Procedural Rights In Criminal Proceedings Research Articles

Strengthening the protection of the right to remain silent at the investigative stage: What role for the EU legislator?

This article reflects on the possible contribution of the European Union towards safeguarding the right to silence at the investigative stage of criminal proceedings in EU Member States. The analysis is not limited to the Directive 2016/343/EU and other procedural rights’ Directives. Rather, it focuses on the role of the EU as a legal and political player, pursuing the goal of enhanced protection of procedural rights in criminal proceedings. The article first examines compliance of the legal provisions of the four examined jurisdictions with the Directive. It then identifies the relevant areas, not addressed or insufficiently addressed in the existing EU instruments, which appear problematic as far as the effectuation of the right to silence is concerned. The article argues that a more detailed binding EU regulation is not an appropriate solution to address the existing problems. Instead, it suggests that the EU legislator should consider other, more indirect means of action.

The Impact of Legislative Harmonisation on Effective Judicial Protection in Europe's Area of Criminal Justice

By focusing on the adoption of EU minimum standards in the field of procedural rights in criminal proceedings, this article will assess the relationship between secondary law harmonisation, and the principles of effectiveness of EU law and of effective judicial protection in Europe's area of criminal justice. This article will begin by exploring the third pillar legacy on harmonisation, by focusing on what the EU has not done (i.e.to legislate on a horizontal instrument on defence rights) and what the EU has done (i.e.to legislate specifically on judgments in absentia with the specific purpose of clarifying, and in some instances limiting, the grounds for refusal in a number of EU mutual recognition measures). The analysis will then examine the impact of the entry into force of the Lisbon Treaty and will evaluate critically the impact of EU harmonisation measures on defence rights on effective judicial protection. The analysis will focus on the relationship between EU law and national law, as well as on the relationship between EU law and the Charter and ECHR. Great emphasis will be placed on the strengthening of enforcement avenues offered by the normalisation of EU criminal law after Lisbon. These avenues have the potential to ensure that, even minimum, harmonisation measures in the field of defence rights can have a real impact on enhancing effective judicial protection and achieving the effectiveness of EU legislation on the ground.

10 years after the roadmap: procedural rights in criminal proceedings in the EU today

10 years after the roadmap: procedural rights in criminal proceedings in the EU today

Uređenje prava na odbranu u pravu Evropske unije

Since mutual recognition of decisions in criminal proceedings, as the basis for international cooperation in criminal matters in the European Union, is unthinkable without mutual trust between the member states, and mutual trust is inextricably linked to the state's belief that its citizens are protected in another Member State, in the sense that they are guaranteed the same level of protection of basic procedural rights in criminal proceedings, it became clear and possible, after the entry into force of the Lisbon Treaty on the European Union, that it is necessary to regulate the procedural rights of the defendant at the supranational level. The individual rights of the defendant in criminal proceedings, as elements of the right to defense, are governed in the law of the European Union by a set of directives that have been adopted with the aim of strengthening procedural guarantees of the right to defense by imposing minimum rules.

The tension between cross-border cooperation in the European Area of Freedom, Security and Justice and the fundamental rights of mentally ill offenders in detention

In two recent judgements, the European Court of Human Rights (ECtHR) has given an alarming signal regarding the placement, care and treatment of mentally disordered offenders in Belgium. This article analyses these judgements and the Court's assessment that Belgium faces a structural problem regarding the detention of people with a mental illness in prison. By exploring other recent ECtHR decisions across the EU and combining this with an analysis of international norms and standards, it contends that there is something amiss regarding the post-trial approach towards mentally disordered offenders in an EU-wide context. The potential hazards of this situation, from both an individual and an EU perspective are then presented by analysing the EU Framework Decision on the transfer of prisoners (which aims to facilitate offender rehabilitation) and the EU Court of Justice's interpretation of the relationship between instruments like the Framework Decision that are based on mutual recognition and fundamental rights. Lastly, the EU's initiative for enhancing procedural rights in criminal proceedings through the Roadmap trajectory, and the subsequent Commission Recommendation of 27 November 2013, are scrutinized. Based on this research, the article pinpoints the flaws and vacuums that currently exist for mentally disordered offenders, and the negative outcome this may have on the legitimacy and effectiveness of the European Area of Freedom, Security and Justice.

The Symbiotic Relationship between Mutual Trust and Fundamental Rights in Europe's Area of Criminal Justice

The entry into force of the Treaty of Lisbon has brought questions of the compatibility of aspects of EU criminal law – and in particular the application of the principle of mutual recognition in criminal matters – with fundamental rights. The constitutionalisation of the EU Charter of Fundamental Rights has added urgency to these questions. At the heart of the debate lies the question of the relationship between mutual trust and the protection of fundamental rights in Europe's area of criminal justice. This article will examine the evolving and symbiotic relationship between the protection of fundamental rights and mutual trust before and after Lisbon. It will examine four different types of relationship between fundamental rights and mutual trust: fundamental rights as the outcome of trust (by examining the evolution of ne bis in idem from a principle to a fundamental right); fundamental rights as a limit to trust (by focusing on fundamental rights as grounds for refusal to recognise and execute judicial decisions, and in particular European Arrest Warrants); fundamental rights as the source of trust (by focusing on legislating for human rights at EU level via the adoption of minimum standards on procedural rights in criminal proceedings); and fundamental rights as a source of trust via the development of uniform, autonomous concepts. The article will conclude by reiterating the importance of ensuring effective and on the ground protection of fundamental rights as a cornerstone of establishing a system of mutual recognition based on earned, rather than presumed, trust.

EU Policy to Guarantee Procedural Rights in Criminal Proceedings: an Analysis of the First Steps and a Plea for a Holistic Approach

EU Policy to Guarantee Procedural Rights in Criminal Proceedings: an Analysis of the First Steps and a Plea for a Holistic Approach

Towards Common Standards on Rights of Suspected and Accused Persons in Criminal Proceedings in the EU?

The Swedish Presidency of the EU presented in July 2009 a new Roadmap with a view to fostering protection of suspected and accused persons in criminal proceedings in the Union. The Roadmap set out its vision to foster the right to a fair trial in criminal proceedings across the EU. The same Presidency also presented a Draft Resolution on 31 July 2009 outlining the grounds and content of the Roadmap, which was adopted by the Council on the 30 November 2009. Its aim was to invite the European Commission to submit new legislative proposals covering the measures included in the Roadmap, and in this way overcome the obstacles encountered by a previous Commission initiative of 2004 on certain procedural rights in criminal proceedings throughout the EU. This paper starts by making a short exposition of the general policy framework within which we need to understand the Council’s Roadmap on the promotion of procedural guarantees in criminal proceedings and its connection with the Stockholm Programme; reference is also made to former proposals in this policy area. Second, it provides an analysis of the proposed measures contained inside the Roadmap. We review what has been proposed and address its compatibility with what should have been included according to existing European standards; here special mention is made to the European Convention of Human Rights (ECHR) and the jurisprudence of the European Court on Human Rights (ECtHR). Third, the paper offers some critical reflections addressing the provisions encapsulated by the proposed Roadmap. Finally, we put forward a set of policy recommendations aiming at improving a future common legislative framework on procedural rights in the EU.

The Law on Language in the European Union: Policy Development for Interpreting/Translation Services in Criminal Proceedings

Membership in the European Union (EU) has grown to 27 Member States. As an arm of the Commission of the European Communities, the Directorate General: Justice, Security and Freedom is charged with setting common EU legal standards and promoting consistent compliance among all Member States. The current article examines a Proposal for a Council Framework Decision (PCFD) on Certain Procedural Rights in Criminal Proceedings. A major focus of the PCFD is the provision of language services (interpreting and translation) for individuals who do not speak the language of the court/legal system in which they find themselves. This paper traces the progress of the PCFD from its introduction in 2004 to its demise in 2007. Related topics of discussion include the European Convention on Human Rights, the Treaty of Lisbon, and additional relevant developments in the language services area. The article concludes with a look at potential future legislation.

European judicial cooperation in criminal matters: what protection for individuals under the Lisbon Treaty?

The third pillar of the European Union is characterised by a poor judicial protection system. The Treaty of Lisbon overcomes the gaps in Article 35 of the Treaty on European Union, abolishing the distinction between first and third pillar and extending to this third pillar the instruments of protection typical of the first one. However, an attempt to defeat gaps and overcome some of the differences between the protections existing in the two pillars has been already undertaken by the Court of Justice in its judgments in cases Pupino and Segi, where it has applied to the third pillar legal principles (viz., the principle of consistent interpretation and the so-called substantive approach to challenge measures)—which have for long applied in the first pillar. Furthermore, the European Union legislator has acted to strengthen national mechanisms for judicial protection, by approximating the laws of member states regarding proceedings, so as to increase mutual trust and improve judicial cooperation in criminal matters. To date, among acts of secondary legislation, account has to be taken of the Framework Decision on the position of victims in criminal proceedings and the Commission’s proposal for a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union.

Four Fundamental Procedural Rights in Criminal Proceedings Throughout the European Union

This is a draft chapter for a study that aims to update the study of T.N.B.M. Spronken, M. Attinger, Procedural Rights in criminal proceedings: Existing Level of Safeguards in the European Union, published on 12 December 2005. This chapter aims to provide a comprehensive overview of the ECtHR case law on four fundamental rights: right to information, right to legal advice, right to legal assistance free of charge, right to interpretation and translation. The study will be completed in September 2009.

Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU

Abstract: EU action in the field of procedural rights in criminal proceedings was expected. The effects on procedural rights of the EU‐propelled increase of repressive, cross‐border efficiency with the application of the principle of mutual recognition could not fail to be noticed, and doctrinal opinion has been outspokenly critical of the current predominance of the ‘security’‐element over the other two in the ‘area of freedom, security and justice’. Unfortunately, the proposed Framework Decision on certain procedural rights in criminal proceedings throughout the EU is a double failure: first, the Commission's methodological choices betray a cavalier attitude to the limits of EU competence in this area. Second, it is also a substantive failure in that the rights selected as being ‘so fundamental that they should be given priority at this stage’ do little to solve the problems actually besetting the application of the principle of mutual recognition in criminal matters.