Litigating to advance defence rights in Europe: why EU law remains underused

This report is based on two years of continuous engagement with lawyers in seven EU Member States and attempts to identify and address, through recommendations, the main reasons why EU law, in particular Procedural Rights Directives remain relatively unused in national criminal proceedings to advance defence rights.

Violations of procedural rights, protected both in national and EU law, are common in criminal proceedings throughout Europe. EU law is rarely invoked in order to determine whether the rights of suspects or accused persons are guaranteed in criminal proceedings. What is more, we observed certain reluctance from lawyers to acquire more knowledge on the scope and practical application of EU law in their cases. EU law is perceived as relatively complex and difficult to invoke in national proceedings, which often do not allow for sufficient time and resources to develop what is perceived as complex legal arguments. Lawyers also believe that EU law arguments are likely to be rejected by courts because of their unfamiliarity with EU law. In addition, they fear that invoking EU law arguments could result in potential delays in proceedings where the courts would need to engage the Court of Justice of the European Union (CJEU) though preliminary reference procedure. This is particularly relevant where their clients are held in pre-trial detention.

When EU law is used in criminal proceedings, it is usually done by a minority of criminal defence lawyers. These lawyers routinely represent clients in cross-border cases and are therefore familiar with EU law and how to incorporate it in their defence strategy. As a result, criminal defence lawyers typically either use EU law arguments frequently in their cases or do not refer to it at all. Lawyers who are already familiar with EU law generally form the majority of the audience in training sessions, webinars, workshops and other educational and training activities on EU law.