings and until the competent authority has made a final decision on the application for legal aid.
A right for the Member States to recover costs in case the suspect later does not qualify for legal aid is also provided.
Secondly, the Directive focuses on those who are subject to European Arrest Warrant proceedings. It seeks to address the problem that suspects in European Arrest Warrant proceedings do not always have access to the legal aid system. The Directive on access to a lawyer provides for a right to dual legal representation in European Arrest Warrant proceedings, that is in both the executing and issuing Member States. To make this effective, there needs to be a guarantee of access to legal aid in European Arrest Warrant proceedings.
How will the proposals improve the operation of the European Arrest Warrant?
The proposal on provisional legal aid seeks to put European Arrest Warrant proceedings on the same footing as other proceedings by providing access to legal aid, subject to criteria set out in national law.
European Arrest Warrant proceedings are not covered by the European Convention on Human Rights and special action at EU level is therefore necessary to ensure that there is access to legal aid, making the right to access to a lawyer in the executing, but particularly in the issuing Member State, a reality.
How do the proposals ensure proper respect for the principle of subsidiarity?
The package has been designed in such a way so as to strike the right balance between on the one hand, the need to provide tailor-made safeguards to ensure the proper working of the European area of justice, and on the other hand the need to respect proportionality and subsidiarity taking into account the current economic climate.
That is why the proposals are limited in scope to cover the most essential aspects of the rights:
-only certain aspects of the presumption of innocence are covered;
-while children are generally recognised as "vulnerable", the Recommendation on vulnerable suspects leave flexibility to Member States to determine who else is "vulnerable";
-the Directive on provisional legal aid is limited in time, and to persons deprived of liberty. In addition, it provides a right for Member States to recover the cost if the person does not qualify for legal aid;
-whereas the Recommendation on legal aid leaves it to Member States to decide who qualifies for legal aid. Each Member State continues to operate the legal aid system and the eligibility, but the Recommendation sets out the factors to take into account in the means test (based on the economic situation of an individual) for those that apply that test, and for the merits test (based on the individual situation of a person and the specific case) when a Member State applies such a test.
For more information
European Commission - Fair trial rights:
Homepage of Vice-President Viviane Reding, EU Justice Commissioner:
Follow the Vice-President on Twitter: @VivianeRedingEU
Follow EU Justice on Twitter: @EU_Justice