# EUR-Lex - 52013PC0821 - EN

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# 52013PC0821

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings /* COM/2013/0821 final - 2013/0407 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1.        Introduction

1.           This proposal for a
Directive of the European Parliament and the Council aims to strengthen certain
aspects of the right of suspects or accused persons in criminal proceedings
throughout the European Union to be presumed innocent until proven guilty by a
final judgment and to strengthen the right to be present at one's trial.

2.           In the light of Article
82(1) of the Treaty on the Functioning of the European Union ("TFEU"),
mutual recognition should be the cornerstone of judicial cooperation, that is,
that judicial decisions taken in one Member State should be considered as
equivalent to each other wherever that decision is taken, and so enforceable
anywhere in the EU. Judicial cooperation needs to be founded on mutual trust
and confidence between the different judicial systems and the perception that
the rights of suspects or accused persons are not respected in every instance
has a disproportionately detrimental effect on mutual trust and, in turn, on
judicial cooperation.

3.           In this context, the
Stockholm Programme[1]
put a strong focus on the strengthening of the rights of individuals in
criminal proceedings. In its point 2.4, the European Council invited the
Commission to put forward proposals, setting out a step by step approach to
strengthening the rights of suspects or accused persons by setting common
minimum standards on fair trial rights.

4.           Three measures have already
been adopted: Directive 2010/64/EU of the European Parliament and of the
Council of 20 October 2010 on the right to interpretation and translation in
criminal proceedings[2],
Directive 2012/13/EU of the European Parliament and of the Council of 22 May
2012 on the right to information in criminal proceedings[3] and Directive 2013/48/EU of the
European Parliament and of the Council of 22 October 2013 on the right of
access to a lawyer in criminal proceedings and in European arrest warrant
proceedings, and on the right to have a third party informed upon deprivation
of liberty and to communicate with third persons and with consular authorities
while deprived of liberty[4].
Measures on the protection of vulnerable persons suspected or accused in
criminal proceedings are presented as a package with the present initiative,
together with a Directive on provisional legal aid for suspects or accused
persons deprived of liberty and legal aid in European arrest warrant
proceedings.

5.           Moreover, the Commission
published, on 14 June 2011, a Green Paper on the application of EU criminal justice
legislation in the field of detention to reflect on ways to strengthen mutual
trust and the application of the principle of mutual recognition in the area of
detention, in accordance with and within the limits of the EU's competence.

6.           The purpose of the whole
exercise of the Commission's agenda on procedural rights is to ensure the respect
of the right to a fair trial in the European Union. The principle of presumption
of innocence, together with its related rights, contributes to ensuring the
right to a fair trial. Various rights of suspects or accused persons in
criminal proceedings established by the above-mentioned EU Directives over the
past few years, such as the right to interpretation and translation, the right
to information and the right to access to a lawyer are not objectives
themselves. They have a wider aim; they are rather tools to materialise the
principle of the right to a fair trial. Presumption of innocence and its
related rights contribute to it. In case of persistent breach of presumption of
innocence in the Member States, the objectives of the procedural right's agenda
could not be fully achieved.

7.           It is for this reason
that, in the Stockholm Programme, the European Council expressly invited the
Commission to address the issue of presumption of innocence.

8.           The Commission made a
thorough examination of the issue in its impact assessment and concluded that a
measure on certain aspects of presumption of innocence is needed to strengthen
this fundamental right. The overarching objectives of the measures already
adopted in the area of procedural rights in criminal proceedings, including its
key instrument which is the Directive on the right to access to a lawyer, still
require that a certain minimum level of protection of the principle of
presumption of innocence is guaranteed in all EU Member States.

9.           This proposal is based on
Article 82(2) TFEU. That Article provides that, ‘[t]o the extent necessary to
facilitate mutual recognition of judgments and judicial decisions and police
and judicial cooperation in criminal matters having a cross-border dimension,
the European Parliament and the Council may, by means of directives adopted in
accordance with the ordinary legislative procedure, establish minimum rules.
Such rules shall take into account the differences between the legal traditions
and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence
between Member States;

(b) the rights of individuals in
criminal procedure;

(c) the rights of victims of crime;

(d)[...].’

10.         The current proposal will
also contribute to strengthening the legal safeguards that protect individuals
involved in proceedings conducted by the European Public Prosecutor's Office.
The recently presented Proposal for a Council Regulation[5] clarifies that the suspected
person has all rights granted by EU legislation as well as other rights which
derive directly from the Charter of the Fundamental Rights of the European
Union ("the Charter"), to be applied in accordance with applicable
national law, and it explicitly refers to the right to be presumed innocent. By
introducing strengthened standards on presumption of innocence in the current
proposal, the procedural safeguards applying before the European Public
Prosecutor's Office are also reinforced.

11.         Article 6(3) of the Treaty
on European Union ("TEU") provides that fundamental rights, as
guaranteed by the European Convention of Human Rights and Fundamental Freedoms
("the ECHR") and as they result from the constitutional traditions
common to the Member States, constitute general principles of EU law. Article
6(1) TEU provides that the European Union recognises the rights, freedoms and
principles set out in the Charter, which has the same legal value as the TFEU
and the TEU. The Charter is addressed to EU institutions and Member States when
they implement EU law, such as in the field of judicial cooperation in criminal
matters in the European Union.

12.         Article 47 of the Charter
stipulates the right to a fair trial. Article 48 guarantees the right to be
presumed innocent and has the same meaning and scope as the right guaranteed by
Article 6(2) of the ECHR[6].
Article 6(2) of the ECHR stipulates that everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law. Article 11(1) of the Universal Declaration of Human Rights
safeguards this principle by the same wording. Article
14(2) of the International Covenant on Civil and Political Rights ("ICCPR")[7] contains a very similar
provision.

13.         The European Court of Human
Rights (ECtHR) has clarified the scope of Article 6 of the ECHR. The Court has
repeatedly held that it applies as well to the pre-trial stage of criminal
proceedings[8]
and that suspects or accused persons have the rights under Article 6 of the ECHR
at the initial stages of police questioning[9].
The Court has also ruled that these guarantees must apply to witnesses whenever
they are in reality suspected of a criminal offence, as the formal
qualification of the person is immaterial[10].

14.         The principle of
presumption of innocence has been developed over the years. The ECtHR has held
that Article 6(2) of the ECHR encompasses three key requirements[11]: the right not to be publicly presented
as convicted by public authorities before the final judgment[12], the fact that the burden of
proof is on prosecution and that any reasonable doubts on guilt should benefit
the accused and the right of the accused to be informed of the accusation. The
ECtHR also recognises the existence of a clear link between the presumption of
innocence and other fair trial rights, in the sense that when such rights are
breached, the presumption of innocence is inevitably also at stake: the right
not to incriminate one-self, the right not to co-operate and the right to
silence[13]
and the right to liberty (and not to be placed in pre-trial detention)[14].

15.         The right to be present at
trial is an essential right of defence. The right of the accused person to
appear in person at the trial is part of the right to a fair trial provided for
in Article 6 of the ECHR, as interpreted by the ECtHR[15]. Strengthening this right will
therefore contribute to reinforce the right to a fair trial.

16.         The right to be informed of
the accusation is covered by the Directive 2012/13/EU on the right to
information in criminal proceedings and is therefore not covered by this
Directive. Pre-trial detention is the subject of separate initiatives[16] and is therefore not addressed
in this Directive. All other above-mentioned aspects of the principle of the presumption
of innocence or related to it are dealt with in this proposal.

17.         This Directive lays down
minimum requirements at EU level governing certain aspects of the right of
suspects or accused persons to be presumed innocent, in line with the Stockholm
Programme and the ECtHR case law. It thus promotes the application of the
Charter, and in particular Articles 6, 47 and 48 therein, by building upon
Article 6 of the ECHR as interpreted by the ECtHR.

1.2.        Results of consultations with the
interested parties and impact assessment

18.         Stakeholders were consulted
on several occasions.

19.         In 2006 the Commission
published a Green Paper[17]
on the presumption of innocence. At that time, 11 Member States replied to the
consultation and independent experts and practitioners took this opportunity to
point out an erosion of the principle of presumption of innocence and to
underline, in particular as regards investigations against non-nationals or
non-residents, that a principle of "presumption of guilt" seems to be
more and more tolerated in national systems.

20.         The Commission has also had
contact with major stakeholders and has benefitted from consultations on the
other initiatives attached to this package.

21.         In the meeting of the Expert
Group on EU Criminal Policy of 23
January 2013, the Commission gathered views from academics, practitioners,
judges, defence lawyers and prosecutors on the topic.

22.         Moreover, a meeting with
Representatives of Ministries of Justice of Member States and Croatia specifically devoted to the presumption of innocence was held on 19 February 2013.

23.         In addition to this, in the
framework of the study carried out for the preparation of the Impact Assessment
accompanying this proposal, an on-line survey was launched on 27 February 2013
and published on the DG Justice and EJN website. All major stakeholders were
informed about this survey via e-mail and more than 100 responses were received.
The survey focused not only on the legal situation as regards the protection of
the right to be presumed innocent in the Member States, but above all on its
functioning in practice. The findings of this survey were included in the Annex
III of the Impact Assessment accompanying this Proposal. The Impact Assessment
is available at [http://ec.europa.eu/governance].
It has shown that the level of safeguards in Member States' legislation is, in
a general way, acceptable and there does not seem to be any systemic problem in
this area. However, there still exist points in which legal safeguards should
be improved. Moreover, breaches of presumption of innocence do still occur too
often across the EU.

2.           LEGAL ELEMENTS OF THE PROPOSAL

2.1.        Specific provisions

Article 1 — Subject matter

24.         The objective of the
Directive is to lay down minimum rules concerning certain aspects of the right
of suspects or accused persons to be presumed innocent until proved guilty by a
final judgment. This Directive covers the following rights: the right not to be
presented as guilty by public authorities before the final judgment, the fact
that the burden of proof is on prosecution and that any reasonable doubts on the
guilt should benefit the accused, the right not to incriminate one-self, the
right not to cooperate and the right to remain silent. The right to be present
at one's trial is also addressed by this Directive.

Article 2 —
Scope

25.         The Directive applies to
suspects or accused persons in criminal proceedings from the very start of the
criminal proceedings, even before the time when the suspects are made aware by
the competent authorities of the fact that they are suspected or accused of
having committed a criminal offence. It applies until the conclusion of such proceedings,
i.e. until the final judgement is delivered.

26.         The
right to be presumed innocent encompasses different needs and degrees of
protection regarding natural persons and legal persons, as recognised in the
case law of the Court of Justice on the right not to
incriminate one-self[18]. This Directive takes into account these differences and therefore
only applies to natural persons.

27.         Protection
of the right of legal persons to be presumed innocent is nevertheless ensured
by the existing safeguards of national and Union legislation, as interpreted by
national courts and by the Court of Justice, and by the ECHR as interpreted by
the ECtHR.

28.         The
"step-by-step" approach of intervention of Union law, in particular
in the area of rights of individuals in criminal procedure, is therefore kept
and respected. Future initiatives in this field will be considered depending on
the evolution of national legislation and of the case law.

Article 3 – Presumption of innocence

29.         This provision lays down
the right to the presumption of innocence.

Article 4 — Public references to guilt
before conviction

30.         The ECtHR established as
one of the basic aspects of the principle of presumption of innocence the fact
that a court or public official may not publicly present the suspects or accused
persons as if they were guilty of an offence if they have not been tried and
convicted of it by a final judgment[19].
This principle should furthermore apply, following the ECtHR case law, to all
public authorities[20].
Both situations might encourage the public to believe that person is guilty and
prejudge the assessment of the facts by the judicial authority.

31.         This
principle should be without prejudice to the possibility of publication,
according to national law, of decisions imposing sanctions following
administrative proceedings.

Article 5 – Burden of proof and standard
of proof required

32.         Presumption of innocence
presupposes that the burden of proof is on the prosecution and any doubt on the
guilt should benefit the suspects or accused persons (in dubio pro reo).
This presupposes that a court's judgment must be based on evidence as put
before it and not on mere allegations or assumptions. This is without prejudice
to the independence of the judiciary when assessing the suspect or accused's
guilt. Furthermore, the ECtHR has admitted that in specific and limited cases the
burden of proof can be shifted to the defence. This Article reflects the ECtHR principle[21], which is considered as a
correct balance between the public interest (the needs of prosecution) and the
right of the defence. This Directive is without
prejudice to the possibilities for the defence to present evidence in
accordance with the applicable national rules.

Article 6 and Article 7 – Right not to
incriminate one-self and not to cooperate, right to remain silent

33.         These two Articles
establish the right not to incriminate oneself and not to cooperate and the
right to remain silent. The right not to be compelled to testify against
oneself and not to confess guilt and not to cooperate and the right to remain
silent are generally recognised international standards which lie at the heart
of the notion of a fair trial under Article 6 of the ECHR[22]. Their rationale lies, inter
alia, in the protection of the accused against improper compulsion by the
authorities, thereby contributing to the avoidance of miscarriages of justice
and to the fulfilment of the aims of Article 6 of the ECHR. The "degree of
compulsion" imposed on suspects or accused persons with a view to compel
them to provide information relating to charges against them cannot destroy,
even for reasons of security and public order, the very essence of their right
not to incriminate one-self and their right to remain silent[23]. Article 3 ECHR, on the
prohibition of torture, as interpreted by the ECtHR, should in any case be
respected.

34.         The right not to incriminate
one-self is primarily concerned with respecting the will of suspects or accused
persons to remain silent and, in particular, presupposes that the prosecution
in a criminal case seeks to prove the case against the suspects or accused
without resort to evidence obtained through methods of coercion or oppression
in defiance of the will of the suspects or accused. Moreover, the scope of the
right is not confined to cases where duress has been brought to bear on the
accused or where the will of the accused has been directly overborne in some
way[24].
In this sense, according to the ECtHR, the right in question is closely linked
to the presumption of innocence contained in Article 6(2) of the ECHR.

35.         Suspects or accused persons
should be promptly informed of their right to remain silent, as according to
Directive 2012/13/EU. Such information should also refer to the content of the
right to remain silent and of the consequences of renouncing to it and of
invoking it.

36.         Any inferences drawn from
the fact that suspects or accused persons make use of these rights should be
excluded. Without this, the right would be merely illusory if the suspects or accused
had to fear that their non-cooperation or their silence will be used against them
later in the criminal proceedings. This is the sole way to ensure the effective
exercise of these rights by suspects or accused persons without a fear that
such exercise can be used against them at a later stage. Therefore, the
Directive also provides a specific and immediate remedy that any use of
evidence obtained in breach of these rights is not allowed, save in those very exceptional
cases where the use of such evidence will not prejudice the overall fairness of
the proceedings[25].

37.         The fact that no inferences
should be drawn from the exercise of these rights and that the exercise of
these rights should not be used against suspects or accused persons at a later
stage of the criminal proceedings should not prevent Member States from taking
into account cooperative behaviour when deciding the concrete sanction to
impose.

Article 8 and Article 9 – Right to be
present at one's trial

38.         If a person is not present
during the trial, his right of defence is at stake. The defendant is in such
case neither able to give his version of the facts to the Court, nor is able to
present evidence accordingly. He might therefore be found guilty without having
had the opportunity to rebut the grounds for such a conviction.

39.         The right to be present at
trial, or being able to waive such right after having been informed of it, is
indispensable for the exercise of the rights of defence.

40.         Article 8 provides that Member
States must ensure that the right to be present applies to any trial aiming at
assessing the question of the guilt of the accused person (both conviction and
acquittal decisions). The presence of the suspects or accused at this moment in
the criminal proceedings is of particular importance given the consequences that
moment could have.

41.         Article 8 stipulates the
right established by the ECtHR of an accused to be present at the trial and also
establishes limited exceptions to this right, in line with the Charter, the ECHR
and EU law[26].
Provided that the conditions laid down in Article 8 are respected, nothing
prevents Member States to make use of "simplified procedures" for the
most common minor offences. Article 9 establishes that a remedy (as established
by the ECtHR) in cases where the right to be present at trial has not been
observed is an obligation to provide for a re-trial[27].

Article 10 – Remedies

42.         The ECtHR has consistently
held that the most appropriate form of redress for a violation of the right to
a fair trial in Article 6(2) ECHR would be to ensure that suspects or accused
persons, as far as possible, are put in the position in which they would have
been had their rights not been disregarded[28].

Article 11 –Data collection

43.         In order to monitor and
evaluate the effectiveness and efficiency of this Directive, there is a need
for collection of data by the Member States with regard to the exercise of the
rights set out in this Directive. Relevant data include data recorded by the
judicial authorities and by law enforcement authorities regarding which remedy is applied whenever there has been a breach of
presumption of innocence and of the right to present at trial.

Article 12 – Non-regression clause

44.         The purpose of this Article
is to ensure that setting common minimum standards in accordance with this
Directive does not have the effect of lowering standards in certain Member
States and that the standards set in the Charter and in the ECHR are
maintained. Since this Directive provides for minimum rules, in line with
Article 82 TFEU, Member States remain free to set standards higher than those
agreed in this Directive.

Article 13 – Transposition

45.         This Article requires that
Member States must implement the Directive by xx/xx/201x and, by the same date,
transmit the text of the provisions transposing it into national law to the
Commission. Given the simplicity of the transposition measures to be
implemented, the Commission does not require explanatory documents to carry out
its task of overseeing the transposition of the Directive. The individual
transposition measures to be notified should be sufficiently self-explanatory.

Article 14 – Entry into force

46.         This Article provides that
the Directive will enter into force on the twentieth day following its
publication in the Official Journal of the European Union.

2.2.        Subsidiarity principle

47.         There is a significant
variation in the legislation of the Member States on the right to be presumed
innocent and to all its aspects. Case law of the ECtHR shows that violations of
presumption of innocence and its related fair trial rights have steadily taken
place. This leads to the lack of mutual trust between judicial authorities of
different EU Member States. As a result, judicial authorities are reluctant to
cooperate with each other. The impact assessment attached to this proposal
shows that the ECtHR alone does not ensure a full protection of presumption of
innocence: some aspects of presumption of innocence have not been recently or
extensively considered by the ECtHR, and the redress procedure at the ECtHR intervenes
only ex post, after exhaustion of all internal remedies. This Directive will complement
the safeguards provided for by the ECtHR and ensure that presumption of
innocence is protected from the start of the criminal proceedings, including
the possibility of recourse to EU redress mechanisms.

48.         The objective of the proposal
cannot be sufficiently achieved by Member States alone as the aim of the
proposal is to promote mutual trust; it has to be action taken by the European
Union, which will establish consistent common minimum standards that apply
throughout the whole of the European Union. This has been confirmed by the
Stockholm Programme, in which the European Council invited the Commission to
address the issue of presumption of innocence. The proposal will approximate
Member States’ procedural rules regarding certain aspects of the right to be
presumed innocent and regarding the right to be present at one's trial in
criminal proceedings, the aim being to enhance mutual trust. The proposal
therefore complies with the subsidiarity principle.

2.3.      Proportionality principle

49.         The proposal complies with
the proportionality principle in that it does not go beyond the minimum
required in order to achieve the stated objective at European level and what is
necessary for that purpose. The proposal only deals with certain aspects of
presumption of innocence, that are more directly linked to the functioning of
mutual recognition instruments and to police and judicial cooperation in
criminal matters. Furthemore, it is limited to natural persons. This is in line
with the "step-by-step" approach of EU intervention in the area of
procedural rights in criminal matters and the need for proportionate action.

3.           BUDGETARY IMPLICATIONS

50.         This proposal does not have
any impact on the EU budget.

2013/0407 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the strengthening of certain aspects of
the presumption of innocence and of the right to be present at trial in
criminal proceedings

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 82(2) (b) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[29],

Having regard to the opinion of the
Committee of the Regions[30],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       The
purpose of this Directive is to enhance the right to a fair trial in criminal
proceedings by laying down minimum rules concerning certain aspects of the
presumption of innocence and the right to be present at the trial.

(2)       By
establishing minimum rules on the protection of procedural rights of suspects
or accused persons, this Directive should strengthen the trust of Member States
in the criminal justice systems of other Member States and can thus help to
facilitate mutual recognition of decisions in criminal matters. Such common
minimum rules should also remove obstacles to the free movement of citizens
throughout the territory of the Member States.

(3)       The Stockholm Programme[31] put a strong focus on the
strengthening of the rights of individuals in criminal proceedings. In its
point 2.4, the European Council invited the Commission to put forward proposals
setting out a step by step approach to strengthening the rights of suspects or
accused persons. The EU agenda on procedural rights is designed to operate as a
whole, only when all its components are implemented will its benefits be felt
in full.

(4)       In the Stockholm Programme
the European Council invited the Commission to examine further elements of
minimum procedural rights for suspects or accused persons, and to assess
whether other issues, for instance the presumption of innocence, need to be
addressed, in order to promote better cooperation in that area.

(5)       Three measures have already
been adopted: Directive 2010/64/EU of the European Parliament and of the
Council[32],
Directive 2012/13/EU of the European Parliament and of the Council[33] and Directive 2013/48/EU of
the European Parliament and of the Council[34].

(6)       This
Directive should apply only to criminal proceedings. Administrative proceedings
leading to sanctions such as competition, trade, tax, financial services
proceedings and other investigations by administrative authorities in relation
to these proceedings, and also civil proceedings are not covered by this
Directive.

(7)       This Directive should
facilitate the practical application of the right to be presumed innocent and
all its different aspects and also of the right to be present at one's trial,
with a view to safeguarding the right to a fair trial.

(8)       This Directive should
apply to natural persons who are suspected or accused of having committed a
criminal offence. It should apply at any stage of the proceedings, even before
those persons are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of
having committed a criminal offence, until the conclusion of such proceedings.

(9)       This Directive
acknowledges the different needs and levels of protection of certain aspects of
the right to be presumed innocent as regards natural persons and legal persons.
Such protection as regards natural persons is reflected in abundant case law of
the European Court of Human Rights. The Court of Justice of the European Union
has, however, recognised that the rights flowing from the presumption of
innocence do not accrue to legal persons in the same way as to natural persons.

(10)     In the current state of
development of national legislations and of case law at national level and at
the level of the Court of Justice it is premature to legislate at Union level
on the right to be presumed innocent of legal persons.

(11)     Protection
of the right of legal persons to be presumed innocent should be ensured by the
existing legislative safeguards and case law, the evolution of which in the
future should determine an assessment of the need for Union action.

(12)     "Law
enforcement or judicial authorities" for the purposes of this Directive
refers to public authorities which, according to national law, exercise powers
in the realm of criminal proceedings.

(13)     The presumption of
innocence is violated if, without the accused’s having previously been proved
guilty according to law, a judicial decision or a public statement by judicial
or other public authorities presents the suspects or accused persons as if they
were convicted.

(14)     The burden of proof is on
the prosecution, and any doubt should benefit the accused. Thus, the
presumption of innocence will be infringed where the burden of proof is shifted
from the prosecution to the defence, without prejudice to any possible ex
officio fact findings powers of the court and without prejudice to the
independence of the judiciary when assessing the suspect's or accused's guilt.

(15)     However, in some cases
shifting the burden of proof to the defence should not be incompatible with the
presumption of innocence as long as certain safeguards are guaranteed: it
should be ensured that presumptions of fact or law are confined within
reasonable limits, which take into account the importance of what is at stake,
and that they are rebuttable, for example by means of new evidence on extenuating
circumstances or on a case of force majeure.

(16)     The right not to
incriminate oneself and not to cooperate is an important aspect of the
presumption of innocence. Suspect or accused persons should not be forced, when
asked to make a statement or answer questions, to produce evidence or documents
or to provide information which may lead to incriminate themselves.

(17)     Any compulsion used to
compel the suspect or accused person to provide information should be limited.
To determine whether the compulsion did not violate those rights, the following
should be taken into account, in the light of all circumstances of the case:
the nature and degree of compulsion to obtain the evidence, the weight of the
public interest in the investigation and punishment of the offense at issue,
the existence of any relevant safeguards in the procedure and the use to which
any material so obtained is put. However, the degree of compulsion imposed on
suspects or accused persons with a view to compelling them to provide information
relating to charges against them should not destroy the very essence of their
right not to incriminate one-self and their right to remain silent, even for
reasons of security and public order.

(18)     The right not to
incriminate oneself and not to cooperate should not extend to the use in
criminal proceedings of material which may be obtained from the suspect or accused
person through the use of lawful compulsory powers but which has an existence
independent of the will of the suspects or accused persons, such as material acquired
pursuant to a warrant, material in respect of which there is a legal obligation
of retention and production upon request, breath, blood and urine samples and
bodily tissue for the purpose of DNA testing.

(19)     The right to remain silent
is an important aspect of the presumption of innocence. It should serve as
protection from self-incrimination.

(20)     The right not to
incriminate oneself and not to cooperate and the right to remain silent should
apply as regards questions material to the offence that someone is suspected or
accused of having committed and not, for example, as regards questions relating
to the personal identification of a suspect or accused person.

(21)     The right to a fair trial
is one of the basic principles in a democratic society. The right of an accused
person to be present at the trial is based on that right and should be
guaranteed throughout the Union.

(22)     However, the right of the
accused person to be present at the trial is not absolute. Under certain conditions
the accused person may, expressly or tacitly but unequivocally, waive that
right.

(23)     Under
certain well defined conditions which ensure effective compliance with the
right to a fair trial, it should be possible for a trial resulting in the decision
on guilt or innocence to take place in the absence of the suspect or accused
person.

(24)     This Directive should not
regulate the forms and methods, including procedural requirements, that are
used to achieve the results specified as regards the right to be present at
one's trial, which are a matter for the national laws of the Member States.

(25)     When
considering whether the way in which the information is provided is sufficient
to ensure the person’s awareness of the trial, particular attention could,
where appropriate, also be paid to the diligence exercised by the person
concerned in order to receive information addressed to him or her.

(26)     The principle of
effectiveness of Union law requires that Member States put in place adequate
and effective remedies in the event of a breach of a right conferred upon
individuals by Union law. An effective remedy available in the event of a breach
of any of the principles laid down in this Directive should have, as far as
possible, the effect of placing the suspects or accused persons in the same
position in which they would have found themselves had the breach not occurred.

(27)     In
order to monitor and evaluate the effectiveness of this Directive, Member
States should collect data with regard to the implementation of the rights set
out in this Directive. Such data should include data recorded by law
enforcement and judicial authorities as regards the remedy applied where there
has been a breach of any of the aspects of the right to presumption of
innocence covered by this Directive and a breach of the right to be present at
one's trial.

(28)     This
Directive upholds the fundamental rights and principles recognised by the
Charter of Fundamental Rights of the European Union and the European Convention
for the Protection of Human Rights and Fundamental Freedoms, including the
prohibition of torture and inhuman and degrading treatment, the right to
liberty and security, respect for private and family life, the right to the
integrity of the person, the rights of the child, integration of persons with
disabilities, the right to an effective remedy and the right to a fair trial,
the presumption of innocence and the rights of the defence.

(29)     As
this Directive establishes minimum rules, Member States may extend the rights
set out in this Directive in order to provide a higher level of protection.
Such higher level of protection should not constitute an obstacle to the mutual
recognition of judicial decisions that those minimum rules are designed to
facilitate. The level of protection should never fall below the standards
provided by the Charter of Fundamental Rights of the European Union or the European
Convention for the Protection of Human Rights and Fundamental Freedoms, as
interpreted in the case law of the Court of Justice and of the European Court
of Human Rights.

(30)     Since
the objectives of this Directive, namely setting common
minimum rules for certain aspects of the right to presumption of innocence and for the
right to be present at trial in criminal proceedings, cannot be sufficiently achieved by the
Member States but can rather, by reason of the scale of the measure, be better
achieved at Union level, the Union may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European
Union. In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary in order to
achieve those objectives.

(31)     [In accordance with Article
3 of Protocol No 21 on the position of the United Kingdom and Ireland in
respect of the Area of Freedom, Security and Justice, annexed to the Treaty on
European Union and to the Treaty on the Functioning of the European Union, those
Member States have notified their wish to participate in the adoption and
application of this Directive] OR [In accordance with Articles 1 and 2 of
Protocol 21 on the position of the United Kingdom and Ireland in respect of the
Area of Freedom, Security and Justice, annexed to the Treaty on European Union
and to the Treaty on the Functioning of the European Union and without
prejudice to Article 4 of that Protocol, those Member States are not taking
part in the adoption of this Directive and are not bound by it or subject to
its application][35].

(32)     In
accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, Denmark is not taking part in the
adoption of this Directive, and is not bound by it or subject to its
application,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1
Subject matter and Scope

Article 1
Subject matter

This Directive lays down minimum rules
concerning:

(a)          certain aspects of the right to
the presumption of innocence in criminal proceedings;

(b)          the right to be present at trial
in criminal proceedings.

Article 2
Scope

This Directive applies to natural persons suspected
or accused in criminal proceedings until the final conclusion of those
proceedings.

CHAPTER 2
Right to the presumption of innocence

Article 3
Presumption of innocence

Member States shall ensure that suspects or
accused persons are presumed innocent until proven guilty according to law.

Article 4
Public references to guilt before conviction

Member States shall ensure that, before a
final conviction, public statements and official decisions from public
authorities do not refer to the suspects or accused persons as if they were
convicted.

Member States shall ensure that appropriate
measures are taken in the event of a breach of that requirement.

Article 5
Burden of proof and standard of proof required

1.           Member States shall ensure
that the burden of proof in establishing the guilt of suspects or accused
persons is on the prosecution. This is without prejudice to any ex officio
fact finding powers of the trial court.

2.           Member States shall ensure
that any presumption, which shifts the burden of proof to the suspects or
accused persons, is of sufficient importance to justify overriding that
principle and is rebuttable.

In order to rebut such a presumption it
suffices that the defence adduces enough evidence as to raise a reasonable
doubt regarding the suspect or accused person's guilt.

3.           Member States shall ensure
that where the trial court makes an assessment as to the guilt of a suspect or
accused person and there is reasonable doubt as to the guilt of that person,
the person concerned shall be acquitted.

Article 6
Right not to incriminate oneself and not to cooperate

1.           Member States shall ensure
that suspects or accused persons have the right not to incriminate themselves
and not to cooperate in any criminal proceeding.

2.           The right referred to in
paragraph 1 shall not extend to the use in criminal proceedings of material
which may be obtained from the suspects or accused persons through the use of lawful
compulsory powers but which has an existence independent of the will of the
suspects or accused persons.

3.           Exercise of the right not
to incriminate oneself or of the right not to cooperate shall not be used
against a suspect or accused person at a later stage of the proceedings and shall
not be considered as a corroboration of facts.

4.           Any evidence obtained in
breach of this Article shall not be admissible, unless the use of such evidence
would not prejudice the overall fairness of the proceedings.

Article 7
Right to remain silent

1.           Member States shall ensure
that suspects or accused persons have the right to remain silent when
questioned, by the police or other law enforcement or judicial authorities, in
relation to the offence that they are suspected or accused of having committed.

2.           Member States shall promptly
inform the suspect or accused persons of their right to remain silent, and explain
the content of this right and the consequences of renouncing or invoking it.

3.           Exercise
of the right to remain silent shall not be used against a suspect or accused
person at a later stage in the proceedings and shall not be considered as a
corroboration of facts.

4.           Any evidence obtained in
breach of this Article shall not be admissible, unless the use of such evidence
would not prejudice the overall fairness of the proceedings.

CHAPTER 3
Right to be present at one's trial

Article 8
Right to be present at one's trial

1.           Member States shall ensure
that suspects or accused persons have the right to be present at their trial.

2.           Member States may provide for
a possibility under which the trial court may decide on the guilt in the
absence of the suspect or the accused person, provided that the suspect or accused person:

(a)        in due time:

(i)           either was summoned in
person and thereby informed of the scheduled date and place of the trial, or by
other means actually received official information of the scheduled date and
place of that trial in such a manner that it was unequivocally established that
he or she was aware of the scheduled trial;

and

(ii)          was informed that a decision
may be handed down if he or she does not appear for the trial; or

(b)          being aware of the scheduled
trial, had given a mandate to a legal counsellor, who was either appointed by
the person concerned or by the State, to defend him or her at the trial, and
was indeed defended by that counsellor at the trial.

3.           If the conditions of
paragraph 2 have not been met, a Member State can proceed to execution of a
decision intended in that paragraph if, after being served with the decision
and being expressly informed about the right to a retrial, or an appeal, in
which the person has the right to participate and which
allows a fresh determination of the merits of the case, including examination
of new evidence, and which may lead to the original
decision to be reversed, the person:

(a)          expressly states that he or
she does not contest the decision;

or

(b)          does not request a retrial or
appeal within a reasonable time frame.

Article 9
Right to a retrial

Member States shall ensure that where the
suspects or accused persons were not present at the trial referred to in
Article 8(1) and the conditions laid down in Article 8(2) and (3) are not met, the
person concerned has the right to a new trial at which they have the right to be
present and which allows a fresh determination of the
merits of the case, including examination of new evidence,
and which may lead to the original decision to be reversed.

CHAPTER 4
General and final provisions

Article 10
Remedies

1.           Member States shall ensure
that suspects or accused persons have an effective remedy if their rights under
this Directive are breached.

2.           The remedy shall have, as
far as possible, the effect of placing suspects or accused persons in the same
position in which they would have found themselves had the breach not occurred,
with a view to preserving the right to a fair trial and the right to defence.

Article 11
Data collection

Member States shall, by [...] and every three
years thereafter, send to the Commission data showing how the rights under in
this Directive have been implemented.

Article 12
Non-regression clause

Nothing in this Directive shall be
construed as limiting or derogating from any of the rights and procedural
safeguards that are ensured under the Charter of Fundamental Rights of the
European Union, the European Convention for the Protection of Human Rights and
Fundamental Freedoms, or other relevant provisions of international law or the
law of any Member State which provides a higher level of protection.

Article 13
Transposition

1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [18 months after publication of this Directive].
They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt
those measures, they shall contain a reference to this Directive or be
accompanied by such a reference on the occasion of their official publication.
Member States shall determine how such reference is to be made.

2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 14
Entry into force

This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

Article 15
Addressees

This Directive is addressed to the Member
States in accordance with the Treaties.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ C 115, 4.5.2010, p. 1.

[2]               OJ L 280,
26.10.2010, p. 1.

[3]               OJ L 142,
1.6.2012, p. 1.

[4]               OJ L 294, 6.11.2013, p. 1.

[5]               Proposal
for a Council Regulation on the establishment of the European Public
Prosecutor's Office, COM(2013) 534 final, 17.7.2013.

[6]               OJ C
303, 14.12.2007, p. 30. Explanations relating to the Charter of Fundamental
Rights.

[7]               999
U.N.T.S. 171. The ICCPR is an international convention on civil and political
rights opened for signature by resolution of the United Nations General
Assembly on 16 December 1966 which has been ratified by, and is thus binding in
international law on, all EU Member States.

[8]               Salduz
v Turkey (judgment of 27.11.2008,
application 36391/02, paragraph 50).

[9]               Idem, paragraph 52.

[10]             Brusco
v France (judgment of 14.10.2010,
application 1466/07, paragraph 47).

[11]             Barberà,
Messegué and Jabardo v. Spain
(judgment of 6.12.1988, applications 10588/83, 10589/83 and 10590/83). See also
Allenet de Ribemont v. France (judgment of 10.2.1995, application
15175/89).

[12]             Minelli
v. Switzerland (judgment of
25.3.1983, application 8660/79).

[13]             Funke
v. France (judgment of 25.2.1993,
application 10828/84), Murray v. UK (judgment of 8.2.1996, application
18731), Saunders v. UK (judgment of 17.12.1996, application 19187/91).

[14]             Except
when the public interest justifies a departure from the principle of the right
to liberty - see Kudla v. Poland (judgment of 26.10.2010, application
30210/96).

[15]             Colozza
v. Italy (judgment of 12
February 1985, application 9024/80).

[16]             COM(2011) 327 final, 14.6.2011.
The themes of the Green Paper were pre-trial detention and mutual recognition
of custodial and non-custodial decisions. The Commission received 81 replies
from Member States, civil society and NGOs. A summary of the replies has been
published on the website of the Commission. http://ec.europa.eu/justice/newsroom/criminal/opinion/110614_en.htm. See also Framework Decision 2009/829/JHA of
23 October 2009 on the application of the principle of mutual recognition to
decisions on supervision measures as an alternative to provisional detention
(OJ L 294, 11.11.2009, p. 20).

[17]             COM(2006) 174 final, 26.4.2006.

[18]             See, inter
alia, Case C-301/04 P Commission v SGL Carbon [2006] ECR I-5915; Case T-112/98 Mannesmannröhren-Werke v Commission [2001] ECR II-732.

[19]             See Minelli
v. Switzerland.

[20]             See Allenet
de Ribemont v. France.

[21]             See, inter
alia, ECtHR cases Salabiaku v. France (judgment of 7.10.1988, application
10519/83), Barberà, Messegué and Jabardo v. Spain, Telfner v. Austria (judgment of 20.3.2001, application 33501/96).

[22]             See, inter alia, ECtHR
cases Funke v. France, Murray v. UK, Saunders v. UK, Heaney
and McGuiness v. Ireland (judgment of 21.12.2000, application 34720/97), Jalloh
v. Germany (judgment of 11.7.2006, application 54810/00).

[23]             See Heaney
and McGuiness v. Ireland, paragraphs 55 and 58.

[24]             See
Allan v. UK (judgment of 5.11.1992, application 48539/99, paragraph 50).

[25]             See Allan
v. UK, paragraph 42.

[26]             See
Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ L 81,
27.3.2009, p. 24).

[27]             Colozza
v. Italy.

[28]             See Teteriny
v. Russia (judgment of 30.6.2005, application 11931/03, paragraph 56),
Jeličić
v. Bosnia and Herzegovina (judgment of 31.10.2006, application
41183/02, paragraph 53), and Mehmet
and Suna Yiğit v. Turkey (judgment of 17.7.2007, application 52658/99,
paragraph 47), Salduz v Turkey, paragraph 72.

[29]             OJ C , , p. .

[30]             OJ C , , p. .

[31]             OJ C 115, 4.5.2010, p. 1.

[32]             Directive
2010/64/EU of the European Parliament and of the Council of 20 October 2010 on
the right to interpretation and translation in criminal proceedings (OJ L 280,
26.10.2010, p. 1).

[33]             Directive
2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the
right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1).

[34]             Directive
2013/48/EU of the European Parliament and of the Council of 22 October 2013 on
the right of access to a lawyer in criminal proceedings and in European arrest
warrant proceedings, and on the right to have a third party informed upon
deprivation of liberty and to communicate with third persons and with consular
authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1).

[35]             The final wording of this
recital in the Directive will depend on the position of the United Kingdom and Ireland taken in accordance with the provisions of protocol (No 21).