The Presumption of Innocence (and the Right to be Present at Trial) Directive
By Stijn Lamberigts
The recently adopted Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings (the Presumption of Innocence Directive) is the fourth Directive on the procedural rights of suspected and accused persons in criminal proceedings. After the Translation and Interpretation Directive, the Right to Information Directive and the Access to a Lawyer Directive, this new Directive tries to enhance the right to a fair trial through the adoption of common minimum rules on certain points of the presumption of innocence and the right to be present at trial (Recital 9). This should result in an increased trust between the Member States (MS) in the field of criminal justice and thereby facilitate mutual recognition. Whether this will be achieved by the Directive, will depend on the MS’s implementation efforts and the Court of Justice’s guidance on its interpretation.
History of the Presumption of Innocence Directive
The European Commission has been looking into the presumption of innocence for a while. A 2006 Green paper on the presumption of innocence already indicated that the Commission was willing to include the presumption of innocence in a legislative instrument, if there was a need to do so. That Green Paper also very briefly addressed the issue of in absentia proceedings. Yet it took the Commission until November 2013 to put forward the Proposal for the Presumption of Innocence Directive (discussed on this blog), along with two further proposals, the Proposal for a Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings and the Proposal for a Directive on (provisional) legal aid. Although the presumption of innocence was not one of the measures covered by the 2009 Roadmap, point 2 of that Roadmap made clear that proposals on other topics could be launched.
Subject matter and scope of the Directive
The approach taken in the new Directive is rather broad as it addresses not only the presumption of innocence and connected rights such as the right to remain silent, but it equally addresses the right to be present at one’s trial. So, unlike for example the Translation and Interpretation Directive, the new Directive addresses two topics that are not so closely related that they necessarily have to be addressed in the same legal instrument. This blogpost will focus on the presumption of innocence and the connected rights as the provisions on the right to be present at trial merit a separate analysis. Despite the apparent broad approach of the Directive, its actual scope is in fact more limited than its title might suggest, as will be demonstrated below.
Firstly, its scope is restricted to classic criminal proceedings, thus not covering punitive administrative proceedings. In other words, the suggestion to adopt a broader approach (see Amendments 6 and 39), by reflecting the Engel criteria of the European Court of Human Rights (ECtHR), from which the Court of Justice has also drawn inspiration, for example in Bonda, did not make it into Article 2 of the Directive. The second sentence of Recital 11 clearly states that the reference to criminal proceedings in Articles 1 and 2 of the Directive do not cover civil or administrative proceedings, even where administrative proceedings would lead to the imposition of sanctions, for example in the context of competition or tax law.
The clear exclusion of such proceedings is preceded, though, by an odd and confusing sentence according to which ‘This Directive should apply only to criminal proceedings as interpreted by the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights.’ This reference to the case-law of both European courts, which was suggested by the Council Presidency, in order to integrate the different views. (see footnote 2), creates the impression that the scope of the Directive could be broader than proceedings that are formally qualified as criminal by the legislator. It shows the disagreement between on the one hand the Presidency and the Commission, and on the other hand the EP. The latter wanted ‘similar proceedings’ in light of the so-called Engel criteria to be included in the scope of the Directive. The former opposed this as it would harm the consistency with other Procedural Rights Directives and as they considered that the notion of ‘criminal proceedings’ is an autonomous notion that would be interpreted by the CJEU. Whether the broader approach suggested by the Parliament is in line with the meaning of ‘criminal procedure’ in Article 82(2)(b) TFEU (determining the Union’s power with respect to criminal procedural rights ), is not so self-evident as this would give a very broad meaning to a provision that is otherwise restricted in several regards.
Not only is the Directive seemingly limited to ‘classic criminal proceedings’, Article 2 of the Directive also restricts its application to natural persons. Proposals from the European Parliament to include legal persons, such as Amendments 9 and 39, have been equally unsuccessful. The choice to exclude legal persons from the scope of the Directive is according to recitals 13-15 based on the different needs and levels of protection of certain aspects of the presumption of innocence for legal persons. The EU legislator finds additional support in the case-law of the Court of Justice. A brief look at the Court’s case-law on the privilege against self-incrimination, in Orkem as well as in more recent cases, shows that legal persons at times benefit from little protection. As a consequence, legal persons, such as corporations, will have to continue to rely on other legal instruments, such as the ECHR, and the case-law of the Court of Justice and the ECtHR.
The choice to explicitly limit the scope of the Directive to natural persons raises interesting questions in relation to the scope of pre-existing Roadmap Directives, such as the Translation and Interpretation Directive and the Right to Information Directive. Does the reference to ‘persons’ instead of ‘natural persons’ in these Directives imply that they take a different approach to legal persons than the Presumption of Innocence Directive? Moreover, it is noteworthy that Article 82(2)(b) TFEU refers to ‘individuals’. Does this mean that the competence of the EU legislator in this area is restricted to natural persons? Interestingly, though, other linguistic versions of the TFEU (such as the French and the Dutch one) use the term ‘persons’, a concept that can clearly refer to natural as well as legal persons.
Finally, Article 2 of the Directive does not, like the previously adopted Roadmap Directives, link the applicability of the Directive to a notification of the authorities of their status of suspected or accused person. Instead it provides that the Directive is applicable once an individual is suspected or accused of a criminal offence, and it is applicable to all stages of the criminal proceedings, until the decision on the final determination of whether the person has committed the criminal offence becomes definitive.
The presumption of innocence and connected rights
Having established the scope of the Directive, our analysis will now turn to the different articles on the presumption of innocence and the connected rights covered by the Directive. Article 3 of the Presumption of Innocence Directive reaffirms the presumption of innocence, which is already incorporated in Article 6(2) ECHR and Article 48(1) of the Charter of Fundamental Rights of the EU (CFR). Unlike these provisions the Directive does not refer to ‘everyone’ but merely to ‘suspects and accused persons’ and is further restricted to natural persons (supra).
The issue of public references to guilt, addressed by the ECtHR on several occasions, for example in the Allenet de Ribemont case, is addressed in Article 4 of the Directive. It obliges MS to ensure that, until a person has been duly found guilty, the individual involved is not presented as guilty in public statements by public authorities or judicial decisions, other than those determining the person’s guilt. Recital 17 shows that ‘public authorities’ should be understood broadly as covering judicial authorities, police officers as well as ministers.
The broad requirement of Article 4(1) does not apply to the prosecutor’s acts that aim to prove the individual’s guilt (such as the indictment), nor to preliminary procedural decisions by judicial or other competent authorities and which are based on suspicion or incriminating evidence (for example a decision on pre-trial detention). Additionally public authorities can, without violating Article 4, provide information to the public related to the criminal proceedings if this is strictly necessary for reasons linked to the criminal investigation or to the public interest; this would include for example the release of video footage of fugitives that are believed to be an imminent threat to the general public. Appropriate measures should be available where Article 4 is not respected and Article 10 on effective remedies seems of particular importance here. The first paragraph of the latter provision strongly resembles Article 12(1) of the Access to a Lawyer Directive.
In addition to public references to guilt, Article 5 of the Directive is also concerned with the use of physical restraints and the way in which this negatively impacts the presentation of suspects and accused persons in public and in court. Putting them in a cage or handcuffing them could result in them being presented as guilty. The Directive nevertheless leaves room for case-specific requirements to use such measures.
Article 6 stresses that the burden of proof is on the prosecution. The final text of Article 6 does not include a reference to the shifting of the burden of proof to the defence, unlike Article 5(2) of the Proposal. A reference to the shifting of the burden of proof and the use of presumptions can nevertheless still be found in Recital 22. The deletion of the text of Article 5(2) of the Proposal did not please the Commission, which (to some extent rightly so) fears problems in the implementation process. The fact that the burden of proof is on the prosecution does not affect the obligation of judges and courts to look for inculpatory as well as exculpatory evidence, nor does it impact the right of the defence to provided evidence. Additionally, any doubt as to the guilt of the individuals involved, should benefit them. The reference to ‘reasonable doubt’ in the original proposal has thus been exchanged for ‘any doubt’. Yet as Article 6(2) does not in all cases require an acquittal, but merely that any doubt benefits the suspected or accused person, this change seems less important.
Interestingly, Article 7 provides an explicit legal basis for the right to remain silent and the right not to incriminate oneself. Although the ECtHR has repeatedly stressed that these rights ‘are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 [ECHR] ’ (see e.g. §68 of Saunders), they are not explicitly covered by the ECHR or the CFR. In this regard the Directive is innovative at the European level, since the reference in Article 3 of the Right to Information Directive did not deal with the content of the right. With regard to the right to remain silent, the Directive explicitly adds that it applies in relation to the criminal offence that the person is suspected or accused of having committed. Recital 26 suggests that this restrictive phrasing is used in order to make sure that the person could still be required to answer certain questions, for instance, to identify himself.
Article 7(3) of the Directive incorporates the case-law of the ECtHR, developed in Saunders, according to which the ‘it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect.’ (§102) Recital 29 is clearly inspired by that case-law. It is regrettable that the legislator adheres strictly to that case-law of the ECtHR instead of offering a wider protection, for example with regards to documents that are self-incriminating. Moreover, one should stress that national legislators should take care not to overlook other case-law of the ECtHR, such as Chambaz, when implementing the Directive and it can be hoped that Recital 25, which explicitly refers to documents, is duly taken into account in this context.
Arguably, Article 7(5) seems to suggest that the EU legislator is willing to do more than a (partial) codification of the ECtHR’s case-law as it provides that the exercising of the right to remain silent and the right not to incriminate oneself shall not be used against the individual and it cannot be considered to be evidence that they have committed the criminal offence at hand. This provision seems to go further than (criticized) ECtHR case-law, and notable Murray, which accepts, under certain conditions, negative effects of the choice to stay silent. Yet, the reference in Recital 28 ‘should not, in itself, be considered to be evidence’ seems to show that the legislator had difficulties of fully banning adverse consequences of the use of the right to silence. Moreover, this provision should be read together with Article 7(4), which allows MS to give their judicial authorities the option to take into account, at the sentencing stage, the cooperative behaviour of suspects and accused persons. In this regard, the Commission has also voiced its concern about Article 7(6) which allows MS to decide, in relation to minor offences, to conduct (part of) the proceedings in writing or without the questioning of the individual, as long as it is in line with the right to a fair trial. The Commission points out that this provision should not be used to derogate from Article 7, particularly by allowing a MS to draw negative consequences from the exercising of the rights mentioned in that Article.
Furthermore, whereas the original Proposal stipulated that evidence obtained in breach of the rights mentioned in Article 7 should be inadmissible, unless the use of that evidence would not prejudice the overall fairness of the proceedings, Article 12(2) now provides that ‘without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of the right to remain silent or the right not to incriminate oneself, the rights of the defence and the fairness of the proceedings are respected.’ Although the original text did not provide an absolute exclusionary rule, its wording seemed to be stronger than the current text. Admittedly, the current text corresponds more to Article 10(2) of the Access to a Lawyer Directive.
Some issues have not been properly resolved in relation to the right to remain silent and the right not to incriminate oneself. Firstly, although Articles 3 and 4 of the Right to Information Directive require that suspects and accused persons are informed of their right to remain silent, a similar provision on the right not to incriminate oneself is lacking and there is only a weakly formulated suggestion on it in Recitals 31 and 32 to the present Directive. Secondly, the issue of the waiver of the right to remain silent and the right not to incriminate oneself is not properly incorporated in the Directive. Given the importance of these rights, it is regrettable that the legislator has not, at the very least, introduced a provision similar to Article 9 of the Access to a Lawyer Directive. Lastly, the strict limitation of the scope of the Directive to criminal proceedings raises questions with regard to testimony and evidence that has been obtained under compulsion in non-criminal proceedings. In order for Article 10(2) to have a meaningful role and in order for the Saunders case-law to be respected, due attention should be paid to these rights in non-criminal proceedings, unless that testimony and evidence would not be admitted to criminal proceedings.
The new Directive, which needs to be transposed by 1 April 2018, seems to have two faces. On the one hand, it is innovative as it enshrines rights such as the right to remain silent and the right not to incriminate oneself, rights that are not explicitly laid down by the ECHR and the CFR, in an instrument that needs to be implemented by 25 MS (all EU MS, except for Denmark, the UK and Ireland). The Directive is also ambitious, because on some of the points it seems willing to go further than the case-law of the ECtHR. Yet, on the other hand, it lacks courage and it is at times eager to include restrictive interpretations of the Strasbourg Court, for example with regard to the use of legal powers of compulsion to gain access to evidence. The legislator should have been more ambitious in order to ensure that the Procedural Rights Directives are more than a codification of ECHR minimum standards. Moreover, the Directive’s scope is limited to natural persons: the EU legislator does not seem to be willing to consider to grant protection to legal persons, regardless of the fact that they can be held criminally liable in most MS. In sum, the real added value of the Directive will depend on its implementation in national law and the willingness of the national courts, as well as of the Court of Justice, to ensure that the Directive contributes to the enhancing of defence rights in the EU.
Thank you for your interesting and timely post on this significant development.
You are critical of the Parliament and Council for lacking ‘courage’ and you suggest that the Directive should have been ‘more ambitious’ and extended protection beyond the ECtHR, such as by extending the same fair trial guarantees to legal persons as are granted to natural persons.
I am always slightly puzzled by these kinds of exhortations that the EU should provide more rights, better rights, rights to more persons. On the one this carries the (unexplained) assumption that more rights are always a good thing, whereas we know that the choice to grant rights to particular classes of persons is a political choice, and as such the question of whether granting a particular right is a good thing or not is a matter which is subject to disagreement.
On the other hand, this exhortation seems to imply that the EU has a general competence to legislate in order to protect individual rights. We know from (inter alia) Article 6(1) TEU that this is not the case. In respect of the case in hand, the Directive was made under the competences provided by Chapter 4 of Title V TFEU, in particular Article 82(2)(b) TFEU. These provisions grant the EU competence to enact minimum rules in respect of the rights of individuals involved in criminal procedures, to the extent necessary to facilitate mutual recognition and judicial cooperation in this field.
I do not see how it is possible to read this provision as granting the EU the power to enact rules which would provide a higher level of protection for individuals (a matter which Article 82(2) expressly leaves to the member states), and which would be enacted not in order to facilitate mutual recognition, but would be intended to increase or extend the protection of rights.
So your comment leaves me with two questions. First, on what basis can we say that the Parliament and Council should have extended the protection of fair trial rights in the way you suggest, and second, in what way can the Parliament and Council be criticized for lacking the ‘courage and ambition’ to do something which, as a matter of EU law, it appears to have no competence to do?