Improving Defence Rights

• Date: 15 December 2020
• Year: 2020
• Author: Vânia Costa Ramos,Prof. Dr. Michiel Luchtman,Geanina Munteanu LL.M., B.A.
• Pages: 76
• DOI: https://doi.org/10.30709/eucrim-2020-021

I. Introduction – our Approach

This document reflects the results of our discussions over the last months. In our approach, we have focussed on collecting, to the largest extent possible, ideas which have been suggested in doctrine, policy, etc. It is for the expert group as a whole to take further positions. In this document, a number of questions came up that have structured this article. These questions are as follows:

• Should the EU focus on obligatory legislative interventions or (strive for) voluntary convergence by its Member States with the EU framework?

  In the wake of the ECJ’s decisions on the Akerberg Fransson¹ and Melloni² cases, a number of institutional conflicts have arisen between the EU and national courts. The ECJ has this far taken an intermediate stance: a wide claim of jurisdiction over anything that comes within the scope of EU law, yet also a willingness to mitigate the principle of effectiveness (Taricco II³) or fundamental rights (Menci⁴) where no specific secondary EU law is applicable. This is an important contextual finding for any future legislative agenda, both in the EU and in the national setting. At the EU level, the degree of preciseness of secondary law has become an important factor in the EU institutions’ role as arbiters and facilitators of a level playing field. At the national level, the challenge is not only to ward off the influence of EU law on criminal justice as much as possible, but also to think through criminal justice in light of European integration.

  Another relevant factor we have identified is that the European Court of Human Rights in Strasbourg extensively applies the margin of the appreciation doctrine in criminal matters.⁵ That is not a welcome development for the EU per se, given the need for a transnational level playing field to fight crime and to ensure fair trials. It could require increasing interventions at the EU level.

• Should a new agenda focus on the harmonization of transnational cooperation procedures or (also) tackle the criminal justice systems of the Member States as such? In the former case, should the focus be on the laws of the executing state or also on those of the issuing state?

  We did not take a final stance on this issue. Some of the below proposals go one way, others take an opposite direction. In light of the above arguments – the need to increase mutual trust and to expand the possibilities for EU institutions to take up their role as arbiters, as well as because of the apparent reticence of the Strasbourg Court in the area of criminal justice –, there is a strong case to keep focusing on the approximation of the Member States’ criminal justice systems as a whole via minimum rules (including a new ABC set of Directives). This also has strong positive effects on legal certainty all over the EU. The disadvantages of this approach are centred on subsidiarity, competence creep and legitimacy concerns. Where do the minimum rules stop? With those on the right to appeal? With the legal professional privilege? Arguably, the area of cross-border procedures (as has been done with in absentia procedures in a number of framework decisions on mutual recognition)⁶ raises less issues with respect to legitimacy while reducing chances of national institutions focusing on warding off EU law, rather than on the development of the EU dimension of their tasks (which may lead to voluntary convergence).

• Should the EU focus on minimum rules for defence rights or for all types of safeguards, with a view to ensuring mutual trust?

  Almost all legislative efforts have so far focused on fair trial rights. That limitation does not necessarily follow from Art. 82 TFEU (“the rights of individuals in criminal procedure”). The rights of individuals may also cover the right to privacy, liberty, property, etc. – and thus touch upon such issues as procedural safeguards for investigatory powers or even judicial independence. This is where the notion of defence rights starts to overlap with related concepts like human rights, fundamental rights, procedural safeguards, etc.

• Should the EU focus on minimum rules for the content of rights/safeguards or also intervene through legislation in cases of violations of those rights/safeguards?

  As rapporteurs, we feel that there is little point in minimum rules for rights if there is no common understanding on how violations of those rights should be redressed or remedied. It is vital for enhancing mutual trust. There is very little material, however, on how this should be achieved, as much for cross-border/transnational cooperation cases as in purely national cases.

In the following, we will first clarify a number of key concepts (II) and then deal in substance with the areas of possible EU intervention (III). The latter will include the issues of cross-border cooperation procedures (III.1), the extension of the ABC Directives (III.2),⁷ and the issue of (minimum rules for) remedies (III.3). A certain overlap of these issues could not be avoided. As a sort of structuring principle (though not applied very strictly), we have included those issues that not only affect cooperation procedures but also purely national, intrastate criminal procedures under the section on the extension of defence rights. Matters that particularly refer to issues of cross-border cooperation (interstate coordination, etc.) have been listed under cross-border cooperation procedures. This article does neither deal with victim’s rights nor with the concept of criminal charge and administrative sanctions. It focuses on criminal law sensu stricto. We also have excluded the relationships with third states (the external dimension of the AFSJ).

II. Definition of Key Concepts 1. Cross-border criminal proceedings

There is no unanimous definition of “cross-border criminal proceedings”.⁸ The corresponding concept adopted for this paper is hence a broad one: any proceeding with any link whatsoever to another jurisdiction⁹ within the EU. We will restrict this geographically to links to other EU Member States. Within this broad concept, different definitions may be identified: i) cross-border cooperation proceedings; ii) cross-border¹⁰ criminal proceedings (domestic or European).

i. Cross-border cooperation proceedings are those stages of criminal proceedings in which the authorities from different countries directly cooperate with a view of undertaking specific procedural actions. This includes, inter alia, European Arrest Warrant proceedings, European Investigation Order (EIO) proceedings, proceedings for the enforcement of criminal sanctions or confiscation decisions, proceedings for the enforcement of pre-trial supervision orders alternative to detention, proceedings for the transfer of criminal proceedings, and joint investigations. These proceedings are by nature intertwined with the main criminal proceedings in the issuing states. Thus, for the purposes of this study, they form an integral part of criminal proceedings. This definition also includes cooperation proceedings between the national authorities of Member States using Eurojust, or cooperation proceedings with the European Public Prosecutor’s Office (EPPO). Hard-law measures adopted in these areas could have Arts. 82(1) subpara. 2, 85(1) or 86(1) and (3) TFEU as a legal basis and hence be adopted by means of Directives or Regulations.

ii. Criminal proceedings with a cross-border dimension may be understood as those with any cross-border link, including the ones referring to (a) cross-border criminality¹¹ – which will normally but not necessarily entail police or judicial cooperation or the involvement of persons from Member States different to the state of the trial – but also (b) criminal proceedings referring to intra-state criminality – in which a person from another Member State is involved or where there is a need for undertaking acts in cooperation with other Members States (which could be clear from the outset or supervening – for example, the suspect or accused, or the victim, being moved to another Member State). Within this definition, European Criminal Proceedings could be distinguished. These include proceedings led under the authority of entities that by nature may act across borders, such as the EPPO.

Hard-law measures adopted in these areas could have Art. 82(2) TFEU as a legal basis and hence be adopted by means of Directives, or, in respect of the EPPO, Art. 86(1) TFEU and hence be adopted by means of a Regulation.

iii. Since our topic also includes defence rights and remedies available “as a consequence of cross-border criminal proceedings”, this could ultimately lead to the inclusion of all criminal proceedings in the EU, since in any of these a decision may be issued that may have to be recognized and enforced in another Member State; hence any regulation with a view to improving defence rights and available remedies may impact on the recognition and enforcement of such decisions in another Member State. This is especially relevant since it is impossible to know from the beginning whether or not a criminal case will be of a cross-border nature. This shows the difficulty (or impossibility?) of separating “cross-border” cases from others for the purposes of EU legislation.

On the other hand, as mentioned above, minimum rules for rights also affecting purely domestic proceedings might require a particular justification in light of subsidiarity concerns. However, it should be noted that if problems arising in a cross-border situation or shortcomings in the operation of mutual recognition or cooperation in the field of criminal law generally justify the adoption of measures with respect to defence rights, they will normally have to be extended to purely domestic situations, in order to avoid reverse discrimination and legal fragmentation within the domestic systems. This approach has been adopted as a basis for the procedural rights Directives (EU) 2010/64...