Defence Rights and Participatory Guarantees Acknowledged by EU Law in the International Cooperation Within the Area of Freedom, Security and Justice

Abstract

It has been observed that the focus by EU institutions on the defence’s contribution to fair criminal justice followed the legislative developments occurred over the last decade in the field of international cooperation within the EU area. Moreover, the evolution of EU legislation did not follow a uniform path. Whereas the main goal pursued in the first legislative season was to strengthen mutual cooperation among member states in core areas of legal assistance, the approach changed considerably within a few years. In particular, the enhancement of mutual trust by means of the EAW procedure resulted in a double-edged sword, exposing the individuals concerned to several risks arising from these new surrender proceedings. The rising awareness of these risks, alongside the failure of the proposal of a legislative tool aimed at defining the main procedural rights in criminal proceedings, led to significant changes in the EU legislative policy in criminal matters. A clear example was the 2009 amendment of the EAW legislation, issued with a view to strengthening the participatory safeguards of absent defendants involved in surrender procedures. Further developments occurred after the entry into force of the Lisbon Treaty. The new legislation launched to implement the 2009 Roadmap was not limited to domestic criminal proceedings but aimed at extending important defence guarantees to the area of transnational criminal justice, albeit only in the field of the EAW proceedings.