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Publication

EU law materials

Using EU law in domestic criminal proceedings and initiating references to the CJEU

March 8, 2019 - Court of Justice of the European Union

Fair Trials is actively seeking to promote the use of EU law in domestic criminal proceedings, and encourage criminal practitioners to see the Court of Justice of the EU (“CJEU”) in Luxembourg as a regular and accessible forum.

Background

Until 2010, there were virtually no measures of EU law regulating ordinary criminal proceedings within the Member States, whilst cross-border measures were adopted, starting with the European Arrest Warrant ("EAW"). In 2009, the EU launched an ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law, called the Roadmap for strengthening procedural rights, adopted in response to a perceived lack of confidence between Member States’ justice systems.

The efforts of Fair Trials, with the support of our LEAP network, were instrumental in the creation of the EU Procedural Rights Directives – a suite of Directives that protect fundamental rights of defendants. These Directives set minimum standards that all EU Member States must enforce in domestic criminal proceedings:

  1. Directive 2010/64/EU on the right to interpretation and translation
  2. Directive 2012/13/EU on the right to information
  3. Directive 2013/48/EU on the right of access to a lawyer
  4. Directive (EU) 2016/343 on the right to presumption of innocence and to be present at trial
  5. Directive (EU) 2016/1919 on the right to legal aid
  6. Directive (EU) 2016/800 on the rights of children in criminal proceedings

Designed to build upon the European Convention on Human Rights (“ECHR”), these measures come full of promise: the citizen gets new, directly effective rights and the criminal court becomes a frontline enforcer EU law, potentially at the expense of inadequate national laws; the criminal judge can get help from Luxembourg, while the case is still live, lessening recourse to European Court of Human Rights in Strasbourg, with the delayed justice this entails. That is the theory.

In practice, there is still a lot we can do to promote the implementation of the EU Procedural Rights Directives. In this respect, the CJEU has an important role to play clarifying questions of interpretation of EU law and in facilitating the process of implementation of the EU Procedural Rights Directives by explaining their proper interpretation. This represents a real opportunity.

Helpful resources

We’ve created a working group within our LEAP network dedicated to supporting practitioners initiating references to the CJEU, the mechanism by which a national court seised of a case can stay the proceedings before it, and refer questions of EU Law to the CJEU.

We’ve developed a bunch of materials available on our website to encourage criminal practitioners to rely on EU law in domestic proceedings, and turn to the CJEU to challenge systemic issues undermining criminal defence where interpretations of EU law could assist in improving the situation.

We’re also happy to help support you with EU law expertise on individual cases – so feel free to contact us directly.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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