Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings

With the Directives on the right to information in criminal proceedings and the right to access to a lawyer successfully passed, the Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings marks a new step in the recent efforts of the Commission to create common EU framework of defence rights which minimally need to be respected by the Member States. The proposal entails two different aspects of the right to a fair trial as its subject matter (Art. 1-2). On the one hand, the proposal deals with the presumption of innocence and several related aspects of the right to a fair trial (Art. 3-7). On the other hand, the proposal also regulates the right to be present at one’s trial (Art. 8-9).

At first glance, the proposal seems to contain an extensive catalogue of defence rights. For a start, Article 3 explicitly recognises the presumption of innocence until proven guilty according to law. Article 4 prohibits public references to guilt before conviction. Article 5 obliges the Member States to ensure that the burden of proof is in principle on the prosecution. Rebuttable presumptions are only allowed if justified by sufficiently important circumstances. Article 6 encompasses the right of the suspect not to incriminate himself and not to cooperate, even though, as will discussed in some more detail below, this right does not extend to material which has an existence independent of the will of the suspect. Article 7 grants suspects the right to remain silent and also obliges Member States to give sufficient information on the content of this right as well as the consequences of renouncing or invoking it. Next, Article 8 gives the suspect a principled right to be present at his trial, but also stipulates under which circumstances a trial can nonetheless be held in his absence.[1] Article 9 obliges Member States to ensure a retrial for the absent suspect, which allows a fresh determination of the merits of the case, save certain exceptions.[2] Finally, Article 10 provides for an effective remedy if the rights under the Directive have been breached, which shall put the suspect, as far as possible, in the same position as when the breach would not have occurred.

 Nonetheless, on closer inspection, the rather limited bearing of the proposal becomes clear. Firstly, according to Article 2, the proposal only applies to natural persons suspected in criminal proceedings. This provision must be read in conjunction with Recital 6, which states that administrative proceedings leading to sanctions such as competition, trade, tax, financial services proceedings and other investigations by administrative authorities in relation to these proceedings, and also civil proceedings are not covered by this Directive. The scope of application of the proposed directive is thus limited in two ways. On the one hand, the proposal is confined to proceedings which are formally labelled ‘criminal’ by the Member States’ criminal justice system. Administrative proceedings which could lead to the imposition of ‘criminal sanctions’ in the meaning of Article 6 ECHR, are excluded. However, this does not mean that the proposal will never have any consequences for administrative proceedings. As Articles 6 and 7 of the proposal preclude the use (and not merely the collection) in criminal proceedings of evidence obtained in breach of the right to silence and the privilege not to incriminate oneself, these provisions should also be complied with during administrative proceedings whenever the results of these proceedings can be used in subsequent criminal proceedings.[3] On the other hand, the proposal does not apply to legal persons. According to Recitals 9 and 10, the precise scope of the right to silence of legal persons has not been sufficiently settled yet in the case-law of the CJEU and the Member States. Consequently, even after the adoption of this proposed directive, this issue remains only covered by the case-law of the European Court of Human Rights (‘ECtHR’) and especially the EU Court of Justice (‘CJEU’). This way, the proposal avoids the very tricky and controversial question concerning the extent of a right to silence for legal persons.

 Secondly, in terms of content, the proposal hardly adds anything to the existing case-law of the ECtHR.. Almost all provisions are indeed a mere codification of that case-law. Two random examples will illustrate this. For instance, Article 4, which states that every public authority may not refer to the guilt of the suspect in a public statement before the final conviction, can be traced back to the ECtHR case-law following the Allenet de Ribemont judgement. The same can be said of Article 6. According to this article, the privilege against incrimination does not apply to material which can be obtained from the suspect through the use of compulsory powers but which has an existence independent of the will of the suspect. Recital 17 gives some clarifying examples of such material: material acquired pursuant to a warrant, material in respect of which there is a legal obligation of retention and production upon request, as well as breath, blood, urine and bodily tissue collected for the purpose of DNA-testing. In this respect too, the proposal simply replicates the Funke and Saunders case-law of the ECtHR, even including exactly the same examples of material which is not covered by the privilege.[4]

 Nonetheless, in one respect, the proposal explicitly wants to go further than the protection offered by the ECtHR. According to Articles 6 and 7 of the proposal, the exercise by the suspect of his right to silence or privilege against self-crimination may not be used against him and, importantly, may not even be considered as a corroboration of facts. By contrast, the ECtHR does accept that negative inferences are drawn from the exercise of the right to silence, provided there is further evidence pointing to the suspect’s guilt which calls for an explanation from him.[5] It remains to be seen whether this provision will not be watered down during the discussions in the Council or the European Parliament, similarly to what happened with most provisions in other proposed directives concerning rights of the suspect that went further than the minimum standards of the ECHR [6]

 All in all, one may conclude that the proposal merely consists in a partial codification of the existing case-law of the ECtHR (and to a lesser extent, the CJEU). This can be deplored. Article 6 ECHR should be seen as a set of minimum standards regarding the rights a suspect should at the very least have during a criminal trial, not as a common European framework of defence rights. This is explicitly confirmed by the non-regression clause[7] of Article 53 ECHR (cf. Article 12 of the proposal). Admittedly, Article 82 TFEU, upon which this proposal is based, only aims at an approximation of minimum rules. But there is no reason why the EU should confine itself to the minimum standards set by the ECtHR, which also apply to non-EU Member States whose criminal justice system is usually less trusted by EU Member States. Instead, the EU should aim for higher procedural safeguards in order to increase mutual trust among the EU Member States, which is an indispensable condition for a smooth mutual cooperation and mutual recognition in criminal matters and one of the main objectives of the Stockholm programme. It is hard to see how a mere (albeit meticulous) codification of the existing minimum standards of the ECHR could lead to an increase in mutual trust between the Member States. Paradoxically, this proposal, if and when adopted, might even decrease the current level of suspect protection in some Member States which traditionally offer higher defence rights, if they would decide to read just their criminal procedure to the lower common EU denominator set by this proposal.

[1] These circumstances are defined by a myriad of cumulative and/or alternative conditions (article 8.2), which however all amount to the presumption that the suspect has renounced his right to be (personally) present at his trial (see Recital 23).

[2] To be more precise, a retrial is not necessary when the original trial was held in circumstances under which Article 8 allows for a trial in the absence of the suspect, or when the suspect has (implicitly or explicitly) renounced his right to a retrial (see Articles 8.3 and 9).

[3] In this respect, the proposal codifies the case-law of the ECtHR following Saunders v. UK.

[4] See §69 of the Saunders judgement

[5] ECtHR case-law following John Murray v. UK. The same can be said of the right not to cooperate, where the ECtHR has accepted that in principle the suspect can be compelled to hand over certain documents or give certain information in some circumstances. E.g., in O’Halloran and Francis v. UK, the ECtHR decided that a legal provision could compel the registered owner of a car caught on speed camera to disclose the name of the person driving the car, on the penalty of a fine similar to the one for the traffic road infringement.

[6] In its explanatory note to the proposal, the Commission also states that suspects not only should have an effective (Article 10), but also a specific and immediate remedy at any stage of the criminal proceedings when evidence is obtained in breach of the right to remain silence or the privilege not to incriminate oneself, save in very exceptional circumstances where the use of such evidence would not prejudice the overall fairness of the proceedings (§36 of the explanatory note). This requirement would most definitely go further than the current case-law of the ECtHR, which  does not require the existence of a specific and immediate remedy against breaches of article 6 ECHR (with the exception of the reasonable time requirement: ECtHR Kudla v. Poland). As no traces of this statement can however be found in the provisions of or the recitals to the proposal, this requirement should be seen as a mere suggestion for further improvement.

[7] This means that the ECHR should not be interpreted as having the effect of lowering the higher standards found in other relevant provisions of international law or the law of a Member State.