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The Right of Defence in EU Judicial Cooperation in Criminal Matters

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Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings

Abstract

The development of judicial cooperation in criminal matters in the EU requires that individual rights be enhanced. After the first attempts in 2003 and 2004, which failed, a new gradual action has been undertaken by the EU in order to introduce minimum procedural rights in criminal matters, according to art. 82 TFEU and in line with the priorities indicated in the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings of December 2009 (as implemented by the Stockholm Programme). The first result of this gradual action is Directive 2010/64/EU on the right to interpretation and translation; other proposals on the matters covered by the Roadmap are currently under discussion. However, the present paper questions whether these initiatives are sufficient to respond to the need of guarantees in transnational criminal proceedings, especially in the preliminary inquiry stage.

In May 2012 the EU adopted Directive 2012/13/EU on the right to the information in criminal proceedings. The present paper was submitted for clarification by September 2011 and, therefore, does not take into account this new measure.

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Notes

  1. 1.

    See point 37 of the Conclusions.

  2. 2.

    OJ C 12, 15 January 2001, p. 10.

  3. 3.

    See Rafaraci (2008), pp. 369 f.

  4. 4.

    COM (2000) 495 final, 26 July 2000.

  5. 5.

    In particular, in January 2002, a document entitled “Procedural Safeguards for Suspects and Defendants in Criminal Proceedings” was drafted and spread around experts. In September 2002, following a questionnaire concerning national legal systems, the Commission drafted another document aimed to further discussion between experts. Weyembergh (2004), p. 45 footnote 48.

  6. 6.

    COM (2003) 75 final, 19 February 2003.

  7. 7.

    With regard to proceedings in absentia, a reference was made to a Green paper that should have been published in 2004 in order to prepare for legislative proposals.

  8. 8.

    COM (2004) 328 final, 28 April 2004. On this proposal see, inter alia, Arangüena Fanego (2008), pp. 3042 ff.

  9. 9.

    Rafaraci (2008), p. 373.

  10. 10.

    Fletcher et al. (2008), pp. 127 f.; Zimmermann et al. (2011), p. 62.

  11. 11.

    De Bondt and Vermeulen (2010), p. 164.

  12. 12.

    It must be pointed out that Framework Decision 2009/229/JHA (OJ L 81/24, 27 March 2009) enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, cannot be considered to be a measure aimed at harmonising national legislations.

  13. 13.

    COM (2009) 338 final, 8 July 2009.

  14. 14.

    See Gialuz (2011), pp. 9 f.; Vidal Fernandez (2010), pp. 191 f.

  15. 15.

    COM (2010) 82 final, 9 March 2010.

  16. 16.

    OJ L 280, 26 October 2010, p. 1. According to Article 9, Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 27 October 2013.

  17. 17.

    OJ C 295, 4 December 2009, p. 1.

  18. 18.

    OJ C 115, 4 May 2010, p. 1 (§ 2.4).

  19. 19.

    On this issue, a proposal of the Commission is under discussion within the European Parliament and the Council [COM(2010) 392 final]. For more details see: Eucrim 2011 (2), p. 62.

  20. 20.

    On this subject-matter together with the one covered by lett. d, a proposal of Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest has been tabled on the 8 June 2011 [COM (2011) 326 def.]. See Eucrim 2011 (3), p. 108.

  21. 21.

    On the 14 June 2011 a document has been presented [COM (2011) 327 final] on “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention.” See Eucrim 2011 (3), p. 108. This initiative aims at promoting a wide public consultation, not restricted to pre-trial detention.

  22. 22.

    The European legislator has decided to intervene with different legislative acts for each procedural right. A different approach has been chosen to deal with the victims’ rights, included in a single act, presented on the 18 May 2011 by the vice president of the Commission and justice Commissioner Viviane Reding. See: Eucrim 2001 (2), p. 64.

  23. 23.

    See Art. 47. On the presumption of innocence and the right of defence see Art. 48.

  24. 24.

    Groussot and Pech (2010), pp. 3 f. On this issue, see De Schutter (2010), pp. 535 ff.; Lock (2011), pp. 1025 ff., and Lock (2010), pp. 777 ff.

  25. 25.

    This competence is conferred upon the EU: “[t]o the extent necessary to facilitate […] police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules” [Art. 82(2) TFEU].

  26. 26.

    Point 32 of the Consideranda.

  27. 27.

    Point 33 of the Consideranda.

  28. 28.

    Point 14 of the Consideranda.

  29. 29.

    After all, the review made by the ECtHR is only ex post and aims at assessing the overall fairness of the proceedings in the single case. See Mazza (2010), pp. 152 f. These limits risk being reproduced in those legislative acts—such as the Directive on the right to interpretation and translation (see below, § 4)—where fairness is adopted as the benchmark according to which the level of guarantees provided should be assessed. Gialuz (2001), p. 13.

  30. 30.

    According to Article 1(3), “[w]here the law of a Member State provides for the imposition of a sanction regarding minor offences by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be appealed to such a court, this Directive shall apply only to the proceedings before that court following such an appeal.”

  31. 31.

    Article 11(2) FD EAW refers to the national law of the executing Member State.

  32. 32.

    See the Report of 14 April 2011 by the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States [COM (2011) 175 final, p. 5]. In the document, the Commission stresses, inter alia, the need to make a moderate use of the EAW, in compliance with the principle of proportionality.

  33. 33.

    Article 7 provides that “when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter […] it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.”

  34. 34.

    It is up for the competent authority to demonstrate that the defendant speaks and understands the language of the proceedings. ECtHR, 19 December 1989, Brozicek v. Italia, Application no. 10964/84, § 41.

  35. 35.

    See Art. 5(2) ECHR, also in relation to paragraph 4 (according to which “[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”).

  36. 36.

    See Art. 6(3)(c) ECHR.

  37. 37.

    Translation of judgments aims at ensuring the right of appeal in criminal matters, according to Article 2, Protocol No. 7 ECHR.

  38. 38.

    See ECtHR, 19 December 1989, Kamasinski v. Austria, Application no. 9783/82, § 74.

  39. 39.

    According to Article 7, it must be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.

  40. 40.

    With regard to Article 6(3)(e) ECHR, see: ECtHR, 28 November 1978, Luedicke, Belkacem and Koç v. Germany, Application no. 6210/73; 6877/75; 7132/75, § 42.

  41. 41.

    See above, § 3.

  42. 42.

    A right may be generally provided in criminal proceedings but may be also referred to a specific measure of judicial cooperation: this is what has occurred in relation to the right to interpretation and translation extended to proceedings for the execution of a EAW.

  43. 43.

    De Bondt and Vermeulen (2010), p. 165.

  44. 44.

    Ibid.

  45. 45.

    Ibid.

  46. 46.

    This is specifically relevant in the area of mutual legal assistance aimed to collection of evidence, where the rule is the application of the law of the executing State.

  47. 47.

    The adoption of this principle would fulfil what had been hoped for in the Programme of measures to implement the principle of mutual recognition of decisions in criminal matters of 2000 (OJ C 12, 15 January 2001, p. 10): the involvement of different Member States in criminal proceedings must not undermine procedural rights of individuals.

  48. 48.

    OJ L 327, 5 December 2008, p. 27. Under this Framework Decision, it is provided that where the sentence is incompatible with the law of the executing Member State in terms of its duration, the competent authority of the executing Member State may decide to adapt the sentence only where that sentence exceeds the maximum penalty provided for similar offences under its national law. However, the adapted sentence shall not be less than the maximum penalty provided for similar offences under the law of the executing Member State.

  49. 49.

    OJ L 294, 11 November 2009, p. 20.

  50. 50.

    De Bondt and Vermeulen (2010), p. 166.

Abbreviations

AFSJ:

Area of Freedom, Security and Justice

EAW:

European Arrest Warrant

ECHR:

European Convention on Human Rights

ECJ:

European Court of Justice

ECtHR:

European Court of Human Rights

EIO:

European Investigation Order

FD EAW:

Framework Decision on the European Arrest Warrant

TEU:

Treaty on the European Union

TFEU:

Treaty on the Functioning of the European Union

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  1. Department “Seminario giuridico”, University of Catania, Via Gallo No. 24, Catania, Italy

    Tommaso Rafaraci

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Correspondence to Tommaso Rafaraci .

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  1. , Department of Public Law "T. Martines", University of Messina, Piazza Pugliatti 1, Messina, 98100, Messina, Italy

    Stefano Ruggeri

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Rafaraci, T. (2013). The Right of Defence in EU Judicial Cooperation in Criminal Matters. In: Ruggeri, S. (eds) Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32012-5_22

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