Defending theHuman Rightto a Fair Trial
November 11, 2015
In the last two weeks, the European Parliament and Council (bringing together the EU Member States) agreed a final text for the Directive on the Presumption of Innocence (POI) and the right to be present at one’s trial, which will become the fourth EU law on fair trial rights adopted since 2010. It makes some welcome improvements, some proposed by the Legal Experts Advisory Panel (LEAP), but in other respects is arguably an opportunity missed.
As originally proposed by the European Commission in November 2013, the measure made some welcome suggestions: it sought to protect the right to silence, establishing that evidence obtained in breach of this principle (i.e. when a person is forced to speak against themselves) would be inadmissible, subject to a general exception, to enshrine the rule that the burden of proof is on the state; and to give individuals tried in their absence a right to claim a review of their case. As LEAP’s initial reaction showed, this was a welcome initiative.
LEAP, though, saw room for improvement and made suggestions in a position paper and a subsequent briefing to the European Parliament with specific amendments. LEAP suggested, for instance, new wording requiring Member States to ensure that suspects “are not presented in court or to the media in ways that suggest their guilt, including in particular in prison clothing, handcuffs or the use of enclosures”, unless justified by specific security concerns. This was a response to LEAP members in the UK concerned about the use of the ‘dock’, a glass box where suspects sit in court, often with police (see this report), and concerns voiced for some time by lawyers from Luxembourg about the systematic use of handcuffs in courtrooms. The LEAP Advisory Board member for Luxembourg, Roby Schons, even made the trip to Brussels to make that point directly to EU policy-makers.
The European Parliament took on board some of LEAP’s suggestions in its report published in early 2015, including the point on the presentation of the accused. And LEAP is pleased to see that the final agreed text (negotiated under the current Luxembourgish presidency) preserves that suggestion, in wording almost identical to that in LEAP’s briefings (see Article 4a). Part of LEAP’s mission is to ensure that practitioners’ concerns from daily practice are addressed in EU policy, and we are pleased to see this work in practice here. The final text also excludes the drawing of adverse inferences from silence, a UK practice tolerated by the European Court of Human Rights but at odds with the general European consensus.
In some other areas, the outlook is more nuanced. The final text includes a point proposed by the European Parliament: the exclusion of the use of rebuttable ‘presumptions’ of fact and law (e.g. where a person in possession of a certain amount of drugs is presumed to intend to supply them to others, or where a registered driver of a car is presumed responsible for a speeding violation unless he proves another was driving). This change, which received much attention in Brussels, sends a message against such practices which reverse the golden rule that the burden of proof should be on the state. But the EU had the opportunity in this measure to tackle other (equally if not more important points) and some of the results on these other points could have been more robust.
The final text, for instance, omits other protections proposed by the European Parliament, such as the application of the directive to legal persons, and includes new wording allowing sentences handed down against a person in their absence to be enforced, without clearly requiring that the person – who could be in prison for an offence they have never heard of – be informed in writing of their right to a retrial or clarifying what that retrial should entail. Equally, stronger wording on remedies (i.e. what is supposed to happen when the rights in the directive are breached) has also been lost in favour of vaguer, generalised wording, meaning that little may change on the ground until the provision is interpreted further by the Court of Justice of the EU.
Of course, as with the other Directives, the adoption of the law is the start of a process, which now shifts to the national ministries of justice and parliaments who must put the law into action. LEAP is actively involved in this process (see our strategy document) and will aim to work with national authorities to ensure the measure achieves its aim strengthening POI on the ground. After that, the application of this historic principle will be up to the courts.
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