The Directive on the Presumption of Innocence

Date08 May 2016
AuthorStijn Lamberigts

The recently adopted Directive on the strengthening of certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings1 (hereafter: Directive on the Presumption of Innocence)2 applies exclusively to natural persons.3 This is in contrast to previously adopted directives of the Roadmap for strengthening procedural rights in criminal proceedings4 which applied to suspected or accused persons and did not explicitly exclude legal persons.5 Therefore, one could argue that legal persons could benefit from the implementation of relevant provisions of the previously adopted directives of the Roadmap6 but that they cannot infer rights from the Directive on the Presumption of Innocence.

Limiting the scope of application of the Directive on the Presumption of Innocence to natural persons was an explicit choice of the EU legislator.7 The legislative history of the Directive shows that the European Parliament tried to broaden its scope in order to cover legal persons.8 However, the Council, supported by the Commission, rejected the Parliament’s approach.9 In support of its arguments, the Council and the Commission referred to several considerations that have now been incorporated into the recitals of the Directive.10 Accordingly, the EU legislator considered the needs and levels of protection for individuals and legal persons with regard to certain aspects of the presumption of innocence to differ. The EU legislator hereby relies on the case law of the Court of Justice. It has held that the rights stemming from the presumption of innocence do not accrue equally to both categories of persons. Ultimately, the recitals recall that, in light of national law, as well as of Union law and national case law, legislative action with regard to legal persons is considered premature. These arguments raise several interesting issues.

First, referring to the case law of the Court of Justice on legal persons, in order to exclude them from the Directive’s scope seems to overlook the specific context of this case law.11 Landmark cases, such as Orkem,12 have been handed down in the context of EU competition law. Until now, the Court of Justice has not accepted that fines in competition cases are criminal in nature.13 Moreover, Art. 23(5) of Council Regulation (EC) 1/2003 explicitly rules out that fines imposed in this context by the Commission are of a criminal nature. In other words, excluding legal persons from a Directive applicable to criminal proceedings by reference to case law, which relates to an area of law that has not been recognized as being “criminal”, seems questionable.

Second, the arguments of the EU legislator seem to pay little attention to the importance of corporations in criminal proceedings. In the meantime, most EU Member States have introduced corporate criminal liability or punitive mechanisms for corporate wrongdoing. In particular, investigations involving the financial interests of the EU can focus on “economic operators”,14 making legal persons the object of investigations and prosecution.15 Yet, this attention to corporations as subjects of criminal law is not always matched by similar attention to their procedural rights, and national practices often differ.16

This article will argue that the exclusion of legal persons from the scope of the Directive is a missed opportunity. It aims to examine what protection is available to legal persons under the ECHR and in the case law of the Court of Justice with regard to some of the rights covered by the Directive.17 More specifically, the analysis will focus on the protection of legal persons’ right to remain silent as well as on their right not to incriminate themselves,18 as the applicability of this right has been subject to different approaches in the various Member States. Before turning to the protection of legal persons’ right to silence, however, the article will provide a brief analysis of what exactly is covered by the right to silence as foreseen by the Directive on the Presumption of Innocence.19 This will help us understand to what extent the exclusion of legal persons from its scope can be considered a missed opportunity.

I. The Right to Silence in the Directive on the Presumption of Innocence

It should be recalled that the Directive’s scope is limited to “criminal proceedings”,20 thus not covering punitive administrative proceedings. Suggestions to adopt a broader scope,21 better reflecting the case law of the ECtHR in Engel and subsequent cases, did not make it into Art. 2 of the Directive. In order to align the different views, the first sentence of Recital 11 nevertheless states that “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 first sentence suggests that the scope of the Directive could be broader than proceedings that are formally qualified as criminal by the legislator. The second sentence of recital 11, however, stipulates that: “This Directive should not apply to civil proceedings or to administrative proceedings, including where the latter can lead to sanctions, such as proceedings relating to competition, trade, financial services, road traffic, tax or tax surcharges, and investigations by administrative authorities in relation to such proceedings.” Read in combination, the two sentences of recital 11 strike one as odd. This risks blurring the Directive’s scope. The legal status of testimony and other evidence obtained under compulsion in non-criminal proceedings, proceedings not covered by the Directive, is particularly problematic. In light of the Saunders case law of the ECtHR, due attention should be paid in order to prevent evidence obtained in non-criminal proceedings by the use of compulsion22 from later being admitted in criminal proceedings.23

The key provision on the right to silence, Art. 7 of the Directive, provides an explicit legal basis for the right to silence,24 which as such is innovative for the EU and the Council of Europe, as neither the Charter of Fundamental Rights nor the ECHR expressly provide for the right to silence.25 Nevertheless, the ECtHR has repeatedly stressed that these rights [the right to silence and the right not to incriminate oneself] “are generally recognised international standards which lie at the heart of the notion of a fair procedure under Art. 6 [ECHR].”26 The right to remain silent applies in relation to the criminal offence that the person is suspected or accused of having committed.27 Recital 26 suggests that the reference to the criminal offence of which the person is suspected or accused of having committed is used to make sure that the person can still be required to answer certain questions, for instance, to identify himself.

A combined reading of Art. 7(1), 7(2), and 7(5) suggests that the right to silence, as incorporated in the Directive, is quite strong, since exercising the right to silence cannot lead to negative inferences. Art. 7(5)28 explicitly spells out the fact that a suspected or accused person exercising his right to silence cannot have this right be used against him/her and it is not to be considered evidence.29 Yet, several articles of the Directive seem to undercut the strength of the right to silence to some extent. Art. 7(4) gives Member States the power to allow judicial authorities to take into account the cooperative behaviour of the defendant when sentencing and thereby potentially discourages suspects from invoking the right to silence. This – in combination with recital 28, with its reference to “in itself”30 and the absence of a strong exclusionary rule – seems to allow for some flexibility on the part of the Member States.

A further weakening of the right to silence can be found in Art. 7(3) and recital 29 of the Directive, which states that “The exercise of the right not to incriminate oneself shall not prevent the competent authorities from gathering evidence which may be lawfully obtained through the use of legal powers of compulsion and which has an existence independent of the will of the suspects or accused persons.” Art. 7(3) clearly draws on some of the ECtHR’s case law31 that adopts a restrictive view with regard to evidence existing independently of the will of the accused, thereby enabling limitations of the protection provided by the right to silence. According to Saunders, evidence that has an existence independent of the will of the accused covers documents acquired pursuant to a warrant. Nevertheless, recital 25 explicitly stipulates that suspects or accused persons should not be forced to produce documents that could lead to self-incrimination. As will be shown below, the protection offered against self-incriminating documents under the case law of the ECtHR is more complicated than the Saunders judgment may suggest.32 The scope of the term “legal powers of compulsion” in Art. 7(3) can be understood in different ways. A Member State may interpret it as allowing blood tests or the taking of DNA samples, yet nothing precludes a Member State from understanding it as allowing the use of production orders33 to obtain documents from a suspect under the threat of a sanction for failure to comply with the order. As a result, the Directive on the Presumption of Innocence seems to allow Member States, which wish to do so, to keep up practices under which suspects can be required to hand over self-incriminating documents, which can then be used against the suspect.

Lastly, the final text changed the wording of the exclusionary rule34 foreseen for breaches of the right to silence. Art. 10(2) of the Directive now requires that the fairness of the proceedings and the rights of the defence be respected, which is less strong than an absolute exclusionary rule. Admittedly, the ECtHR’s case law does not go so as far as to...

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