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European fair trial and effective participation rights

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How does EU criminal procedure protect the fair trial and participation rights?

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European fair trial and effective participation rights

  1. 1. European fair trial & effective partecipation rights Nicola Canestrini ERA Academy of European Law , 9 JUNE 2020 The presumption of innocence and the right to be present at trial in criminal proceedings
  2. 2. "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." Benjamin Franklin, 1755
  3. 3. “Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy.” John Potter Stockton, 1871
  4. 4. “Feindstrafrecht” “international criminal law enforcement needs cannot prejudice fundamental rights” Italian Constitutional court, judgement 280/1985
  5. 5. “Feindstrafrecht” EU FAIR TRIAL RIGHTS
 art. 6 European Convention HR art. 47 - 48/2 EU Charta art. 6 Treaty of European Union 52 & 53 Charta fundamental rights
  6. 6. “not rights that are theoretical or illusory but rights that are practical and effective” ECtHR, Artico v Italy judgment (1980)
  7. 7. “Although all the Member States are party to the ECHR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States.” (considerandum n. 6 dir. 64; considerando n. 7 dir. 13; considerando n. 5 dir. 48 Why EU procedural rights?
  8. 8. “Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter.” (considerandum n. 7 Dir. 64; considerando n. 8 Dir. 13; considerando n. 6 Dir. 48 EU procedural rights!
  9. 9. area freedom, justice security post Tampere 1999 procedural rights trust mutual recognition the rights of individuals in criminal procedure (art 82 TFEU) - fundamental rights (ECJ)
  10. 10. Swedish ROADMAP (Stockholm Program 2009) “procedural rights” Right to Interpretation and Translation (A) Right to Information (B) Access to a Lawyer (C1) Legal Aid Reform (Measure C2) Vulnerable Accused and Suspected Persons (Measure E) Pre-Trial Detention (Measure F) Presumption of Innocence
  11. 11. The Roadmap is designed to operate as a whole; only when all its components are implemented will its benefits be felt in full. (considerandum 9 directive 2013/48/UE). Presumption of innocence and presence Dir. 2016/343 Right to Interpretation and Translation Dir. 2010/64 Legal aid Dir. 2016/1919 Right to Information Dir. 2012/13 Access to a Lawyer Dir. 2013/48 Children safeguards Dir. 2016/800 Vulnerable suspects Rec 2013/C 378/2
  12. 12. Vulnerable suspects rec 2013/C 378/2 4 characteristics age, mental or physical conditions or disabilities “prompt identification” a. No discriminatory treatment t b. Presumption of vulnerability in cases concerning a person with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders c. Right to receive information on their procedural rights in an accessible manner d. Right to access to a lawyer, which it is not possible to waive. e. Right to access medical assistance if deprived of liberty f. Right to have any questioning audio- visually recorded g. Deprivation of liberty shall be a measure of last resort
  13. 13. Directive 2010/64/EU right to interpretation and translation in criminal proceedings quality (ensure fair trial and rights of defense) no costs for individuals Court assessment re need register of independent translators and interpreters waiver for translation: informed, unequivocal and voluntarily (interpretation cannot be waived!) List of essential documents “first EU fair trial law”
  14. 14. Article 6, read as a whole, guarantees the right of an accused to participate effectively in a criminal trial ECtHR, Murtazaliyevav v. Russia[GC] 2018
  15. 15. Effective partecipation? Information rights, translation and interpretation (quality assessment?) presence, hear&follow hearing, take notes, confidential comunication with the defence lawyer (cage or glass cabin?), videolink?

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