Estella Baker

Professor of European Criminal Law & Justice

ebaker@dmu.ac.uk

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

The procedural rights directives: introduction & background

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

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.3.3.1 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

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

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

Why are the directives being introduced?

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

Non-regression

“Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law [in particular the UN

Convention on the Rights of the Child] or the law of any Member State which provides a higher level of protection.”

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)

The directives in more detail

Structure

• Treaty base

• Recitals (note footnotes/references)

• Articles

• Date adopted

• “Signatures”: Presidents of European Parliament & Council

Layout

• Subject matter, scope & definitions

• Substance of rights provided– Derogations & waivers

– EAW proceedings

• Training (link to quality of provision)

• Remedies for breach

• Data collection & report

• Non-regression clause

• Transposition deadline & date of entry into force

Directive 2010/64

Rights• Interpretation;• Translation of “essential documents”

Transpositiondeadline

• 27 October 2013

CJEU case lawto date

• Case C-216/14 Covaci; • Case C-25/15 Balogh; • Case C-278/16 Sleutjes (AG’s Opinion)

Directive 2012/13

Rights

• Information about rights;• Letter of rights on arrest & in EAW proceedings;• Information about accusation;• Access to materials of the case

Transpositiondeadline

• 2 June 2014

CJEU case lawto date

• Case C-216/14 Covaci; • Cases C-124/16, C-188/16 & C-213/16 Tranca, Opria & Reiter

Directive 2013/48

Rights

• Access to a lawyer in criminal proceedings;• Confidentiality of communication;• Communication of deprivation of liberty to a 3rd party & (non-nationals) consular authorities;• Communication with 3rd parties while deprived of liberty & (non-nationals) consular authorities

Transpositiondeadline

• 27 October 2016

Directive 2016/343

Rights

• Presumption of innocence;• Avoidance of public references to, & presentations of, guilt• Burden of proof on the prosecution• Silence & privilege against self-incrimination• Presence at trial & fresh trial/remedy if not

Transpositiondeadline

• 1 April 2018

CJEU case lawto date

• Case C-439/16 PPU Milev

Directive 2016/800

Rights

* explicitly including in EAW proceedings

• Provision of information to child & holder of parental responsibility (or “appropriate adult”);*• Assistance by a lawyer;*• Individual assessment;• Medical examination if deprived of liberty;*• Audio-visual recording of questioning;• Limitation of duration of deprivation of liberty;*• Use of alternative measures to detention;*• Special treatment when deprived of liberty (e.g. separation from adults);*• Timely & diligent treatment of cases;*• Protection of privacy;*• Presence of holder of parental responsibility (or “appropriate adult”) during court hearings & otherwise;*• Appearance in person & participation in trial;• Right to legal aid*

Transpositiondeadline

• 11 June 2019

Directive 2016/1919

Rights• Legal aid in criminal proceedings;• Legal aid in EAW proceedings

Transpositiondeadline

• 25 May 2019

Analysis & application

• Overall objective: safeguard right of defence & fairness of proceedings (ECHR inspiration)

• Division of competence: EU law (directive) versus national law

• “Autonomous concepts of EU law”?

• Absolute/qualified rights

• Delay & timeliness

• Duration (when does right accrue/expire?)

• Costs & means tests

• Exclusions for minor offences

• Cumulative impact of & cross-referencing between measures

• Are there gaps &, if so, do they leave individuals unprotected?

Directives & their obligatory force

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)

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 (be able to) apply domestic implementing law rather than the parent directive

Obligations on national courts 2

• Where:(i) the implementation deadline has expired &

(ii) there is no domestic implementing law or implementation is incorrect or inadequate

• 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”

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

Obtaining assistance from the CJEU & consequences of failure to

apply the directives

Preliminary rulings procedure: Article 267 TFEU

CJEU judgments 2016 : Date lodged to date of judgment

Mean Range

PPU cases (n=7)72 days

(10 weeks, 2 days)38 - 118 days

Other preliminary rulings (n=9)

571 days (81 weeks, 4 days)

256 - 890 days

Enforcement proceedings (n=1)

659 days (94 weeks, 1 day)

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

Thank you for listening!