The Directive on the Presumption of Innocence and the Right to Be Present at Trial

• Date: 01 April 2016
• Year: 2016
• Author: Steven Cras,Anže Erbežnik
• Pages: 27
• DOI: https://doi.org/10.30709/eucrim-2016-002

I. Introduction

On 9 March 2016, the European Parliament and the Council adopted Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.¹ The Directive is the fourth legislative measure that has been brought to pass since the adoption, in 2009, of the Council’s Roadmap on procedural rights for suspects and accused persons. This article describes the genesis of the Directive and provides a description of its main contents.

II. Genesis of the Directive 1. Background: Roadmap and Stockholm programme

In November 2009, on the eve of the entry into force of the Lisbon Treaty, the Council (Justice and Home Affairs) adopted the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings.² The Roadmap provides a step-by-step approach³ – one measure at a time – towards establishing a full catalogue of procedural rights for suspects and accused persons in criminal proceedings. Taking into account the objective of Art. 82(2) TFEU, the aim of the Roadmap is to foster the application of the principle of mutual recognition of judicial decisions, for example in the context of the Framework Decision on the European Arrest Warrant⁴ or the more recent Directive on the European Investigation Order.⁵ The Roadmap also seeks to improve the balance between the measures aimed at facilitating prosecution, on the one hand, and the protection of procedural rights of the individual, on the other.

The Roadmap calls on the Commission to submit proposals for legislative measures on five rights (A–E).⁶ During the negotiations in the Council that led to the adoption of the Roadmap, some Member States presented suggestions for other rights to be included in the Roadmap, in particular the right to remain silent and the presumption of innocence.⁷ Since there was no majority in the Council for these suggestions, the list of five rights was maintained. As a compromise, however, it was specified, in point 2 of the Council resolution on the Roadmap, that the rights included therein “could be complemented by other rights.”

In December 2009, the European Council welcomed the adoption of the Roadmap and made it part of the Stockholm programme.⁸ During the negotiations that led to the adoption of this programme, some Member States again presented their suggestions for rights other than those mentioned in the Roadmap and in respect of which, in their opinion, legislative proposals should be presented by the Commission. Italy, in particular, reiterated the suggestion that the Commission should also present a proposal on the presumption of innocence. The Swedish Presidency, being favourable to this suggestion, proposed a compromise consisting of mentioning the presumption of innocence as an example of one of the rights that could complement the rights mentioned in the Roadmap. This proposal was agreed on and, in the Stockholm programme, one can therefore read that the European Council “invites the Commission to examine further elements of minimum procedural rights for suspected and accused persons and to assess whether other issues, for instance the presumption of innocence, need to be addressed.” Since the Stockholm programme, unfortunately, does not quote the measures of the Roadmap, the presumption of innocence is the only right that is explicitly mentioned in that programme. It hence could not be ignored.

2. The Commission’s proposal

The first three measures on the basis of the Roadmap were adopted within a rather short time frame: Directive 2010/64/EU on the right to interpretation and translation (measure A) was adopted on 20 October 2010;⁹ Directive 2012/13/EU on the right to information (measure B) was adopted on 22 May 2012;¹⁰ and Directive 2013/48/EU on the right of access to a lawyer (measure C1+D) was adopted on 22 October 2013.¹¹

In November 2013, the Commission presented a package of three further measures to complete the rollout of the Roadmap, as integrated in the Stockholm programme: a proposal for a Directive on provisional legal aid (measure C2-),¹² a proposal for a Directive on procedural safeguards for children (measure E-),¹³ and a proposal for a Directive on the presumption of innocence (the “example” of the Stockholm programme).¹⁴

The proposal on the presumption of innocence is based on the exploratory work that the Commission carried out in view of its Green Paper on this issue in 2006¹⁵ and on the views that it subsequently gathered from academics, practitioners, judges, defence lawyers, prosecutors, and other stakeholders. The Commission was also able to benefit from the consultations that had been carried out in respect of other initiatives in the field of procedural rights.

The Commission tested its ideas for the proposal of a Directive during a meeting on 19 February 2013 with representatives of ministries of justice of the Member States and of Croatia, which at that time was an acceding Member State. The information gathering was completed by means of an on-line survey that was launched in the context of the consultation for the impact study relating to the proposal and in respect of which more than 100 responses were received.¹⁶

3. Criticism of the proposal

From the moment of its presentation, the proposal met with criticism. Various Member States reiterated the doubts that they had expressed in the meeting with the Commission on 19 February 2013. The criticism concerned mainly the fact that the proposal for a Directive, apart from addressing the issue of presumption of innocence, also contained provisions on the right to be present at the trial, on trials in absentia and on the right to a new trial (Arts. 8 and 9).¹⁷ The Member States observed that these provisions were requested neither in the Roadmap nor in the Stockholm programme, and that they would not be compatible with Framework Decision 2009/299/JHA on trials in absentia.¹⁸

A few Member States, such as the Netherlands, went even further and questioned the added value of the entire proposal; they considered it neither necessary nor advisable for the Union to adopt legislation on the presumption of innocence, since provisions of national law, and of Union and international law, already provide sufficient protection in this field. In this context, reference was made, in particular, to Art. 48 of the EU Charter of Fundamental Rights (Charter) and to Art. 6(2) of the European Convention on Human Rights (ECHR), according to which “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” It was observed that the application of the presumption of innocence is monitored both by national courts and by the European Court of Human Rights (ECtHR), and that this latter Court had found an infringement of this principle in relatively few cases. It was also felt to be unwise to attempt to legislate the issue of the presumption of innocence at this point in time, since the case law of the ECtHR was still in full development, and any legislation could impede a dynamic development of this case law.¹⁹

In this context, it is worth noting that the Commission itself, in its explanatory memorandum to the proposal, had noted that “the level of safeguards in Member States' legislation is, in a general way, acceptable and there does not seem to be any systemic problem in this area.” According to the Commission, however, points still existed in which legal safeguards could and should be improved.

In the end, though, there was only one Member State (United Kingdom) which used the possibility to issue a reasoned opinion, on the basis of Protocol No. 2 to the Lisbon Treaty, stating that the proposal of the Commission did not comply with the principle of subsidiarity.²⁰ This opinion was one of the reasons why the United Kingdom decided not to participate in the adoption of the Directive, in application of Protocol No. 21 to the Lisbon Treaty. On the same basis, Ireland also decided not to participate. Moreover, Denmark did not participate, as it nowadays never does in the area of Freedom, Security and Justice, in accordance with Protocol No. 22 to the Lisbon Treaty.

4. Discussions in the Council and in the European Parliament

In the Council, the discussions on the proposal did not begin immediately, since the Greek Presidency, which held office in the first semester of 2014, devoted all its efforts and resources to the proposal for a Directive on procedural safeguards for children.²¹ It was therefore for the Italian Presidency, which held office in the second semester of 2014, to launch the discussions on the proposal for a Directive on the presumption of innocence. This was appropriate, since Italy had been the main advocate for the proposed Directive. Working intensively at various levels,²² the Italian Presidency managed to have the Council reach a general approach on 4 December 2014.²³

In the European Parliament, the file was attributed to the Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee). Renate Weber (Romania, ALDE), who was appointed first responsible member (rapporteur), prepared a working document relating to the proposal.²⁴ The document called for setting higher standards in the Directive, observing that the ECHR only provides minimum rules and that, according to Art. 52(3) of the Charter, Union law may provide more extensive protection. The report was critical in respect of several elements of the Commission proposal, for example regarding the use of compulsion − which the text as proposed by the Commission seemed to endorse²⁵ − the reversal of the burden of proof, and the admissibility of evidence.

After the 2014 elections of the European Parliament, Ms Weber did not return to the LIBE Committee. Subsequently, Nathalie Griesbeck (France, ALDE) was appointed rapporteur. Under her guidance, the LIBE Committee adopted its orientation vote, with...