TABLE OF CONTENTS

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT......................... 6

1........... Introduction.................................................................................................................... 6

2........... Policy context................................................................................................................. 9

3........... Procedure and consultation of interested parties............................................................. 10

3.1........ Consultation of stakeholders and civil society................................................................. 10

3.2........ Studies and publications................................................................................................ 11

3.3........ Internal consultation, scrutiny of the impact assessment.................................................. 12

4........... Problem definition......................................................................................................... 13

4.1........ The general problems and their causes........................................................................... 13

4.1.1..... Insufficient protection of fundamental rights of suspected and accused persons............... 13

4.1.2..... Insufficient levels of mutual trust between Member States as a result of deficient protection of presumption of innocence..................................................................................................................... 16

4.2........ The specific problems................................................................................................... 19

4.2.1..... Non-respect of the right not to be presented as guilty by authorities before final conviction 19

4.2.2..... Non-respect of the principle that the burden of proof is on the prosecution and of the right of the accused to benefit from any doubt ("in dubio pro reo" principle)................................................................. 21

4.2.3..... Insufficient protection of the right not to incriminate oneself, the right not to co-operate and the right to remain silent.................................................................................................................................... 23

4.2.4..... Negative effects of decisions rendered in the absence of the person concerned at the trial ('in absentia') 25

4.3........ The scope of the problem............................................................................................. 27

4.4........ Baseline scenario: how would the problem evolve all things being equal?........................ 28

4.5........ Does the EU have power to act?................................................................................... 29

4.5.1..... Legal basis................................................................................................................... 29

4.5.2..... Subsidiarity: Why the EU is better placed to take action than Member States................. 29

5........... Objectives.................................................................................................................... 30

6........... Policy options............................................................................................................... 31

6.1........ Overview of policy options........................................................................................... 31

6.2........ Detailed description of the options................................................................................. 34

7........... Impact analysis of policy options................................................................................... 39

7.1........ Policy option 1 - Status quo.......................................................................................... 39

7.2........ Policy option 2 - Non-legislative action......................................................................... 40

7.3........ Policy option 3(a) - Legislative action............................................................................ 40

7.4........ Policy option 3(b) - Legislative option........................................................................... 43

8........... Comparative assessment............................................................................................... 45

9........... The preferred option..................................................................................................... 46

10......... Transposition, monitoring and evaluation........................................................................ 52

ANNEX I Summary of cited ECtHR case law............................................................................. 54

ANNEX II List of stakeholders consulted - on-line survey on presumption of innocence............... 62

Annex III Overview of the responses to the survey questionnaire.................................................. 64

ANNEX IV List of ECtHR cases in which EU Member States have been found in violation of presumption of innocence, between 1.1.2007 and 31.12.2012............................................................................................. 68

ANNEX V Legal situation in the Member States regarding presumption of innocence ('PoI')........ 69

ANNEX VII Examples of when lack of mutual trust can hinder judicial cooperation..................... 93

ANNEX VIII Glossary of main legal terms used.......................................................................... 96

Executive summary sheet

Impact assessment accompanying the Proposal for measures on the strengthening of the presumption of innocence in criminal proceedings

A. Need for action

Why? What is the problem being addressed?

There is insufficient protection of certain aspects of the principle of presumption of innocence of suspects and accused persons in the EU. This affects these persons' fundamental rights and their right to a fair trial, thus undermining mutual trust between judicial authorities which in turn hampers mutual recognition of judgements in criminal matters. The recognition and protection of presumption of innocence in the Charter of Fundamental Rights of the European Union ('the Charter') and in the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR') have not prevented Member States from repeatedly violating this principle, in spite of the fact that level of safeguards in national legislation is, in general, acceptable. This allows the conclusion that the protection currently offered by the Charter and the ECHR is not enough to ensure that presumption of innocence is respected by EU Member States. Every suspect or accused person in criminal proceedings in any EU Member State may be affected.

What is this initiative expected to achieve?

The proposed measure aims ensuring that every suspect or accused person is presumed innocent in accordance with the Charter and the ECHR. This will lead to a higher mutual trust between the judicial authorities on which the European area of justice is built. It will set minimum standards of certain aspects of the right to be presumed innocent and furthermore, taking in due consideration the principles of subsidiarity and proportionality, appropriate remedies in case of breach.

What is the value added of action at the EU level?

The protection of the principle of presumption of innocence by the European Court of Human Rights ('the ECtHR') has not resulted in sufficient protection of suspects or accused persons in the EU. EU action would ensure the existence of common minimum standards and their effective protection in all EU Member States. In addition, the full panoply of redress mechanisms according to the Treaty (such as the duty to transpose directives; implementation monitoring by the Commission and the possibility of references for preliminary rulings) will be available to make sure that there was compliance with the right to be presumed innocent in criminal procedure contained in EU legislation.

B. Solutions

What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why?

Status quo and non-legislative option have been considered but would not match the objectives. The latter encompasses awareness raising, drafting of guidelines, training, monitoring and evaluation systems and sharing of best practice (option 2). It could be implemented on its own or complement legislative options. Two legislative options were considered. Firstly, a Directive setting minimum standards in line with ECtHR jurisprudence completed by effective remedies in case of breach, for the following aspects of presumption of innocence: (1) right not to be pronounced guilty by the authorities before a final judgement; (2) burden of proof is on the prosecution (with certain limited exceptions) and any reasonable doubt benefits the accused; (3) right not to incriminate oneself, including the right not to cooperate and the right to remain silent (with certain well defined limited exceptions); (4) right to be present at one’s trial (with certain limited exceptions) (option 3(a)). Secondly, a Directive going beyond ECtHR standards of protection, with even more limited exceptions or no exceptions at all (option 3(b)).The preferred option is a combination of parts of options 2, 3(a) and 3(b). The preferred option fully respects the principles of subsidiarity and proportionality by proposing a differentiated level of EU intervention for each aspect of presumption of innocence, depending on several factors: (i) impact on the smooth functioning of mutual recognition instruments: particular attention should be given to those aspects which create concrete and tangible rights for the citizens – rather than general principles of procedural criminal law; (ii) stronger EU intervention is required for aspects which are not adequately protected by national laws and where problems go beyond the practical application of these laws, and (iii) stronger EU intervention is required for those aspects where ECtHR jurisprudence does not provide a standard which is sufficiently high in a common area of criminal justice (right to silence). The preferred option is as follows: for the first two aspects of presumption of innocence, it is part of option 3(a) (codification of ECHR standard, but no specific remedy in case of breach); the preferred option for the third aspect is a combination of options 3(a) and 3(b) since a specific remedy is justified (inadmissibility of evidence obtained in breach of this right) and furthermore no inferences from the exercise of these rights should be allowed; for the fourth aspect, option 3(a), including a specific remedy in case of breach, is justified. Implementation would be supported by horizontal measures on monitoring, evaluation and training (parts of option 2).

Who supports which option?

Some Member States (Ministries of Justice) are in favour of maintaining status quo (arguing that the ECtHR and its jurisprudence are sufficient and that their legislation already complies with the ECHR). Some others (DE, FR, IT, SI) are in favour of EU action if it proves necessary. Some stakeholders (defence lawyers, Bar Associations and academics) argue in favour of either non-legislative option or legislative option 3(a) or their combination, as they claim that the current situation is not satisfactory and since the strengthening of the principle is needed to promote mutual trust. Some individual stakeholders (defence lawyers, NGOs) support rather far-reaching option 3(b).

C. Impacts of the preferred option

What are the benefits of the preferred option (if any, otherwise main ones)?

There would be significant benefits by reducing the number of miscarriages of justice, thus promoting mutual trust of judicial authorities by increased clarification of Article 48 of the Charter. In the long term, the already limited financial impact estimated below should gradually tend to further reduce as the right to be presumed innocent should be more respected, and thus remedies for its breach would be less used. In addition, legislative options would bring overall reductions in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects’ fair trial rights resulting from an insufficient protection of the right to be presumed innocent.

What are the costs of the preferred option (if any, otherwise main ones)?

Given the lack of reliable data available figures are provided tentatively. In the most likely scenario, the costs of prohibiting inferences to be drawn from silence would be of 27 million euros per annum for 9 Member States altogether; for non-admissibility of use of evidence obtained in breach of the right not to cooperate, the estimated cost is between 7.500 and 75.000 euros per annum for 12 Member States altogether; for the right to be present at trial, the estimated costs are 523.00 euros per annum for 4 Member States altogether. An additional estimated amount of 1,3 million euros per annum is excepted, resulting from the monitoring system and reporting obligations to be fulfilled by Member States. No costs arise as regards the two first aspects of presumption of innocence.

How will businesses, SMEs and micro-enterprises be affected?

No direct or particular impact for businesses, SMEs and micro-enterprises is expected.

Will there be significant impacts on national budgets and administrations?

Non legislative action would lead to some financial costs that would be borne by national budgets of the Member States, except for a small part borne by the European Commission. In legislative options, the limited financial costs would be borne by budgets of the Member States.

Will there be other significant impacts?

For option 3(a) only minor legislative changes would be needed as some Member States would have to put in place more effective remedies in cases of breach of the rights already established in their legislation. Mainly the practical implementation and application of these rights will have to be ensured by the Member States. For option 3(b) more significant legislative changes would be needed.

D. Follow up

When will the policy be reviewed?

Specific empirical studies with an emphasis on data collection 3-5 years into the implementation of the initiative, to gain in-depth quantitative and qualitative insights into its effectiveness.

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the document

Proposal for measures

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

1. Introduction

This impact assessment is for a measure on certain aspects of the right of suspects or accused persons[1] in criminal procedure to be presumed innocent until guilt has been legally established, in particular on the right not to incriminate oneself, including the right not to cooperate and the right to remain silent, and on the right to be present at trial[2]. The proposed measure aims at requiring the relevant authorities in the Member States to give the suspect or accused person enough procedural safeguards to exercise these rights effectively in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. This will strengthen the right to a fair trial in the EU and ensure that the rights in other directives strengthening procedural rights will be effective. This will also, by benefiting the overall quality of justice in the EU, improve the mutual trust between Member States’ judicial authorities and thus facilitate a better functioning of existing EU legal instruments on judicial cooperation and on mutual recognition of judicial decisions in criminal matters between the Member States.

The presumption of innocence is a fundamental principle of human rights law broadly recognised, which lies at the heart of the notion of a fair procedure. It means that defendants are deemed innocent until proven guilty by court in a final judgment. Nevertheless, recent evidence[3] shows that this principle is not always respected in practice.

The principle of presumption of innocence is enshrined in all major international and regional instruments of human rights and fundamental freedoms: in Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR')[4], in Article 48 of the Charter of Fundamental Rights of the European Union ('the Charter') as well as in Article 11(1) of the Universal Declaration of Human Rights[5]. It is also enshrined in the constitutions of the Member States, complemented by extensive jurisprudence, although in some Member States no detailed laws exist[6].

Presumption of innocence is one of the components of the right to a fair trial. It is a very broad principle and guidance on what precisely legally constitutes its content can be found in the case law of the European Court of Human Rights ('the ECtHR') which clearly set out 3 key requirements of this principle[7]:

– Public authorities including judicial authorities must not presume that the accused has committed the offence he is charged with;

– the burden of proof is on the prosecution and any doubt must benefit the accused (in dubio pro reo), and

– the prosecution must inform the suspect or accused of the case against him so that he may prepare and present his defence accordingly – this right has already been covered by Directive 2012/13/EU on the right to information in criminal proceedings and will therefore not be treated in this impact assessment.

The ECtHR has also expressly stated in its case law the existence of a clear link between presumption of innocence and other fair trial rights, in the sense that when such rights are breached 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 - the prosecution in a criminal case must seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused, and in this sense this right is linked to presumption of innocence[8];

– the right to be released pending trial[9] - Member States' rules on the right to be released pending trial / pre-trial detention do have an impact on the respect of presumption of innocence. However, pre-trial detention is already the subject of separate initiatives[10] and is therefore not covered by this impact assessment.

The right to be present at trial is also closely connected with presumption of innocence. As mentioned above, one of the key requirements of presumption of innocence is, as set out by the ECtHR, the right of the suspect or accused to be informed of the case against him; consequently, 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 right to be informed of the case[11]. If a suspect or accused is not given the opportunity to be present at trial because he was not informed of it, it is his right to be informed of the case that is also at stake and thus his presumption of innocence.

Some Member States argued during the experts meeting referred to in point 3.1 that 'in absentia' decisions are not linked to presumption of innocence. Such position is due to the fact that the ECtHR has not expressly treated 'in absentia' decisions as linked to presumption of innocence but rather to the general right to a fair trial of Article 6(1)[12]. However, the link with the right to be informed of the accusation and thus to presumption of innocence is undeniable.

In conclusion the following four aspects will therefore be treated in this impact assessment: · the right not to be presented as guilty by the authorities before final conviction; · the burden of proof is on the prosecution and the suspect or accused benefits from any doubt (in dubio pro reo); · the right not to incriminate oneself, the right not to co-operate and the right to remain silent; · the right to be present at one’s trial. The right to information, and the right to be released pending trial will not be treated, as initiatives to protect these rights have already been taken. Each of the four aspects that will be examined in this impact assessment includes an important number of sub-issues (content of the right, exceptions, remedies) which do not all have the same importance in the context of the smooth functioning of EU mutual recognition instruments. This impact assessment will therefore, for reasons of proportionality and subsidiarity, concentrate on those sub-issues which are directly linked and are indispensable to the good functioning of these instruments. Moreover, for the same reasons, particular relevance will be given to those aspects which are not sufficiently covered by domestic law.

The existing principles established by case law of the ECtHR have proved not to be sufficient to achieve the necessary level of mutual trust between EU Member States required for the smooth functioning of the area of freedom, security and justice. In fact, in practice there still exist considerable shortcomings in the protection of this principle throughout the EU.

Presumption of innocence is overarching and complementary to other procedural rights. It is interconnected with and inseparable from other fair trial rights enshrined in Article 47 of the Charter and in Article 6(1) of the ECHR. Given the close link between those rights guaranteed by Article 6(1) of the ECHR and presumption of innocence, the ECtHR has even concluded that because there was a violation of Article 6(1), presumption of innocence was also breached[13].

The right to be presumed innocent might be interpreted in different ways with respect to natural and legal persons, in the light of the different needs and degrees of protection, as recognised in the case law of the Court of Justice[14]. As case law on the current applicable standards is more developed in relation to natural persons than in relation to legal persons, it is not possible, at this stage, to propose common minimum requirements on the right to be presumed innocent for legal persons. This impact assessment therefore only deals with presumption of innocence as regards natural persons.

This is in line with the "step-by-step" approach of EU intervention in the area of procedural rights in criminal procedure and the need for proportionate action. The need for future action in this field will be considered depending on the evolution of national legislation and of the case law.

2. Policy context

The idea of justice is at the very heart of any democratic society. Approximation of fair trial standards across the EU will raise the awareness and confidence of citizens that their right to a fair trial is guaranteed throughout the EU - including when they exercise their right to free movement within a Union without internal borders - and by this it will address the issue of citizens' and national judicial authorities' lacking trust in the fair operation of another Member State's justice system.

Member States have agreed that 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 and accused persons are not respected in every instance has a disproportionately detrimental effect on mutual trust and, in turn, on judicial cooperation[15]. Thus, Article 82 of the Treaty on the Functioning of the European Union (TFEU) states that the principle of mutual recognition of judgements and judicial decisions should be facilitated by means of minimum rules on procedural rights.

In this context, the Stockholm Program[16] 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 six proposals contained in the Roadmap on Procedural Rights adopted under Swedish Presidency ("the Roadmap")[17], setting out a step by step approach to strengthening the rights of suspects and accused persons, the work on which is well advanced[18]. It was following the proposals of the Commission that a Directive on the right to interpretation and translation, a Directive on the right to information in criminal proceedings and a Directive on access to a lawyer in criminal proceedings have been adopted. On the side of strengthening victims' rights a Directive has also been adopted following a Commission proposal[19].

The purpose of the whole exercise of the Roadmap is to ensure the right to a fair trial. Presumption of innocence, together with its related rights, is part of that right. Various rights of suspects or accused persons in criminal proceedings established by the EU Directives over the past few years, such as right to interpretation and translation, right to information and right to access to a lawyer are not objectives themselves. They have a wider aim; they are rather tools to materialize the principle of the right to a fair trial. In case of persistent breach of the principle of presumption of innocence in the Member States, the overarching objectives of the measures already adopted under the Roadmap, including its key instrument which is the Directive on the right to access to a lawyer, would not be fully achieved.

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

Once all envisaged initiatives on procedural rights in criminal proceedings are implemented, an environment of deeper mutual trust between judicial authorities will be in place.

3. Procedure and consultation of interested parties

3.1 Consultation of stakeholders and civil society

Stakeholders were consulted on several occasions.

In 2006 the Commission published a Green Paper on the presumption of innocence, indicating what this principle covers, in line with the ECtHR case law[20]. At that time, 11 Member States replied to the consultation and, in general terms, were in favour of an EU initiative which takes into account what is really needed to reinforce the principle in practice. Independent experts and practitioners took the 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.

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

In the meeting of the Expert Group on EU Criminal Policy of 23 January 2013, the Commission had the opportunity to gather views from academics, practitioners, judges, defence lawyers and prosecutors.

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

Member States were also directly consulted during the preparation of the external study referred to in point 3.2 below. However, it is not possible to say at this stage what the position of each individual Member States is. The result of such consultation and also of the Meeting on 19 February 2013 is that there is not an agreed official position yet, which depends on the concrete aspects of presumption of innocence covered by a possible proposal. Throughout this impact assessment the probable position of Member States has been inserted where possible.

An on-line survey was launched on 27 February 2013, published on the DG Justice website and included in the external study referred to in point 3.2 below. All major stakeholders were informed about this survey via e-mail[21]. The survey focused not only on the legal situation, but also on the functioning of the principle of presumption of innocence in practice. There was a total of 102 responses to the survey. It is not possible to know exactly from which 'category' of participant each response came from (lawyers, judges, prosecutors, NGOs, academics, etc.) because in some cases such information was not made available. However, the majority of responses came from lawyers or bar associations (around 70%). Three responses were also received from 'academics' and the other responses were from 'individuals'. An overview of the responses is available in Annex III.

Some Member States representatives and some other stakeholders (NGOs, lawyers, judges, prosecutors) have also taken part in workshops organized in five different Member States in the framework of the study referred to in point 3.2 below.

Given these different consultations, a formal open public consultation did not take place.

3.2 Studies and publications

This impact assessment relies on a number of studies and reports carried out from 2004 till the present date:

– An external "Study of financial and other impacts for an Impact Assessment of a Measure Covering the Right to be Presumed Innocent for Suspected or Accused Persons in Criminal Proceedings" carried out by the CSES ("Centre for Strategy and Evaluation Services") (hereafter the "CSES study");

– "Final Report – Towards a common evaluation framework to assess mutual trust in the field of EU judicial cooperation in criminal matters" – P. Albers, P. Beauvais, J.-F. Bohnert, M. Böse, P. Langbroek, A. Renier and T. Wahl, March 2013. This report presents a pilot project carried out in France, Germany and the Netherlands on the functioning of the European Arrest Warrant (hereinafter, 'EAW') system, including an analysis of the aspect of mutual trust between judicial authorities.

– A report presented in October 2012 by Fair Trials International on "Defence Rights in the EU"[22], based on an EU wide survey of lawyers and NGOs on the real barriers to a fair trial; it provides with a picture of the state of fair trial violations, including presumption of innocence.

– A report published by JUSTICE on ‘European Arrest Warrants – ensuring an effective defence’, 2012[23];

– "Effective Criminal Defence in Europe"[24], a comprehensive review of procedural rights in the EU, including the presumption of innocence, focusing on the situation in 8 Member States (and also in Turkey);

– "Effective Criminal Defence in Eastern Europe"[25], a study on procedural rights (including presumption of innocence) focusing on the situation in Eastern European countries, including Bulgaria and Lithuania;

– "Analysis of the future of mutual recognition in criminal matters in the European Union", an external study on Analysis of the future of mutual recognition in criminal matters in the EU finalised in 2008 conducted by the ULB (Université Libre de Bruxelles) and ECLAN (European Criminal Law Academic Network)[26];

– "Study of the laws of evidence in criminal proceedings throughout the European Union", The Law Society, 2004;

– On-going study "Inside Police Custody - an empirical Account of Suspects' Rights in Four Jurisdictions”, Maastricht University, University of the West of England, University of Warwick (co-financed by the Commission under the JPEN Program).

3.3 Internal consultation, scrutiny of the impact assessment

An Inter-service Impact Assessment Steering Group was created involving representatives from DGs COMP, EEAS, ENTR, ELARG, OLAF, HOME, CNECT, EMPL, REGIO, TRADE, HR / IDOC, the Legal Service and the Secretariat-General. The first meeting was held on 15 January 2013, the second meeting on 30 April 2013 and the final meeting was held on 30 May 2013. At those meetings and in subsequent communication with individual DGs, comprehensive feedback was received which has been taken into account throughout this report.

The European Commission's Impact Assessment Board (IAB) examined this report on 3 July 2013 and issued an opinion on 5 July 2013, in which it was requested to resubmit the report to the IAB, together with a number of suggested improvements to the same report.

A revised report, submitted to the IAB on 31 July 2013, took on board the recommendations of the IAB and introduced the following main modifications and clarifications:

- Clarification of what the different aspects of presumption of innocence are and how they have been chosen to be included in this report;

- Clarification of where the existing problems derive from;

- Explanation on how the non-respect of presumption of innocence by Member States affects mutual trust between judicial authorities and thus the functioning of EU mutual recognition instruments;

- Enhanced attention to subsidiarity and proportionality concerns, by better explaining the added value of the measure and by choosing a preferred option which foresees stronger EU intervention only as regards those procedural rights which: (i) are more related to the proper functioning of mutual recognition instruments; (ii) are not adequately protected at national level by reference to ECtHR case law; (iii) ECtHR case law does not provide for an adequate level of protection.

- Better presentation of the costs, including a presentation of the costs of the preferred option for each Member State, and better explanation of stakeholders' views.

On 6 September 2013 the IAB issued a positive opinion on the revised report, together with some recommendations which are taken into account in the present final version of the report. The main modifications of this version, compared to the one on which the IAB issued its positive opinion, are the following:

- Clarification of the need for action in relation to mutual trust, in particular by further explaining the baseline scenario and, more precisely, the extent to which other initiatives linked to this proposal are not sufficient to address the underlying problems;

- Clarification of the rationale for action in relation to each aspect of presumption of innocence, and of a differentiated approach for action as regards each of those aspects;

- Enhanced explanation on the assumptions underlying expected costs and benefits to national authorities as a result of the present proposal;

- Better indication of the position of relevant stakeholders as regards the initiative.

4. Problem definition

4.1 The general problems and their causes

1. Insufficient protection of fundamental rights of suspected and accused persons as a result of insufficient protection of the principle of presumption of innocence. 2. Insufficient levels of mutual trust between Member States as a result of insufficient protection of fundamental rights, which hampers the smooth functioning of mutual recognition of judgments and judicial decisions and judicial cooperation in criminal matters.

4.1.1 Insufficient protection of fundamental rights of suspected and accused persons

Description of the problem

There is currently no secondary EU law instrument that provides the right for suspected and accused persons to be presumed innocent throughout the entire criminal proceeding. There are, nonetheless, provisions on the presumption of innocence in Member States' constitutions and legal rules, in addition to extensive jurisprudence, which are on the whole more or less precise on the different aspects of the presumption of innocence.

An analysis of the legal situation in the Member States’ regarding protection of the presumption of innocence (Annex V, which contains detailed information on the system of protection of presumption of innocence in each Member State) shows that for some specific problems below, the legal regimes of the Member States appear to comply with the principles set out by the Charter and the ECHR, and it appears that it is the respect of the presumption of innocence in practice which is at stake. For other aspects, however, it is the legal regime itself which is insufficient. Indeed, although the general level of safeguards at national law level is in a general way acceptable, case law of the ECtHR shows that violations of presumption of innocence and its related fair trial rights have steadily taken place regardless of the fact whether these principles and rights are established by domestic law or not. According to the information available at the ECtHR database (Hudoc)[27], between January 2007 and December 2012, the ECtHR held for 26 times that there had been a violation of presumption of innocence under Article 6(2) by EU Member States[28].

It should be underlined that even if this figure already clearly demonstrates on its own the existence of a serious problem, we are strongly convinced that it is only the 'tip of the iceberg' and that violations of presumption of innocence by EU member States are significantly higher. Firstly, this figure only relates to violation of any of the three key requirements of presumption of innocence and does not include violations of other fair trial rights which are closely linked to it under Article 6(1) of the ECHR (such as the right not to incriminate oneself and the right to remain silent)[29]. Secondly, for various reasons (to be further developed hereafter, under the analysis of the causes of the problem) only a small percentage of those cases in which there would be grounds for an appeal to the ECtHR are indeed the subject of an appeal to the Strasbourg Court.

This allows the conclusion that the existence of certain principles established in the Charter and the ECHR and even in national constitutions and legislation, and further developed by the ECtHR and by national courts' case law, appears as insufficient to address, on their own, the shortcomings in the protection of the presumption of innocence. Even if the legal situation is prima facie satisfactory, there are still serious problems which are in general more linked with the operation of the presumption of innocence in practice. This was also confirmed by the field research carried out in the framework of the CSES study, which found that a number of stakeholders (NGOs, lawyers, judges) are aware of shortcomings in the practical observance of the presumption of innocence in other Member States[30].

Moreover, it should be borne in mind that the shortcomings of the protection of presumption of innocence also result in costs for EU Member States due to domestic and ECtHR appeals, re-trials, financial compensation and aborted prosecutions following the breach of the different aspects of this principle. By ensuring that fair trial rights are respected from the outset of proceedings, by enacting common minimum standards, one can avoid costs in the administrative and judicial system, costs which are usually not that visible[31]. By respecting fair trial rights and operating a system where there is trust in the respect of such rights, there are fewer appeals, fewer claims for retrial and one avoids appeals to and condemnations by the ECtHR. By having sufficient safeguards for fair trial rights, one also avoids challenges that obtained evidence is inadmissible. In mutual recognition proceedings, one avoids delays and costs arising therefrom, e.g. costs of providing pre-trial detention in EAW cases, or having more lengthy proceedings and more judicial and legal costs in case of non-consent in EAW cases.

Cause of the problem

This is partially due to the nature of the minimum rights set out in the Charter and the ECHR, which contain very general statements completed by the case law of the ECtHR. The case-law of the ECtHR is extremely linked to factual circumstances of each individual case and to the specificities of the legal system. For this reason, to rely on case law is problematic as it is by its nature piecemeal and reactive and results in very diverging interpretations by Member States. The ECtHR judgements only slowly build up a clear and consistent jurisprudence and may not even be followed by all national courts[32].

The European Criminal Bar Association, for example, has argued that it would be 'dangerous' to rely on ECtHR as the presumption of innocence standard because the perspective of the Court is ex post facto and it will take into account the entirety of the national trial proceedings[33]. There might be a non-violation case although there was a violation of the presumption of innocence in the first instance.

In addition the case law has so far not touched on the precise consequences of a violation of these rights, but has only decided case by case on establishing financial compensation in case of violation.

In several Member States only general and horizontal remedies are foreseen in legislation– in particular the right to appeal or the right to apply for civil law compensation in case of wrongful behaviour by the administration - but not specific remedies linked to the violation of the presumption of innocence and its related fair trial rights. Given the particularly heavy impact of imprisonment on the fundamental rights of the person concerned, this might not be satisfactory.

There are two main differences between a general right to appeal and a right to a retrial:

· as a general rule an appeal is limited to a re-examination of the case by a higher court in terms of questions of law and, contrary to a retrial, no new examination of evidence takes place. In contrast, a retrial means, as defined by the ECtHR, a procedure whereby a fresh determination of the merits of the charges is ensured[34], and this is not possible under the general rules of an appeal.

· an appeal intervenes only ex post, i.e., only after the first judgment has been delivered, which in relation to presumption of innocence means that the accused will only have the right to a fair trial in the higher court, and thus the right to have his case submitted to a double degree of jurisdiction – which is a fundamental general principle of law - does not exist in practice.

Relying on appeal as the only remedy to the breach of presumption of innocence and related fair trial rights affects citizens' fundamental rights, as there is an obvious difference between being in prison awaiting the result of the appeal proceedings and leading a normal life following an acquittal judgement delivered after the court has applied a specific remedy following the breach of presumption of innocence. When the right has been breached it is important to take any appropriate measure before the judgment has been delivered, and this is only possible with specific remedies in each case, such as to nullify the procedural steps taken following the breach of the right, declare evidence obtained in breach of presumption of innocence as non-admissible or, if these possibility are not allowed under national law, at least provide for the possibility of a retrial after the judgment has been passed.

Such shortcomings in the national enforcement systems cannot be compensated by the ECtHR enforcement mechanisms for three main reasons:

· The system of protection granted by the ECtHR is ex-post only. Ensuring justice in individual cases ex-post serves a different purpose from laying down generally applicable rules ex-ante and cannot be said to be equivalent.

· Moreover, the enforcement mechanisms of the ECtHR have not been sufficient to prevent EU Member States from too often violating the ECHR, in spite of the fact that they undertook to abide by the judgments of the ECtHR in any case to which they are parties (Article 46 §1 of the ECHR). Sixty per cent of the cases in which the ECtHR finds violations originate in failures to comply with the ECHR that have already been identified by the Court[35].

· The ECtHR's reluctance to lay down prescriptive requirements in these areas, which can be seen as a rationale for an EU measure. The approach of the ECtHR has not been especially activist in developing detailed and prescriptive rules in the area of Article 6(2) of the ECHR. It has left a margin of flexibility for presumption of innocence and related rights in light of the requirement to balance the fair trial rights of suspects or accused persons with the general public interest, as well as the diverse legal traditions of Member States. The court’s preferred approach is to set out generally expressed principles or minimum standards in its case law, to which contracting states are obliged to adhere pursuant to Article 53 ECHR.

Economic factors, such as the absence of legal aid, are also additional factors which can even more contribute to distort the proportionate relationship between the number of cases brought before the ECtHR and the actual number of cases where violations of presumption of innocence occur but are not brought to the ECtHR.

The insufficient protection of presumption of innocence across Member States is, in conclusion, detrimental to the protection of accused persons' and suspects' fundamental rights and to the general perception EU citizens have of the EU justice standard. A proper exercise of minimum rules at EU level on the various aspects of the presumption of innocence principle is essential in order to secure all other fair trial rights and to reduce the risks of a miscarriage of justice.

4.1.2 Insufficient levels of mutual trust between Member States as a result of deficient protection of presumption of innocence

The European area of justice in criminal matters has been built over the last 10 years on two types of instruments. First, the focus was on mutual recognition instruments, aiming at cross-border law enforcement. In a second stage the focus shifted towards instruments needed to balance the law enforcement aspects and designed to ensure that fair trial rights are preserved for individuals who are subject to intrusive procedures. Thus, from 2009, a number of procedural rights measures to safeguard the procedural rights of persons subject to cross-border investigation measures have been put in place.

It was after the 9/11 terrorist attacks in 2001, that EU action focused on facilitating law enforcement and the fight against crime. A series of instruments with the objective of prosecuting offenders were adopted. The most well-known instrument is the EAW which aims to expeditiously transfer suspects and accused persons between Member States, to ensure that the free movement of citizens across EU borders does not hamper effective cross-border law enforcement. The instrument builds on the assumption that each Member State provides a system of justice which guarantees fair trial rights to a relatively similar degree.

To ensure fast-track and simple procedures for cross-border law enforcement and cooperation, the risk that the fair trial rights will not be respected in the ensuing main criminal proceedings once the suspect has been surrendered to the issuing Member State, does in principle not give the executing Member State a reason to refuse cooperation[36]. There is no express provision in the EAW that the executing Member State can refuse to cooperate because the legislation in the issuing Member State does not respect fair trial rights, for example the right to remain silent, or the right not to incriminate oneself. It should however be noted that in recent years, a number of cases before the Court of Justice has touched upon the issue of whether there is a possibility to refuse to execute a mutual recognition request with reference to the risk of non-respect of fair trial rights in the ensuing criminal proceedings, something which demonstrates that there is an accruing need to foster mutual trust in the EU.

The Melloni case[37] shows that insufficient trust in the standards of protection of the presumption of innocence ('in absentia' judgements, in this case) may delay judicial cooperation (in this case the execution of a European Arrest Warrant). The national court refused the surrender of a person on the ground of different standards of protection in the requesting State. The case arrived at the European Court of Justice, which concluded that the difference in the standard of protection between the issuing and the executing Member State was no reason to refuse the surrender as long as certain minimums standards were respected. As a consequence, the person was surrendered, but only after a serious delay following several court proceedings. Even if in this case the EAW was ultimately executed, it serves to show how lack of mutual trust by Member Stes in one another’s standards can undermine the smooth working of judicial cooperation. The impacts of concerns in undermining mutual trust are illustrated by a recent English Appeal court case of Sofia City Court v Dimintrinka Atanasova-Kalaidzheiva[38]. UK court rejected twice an EAW against the same person on the grounds of abundance of evidence which casts doubts on the independence of the investigative and prosecuting process in Bulgaria. The appeal court doubted that a fair trial was possible in that particular case. If the right of a suspect to be presumed innocent only exists in theory, and is not effectively supported by all the different facets of criminal justice procedure, it will count for little in terms of engendering the necessary level of mutual confidence between Member States' judiciaries.

In addition to the EAW, a number of other measures have been adopted to facilitate cross-border law enforcement in the EU, for example the Convention on mutual assistance in criminal matters between the Member States of the European Union, the Framework Decision on the execution in the European Union of orders freezing property or evidence and the Framework Decision on the mutual recognition of confiscation orders in the European Union. These Decisions allow the authorities in one Member State (the issuing Member State) to ask the authorities in another Member State (the executing Member State) to take intrusive measures with regard to a suspected or accused person. Such measures can for example be collection of evidence e.g. by a house search, telephone tapping, by hearing a person, or freezing a person's asset in a bank account. They operate according to the same logic as the EAW, which means that the assumption is that the request from the executing Member State should be granted and mutually recognised. Hence, when State A (issuing Member State) asks State B (executing Member State) for an investigative measure affecting a person residing in that State for the purposes of conducting a criminal investigation that could lead to a criminal conviction, the State that shall execute the request has no guarantee or opportunity to verify that the underlying proceeding (in State A) respects the right to a fair trial, including the right of the presumption of innocence.[39] There are other EU mutual recognition instruments that are also affected by a lack of common minimum standards; EU instruments that aim to enforce the sentences and sanctions issued in other Member States.

To operate effectively, mutual recognition instruments must operate in a climate of mutual trust. When persons are subject to intrusive measures conducted in another Member State, it must be ensured that the integrity of the criminal procedure and the judicial authorities of that Member State fully respect the basic principles of the presumption of innocence and related rights of these persons, such as their right to remain silent and not to incriminate themselves. In cases of breach, there should be effective remedies to warrant that the position in the trial of the persons is not affected by violations of the principles and that they cannot be found guilty on the basis of evidence obtained on breach of these rights. The insufficient protection of these rights affects mutual trust negatively, something which in its turn undermines the confidence in cross-border instruments such as those referred to above. This is the logic underlying EU action with regard to procedural rights for suspects and accused persons, based on Article 82(2) of the TFEU. Fostering and reinforcing mutual trust by setting common minimum standards with respect to a set of procedural safeguards is indispensable to establish the climate of mutual trust which must underpin the proper working of the current mutual recognition instruments, as well as upcoming mutual recognition instruments such as the European Investigation Order.

Notwithstanding the influence of Article 6 of the ECHR in safeguarding and improving the right to be presumed innocent in Member States, it is clear that there are problems with the operation of the presumption of innocence and its related fair trial rights in practice in the different EU jurisdictions.

There is limited statistical quantifiable evidence on insufficient mutual trust between the Member States. Member States do not collect data on the number of judicial cooperation requests that are challenged or refused. Therefore, it is also difficult to quantify the problem.

Trust is based upon perceptions, and those problems described above consequently affect mutual trust and judicial cooperation. Clearly, any experience of lack of respect, or of poor respect, for human rights in the treatment of a citizen from one Member State in the criminal justice system of another Member State is potentially undermining. In this connection there are indications of judicial unease about divergent standards among Member States, as can be seen, for example, from the evidence of Lord Justice Thomas to the UK parliament’s Scott Baker inquiry concerning EAWs[40]. There are also indications of an absence of trust from other stakeholders, in particular defence lawyers, as demonstrated in the Final Report on a pilot project on the functioning of the EAW system (referred to in point 3.2 of this Impact Assessment), which concludes that 'About the aspects that are considered problematic or very problematic defence lawyers indicated in particular the quality of the judiciary/judges, the available capacity of the justice systems (judges, prosecutors), the right to a fair trial, the quality of legal representation and the conditions of detention'[41]. The right to a fair trial is therefore a concrete concern for stakeholders and plays a vital role in building mutual trust across the EU[42].

It can therefore be said that the lack of adequate protection of presumption of innocence and related fair trial rights also results today in insufficient trust between judicial authorities, which is detrimental to the mutual recognition of judicial decisions and other instances of judicial cooperation between Member States.

In practice, the system of mutual recognition often works sub-optimally as the swift operation is hampered by numerous challenges and appeals, resulting, as already pointed out in section 4.1.1, in additional costs and delays[43], partially due to long to complex and long drawn investigations into the systems of other Member States in such situations. Annex VII contains several examples of cases where insufficient trust in the respect of fair trial rights by another Member State caused such costs and delays. Ultimately this situation prejudices the resolution of a cross-border case for all parties involved, be it the suspected or accused, the victims or the general public.

4.2 The specific problems

As presumption of innocence is a broad principle, the general problem is the consequence of several specific problems. For the reason already set out in the introduction, this impact assessment concentrates on the four following specific aspects of the presumption of innocence and related fair trial rights, the protection of which is not sufficient within the EU.

4.2.1 Non-respect of the right not to be presented as guilty by authorities before final conviction

Public authorities, in particular law enforcement and judicial authorities, sometimes publicly refer to suspects or accused persons, in statements or in official decisions, as if they had been convicted of a crime before a court's final decision has been taken. Such behaviour harms the good reputation of the accused and can influence a jury or judge, who decides the case. Even if the person is acquitted afterwards by the court, he will be labelled as guilty by the general public and his life may be damaged forever, in particular if the case received broad media coverage.

In an important number of judgements, the ECtHR had the opportunity to set out a wide principle on the suspect's right to absence of public pronouncement of guilt before the final trial.

ECtHR principle: A court or public official may not publicly state that the accused is guilty of an offence if he has not been tried and convicted of it[44]. However, the authorities may inform the public of investigations and voice a suspicion of guilt[45], as long as the suspicion is not a declaration of the accused’s guilt[46] and they show discretion and circumspection. It should be noted that the scope of Article 82(2)(b) of the TFEU, referring to rights of individuals in criminal proceedings specifically, is not wide enough to allow an EU initiative to cover all public authorities under this obligation, but should be restricted to those who are directly involved in the proceedings, i.e. judicial authorities. This initiative will therefore only treat this aspect.

This principle derives from the general principle of presumption of innocence. It is protected by law at national level in all Member States, often by the constitution, even though not specifically laid down in the legislation of several of them (see table in Annex V, with an overview of the legal situation in the Member States regarding presumption of innocence). However, even in the latter cases it enjoys an implicit protection under the Member States’ case law or constitutional or criminal procedure provisions safeguarding the general principle of presumption of innocence.

As regards the remedies available, the ECtHR has not referred to any general principles or rules and has only decided case by case on financial compensation. Only 5 Member States have special rules for right of recourse (AT, FI, LT, PL, SE), whereas most Member States do not have specific remedies[47]. In the absence of such a specific remedy, some form of redress (such as appeal or financial compensation) is nevertheless available in all Member States. This is commonly because a public reference to guilt will constitute a violation of the suspect's right to be presumed innocent as set out in national law and Article 6(2) ECHR, or be a violation of the general procedural rights of the suspects or the general procedural duties of the court.

Despite established principles and general remedies throughout the EU, the right not to be referred to as guilty by judicial authorities is still breached within the EU. In spite of several benchmark cases in the 1990s' and early 2000, such as Allenet de Ribemont v. France, Daktaras v. Lithuania[48], Butkevicius v. Lithuania[49], several EU Member States have more recently been found in violation of this aspect of presumption of innocence (e.g. Pandy v. Belgium[50], Tendam v. Spain[51], Diacenco v. Romania[52], Poncelet v. Belgium[53], Lagardère v. France[54]).

Example:

In the ECtHR case Pandy v. Belgium[55], an investigating judge had referred to an accused of murder, in a public hearing, by comparing him to notorious serial killers. Such statements were reproduced in several articles in the press. The ECtHR found there had been a violation of presumption of innocence given that such statements involved a declaration of the accused's guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority.

In the ECtHR case Garlicki v. Poland[56] the facts were that a doctor specialising in cardiac surgery was arrested in the hospital where he was about to start a cardiac surgery by a dozen masked and armed officers of the Central Anti-Corruption Bureau (CAB). He was accused of medical negligence, harassment and receiving bribes from his patients. During a press conference, the head of the CAB referred to the defendant in the following terms: 'he is a ruthless and cynical bribe-taker. We have knowledge of several dozen bribes accepted by this doctor.' Furthermore, the Minister of justice made comments about the defendant that were deemed by the president of the constitutional court to have breached the constitution. The ECtHR recalled that this is a clear violation of presumption of innocence. However, in this case the court did not uphold the violation as all domestic routes for remedies were not exhausted.

Stakeholders have also confirmed the insufficient protection of this right in practice. Lawyers in Latvia mention that judges often openly express their attitude to the defendant in public, before the judgement[57]; lawyers in Spain refer that the main barriers to a fair trial as the absence of a real presumption of innocence and the breach of procedural safeguards[58]; discussions with stakeholders (lawyers and NGOs) in the frame of the CSES study for this impact assessment have highlighted that at least in the Netherlands, France and Poland, there are relatively regular breaches of the right not to be referred to as guilty by public officials (as opposed to judicial officials).

In conclusion, despite sufficient protection by means of adequate legal standards and general remedies in the EU Member States, a lack of respect of this aspect of presumption of innocence can still be observed in practice.

4.2.2 Non-respect of the principle that the burden of proof is on the prosecution and of the right of the accused to benefit from any doubt ("in dubio pro reo" principle)

Presumption of innocence presupposes that the burden of proof is on the prosecution, although it is admitted that in specific and limited cases it can be shifted to the defence. . Moreover, it also presupposes that any doubt on the guilt should benefit the suspect or accused person ('in dubio pro reo').

ECtHR principle: The members of a court should not start with the preconceived idea that the accused has committed the offence charged. The burden of proof is on the prosecution, and any doubt should benefit the accused (‘in dubio pro reo’)[59]. A court’s judgment must be based on evidence as put before it and not on mere allegations or assumptions[60].

The principle that the prosecution bears the burden of proof is however not absolute. In certain circumstances the suspect or accused may be required to bear a part of the burden of proof, e.g. to prove exculpatory circumstances in order to avoid being found guilty. In the case of Salabiaku v. France[61] , the Strasbourg court found that there was no Article 6(2) objection per se to the imposition of ‘strict liability’ in criminal proceedings for a customs offense (meaning that proof of certain objective facts alone is sufficient to prove guilt). However, it stressed that this should be applied “within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence”, in other words a presumption should be rebuttable (i.e., there should always exist a possibility to contradict a presumption of guilt) and a test of proportionality will apply in order to assess if such derogation to the general rule on the burden of proof is justified. One consideration would be the seriousness of the offence in question.

Furthermore, the principle that the burden of proof is on the prosecution is without prejudice to the power of initiative of the judicial authorities in the proceedings, for example as regards requesting new evidence to be produced.

Although theoretically one can put into question the fact that there are exceptions to the general rule, the standard set by the ECtHR is generally accepted as striking a correct balance between the public interest (the needs of prosecution) and the right of defence.

The ECHR principles seem to be rather well respected in the Member States' constitutions and legislations, in particular in the rather complex regulation of the admissibility of evidence in criminal proceedings and there is evidence that ECtHR case law is at the origin of national legislation or jurisprudence[62]. At least 13 Member States expressly admit the possibility of a shift of the burden of proof in some circumstances, but only in very limited cases can such shift of the burden of proof be questionable as regards compliance to the said ECtHR principles. In the Netherlands, e.g., as regards driving offences, an automatic presumption exists that the registered owner of the car has committed the offence, but this presumption is not rebuttable (contrary to the ECtHR case law) - the registered owner of a car is therefore not even allowed to produce evidence to prove his innocence and might consequently be convicted of a crime he has not committed.

As regards remedies, the situation also seems, as whole, satisfactory. In a minority of Member States the suspected or accused person whose right was breached can rely on a specific remedy leading to the nullity of the procedure, and in other Member States defendants can rely on the general remedies, such as to introduce an appeal (see table in Annex V, with an overview of the legal situation in the Member States regarding presumption of innocence).

There are however regularly cases of breach of this aspect of the presumption of innocence in the EU.

Example: A case widely commented on the press was the case of Mr Thomas Quick, in Sweden[63]. Mr Quick was the suspect in a case. He was accused of murdering 8 (or more) persons. He ‘confessed’ to his guilt and was duly convicted. Two years ago evidence came to light proving Mr Quick was in fact not guilty. The prosecutors, it transpired, had not made sufficient efforts to find all relevant evidence in the case. Instead, they only relied on the (false) guilt confession of Mr Quick, who was insane. This shows that the principle that the burden of proof lies on the prosecution and that reasonable doubts should benefit the accused was not respected.

Stakeholders have confirmed the insufficient protection of this right in practice. In Germany, NGOs criticise the fact that there is often pressure placed on suspects by the police to negotiate a plea bargain, which in practice undermines the principle that the burden of proof is on the prosecution[64]. In Hungary, practitioners indicate that court decisions ordering pre-trial detention often imply the Court's firm conviction about the suspect or accused; acquitting decisions seem to have to be substantiated in much more detail than convictions[65]; a significantly larger proportion of acquitting first instance decisions are quashed than convictions. In Bulgaria while the law provides clear and strong guarantees for the presumption of innocence, lawyers and some judges interviewed expressed concerns with an apparent accusatorial bias in the courts. They gave examples of individual cases where, in their view, a guilty verdict was delivered and eventually became effective even though insufficient evidence was presented to justify this[66].

In conclusion, despite sufficient protection by means of adequate legal standards and general remedies in the EU Member States, which seem to be in conformity with the ECtHR principles, a breach of this aspect of presumption of innocence still occurs too often in practice.

4.2.3 Insufficient protection of the right not to incriminate oneself, the right not to co-operate and the right to remain silent

Although not explicitly included in the ECHR, the ECtHR has recognised that the right not to incriminate oneself, the right not to co-operate and the right to remain silent are "generally recognised international standards which lie at the heart of the notion of a fair procedure"[67]. Without these immunities, the person could be improperly forced to produce evidence, and hence the principle that the burden of proof is on the prosecution would not be respected. By forcing someone to confess a crime, a suspect or accused might be found guilty of a crime he has simply not committed, or by forcing someone to confess a certain version of the facts under investigation, exculpatory circumstances might not be taken into account.

These principles have been clearly set out in the case law of the ECtHR.

ECtHR principle: The presumption of innocence includes the right not to be compelled to testify against oneself and not to confess guilt, the right not to cooperate and the right to remain silent. The rationale of these rights 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[68].

The ECtHR accepts, however, that in certain limited circumstances neither drawing adverse inferences from a person’s silence nor compelling the defendant to give evidence existing independently of the will of the accused necessarily infringes the presumption of innocence. In both situations, factors to which the Strasbourg court will have regard in determining whether there has been a violation include the nature and degree of compulsion, the weight of the public interest in the investigation and punishment of the offence at issue, the existence of any relevant safeguards in contracting states’ law and the use of the material so obtained in subsequent proceedings[69]. As a consequence, the privilege does not extend to material which may be obtained from the accused through the use of compulsory powers but which exists independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing[70].

The exceptions to these principles as established by the ECtHR are often put into question by stakeholders, in particular defence lawyers and NGOs as regards inferences being drawn from the exercise of these rights. They opine[71] that the suspect and accused's right to silence should be absolute and unqualified. They claim that, derived from the right to human dignity, this right would be illusory if the accused had to fear that his silence will be used against him later in the criminal proceedings.

On the other hand, it is generally accepted that the use of compulsory powers in obtaining evidence which exists independently of the will of the accused does not infringe the presumption of innocence and is justified by the public interests of prosecuting crime, as long as it does not violate other rights such as the prohibition of torture of Article 3 of the ECHR.

The ECHR principles are generally enshrined in the Member States' constitutions and legislation. There are, however, variations among EU jurisdictions as regards the nature and the scope of the circumstances in which the law permits inferences to be drawn, from relatively wide to more limited[72]. In some Member States, refusal to co-operate with the prosecution can lead to adverse inferences and / or be taken as incriminatory evidence (in Belgium, Cyprus, Finland France the UK, Ireland, Latvia, the Netherlands or in Sweden) - see table in Annex V, with an overview of the legal situation in the Member States regarding presumption of innocence.

As results from the same table in Annex V, there is also a lack of effective and specific remedies for breaches of the right to remain silent and right not to cooperate in some Member States (BE, BG, CY, EE, ES, HR, IE, LT, LV, NL, PL, UK, SE). For the right to silence, remedies are available during the trial proceedings in some EU jurisdictions (e.g., evidence can be declared inadmissible or the case can be dismissed), which is the most efficient way to recover the breach; whereas in a majority of Member States the remedy, often in form of a general right of appeal, is only available after the judgement of the first instance trial. An appropriate specific remedy could indeed be, e.g., a provision by which an unfairly obtained statement should be excluded from the evidence to be assessed by the court[73]. The principle of free evaluation of evidence by the Court, which is a principle generally recognized in all EU Member States, should not mean an absolute principle of free admissibility of all available evidence and should nevertheless allow excluding from the case evidence obtained in violation of fundamental rights, which seems to be in terms of legal certainty the correct means to ensure that the judge is not influenced by such evidence when taking the final decision.

Furthermore, there is clear evidence of breaches in practice of the right not to incriminate oneself, the right not to cooperate and the right to remain silent in Member States, as several times pointed out by the ECtHR.

Example: When Mr Jalloh[74] was going to be arrested in Germany on the street under suspicion of being a drug dealer, he swallowed a little bag believed to contain drugs. The public prosecutor ordered that emetics be administered to Mr Jalloh by a doctor in order to provoke the regurgitation of the bag. He was taken to a hospital and, given that he refused to take the medication necessary to provoke vomiting, he was held down and immobilised by four police officers. The doctor then forcibly administered to him a salt solution and an emetic through a tube introduced into his stomach through the nose. In addition, the doctor injected him with apomorphine, another emetic that is a derivative of morphine. As a result, the applicant regurgitated one little bag containing 0.2182 grams of cocaine. Besides concluding that Mr Jalloh had been subjected to inhuman and degrading treatment contrary to Article 3 of the ECHR (on prohibition of torture), the ECtHR also held that allowing the use at Mr Jalloh's trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.

Stakeholders have also confirmed the insufficient protection of the right to silence in practice, e.g. where police authorities suggest to suspects or accused that if they exercise their right to silence the courts will draw adverse inferences from this and/or they are more likely to be detained before trial proceedings (lawyers from EE and IT). Improper pressure is often used in order to convince the suspect or accused to cooperate. E.g. practitioners in Austria have mentioned cases where a person is informed about the right to remain silent, but at the same time is advised not to use it as it could be seen as an aggravating circumstance in the criminal proceedings. In the Netherlands police often seek to undermine a decision of the suspect to use his right to remain silent[75].

To summarise the above: First, the protection of these rights in domestic law of Member States is not sufficient given that inferences are drawn from the silence, i.e., exercising the right to silence can in certain circumstances be used as incriminatory evidence. Second, in some EU Member States there are no specific remedies available for breaches of these rights and the only available remedy is the right to appeal, which in this case is not satisfactory, as a general right to appeal does not exclude from the file such illegally obtained evidence, which does not prevent the Court to be influenced by it. Third, breaches of the right can often be seen in practice.

4.2.4 Negative effects of decisions rendered in the absence of the person concerned at the trial ('in absentia')

If a person is not present during the hearing, it is his right of defence that is at stake. The defendant will in that case neither be able to give his version of the facts to the Court, nor will be able to present evidence accordingly, and might therefore be found guilty without enough grounds for such a conviction.

ECtHR principle: The right to be present at the trial is linked to the right to be informed of the accusation, so that the accused may prepare and present his/her defence accordingly.

A trial 'in absentia' is compatible with the ECHR as long as the accused, if he has not waived his right to present, may subsequently obtain, from a court which has heard him, a fresh determination of the merits of the charge where it has not been established that he has waived his right to appear and to defend himself[76]. If the suspect has received a summons and deliberately does not attend the trial, a retrial may be refused. A lawyer who attends a trial for the apparent purpose of defending the accused in his absence must be given the opportunity to do so. In appeal or cassation proceedings the suspect or accused’s right to be present can be restricted if the proceedings are limited to questions of law and do not review the facts. The requirement to hold an appeal hearing in public and in the presence of the accused depends, in summary, on the nature of the appeal system, the scope of the court of appeal’s powers and the manner in which the applicant’s interests are presented and protected.

The respect of the right to be present at trial therefore still very much depends on national law, which present an important degree of variety. While some Member States allow accused persons to waive their right to be present at their trial and this is considered sufficient by the ECtHR principles, in other Member States the presence of the defendant appears to be mandatory in practice for more serious offences (Ireland, Cyprus and, to a lesser extent, Germany).

The situation becomes more serious when certain specific situations clearly justify intervention, in view of a clarification of what should be the minimum standard for a case to be judged 'in absentia'. E.g. in Finland, 'in absentia' decisions are possible if the defendant has been informed about the possibility that the case may be judged without his/her presence (without having to give consent to the court to be judged 'in absentia'), and if it is deemed that his/her presence is not necessary. The defendant may be sentenced to a fine or to imprisonment for a maximum of three months (see table in Annex V, with an overview of the legal situation in the Member States regarding presumption of innocence).

It is striking that national laws on remedies are not currently compliant with the ECtHR findings in the ECtHR case Colozza v. Italy, that trials 'in absentia' must provide for the accused subsequently to obtain, from a court which has heard him, a fresh determination of the merits of the charge where it has not been established that he has waived his right to appear and to defend himself[77]. Only if the suspect has received a summons and deliberately does not attend the trial, a retrial may be refused. It appears that in at least 4 Member States (BE, BG, HU and LV) the opportunity for a retrial is not guaranteed in these circumstances, i.e. in cases where the accused has not waived his right to be present – the person either is entitled only to appeal the decision, or he has no right beyond those he would have ordinarily (including, potentially, appeal) have had if he had attended the trial in person[78].

Example: In 2005, Mr Chen was arrested in the UK on the request of Romania where he had been tried in his absence in 1995 and given a 20 year prison sentence. Mr Chen insists that he knows nothing about the alleged offence and was in fact in Hungary on the date in question. Mr Chen had no knowledge that his trial was taking place and was unable to present any evidence, but in 2006 the UK courts ordered his extradition to serve the 20 year sentence. They did this based on the assumption that Romania would in practice allow him a retrial. Following his extradition, Mr Chen applied for a retrial but no retrial was ordered. Mr Chen’s Romanian lawyer has recently filed an application to the ECtHR.

The enormous importance of 'in-absentia' judgements on mutual trust is confirmed by the existence of a dedicated EU instrument. Council Framework Decision 2009/299/JHA (in absentia)[79], which sets out common minimum standards to avoid that a Member State refuses to recognise and to execute judicial decisions issued by another Member State for the mere reason that the suspected or accused was not present at his or her trial. Mutual recognition can only be refused when the standards in the issuing Member State do not comply with those set out in the Framework Decision.

By its very nature, however, this 'third pillar' instrument is not sufficient to ensure the respect of the ECHR principle throughout the EU. Strictly speaking, the framework decision does not oblige Member States to respect the common minimum standards in all national proceedings, but it merely defines a possible ground of refusal for cases of judicial cooperation if these common minimum standards are not respected.

To summarise, it is clear from the above that not only there are important variations in the level of protection among Member States, but that several Member States do still not comply, in their legislation, with the ECHR principles, be it for the conditions of 'in absentia' trials or for the remedies.

4.3 The scope of the problem

In 2010, there were almost 10 million criminal proceedings (only serious offences and misdemeanour) in all EU Member States[80]. Potentially all suspects and accused persons in criminal proceedings in the EU are affected by these problems.

Member States currently do not collect data on the number of proceedings in which insufficient protection of presumption of innocence is complained about or has led to judicial decisions being appealed and upheld or reversed by a higher court[81]. Nevertheless, recent cases such as Garlicki v. Poland (described in section 4.2.1) or case of Mr Chen (described in section 4.2.4) may help illustrate the potential scale and impact of these types of problem.

The number of cases in which the ECtHR found a Member State of the EU in breach of rights covered by Art 6 § 2 ECHR has been constant over the last five years (26 cases from 2007-2012[82]). At least 10 Member States, some of them repeatedly, were found by the ECtHR in violation of the right to be presumed innocent over the past five years. Particularly striking is the fact that this fundamental right, which forms an essential part of the right to a fair trial, would be expected to be observed by all EU Member States in the 21st century.

The number of cases reaching the ECtHR are, as demonstrated in the section 'cause of the problem', under point 4.1.1, contingent on a variety of factors which do not all relate in proportion to the actual number of cases where violations of presumption of innocence may have occurred. The number of cases brought before the ECtHR and the actual number of cases where violations of presumption of innocence occur but are not brought to the ECtHR can be distorted by a number of factors (see point 4.1.1). In any event, the problem is not essentially one of numbers. A single well-publicised case is enough to impact judicial trust and cooperation. There is no evidence that such cases are becoming rarer.

4.4 Baseline scenario: how would the problem evolve all things being equal?

Whilst certain European principles on presumption of innocence have been established in the past years, namely by the ECtHR, this has, however, not resulted in sufficient protection of suspected and accused persons everywhere in the EU according to legislation and practice of Member States.

Further changes on the basis of the existing legal framework are unlikely. Contacts with Member States during the preparation of this Impact Assessment have not shown any legislation in preparation. On the contrary, fast track procedures and summary procedures have increased in recent years as a result of cost-saving efforts[83], and there is a serious risk that they will develop in such a way as to further undermine the respect of this principle in the future if no action is taken.

Also the Charter itself does not provide a satisfying solution. While it binds the EU institutions and bodies in all instances, Member States are the addressees of the Charter only when implementing Union law. This entails that, in the absence of EU law, Member States are not bound by Articles 47 and 48 of the Charter in the conduct of criminal proceedings. In such cases individuals may not invoke these provisions, either directly or indirectly, in order to challenge the infringement of their rights by domestic institutions.

Through the Roadmap, the EU has already taken action to improve fair trial rights which will have to be implemented by the Member States in the coming years. Although this will have some impact on the protection of the presumption of innocence, this is not sufficient: for example, in the Directive 2012/13/EU on the right to information in criminal proceedings, the right to be informed of the right to remain silent is guaranteed in Article 3(1)(e); but the said Directive does not itself provide suspect or accused persons with the right to remain silent, but merely with the right to be informed about such right, such as regulated in national law. Directive 2013/48/EU on access to a lawyer also brings a positive effect as the presence of a lawyer is per se an important safeguard of all procedural rights, including presumption of innocence.

Furthermore, the forthcoming initiatives on legal aid (presented as a package with this proposal) will ensure that the right to access to a lawyer becomes effective in practice also for persons who don't have sufficient means to afford a lawyer.

However, the first three aspects of the principle of presumption of innocence which are covered by the present initiative have not been dealt with at all in the measures adopted or proposed. As regards the right to be present at one’s trial, the Framework Decision on 'in absentia' proceedings safeguards the right of a person to be present at a trial and sets out conditions for exception from this right. However, as explained under 4.2.4, it establishes this right only indirectly by formulating possible ground for refusal in judicial cooperation. This Framework Decision is only applicable in criminal proceedings subject to the mutual recognition principle, such as in EAW proceedings. It is desirable that the provisions of the Framework Decision 'in absentia' are extended to all criminal proceedings without difference, as it is not always clear at the beginning of the proceedings whether any cross-border element will be involved at a later stage.

4.5 Does the EU have power to act?

4.5.1 Legal basis

The EU's legislative competence for a Directive laying down minimum rights in criminal procedure is set out in Art 82(2)(b) TFEU[84]. Pursuant to this provision, minimum rules concerning the rights of individuals in criminal procedure may be adopted by means of directives, to 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 necessity for action at EU level is demonstrated by the demonstrated lack of trust among Member States’ authorities which is detrimental to the smooth functioning of mutual recogintion and judicial cooperation.

Art 82(2)(b) TFEU, provides the legal basis for legislation applicable not only to cross-border criminal proceedings (i.e. proceedings with a link to another MS or a third country) but also to domestic cases as a precise, ex ante categorisation of criminal proceedings as cross-border or domestic is impossible in relation to a significant number of cases. All previous Commission Proposals for Directives on procedural rights of suspect and accused persons followed this logic as they set up minimum standards for certain rights in all criminal proceedings, not only in cross-border criminal proceedings.

4.5.2 Subsidiarity: Why the EU is better placed to take action than Member States

It is considered that there is a need for EU action based on the following factors:

(a) Enhancing mutual trust between judicial authorities (see section 4.1.2): The EU is establishing its own, unique system of judicial cooperation in criminal matters having a cross-border dimension: such a novel system is based on the principle of mutual recognition throughout the EU and calls for a guarantee of uniform minimum standards of fundamental procedural rights protection in the EU which contribute to mutual trust between judicial authorities that such rights are effectively respected. The problem has a cross-border dimension because if certain Member States do not respect the rights, this will have an impact in other Member States and ultimately in the smooth functioning of mtual recognition legal instruments. EU action will therefore be focused in those aspects which are directly linked to the functioning of mutual recognition instruments and to police and judicial cooperation having a cross-border dimension.

(b) Movement of persons: Persons can be involved in criminal proceedings outside their own EU Member State and the needs of those suspected and accused persons need to be tackled at EU level. In the European Union people are constantly travelling and moving across borders. Around 13.6 million Europeans reside permanently outside their home country, 10% of Europeans have lived and worked abroad during a period of their lives and 13% have gone abroad for education or training[85].

These figures show the importance of ensuring proper, effective action on the rights of those who get involved in criminal proceedings, in their own country or while travelling or living abroad. The EU must ensure that suspects and accused persons benefit from a level playing field. They may not be fully aware of various specific aspects of the procedure but they should anyway be confident of getting a fair trial anywhere in the EU, including the protection of the right to be presumed innocent. The Charter contains such right; however, it can only be invoked in an individual case if the matter is related to the application of EU law by the Member State. In the absence of EU law, Member States are not bound by Articles 47 and 48 of the Charter in the conduct of criminal proceedings and individuals may not invoke these provisions, either directly or indirectly, in order to challenge the infringement of their rights by domestic institutions.

(c) Limits of the ECtHR enforcement mechanisms: As demonstrated before (see section 4.1.1 supra), the ECtHR enforcements mechanisms are not sufficient to ensure that the ECHR standards are applied in practice throughout the EU, as they have not prevented EU Member States from repeatedly violating Article 6(2) of the ECHR, in spite of the fact that they undertook to abide by the judgments of the ECtHR in any case to which they are parties (Article 46 §1 of the ECHR). To ensure an effective compliance of presumption of innocence by the Member States, EU redress mechanisms should therefore be available. Once and if the EU takes legislative action, the full panoply of redress mechanisms according to the Treaty (such as the duty to transpose a directive into legislation in the Member State; implementation monitoring by the Commission and the possibility of references for preliminary rulings) will be available to make sure that there was compliance with the right to be presumed innocent in criminal procedure contained in EU legislation. In addition, an EU directive would be applicable (even despite the absence of timely transposition, under the doctrine of direct effect) before domestic courts and would take precedence, under the principle of primacy of EU law, over conflicting domestic provisions. Risks of violation of EU standards by national authorities would be diminished by the mechanism of reference for a preliminary ruling, which allows the ECJ to provide the domestic court with the correct interpretation of EU provisions, in the course of (and not after) national proceedings.

Bringing the principles of the ECtHR case law into EU law will therefore also in itself improve legal certainty for citizens, who will be able to rely on the provisions of an EU instrument establishing minimum rules applicable in all Member States, rather than in such general principles which derive from concrete cases and which are not necessarily followed and enforceable in all EU countries.

5. Objectives

Objectives:

General: || · To guarantee for EU citizens an effective high-level standard of protection of fundamental procedural rights in criminal procedure. · To enhance mutual trust thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU.

Specific: || · To ensure that all suspects or accused persons are presumed innocent during the entirety of criminal procedure until proved guilty according to law, and treated as such by Member States' judicial authorities. · To ensure that authorities dealing with judicial cooperation and involved in the execution of a criminal sanction, of an investigation measure or of a European Arrest Warrant issued in another Member State are confident that the underlying decision was taken in full respect of the principle of presumption of innocence.

Operational: || · To ensure that no suspect or accused person in the EU is presented by any public authority as guilty before a final judgement. · To ensure that the burden of proof of the culpability of any person suspected or accused in the EU is on the prosecution and that any doubt shall benefit that person. · To ensure that the right to remain silent, the right not to cooperate and privilege against self-incrimination of suspected and accused persons confronted to criminal justice systems in the EU are duly protected at any stage of the procedure. · To ensure by that the judgment is taken in the presence of the accused person, except in specific cases (“in absentia decisions”).

The present initiative forms part of a package of measures for improving mutual trust. Only once all the measures envisaged in the Roadmap and the Stockholm Programm are in place will it be possible to achieve the general objective. The following options are assessed against the specific and operational objectives above.

6. Policy options

The options for addressing the problems as defined in part 4 of this impact assessment, in line with the objectives as established in part 5, are set out below.

In accordance with Communication from the Commission on the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union[86], this impact assessment examines the impact on the Fundamental Rights of the options proposed, in particular in the light of the 'fundamental rights check list' presented in the Communication.

For all the policy options, reference is made to suspects or accused persons as the category of persons who would be affected by these options. The phrase "suspects or accused persons" – consistently used in EU policy documents and previous legislation in this area - encompasses all people who are involved in criminal procedure, against whom a suspicion that they have committed a criminal offence exists, irrespective of the terms used in domestic law[87]. The breadth of the phrase is such that it does not require a definition, which would be very complex and difficult to square with national definitions. In accordance with the principle of proportionality of EU action, no rules should be made when no need for them can be shown.

6.1 Overview of policy options

We have considered four options: retention of the status quo (option 1), a soft law option (option 2) and two legislative policy options (options 3(a) and 3(b)). The retention of the status quo would involve taking no action at EU level, while the other three alternative policy options will improve, to a different extent, the protection of the right to be presumed innocent for suspects and accused persons across the EU.

Option 1 Status quo || Retention of the status quo. This option would involve taking no action at EU level.

Option 2 Soft law measure obligation || Non-legislative action (soft law). This option would include guidelines and training on good practice on suspects' or accused persons' right to be presumed innocent. Option 2 could be implemented on its own or as a first step or supporting action for implementing EU legislation.

Option 3 Legislative measure || a) Directive setting minimum rules on the principle of presumption of innocence applying the ECtHR acquis and establishing appropriate specific remedies in case of breach

b) Directive as under option 3(a), but setting common minimum rules which provide for a higher level of protection than the ECtHR acquis as regards each of the specific problems identified above (except for the absence of public references to guilt before conviction, where it is not possible to go beyond the ECtHR principle). This would be done by further limiting or even excluding the possibility of having exceptions to the general principle.

Relation between problems, objectives and policy options

Problem definition || Causes of the problem || Specific problems || General objectives || Specific objectives || Operational objectives || Policy options

|| General nature of the minimum rights set out in the Charter and in the ECHR || Non-respect of absence of public references to guilt || || || Ensure that no one is presented as guilty by judicial authorities before a final judgment || Status quo

Insufficient protection of fundamental rights as a result of insufficient protection of PoI || ECtHR case law is linked to individual circumstances of the case and can lead to divergent interpretations || Burden of proof on prosecution and any doubt should benefit the accused || Protection of fundamental procedural rights in criminal law || Ensure that suspect or accused are presumed innocent and treated as such during the procedure || Ensure that the burden of proof is on the prosecution and any doubt benefits the accused Ensure the protection of the right not to incriminate one-self, the right not to cooperate and the right to remain silent || Non legislative option

|| ECtHR has not touched on the consequences of the breach of PoI || Insufficient protection of the right not to incriminate oneself, the right not to cooperate and the right to silence || || Ensure that authorities involved in judicial cooperation are confident that the underlying decision respected PoI || Ensure that, apart from specific cases, the judgment is taken in the presence of the person || Legislative option (ECtHR principles + remedies)

Insufficient levels of mutual trust

enforcement mechanisms of the ECtHR are not enough

Lack of adequate protection of PoI

Right to be present at one’s trial

Enhance mutual trust

Legislative option (above ECtHR principles + remedies)

6.2 Detailed description of the options

Policy option 1, the status quo, has been presented in the baseline scenario (see Section 3.5). Some Member States were in favour of maintaining status quo. However, only a minority of