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

2. 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

3. The procedural rights directives: introduction & background

4. 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
Directive 2016/1919 on legal aid

5. 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 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

6. 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

7. 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

8. Why are the directives being introduced?

9. 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

10. 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)

11. The rights in more detail

12. Directive 2010/64 (translation/interpretation)
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; Case C-25/15 Balogh

13. Directive 2012/13 (information)
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

14. Directive 2013/48 (lawyer)
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

15. Directive 2016/343 (innocence/silence)
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
Case C-439/16 PPU Milev

16. Directive 2016/800 (children)
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

17. Directive 2016/1919 (legal aid)
Common minimum rules regarding legal aid for suspects/accused persons & those subject to a European arrest warrant
Applies where have right of access to a lawyer under Directive 2013/48 & certain conditions satisfied, or where person becomes a suspect/accused during questioning
“Without delay” or from arrest to surrender (EAW cases) but Member States may apply a means test
Implementation deadline: 25 May 2019

18. Directives & their obligatory force

19. 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)

20. 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; Case C-439/16 PPU Milev
Should apply domestic implementing law rather than the parent directive

21. Obligations on national courts 2
Where:
the implementation deadline has expired &
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”

22. 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

23. Obtaining assistance from the CJEU & consequences of failure to apply the directives

24. 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

25. 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

26. Thank you for listening!
Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ 2016 L 297/01)