Defending theHuman Rightto a Fair Trial
November 29, 2013
On 27 November 2013, the European Commission published a package of five new measures to establish minimum fair trial standards across the EU (outlined below). This includes three draft directives (on legal aid, children and the presumption of innocence) and two recommendations (on legal aid and vulnerable suspects), and represents the next stage of the procedural rights roadmap established in 2009.
Fair Trials has repeatedly called for the continuation of action to establish effective minimum standards on fair trial rights in the EU, including recently in a joint letter to Viviane Reding in July 2013 and in a recent brochure setting out the priorities for future EU criminal justice work identified by Fair Trials’ network of criminal justice and human rights experts from across the EU (the Legal Experts Advisory Panel, LEAP). We look forward to working with the EU Institutions, other civil society organisations and members of LEAP during negotiations on the new laws, to ensure they provide the human rights protections needed to establish an area of freedom, security and justice within Europe.
Following the adoption between 2010 and 2013 of the first three procedural rights directives on the right to interpretation and translation, the right to information and the right to access a lawyer, the EU Commissioner for Justice, Viviane Reding, explained that these measures represented “three more steps forward” in strengthening the right to a fair trial in Europe:
1. Legal Aid
The proposed directive on legal aid establishes legal standards in relation to (i) provisional legal aid for suspects or accused persons deprived of liberty, and (ii) legal aid in both the executing and issuing state in European Arrest Warrant proceedings. The package also includes a recommendation on legal aid which has a broader scope – including the right to legal aid for all suspects or accused persons in criminal proceedings. The recommendation sets out more detailed guidance for Member States, including on the means and merits tests to be applied when assessing the need of a particular suspect or accused person for legal aid and the quality of legal aid representation.
2. Vulnerable Suspects and Children
The proposed directive on procedural safeguards for children suspected or accused in criminal proceedings is intended to address the particular vulnerabilities of children within the criminal justice system. It covers: (i) the right to be provided with specific information, (ii) the involvement of parents and other appropriate adults, (iii) mandatory legal representation, (iv) individual assessments of protection, education, training and social integration needs, (v) medical examinations, (vi) audio-visual recording of questioning, (vii) specific treatment in relation to detention, (viii) special diligence in investigations, (ix) protection of privacy, (x) personal attendance at trial, and (xi) legal aid.
According to the EU Commission, the rights of vulnerable adults have been addressed in a recommendation, due to disagreement regarding a common definition of “vulnerable adults”. The recommendation sets out guidance for Member States on the need for prompt identification of vulnerable suspects, the presumption of vulnerability in certain cases, the rights to information, legal assistance and medical assistance, the audio-visual recording of questioning and the need for certain steps to be taken in relation to the deprivation of liberty of vulnerable persons.
3. Presumption of Innocence
The proposed directive on the presumption of innocence sets out guarantees that (i) guilt cannot be inferred by any official decisions or statements before final conviction, (ii) the burden of proof is placed on the prosecution, any doubt benefits the accused and the standard of proof is “beyond reasonable doubt”, (iii) the right not to incriminate oneself and to remain silent is guaranteed and no negative inferences may be drawn when it is exercised, and (iv) the accused has the right to be present at the trial.
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