COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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
Date: 2013-11-27
Institutions: European Commission
Subjects: access to the courts, criminal procedure, judicial cooperation in criminal matters in the EU, mutual recognition principle, rights of the defence













EUR-Lex - 52013SC0479 - EN











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52013SC0479

COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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 /* SWD/2013/0479 final */









COMMISSION STAFF WORKING DOCUMENT
EXECUTIVE SUMMARY OF THE 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.           Problem definition
General problems:
1.           There is insufficient
protection of fundamental rights of suspected and accused persons as a result
of insufficient protection of the principle of presumption of innocence in the
EU. The existence of common minimum standards in Article 48 of the Charter of
Fundamental Rights of the European Union ('the Charter') and Article 6(2) of the
Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR')
appears insufficient to protect this principle in practice. Case law of the
European Court of Human Rights ('the ECtHR') shows that violations of this
principle have steadily and repeatedly taken place. Presumption of innocence is
an overarching principle which is complementary to other procedural rights,
including those already dealt with by Union law. The overall objective of is to
ensure the right to a fair criminal trial. There is no such fair trial where
the presumption of innocence is not respected
2.           Insufficient protection of
fundamental rights causes insufficient mutual trust between Member States in
the quality of their respective judicial systems. This hampers the smooth
functioning of mutual recognition of judgments and judicial cooperation. 
Specific problems:
1.           Insufficient protection
against public references to guilt by law enforcement and judicial authorities
before conviction. Authorities sometimes refer to suspects or accused persons,
in statements or in official decisions, as being guilty of a crime before a
court's final decision.
2.           Insufficient protection of
the principle that the burden of proof lies on the prosecution and that any
doubt on the guilt should benefit the accused; in particular, insufficient
protection in practice in cases where the burden of proof is shifted to the
defence.
3.           Insufficient protection
of the right not to incriminate oneself, including the right not co-operate and
the right to remain silent. The legal systems of some Member States allow
that an exercise of the right not to incriminate oneself, not to cooperate and
the right to remain silent can be used as evidence against suspected or accused
person; there are often no effective and dissuasive remedies in case of breaches.
4.           Insufficient protection of
the right to be present at trial[1]
- a judgment and any decision which could lead to deprivation of liberty
requires the presence of the accused person. Not all Member States have
appropriate remedies in case of breach.
Affected group of
people
Potentially all suspects
and accused persons in criminal proceedings in the EU are affected. Around 10
million criminal proceedings take place in the EU every year. 10 EU Member
States were found by the ECtHR in violation of the right to be presumed
innocent between 1.1.2007 and 31.12.2012, in a total of 26 cases.
Why is public
intervention necessary?
The current insufficient
protection of certain aspects of presumption of innocence affects mutual trust
between judicial authorities - and consequently the smooth functioning of the
European area of justice. The ECtHR principles and mechanisms have not resulted
in sufficient protection in practice, as demonstrated by case law of the ECtHR.
Further changes on the basis of the existing legal framework are unlikely in
near future.
If the EU takes
legislative action, the full panoply of EU redress mechanisms according to the
Treaty will be available to ensure Member States comply with the right to be
presumed innocent contained in EU legislation. Certain changes in some Member
States' legislation are deemed necessary in full respect, however, of the
subsidiarity and proportionality principles.
2.           Analysis of subsidiarity
Enhancing mutual trust
between judicial authorities: It is preciseley
because of its importance for the smooth functioning of the European area of
Criminal Justice that, in the Stockholm Programme[2] the European Council invited
the Commission to address the issue of presumption of innocence.
Movement of persons: Persons involved in criminal proceedings outside their home
country should be confident they are protected by a European general right to
be presumed innocent. The EU Charter contains such right; however, the Charter can only be invoked in an individual case if
the matter is related to the application of EU law by the Member State.
Limits of the ECtHR: The ECtHR alone cannot ensure an appropriate protection. Some aspects of presumption of innocence have not been
recently or extensively considered by the ECtHR (e.g. the precise consequences and
remedies of a violation). The redress procedure at the ECtHR is not
satisfactory as it intervenes only ex post, after exhaustion of all
internal remedies, and suffers from an important backlog of cases awaiting
disposal.
3.           Objectives of EU
initiative
The general objectives are:
(1)                   
to guarantee a high-level of protection of
fundamental procedural rights in criminal procedure;
(2)                   
to enhance mutual trust, thus improving judicial
cooperation.
The specific objectives are to
ensure that:
(1)                   
suspects or accused are presumed innocent during
the entirety of criminal procedure until proved guilty according to law, and
treated as such by Member States' judicial authorities.
(2)                   
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 the Member State of origin in
full respect of presumption of innocence.
The operational objectives are to
ensure that: 
(1)                   
no suspect or accused is referred to as guilty by
judicial authorities before a final judgement;
(2)                   
the burden of proof of the culpability of a
suspect or accused is on the prosecution and that any doubt shall benefit that
person;
(3)                   
the right not to incriminate one-self, including
the right not to cooperate and the to remain silent, of suspects or accused are
appropriately protected at any stage of the procedure;
(4)                   
the judgment is taken in the presence of the
accused person, except in specific cases ("in absentia decisions").
4.           Policy options 
Four options have been considered: 
(1)                   
Option 1 - retention of the status quo
- no action at EU level.
(2)                   
Option 2 – non-legislative option: drafting guidelines
and training on good practice, sharing information on possible best practices
and improved monitoring.
(3)                   
Option 3 - two legislative options:
(a)         
Option 3a) - Directive setting minimum
rules confirming the ECtHR acquis as regards each of the specific
problems and establishing appropriate effective remedies in case of breach.
(b)         
Option 3b) - Directive as under option
3a, but setting minimum rules which provide for a higher level of protection
than the ECtHR acquis (except for the absence of public references to guilt
by judicial authorities, where it is not possible to go beyond the ECtHR principle)
through limiting or even excluding the possibility of having exceptions to the
general principles.
5.           Assessment of impacts
5.1.        Effectiveness in achieving
policy objective
(1)                   
Option 1 – level of protection would remain the
same, no improvement of mutual trust.
(2)                   
Option 2 - low incentive to Member States to
address problems, given the absence of legislative provision.
(3)                   
Options 3a) and 3b)
(a)         
Increased mutual trust through common minimum
standards; fewer delays in judicial cooperation, reduced costs of associated
delays, aborted proceedings, re-trials and appeals; in option 3b) mutual trust
would be further strengthened.
(b)         
Legislative option is enforceable contrary to
non-legislative or status quo options.
(c)         
Suspects or accused benefit from minimum
standards on presumption of innocence and would benefit from appropriate
remedies; in option 3b), suspects or accused persons benefit from higher
minimum standards.
(d)         
Effective redress mechanism against Member
States in case of breach. 
(e)         
Lesser miscarriages of justice, improving not
only the general perception of justice by the suspect and accused, by victims,
by judicial authorities, by defence lawyers and by the general public, but also
reducing the costs resulting from insufficient protection of this right for
Member States (cost of internal appeal procedures).
5.2.        Social impact and
Fundamental Rights
(1)                   
Option 1 - no
improvement.
(2)                   
Option 2 - Likely to be only variable
improvement between Member States given the absence of any enforcement method.
(3)                   
Option 3a) and 3b) 
(a)         
Increased protection of fundamental rights of
suspects or accused through increased clarification of Article 48 of the EU
Charter.
(b)         
Gradual culture change in the prosecution and
judicial authorities on the respect of the right to be presumed innocent.
(c)         
Possible non-respect of proportionality and
subsidiarity principles if all aspects of option 3a) and 3b) are put in place.
(d)         
Risk of codifying ECtHR jurisprudence, which is
constantly evolving, through a binding legislative EU instrument. If case law
develops towards a stronger protection, a binding Directive establishing the
present level of protection would not be up to date. 
(e)         
For 3b), adverse effect on administration of
justice could occur as the rights of individuals would be strengthened to such
an extent which could eventually harm efficiency of investigation and
prosecution.
5.3.        Impact on the legal system
of Member States
(1)                   
Option 1 - divergences between Member States'
systems would remain as they continue to evolve along strictly national lines. 
(2)                   
Option 2 – limited – no legislative reforms can
be foreseen as they will be left to the good will of national legislatures.
(3)                   
Option 3a) and 3 b): Several Member States would
have to change their legislation depending on the specific problem.
5.4.        Financial and economic
impact[3]
(1)                   
Option 1 - No immediate financial burden, but no
reduction of current costs of ECtHR procedures and domestic appeals, re-trials,
financial compensation due to breach of suspects' right to be presumed innocent
neither.
(2)                   
Option 2 - Costs for workshops, training and
sharing of best practices estimated to be below 8 million euro per annum for
each of the aspects of presumption of innocence, except for the drafting of
guidelines (one-off cost of 47.520 euros). If put in place for all four aspects,
a high level of synergies would reduce the total costs. 
(3)                   
Option 3a) - In the long term, the below
estimated financial impact should gradually reduce as the right should be more
respected, thus reducing the use of remedies. There could be training costs for
defence lawyers, police and judicial officers. The estimated costs below are
per annum and in all Member States altogether.
(a)         
Absence of public references to guilt - costs
for an additional remedy (re-trial) for all Member States except AT, FI, LT, PL
and SE are: 240.000 euros. No substantial costs for other specific remedies
(removal of judge, right to damages).
(b)         
Burden of proof is on the prosecution / any
doubt on the guilt benefits the accused - . costs of additional remedy
(re-trial) in all Member States except AT, FR and UK: between 92.000 and
920.000 euros.
(c)         
Right not to incriminate one-self, including the
right not to cooperate and the right to remain silent - If additional remedy is
re-trial (currently available only in AT, FI, FR, HU): between 98.000 and
980.000 euros; if additional remedy is non-admissibility to the court of
evidence obtained in breach of this right, the costs would incur the increase
of prosecution activity in BE, BG, CY, EE, ES, HR, IE, LT, LV, NL, PL, SE
(estimated between 7.500 and 75.000 euros).
(d)         
Right to be tried in one's presence - costs of
additional remedy (re-trial) for BE, BG, HU and LV: 523.000 euros.
(4)                   
Option 3b)
(a)         
Absence of public references to guilt – same as
option 3a).
(b)         
Burden of proof is on the prosecution / any doubt
on the guilt benefits the accused: - increase in prosecution activity in those
Member States where the burden of proof can be currently reversed (as these
cases would be limited under 3b) in BE, HR, FR, HU, IE, PT, ES, SE and UK). The likely scenario estimates the costs to 2,9 million euros.
(c)         
Right not to incriminate one-self, right not to
cooperate and right to remain silent - increase in prosecution activity in
those Member States where this right is not absolute (this system would be
abolished under option 3b) in BE, CY, UK, FI, FR, IE, LV, NL and SE). The
likely scenario estimates the costs to 27 million euros.
(d)         
Right to be tried in one's presence - costs
would entail additional resources of police to ensure that a suspect or accused
is physically brought to trial (currently tried in his absence under existing
law) in all Member States except CY, IE and DE. The savings would entail costs
of all possible re-trials (if all persons are to be present at the trial, no
extra remedy would need to exist for in absentia trials). The total cost is
estimated between 5.5 million euros and 22 million euros.
6.           Comparison of options /
Preferred option
The preferred option is a combination of parts
of options 2, 3(a) and 3(b). It 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. 
(1)                   
Absence of public references to guilt - – option 3a) but without any specific remedy, given that
the legislative situation in Member States is acceptable and that this aspect is
only to a lesser extent linked to the functioning of the European Area of
Justice.
(2)                   
Burden of proof and any
doubt on the guilt should benefit the accused – option 3a) but without any specific remedy, given that it is already sufficiently protected in Member States'
legislation.
(3)                   
Right not to incriminate one-self, right not
to cooperate and right to remain silent – combination
of options 3a) and 3b):
–              
lay down the general principles deriving from
ECtHR case law and establish a specific remedy in case of breach –
non-admissibility of evidence (option 3a));
–              
allow for exceptions from the right not to
cooperate according to ECtHR case-law (option 3a));
–              
not allowing adverse inferences to be drawn from
the exercise of these rights (option 3b));
(4)                   
Right to be present at trial – option 3a), including establishing a specific remedy
(retrial).
(5)                   
Horizontal: Implementation would be supported by
horizontal measures on monitoring, evaluation and training (parts of
option 2).
Given the lack of reliable data available
figures are provided tentatively. All Member States would be affected to a
varying degree. In the most likely scenario, the costs of the preferred option
would be the following: 
–                        
no costs arise (except for training, evaluation
and monitoring) as regards the two first aspects of presumption of innocence;
–                        
prohibiting inferences to be drawn from silence:
27 million euros per annum for 9 Member States altogether;
–                        
for non-admissibility of evidence obtained in
breach of the right not to cooperate, the estimated cost is between minimum 7.500
and maximum 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. 
The total costs per Member State are as
follows (minimum / maximum[4]):
AT 305.164, BE 1.847.230 / 1.851.762, BG 126.521 /
126.985, HR 127.099 / 128.386, CY 266.173 / 267.655, CZ
158.698, EE 56.703 / 56.983, FI 640.664, FR 8.783.153, DE
6.630.288, EL 190.790, HU 231.851, IE 590.601 / 592.155, IT
480.388, LV 281.997, LT 93.657 / 94.047, LX 207.765 /
208.203, MT 82.850, NL 6.590.604 / 6.599.749, PL 373.953 /
382.782, PT 226.718, RO 144.338, SK 961.808, SI
133.248, ES 643.779 / 668.089, SE 1.589.620 / 1.591.443, UK
9.664.550 / 9.678.626.
7.           Monitoring and evaluation
The preferred option will
create only a comparatively limited number of Member States' obligations
(which, to some extent, mirror existing ECHR and constitutional or legal obligations
in many Member States), it is expected that an eighteen month deadline would
provide sufficient time to effect necessary changes to national laws and
practice. 
The Directive will
stipulate that Member States should report on the effective implementation of
legislative or non-legislative measures. Member States should be encouraged to
collect relevant data to assist in this process as there is currently a lack of
reliable data.
The Commission envisaged
carrying out specific empirical study with an emphasis on data collection 3-5
years into the implementation of the instrument[5],
to gain in-depth quantitative and qualitative insights into the effectiveness
of the proposal. All data collected would enable the Commission to evaluate the
actual compliance in Member States more robustly than using the means hitherto
available.
[1]               Apart from certain well-defined exceptions ("in
absentia decisions").
[2]               OJ C 115, 4.5.2010, p. 1.
[3]               In relation to policy Options 3a) and 3b), there
would be an additional estimated cost of 1,3 million euros per annum
resulting from the monitoring system to be implemented in Member States in view
of fulfilling reporting obligations and collecting relevant data 
[4]               Not all Member States are concerned with
maximum/minimum costs, as they would not be affected by certain measures which
they already have in place.
[5]               OJ C 291, 4.12.2009, p. 1.