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
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 - 52013SC0478 - EN











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52013SC0478

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 /* SWD/2013/0478 final */









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 other stakeholders was in favour of the status quo
option as they feel that action needs to be taken in respect of presumption of
innocence. 
The other policy options are described in
the table below and meet to varying degrees the objectives outlined in Section
3 above. 
Policy option 2: Non-legislative measures are common to all four aspects of
presumption of innocence. 
These would include:
·       
Drawing up non-statutory guidance for staff
in competent authorities on the respect of presumption of innocence and on the way in which the right to be presumed innocent can be
safeguarded.  These would be drawn at experts meetings summoned by the European
Commission and would include representatives of all Member States, as well as
experts in the field of procedural criminal justice;
·       
Exchange of best practice which would take the form of workshops organised in groups of Member
States with similar judicial traditions. These workshops would allow
practitioners to share their experience and best practices. Sharing information
on Member States’ legal systems could also be done through exchange and
training schemes where judges spend some time in different EU jurisdictions to
learn and understand the way in which the principle is approached in different
Member States. 
·       
Training – even
in the absence of a legislative option, training of magistrates and prosecutors
could take place and play a role in enhancing the right to be presumed
innocent.  As discussed in the subsequent sub-sections, in some cases, the
breach of the presumption of innocence resulted from carelessness on the part
of the authorities that could have been prevented if more robust training had
been provided;
·       
Improved monitoring - monitoring of the system safeguarding the presumption of
innocence, and some uniform means of collecting data on cases where a breach of
the presumption of innocence has been experienced.  Monitoring exercises could
also help to collect better information on the scope of the problem and inform
any future policy decision on the need for intervention, beyond that identified
in this impact assessment.
The guidelines would be drawn up
during a series of meetings convened by the European Commission and involving
national experts from all the Member States. We have assumed that three
day-long meetings would be necessary to agree on the guidelines. The
guidelines  would be then disseminated amongst stakeholders. In addition, there
would be training programmes to disseminate the best practices identified.
We then propose to group Member States
according to their legal cultures, traditions and systems to organise workshops
where the issues will be discussed. In those meetings, where different
representatives of the legal profession would be invited (judges, prosecutors,
lawyers, law enforcement authorities etc), discussions would include current
practices in each of the represented systems and the identification of best
practice. The output of those meeting would be a list of best practices, ranked
by the ease in which they could be put in place. 
For most of the issues, identified, a
system of training of different actors of the criminal procedure
(police, lawyers, prosecutors, judges etc) would be beneficial.  For example as
regards the absence of public references to guilt training at national level
could include sessions to help legal officials develop linguistic formulae for
discussing the suspect or accused and the relevant criminal proceedings without
the court being seen to imply (or expressly state) the suspect’s guilt before
any final verdict. As regards the burden of proof, training would include
sessions to ensure legal officials are aware of the types of cases where the
burden of proof can be reversed and how a breach of this right should be
remedied during the procedure.  
Finally, encouraging Member States to set
up a monitoring system would produce important data to assess the real
scope of the problem in each jurisdiction. This would then help gauge the need
for any subsequent action at the national or European level. The research has
found it very difficult to identify data to assess the exact scope of the
problem. If no legislative measure is taken at the European level, a minimum
option would ensure that a quantitative scope of the problem is known and would
inform any future decision.
Such non-legislative measures should not
duplicate existing actions already undertaken at national level. 
Some stakeholders (defence lawyers, NGOs,
academics) were of the view that non-legislative action would be insufficient;
while few survey respondents shared their view on the case for EU intervention
and what form it should take, the non-legislative option did not prove
popular. Other stakeholders (still amongst lawyers, NGOs and academics) felt
the extent to which non-legislative action could on its own achieve
common minimum standards throughout the EU must be considered doubtful.
Finally, some stakeholders (judges, but also lawyers and academics, as well as
representatives of Ministries of Justice) believed that past experience showed
that non-legislative action could be useful in some instances.
Policy option 3(a):
Option 3(a) involves the codification of
ECtHR principles and on the top of that it provides for specific effective
remedies to any breach of these principles. The fact that ECtHR principles are
not codified in any comprehensive legislative instrument and the fact that those
principles do not provide for prescription of any specific remedies in case of
breach can be seen as a weakness of the current system. At least for certain
aspects of presumption of innocence, introducing appropriate remedies in
case of breach are justified. For reasons of coherence, under this option
remedies are foreseen in case of breach of any of the aspects of presumption of
innocence, and it will be afterwards assessed (in section 7) if such
remedies are indeed justified in all cases.
The following example shows how the situation
would improve under option 3(a): the suspect's or accused's right to remain
silent would be established by option 3(a); if a person's right to remain
silent is breached, currently in some Member States the only remedy is to raise
this fact in a procedure of appeal. The specific effective remedy proposed
under option 3(a) is a removal of evidence obtained in the breach of the right
to remain silent from the court's procedure. This would provide a direct and immediate
response to such breach. Currently some Member States have this remedy in
place, however 12 Member States do not provide for any specific remedy during
the proceedings of first instance and the only remedy is the possibility to
appeal.
As regards opinion of stakeholders on
legislative action, the Member States have already expressed a view that a
legislative action on presumption of innocence might be needed in the framework
of the Stockholm programme, in which they asked the Commission to examine the
subject in detail. Some Member States (DE, FR, IT, SI) stated in the expert
meeting they were in favour of legislative option, if it proves necessary. The majority
of stakeholders, who filled in the on-line survey (defence lawyers, bar
associations and academics) are in favour of legislative action taken by
the EU as they believe the right to be presumed innocent is not sufficiently
protected (see last diagram of Annex III).  
Policy option 3(b):
This option would involve the same as
option 3(a) and, moreover, a definition of higher standards of protection than
those included in option 3(a). The exception is the absence of public references
to guilt, for which it would be irrealistic to establish a higher standard
than the ECtHR standard and for which, therefore, options 3(a) and 3(b)
coincide.
For the other aspects this option envisages
higher standards of protection:
·     
Burden of proof and right of the accused to benefit from any doubt: in addition
to the standards defined under option 3(a), exceptions to the general principle
would be further limited by means of more strict proportionality considerations;
such exceptions (where the burden of proof may be shifted to the defence) would
be limited to minor offences and taking into account the seriousness of the
sanction.
·     
Right not to incriminate oneself, right not
co-operate and right to remain silent: higher standards
than those under option 3(a) (and in the principles derived from the ECtHR
case-law) would be defined. First, adverse inferences to be drawn from
the right to be silent and the right not to cooperate would not be admitted;
second, no exceptions would be admitted from the right not to
cooperate (such as blood samples, bodily tissue for DNA testing), which would
become absolute.
·     
Right to be present at one’s trial: again, the standards of protection under option 3(a) would be
increased in order to ensure no exception, or at least more limited exceptions,
to the rule that the accused has to be present at trial, so that even fewer
trials take place without his presence.
As regards the opinion of stakeholders,
Member States generally believed that this option is rather far-reaching. Some
stakeholders (especially defence lawyers and NGOs) supported some of the
aspects of option 3(b) (in particular the absolute right to remain silent). 
Policy options 2, 3(a) and 3(b) are
described in more detail in the table hereafter:
 Objective || Policy option 2 [non-legislative measures] || Policy option 3(a) [ECtHR + remedies] || Policy option 3(b) [ECtHR plus + remedies] 
 Absence of public references to guilt before conviction ||             Draw up guidelines on the way in which these rights should be understood     Set up a system to exchange best practice between Member States with a similar legal tradition     Encourage the training of law enforcement officers and judicial authorities staff     Encourage Member States to set up a monitoring system to collect relevant data || Establish the general principle: obligation for judicial authorities of not referring in public to a suspect or accused person as being guilty, before a final decision of a Court. + Specific remedies (request to remove the judicial authority concerned, financial compensation, re-trial) || No need for this option, since option 3(a) is sufficient. 
 Burden of proof and right of the accused to benefit from any doubt || Establish general principle that the burden of proof is on the prosecution and any doubt should benefit the accused; Allow for some exception (i.e. reversed burden of proof) under certain conditions: i) such presumption must always be rebuttable (i.e. there should always be a possibility to challenge a presumption of guilt); ii) proportionality principle (these presumptions must be confined within reasonable limits and maintain the rights of defence); + Specific remedies in case of breach (possibility of a re-trial – instead of simple right to appeal) || Option 3(a), but further clarifying the exceptions to the general principle by defining the proportionality principle (limiting the exceptions to minor offences and taking into account the seriousness of the sanction).   
 Right not to incriminate oneself, right not to cooperate and right to remain silent || Establish the general principle of the right not to incriminate one-self, the right not to cooperate and the right to silence (not allowing improper pressure from police or judicial authorities). Clarify circumstances under which adverse inferences can be drawn from the exercise of these rights according to the ECtHR case law. Allow for an exception for the right not to cooperate according to the ECtHR case law (blood samples, bodily tissue for DNA testing). + Specific remedies: minimum rules on the consequences of breach of these rights (declare the evidence obtained in breach of this right inadmissible in the court proceedings; establishing a right to re-trial rather than simple appeal or establishing a possibility to nullify the judgement). || Option 3(a) but not allowing adverse inferences to be drawn from the right not to cooperate and the right to be silent       No exceptions from the right not to cooperate. 
 Right to be present at one’s trial || Establish the general principles according to the ECtHR case law (a person charged with a criminal offence is entitled to take part in the hearing, and can be tried without being present only if he had an opportunity to waive his right to be present). + Specific remedy: right to re-trial (not only the right to appeal). || Option 3(a), but increasing the safeguards to ensure that even fewer trials take place without the presence of the accused (either according to CY and IE system, where no exceptions to the right to be present at trial are admitted or inspired by DE system, where there are only very limited exceptions to the right to be present: e.g. a person left in the middle of main hearing, de minimis rule, in certain appeal proceedings). 
7.           Impact
analysis of policy options
The impact analysis relies on in-depth
analysis of the respective national legislation in EU Member States in order to
assess the consequences of each parameter of each option.
As will be described hereafter, options 2,
3(a) and 3(b) are expected to have a positive impact on the fundamental rights
of suspects or accused to be presumed innocent and to have access to a fair
trial and to fully exercise the rights of defence.
All financial costs of each option are
developed more in detail in Annex VI, which sets out the assumptions and
calculations underlying the estimated expected impact of each option on each individual
Member State. Exact data for calculation of the financial costs of the
policy options were difficult to obtain. Only anecdotal evidence was available together
with consultation of practitioners. These have shown that number of breaches
can be counted in thousands rather than hundreds. Consequently, throughout the
appendix, three scenarios have been used to calculate potential financial
impacts of the different policy options. As regards estimated financial
benefits in a form of reduction of current costs, particularly in the long term,
this is based on the assumption that presumption of innocence will be more
respected in the future as there will be clear binding rules at the EU level.
Protection of these rules will be ensured by ECJ (preliminary rulings at a
disposal of national courts and infringement procedure). 
7.1         Policy
option 1 - Status quo
 Expected Impact 
 Effectiveness in achieving policy objective || ·       No incentive for any action to achieve better practical protection of the right to be presumed innocent and consequently no improvement of mutual trust in cross-border criminal proceedings. ·       Likely that no national reforms would take place at Member States’ initiative, only exceptionally as ad hoc responses to ECtHR case law ·       Insufficient standards and protection of the right to be presumed innocent in the EU would remain the same. 
 Social impact and Fundamental Rights || ·       No improvement in protection of the fundamental right to be presumed innocent. ·       Potential damage to: (i) suspects and accused persons’ fair trial rights; and (ii) the practical implementation of article 48 of the Charter. 
 Impact on the legal system of Member States   || ·       Member States tend to interpret ECtHR pronouncements in different ways. Divergences between Member States' systems would remain as they continue to evolve along strictly national lines. 
 Financial and economic impact || ·       There are no immediate new financial burdens associated with this option. However, this option will not lead to the reduction of costs of ECtHR and domestic appeals, re-trials and financial compensation due to breach of suspects’ fair trial rights resulting from a failure of the right to be presumed innocent. In the absence of reliable data from Member States, current costs are tentatively assessed in Annex VI. 
7.2         Policy
option 2 - Non-legislative action
 Expected Impact 
 Effectiveness in achieving policy objective || ·       Non-statutory initiatives (e.g. to: collect EU-wide data on breaches to the presumption of innocence; establish training programmes and non-statutory guidance for staff in competent authorities; share best practices in Member States) would all be of practical benefit. However, on its own, in the absence of a new legislative instrument, this option would be unlikely to ensure that Member States address existing problems related to the protection of the right to be presumed innocent or practical problems linked to its implementation. Consequently, no improvement of mutual trust in cross-border criminal proceedings is expected. 
 Social impact and Fundamental Rights || ·       Some improvement in the practical application of the right to be presumed innocent and thus suspects’ fair trial rights would be likely to accrue. But the absence of any method of enforcement means that implemented on its own there is likely to be only variable improvement between Member States. 
 Impact on the legal system of Member States || ·       Limited since the non-binding nature of this option would not on its own achieve common minimum standards throughout the EU. The guidelines, trainings may help the judiciary to interpret domestic provisions in compliance with the ECHR, but it is unlikely that this effect would be any more significant than the effect of ECtHR rulings alone. The Member States, which currently lack specific remedies in case of breach of presumption of innocence, are unlikely to introduce them in their legal system. ·       Proportionality of EU intervention would therefore not be at stake under this option and the question would rather be if it would suffice to fulfil the policy objectives. 
 Financial and economic impact || ·       There would be some limited set-up and running costs relating to the drafting of guidelines, organisation of the workshops, training and sharing of best practices. The financial burden on the Member States is estimated to be below 8 million euro per each of the four aspects of presumption of innocence referred to in option 3. Most of these costs (5.5 million euros) would relate to training costs for defence lawyers, police and judicial officers. However, if this option is put in place for all four issues together, the total costs are likely to be much lower than the total of the costs for each issue as there would be a high level of synergies in the training, workshops and staff for each[88]. ·       Establishing and operating a monitoring system in member States in view of fulfilling reporting obligations and collecting relevant data would entail an estimated cost of 1.3 million euros. ·       The estimated costs are per annum, except as regards drafting guidelines, which has an estimated one off cost of 47.520 euros. ·       The financial burden resulting from this option depends on the level of Member States' implementation of the guidelines. 
7.3         Policy
option 3(a) - Legislative action 
 Expected Impact 
 Effectiveness in achieving policy objective || ·       Because national judicial authorities would have greater mutual trust owing to the existence of common minimum standards for the provision of the right to be presumed innocent in all Member States, there would likely be fewer refusals to cooperate and fewer delays in cooperation with each other, with a corresponding diminution of the costs of associated delays, aborted proceedings, re-trials and appeals. ·       This option would effectively provide comprehensive provisions covering existing body of law and jurisprudence. In addition it would provide effective remedy to breach of the right to be presumed innocent. ·       Legislative option is enforceable contrary to non-legislative or status quo options. ·       Suspects or accused persons would benefit from common minimum standards in the area of presumption of innocence contained in Article 6(2) of the ECHR and further elaborated in ECtHR case law. In addition to this they would benefit from appropriate and effective remedies established in case of breach of these minimum standards. This will prevent the Member States from repeated violation of the ECtHR standards. ·       It would lead to less cases of miscarriages of justice, and there would not only be an improvement of the general perception of justice by suspects and accused, by victims, by judicial authorities, by defence lawyers, by the general public, but there would also be a reduction in the current costs for EU Member States resulting from a lack of or inadequate provision of the right to be presumed innocent. ·       Suspects would have a more effective redress mechanism against Member States in breach of Article 6(2) of the ECHR/Article 48 of the Charter via the ECJ than the ex-post complaint procedure of the ECtHR, where there is a significant backlog of cases and the court is unable to require infringing Member States to amend their national laws. 
 Social impact and Fundamental Rights || ·       Potential benefits to the fundamental rights of suspects and accused persons, and increased clarification of Article 48 of the Charter. ·       Risk of codifying the sometimes rather vague ECtHR jurisprudence through a binding legislative EU instrument. If case law develops towards a stronger protection in the future, a binding Directive establishing the present level of protection would not be up to date. 
 Impact on the legal system of Member States   || ·       All Member States have enshrined the principle of presumption of innocence and related rights in their legislation and they already seem to be compliant with the ECtHR principles, therefore only minor legislative changes would be needed. ·       Proportionality of EU intervention would in a general way be respected, as the legislative changes required would be limited to some Member States having to put in place appropriate specific remedies in cases of breach of the rights already established in their legislation, or having to create a link between specific existing remedies and breach of this right. However, for some points of this option proportionality could be at stake. Mainly the practical implementation and application of these rights will have to be ensured by the Member States. ·       Justified doubts on the grounds of proportionality could be raised as regards specific remedies for the breach of absence of public references to guilt and burden and standard of proof. For these two aspects the analysis carried out has shown that the problem is not in the existing legislation and its remedies but rather on the lack of respect in practice; the level of intrusion of imposing Member States to lay down new specific remedies does not seem justified, as it is unlikely that the situation would change significantly. ·       As regards the right not to incriminate oneself, the right not to co-operate and the right to silence, some Member States would need to adapt their current remedies to the breach of this right in order to render these remedies more efficient. If the additional remedy is re-trial (instead of simple right to appeal), it would need to be introduced in all Member States except AT, FI, FR, HU. This might raise justified doubts in terms of proportionality, given that the consequence of a retrial is a fresh determination of the (whole) case, whereas the real question here is the legality of specific evidence. If the additional remedy is non-admissibility to the court of evidence obtained in breach of the right to remain silent, BE, BG, CY, EE, ES, HR, IE, LT, LV, NL, PL and SE would need to change their legislation. This aspect might raise a proportionality question from some Member States which could argue that the internal consistency of their judicial system could be at stake. Such arguments are difficult to accept: the principle of free evaluation of evidence 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. ·       As regards right to be tried in one´s presence, the following Member States would need to change their current legislation: BE, BG, HU and LV in order to allow for re-trial in case of breach of the right. Proportionality does not seem to be an issue in this point, in that what would be proposed is the minimum standards established in ECtHR case law. 
 Financial and economic impact   || ·       Reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects’ fair trial rights resulting from a lack of or inadequate provision of the right to be presumed innocent[89]. In particular in the long term, the financial impact estimated below should gradually reduce as the right to be presumed innocent should be more respected, and thus remedies for its breach would be less used. ·       Estimated financial impacts per annum for each aspect described below. 
 Absence of public references to guilt || ·       As all Member States already have this right established in the legislation as well as some remedies (possibility to remove the judge and pay damages), there would be no substantial costs in introducing this option. At the beginning there might be additional costs for Member States resulting from more persons asking for financial compensation for the breach of this right as they would be more aware of the possibility under a newly adopted Directive. However, in the long term, public authorities would learn to comply with this right and thus there would be savings of costs of financial compensation for breach of this right compared to status quo. ·       Costs for a possible extra remedy – re-trial (which would be introduced in all Member States except AT, FI, LT, PL and SE) are estimated to be 240.000 euros. 
 Burden of proof right of the accused to benefit from any doubt || ·       Costs for all Member States altogether are estimated between 92.000 and 920.000 euros. These are the costs of additional remedy (re-trial instead of simple right to appeal), which would need to be introduced in the Member States, which currently do not have it (all Member States except AT, FR and UK). 
 Right not to incriminate oneself, right not to co-operate and right to remain silent || ·       Costs for all Member States depend on the appropriate remedy established at the EU level, it would be for each Member State to choose, which of the following remedies is appropriate for their legal system. ·       If the additional remedy is re-trial (instead of simple right to appeal), which would need to be introduced in all Member States except AT, FI, FR, HU, the altogether costs are estimated between 98.000 and 980.000 euros. ·       If the additional remedy is non-admissibility to the court of evidence obtained in breach of the right to remain silent, costs would be incurred through the increase of prosecution activity in those Member States, where this remedy currently does not exist (BE; BG; CY, EE, ES, HR, IE, LT, LV, NL, PL, SE), (altogether estimated between 7.500 and 75.000 euros). 
 Right to be tried in one's presence || ·       Costs for all Member States altogether are estimated to 523.000 euros. These are the costs of additional remedy (re-trial instead of simple right to appeal), which would need to be introduced in the following Member States: BE, BG, HU and LV. 
7.4         Policy
option 3(b) - Legislative option
 Expected Impact 
 Effectiveness in achieving policy objective || ·       Same as for option 3(a). ·       Mutual trust between judicial authorities would be further considerably strengthened as the level of minimum standards would be higher than in the present situation. This should lead to better judicial cooperation and fewer refusals and delays in mutual recognition of European Arrest Warrants and other judicial decisions. ·       In addition, suspects or accused persons benefit from higher common minimum standards in the area of presumption of innocence than those contained in Article 6(2) of the ECHR. 
 Social impact and Fundamental Rights || ·       The standards of protection of presumption of innocence would be even higher than in option 3a and thus fundamental rights would be better protected and no risk of non-compliance with future ECtHR jurisprudence should arise. ·       Potential benefits to the fundamental rights of suspects and accused persons, and increased clarification of Article 48 of the Charter. ·       Gradual culture change in the prosecution and judicial authorities on the respect of the right to be presumed innocent. ·       Adverse effect on administration of justice could occur as the rights of individuals would be strengthened to an extent which could perhaps harm efficiency of investigation and prosecution, misuse of justice could become more frequent. 
 Impact on the legal system of Member States   || ·       All Member States have enshrined the principle of presumption of innocence and related rights in their legislation. However, the EU proposal would go further than the ECHR case law (setting higher standards to certain aspects of presumption of innocence); therefore several legislative changes would be necessary in certain Member States' legislations. The practical implementation and application of these rights will have to be ensured by the Member States ·       Proportionality of EU intervention might be questioned for some points of this option, in particular as regards the burden of proof and the right to be tried at one’s presence, where the higher standards proposed might have an important impact on prosecution activity. This impact might not be justified by the aim of ensuring high procedural rights standards, given that the ECtHR standards are in these points generally accepted as striking a correct balance between the public interest of crime investigation and prosecution and the rights of defence. ·       Conversely, the higher standard proposed for the right not to cooperate and the right to silence (not allowing inferences to be drawn from the exercise of such rights) does not seem to raise proportionality concerns, even if it is unlikely to be easily accepted by some Member States. This higher standard strikes a correct balance between the interests at stake: it is intended to protect the essence of the right to remain silent, so that a conviction should not be based on the silence of the accused and other incriminatory evidence should exist. ·       As regards burden of proof, some Member States will need to change their current legislation in order to limit the reversal of burden of proof: BE, HR, FR, HU, IE, PT, ES, SE and UK. ·       As regards right to remain silent, the following Member States would need to change their current legislation in order not to allow the possibility to draw adverse inferences from exercising this right: BE, CY, UK, FI, FR, IE, LV, NL and SE. ·       As regards right to be tried in one´s presence, all Member States would need to change their current legislation except CY, IE and DE. 
 Financial and economic impact   || ·       Reduction in current costs of ECtHR and domestic appeals, re-trials, financial compensation, aborted prosecutions due to breach of suspects’ fair trial rights resulting from a lack of or inadequate provision of the right to be presumed innocent. In particular in the long term, the financial impact estimated below should gradually reduce as the right to be presumed innocent should be more respected, and thus remedies for its breach would be less used. ·       Estimated financial impacts per annum for each aspect described below. 
 Absence of public references to guilt || See option 3(a) 
 Burden of proof and right of the accused to benefit from any doubt || ·       This measure would increase prosecution activity in those Member States where the burden of proof can be currently reversed (there would be only limited exceptions to the reversal of burden of proof under option 3b) therefore additional cost might occur in BE, HR, FR, HU, IE, PT, ES, SE and UK. It is not possible to assess the exact financial impact; however the likely scenario estimates the costs to be altogether at 2,9 million euros. 
 Right not to incriminate oneself, right not to co-operate and right to remain silent || ·       This measure would increase prosecution activity in those Member States where the right to remain silent is not absolute (this system would be abolished under option 3(b) in BE, CY, UK, FI, FR, IE, LV, NL and SE). It is difficult to assess the exact financial impact; however, the costs in the most likely case scenario are tentatively estimated at 27 million euros altogether. 
 Right to be tried in one's presence || ·       Costs would arise for additional police resources used 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. Savings, on the other hand, would be generated by the avoided costs of all possible re-trials (if all persons are to be present at the trial no extra remedy would need to be used for breach of the right to be tried in one’s presence). It is not possible to know how many cases will be affected therefore the total cost is estimated at between 5.5 million euros and 22 million euros. 
8.           Comparative
assessment
Summary
of possible policy options
 Policy options || Effectiveness in achieving policy objective || Social Impact and Fundamental Rights || Financial and economic     impact || Impact on legal systems 
 Option 1: Status quo || X || X || X || X 
 Option 2: Non-legislative EU action || √ || √ || √ || √ 
 Option 3 Legislative EU action : -    (a) ECHR standards ||   √√ ||   √√ ||   √√ ||   √√ 
 -    (b) Beyond ECHR standards || √√√ || √√√ || √√√ || √√√ 
Key: X = little or no expected impact; √ = limited expected
impact; √√ = high expected impact; √√√ very high
expected impact.
If Policy Option 1 (status quo)
is pursued the insufficient protection of the principle of presumption of
innocence would continue and thus this option does not meet the identified
objectives and is therefore not further considered. Generally, it is not very
much supported by the stakeholders (defence lawyers, judges and academics).
However, certain Member States are in favour of maintaining status quo.  
The measures envisaged within Policy
Option 2 are likely to contribute to the objectives of an EU intervention in
the field, but only to a limited extent. They are likely to have an impact on
raising the awareness of stakeholders on the respect of presumption of
innocence. However, Policy Option 2 is unlikely neither to strongly affect the
application and enforcement of existing common standards, nor to improve the
coherence of national legislations. In these circumstances mutual trust cannot
be assured. Therefore Policy Option 2 is unlikely to sufficiently fulfil the
objectives. Due to its limits this option did not prove to be very popular
among stakeholders.
The legislative measures within Policy Option
3(a) and 3(b) are likely to contribute more effectively to the objectives
of an EU intervention in the field. They would contribute (to varying degrees)
to protection of the rights of suspects and accused persons to be presumed
innocent by establishing minimum standards at the EU level for the protection
of the presumption of innocence and appropriate remedies in case of breach. Some
Member States were reluctant when discussing a possibility of legislative
action taken by the EU; however, they had expressed their positive opinion in
the way of asking the Commission to examine the subject of presumption of
innocence in the Stockholm programme. The majority of other stakeholders
(defence lawyers, NGOs, academics) are in favour of legislative action taken at
the EU level (see last diagram of Annex III – analysis of the replies to the
on-line survey).
Overall, Policy Option 3(b) is the
most likely to meet all the objectives and to meet them to the greatest extent.
However, it imposes additional obligations on Member States and foresees
substantial legislative changes. As a result costs are likely to be
considerably higher than in the other options, which is one of the reasons why
it is the least feasible in terms of it being agreed. Most Member States and
other stakeholders (except for some individual defence lawyers) are not in
favour of option 3(b). Moreover, it would raise serious concerns in terms of subsidiarity
and proportionality given the high intrusive legislative measures it
involves, whereas in two of the specific problems (i.e., in the right not be
pronounced guilty before conviction and in the burden of proof and standard of
proof) the situation in Member States is satisfactory in legal terms and it is
only the enforcement of the existing rules that has been revealed to be a
problem. Indeed, less intrusive measures (such as the ones foreseen in Option
3(a) or, to a lesser extent, in Option 2) are likely to also meet the
objectives. 
In Policy Option 3(a) is likely to
meet the objectives in a satisfactory way and the financial burden on the
Member States is considerably lower than in Option 3(b).
In summary:
·     
the status quo option is unlikely
to meet any of the operational objectives;
·     
the non-legislative option is only likely
to meet the first two  operational objectives;
·     
the first legislative option (3(a) -
ECtHR principles + remedies) is unlikely to meet all operational objectives
– an adequate protection of the right not to incriminate one-self, the right
not to co-operate and the right to remain silent is not guaranteed to be
achieved under this option;
·     
the second legislative option (3(b) -
beyond ECtHR principles + remedies) is likely to meet all the operational objectives.
However, it is not needed as regards the first and second operational
objectives (given that the first legislative option is enough).
9.           The
preferred option
The preferred option
is therefore a combination of elements from options 2, 3(a) and 3(b). 
 It can be summarised as follows: ·        Absence of public references to guilt before conviction - policy option 3(a), but without any specific remedy; ·        Burden of proof and any doubt on the guilt should benefit the accused - policy option 3(a), but without any specific remedy; ·        Right not to incriminate oneself, right not to co-operate and right to remain silent - combination of options 3(a) and 3(b): -                      Policy option 3(a), including specific remedies in case of breach; -                      Policy option 3(b) only as regards not allowing adverse inferences drawn from the exercise of these rights. ·        Right to be tried in one's presence – policy option 3(a), including specific remedies in case of breach; ·        Horizontal measures (policy option 2): -                      Training of the different actors involved in criminal proceedings; -                      Monitoring system on the situation of presumption of innocence in practice in the Member States. 
The preferred option
achieves all objectives set out in this impact assessment. As national judicial
authorities would have greater mutual trust owing to the existence of common
minimum standards for the provision of the right to be presumed innocent in all
Member States, there would likely be fewer refusals to cooperate and fewer
delays in cooperation with each other, with a corresponding diminution of the
costs of associated delays, aborted proceedings, re-trials and appeals.
The preferred option
fully respects the principles of subsidiarity and proportionality
by proposing a differentiated EU-level intervention the definition of
which was determined by several factors:
·       
Impact on the smooth functioning of mutual
recognition instruments: particular attention
should be given to those aspects which are closely linked and are indispensable
to the proper functioning of mutual recognition instruments. Stronger
intervention is justified where concrete procedural rights of suspect or
accused persons – rather than general principle of procedural .criminal law –
are at stake (such as for the right to silence and the right to be present at
one’s trial);
·       
Level of protection by national law: stronger EU intervention is required for those aspects of
presumption of innocence which are not adequately protected by national laws and
where problems do not only lie with the practical application of these laws;
·       
Level of protection provided by ECHR: stronger EU intervention is required for those aspects where ECHR
jurisprudence does not provide a standard which is sufficiently high in a
common area of criminal justice (right to silence).
Absence of public references to guilt
before conviction
For this aspect of presumption of
innocence, the preferred option is policy option 3(a) but without any
specific remedy. The explanation is:
·       
There exist problems with the practical
enforcement of this aspect of presumption of innocence and it should therefore
be covered by an EU legislative instrument given the added value of EU
enforcement mechanisms.
·       
However, for reasons of proportionality and
subsidiarity, given that all Member States have this aspect of presumption
of innocence sufficiently protected in their legislation and also that the
available remedies in case of breach seem as a whole satisfactory, it is not
justified to introduce specific remedies.
·       
This aspect of presumption of innocence is only
to a lesser extent linked to the functioning of the European Area of Justice,
in the sense that it is a general principle of procedural criminal law
-often a constitutional principle and, as such, less 'tangible'-, and is
reflected in concrete procedural rights of suspected or accused persons in a
rather indirect way.
·       
Given that no new remedy is to be proposed, no
costs are foreseen for Member States. A reduction of existing costs is expected
as regards those costs deriving from ECtHR and domestic appeals. In particular
in the long term such costs will tend to reduce given that presumption of
innocence would be more respected and thus remedies for each its breach would
be less used.
Burden of proof and any doubt on the
guilt should benefit the accused
For this aspect, the
preferred option is also policy option 3(a) but again without any specific
remedy. The explanation is similar to the one given for the previous
aspect:
·       
There still exist problems with the practical
enforcement of this aspect of presumption of innocence and it should
therefore be covered by an EU legislative instrument given the added value of
EU enforcement mechanisms.
·       
However, for reasons of proportionality and
subsidiarity, given that all Member States have this aspect of presumption
of innocence sufficiently protected in their legislation and also that the
available remedies in case of breach seem as a whole satisfactory, it is not
justified to introduce specific remedies.
·       
Again, this aspect of presumption of innocence
is only to a lesser extent linked to the functioning of European Area of
Justice, in the sense that it is a general principle of procedural
criminal law -often a constitutional principle and, as such, less 'tangible'-,
and is reflected in concrete procedural rights of suspect or accused persons in
a rather indirect way.
·       
Given that no new remedy is to be proposed, no
costs are foreseen for Member States. A reduction of existing costs is
expected as regards those costs deriving from ECtHR and domestic appeals. In
particular in the long term such costs will tend to reduce given that
presumption of innocence would be more respected and thus there would be lesser
remedies in case of breach.
Right not to incriminate oneself, right
not to cooperate and right to remain silent
For this aspect, the
preferred option is a combination of policy options 3(a) and 3(b).
·       
Establish the general principle of the right not
to incriminate oneself, the right not to cooperate and the right to silence
(not allowing improper pressure from police or judicial authorities) – option 3(a)-,
but not allowing adverse inferences to be drawn from the exercise of those
rights, thus going beyond the present ECHR standard –option 3(b).
·       
Allow for exceptions from the right not to
cooperate according to the ECtHR case law (blood samples, bodily tissue for DNA
testing –option 3(a)).
·       
Establish a specific remedy in case of breach:
declare the evidence obtained in breach of these rights as inadmissible –option
3(a).
The explanation for this option is:
·       
Given the close link of this aspect of
presumption of innocence to the functioning of European Area of Justice (e.g.,
with the EAW) - in the sense that it is establishes a concrete and 'tangible'
procedural right of suspect or accused persons and not only a general principle
of procedural criminal law, the general ECtHR principles need to be reinforced
by not admitting inferences to be drawn from the exercise of these rights,
without which their content is at risk and without which the objective of
ensuring its protection is not ensured. 
·       
To accompany this important change in several
Member States, strong measures in case of breach are needed and a specific
remedy in case of breach is justified, - non admissibility of evidence obtained
in breach of these rights.
·       
The exceptions to the right not to cooperate
identified by the ECtHR are justified by the fact that those are cases in which
evidence has an existence independently of the will of the suspect or accused
person, even though it might need to be obtained through the use of compulsory
powers (see section 4.2.3).
·       
The estimated costs of this option are: (i) as
regards establishing a prohibition to draw inferences from silence, the costs altogether
for the 9 Member States which would need to change national legislation are
tentatively estimated of 27 million euros in the most likely case scenario;
(ii) as regards non admissibility of evidence obtained in breach of these
rights, the estimated costs are altogether between 7.500 and 75.000 euros per
annum for the 12 Member States (altogether) which would need to introduce this
remedy in their national law.
Right to be tried in one's presence
For this aspect, the preferred option is policy
option 3(a). The justification and explanation are:
·       
There exist problems with the practical
enforcement of this aspect of presumption of innocence and it should therefore
be covered by an EU legislative instrument given the added value of EU
enforcement mechanisms.
·       
This aspect of presumption of innocence is also
closely linked to the functioning of European Area of Justice (e.g., with the
EAW), in the sense that it establishes a concrete and 'tangible' procedural
right of suspect or accused persons, more than a general principles of
procedural criminal law – for this reason, a specific remedy in case of breach
is justified, also because 4 Member States do not have it – retrial.
·       
Such specific remedy is explicitly required by
the ECtHR case law.
·       
The estimated costs of this option are 523.000
euros per annum for the 4 Member States (altogether) which currently do not
have the possibility of a retrial.
Horizontal
measures – training and monitoring (option 2)
·       
As described above, a system of training
of different actors in criminal procedures (police, lawyers, prosecutors,
judges etc) would support the implementaion of the legally-binding measures in
several ways.  Training woul help legal officials to avoid discussing the
suspect or accused and the relevant criminal proceedings in ways that could be
seen to imply (or) the suspect’s guilt before a verdict had been reached. It
would also ensure that legal officials are aware of thow to remedy breaches
relating to unjustified reversal of the burden of proof.  
·       
A monitoring system is needed to produce
more comprehensive and systematic data about the size and scope of the problem
in each jurisdiction. This would help to assess the effectiveness of the
intervention supported by this impact assessment, and to judge the need for any
subsequent action at the national or European level. 
The table below
contains the total estimated costs of the preferred option per Member State and
per aspect of presumption of innocence.
Costs of the
preferred option for each Member State
 EU jurisdiction/ Aspect of presumption of innocence || 1. Absence of public references to guilt       No costs since no specific remedy || 2. Burden of proof and right to benefit from any doubt     No costs since no specific remedy || 3. Right not to incriminate one-self, right not to cooperate and right to silence     || 4. Right to be present at one's trial || Monitoring and evaluation for all four aspects[90] || Training for all four aspects[91] || Total Minimum / Maximum (for MS concerned) 
 Minimum cost of removal of evidence[92] (1/100,000 cases) || Maximum  cost of removal of evidence (1/10,000 cases) || Increased cost of prosecution[93] || Cost of retrial[94] 
 Austria || 0 || 0 || 0 || 0 || 0 || 0 ||  164.492 ||  140.672 || 305.164 
 Belgium || 0 || 0 ||  503 ||  5.035 ||  1.306.081 ||  257.870 ||  173.692 ||  109.084 ||  1.847.230 / 1.851.762   
 Bulgaria || 0 || 0 ||  51 ||  515 || 0 || 0 ||  16.232 ||  37.298 ||  126.521 / 126.985 
 Croatia || 0 || 0 ||  143 ||  1.430 || 0 || 0 ||  58.192 ||  68.764 ||  127.099 / 128.386  
 Cyprus || 0 || 0 ||  165 ||  1.647 ||  159.644 || 0 ||  101.004 ||  5.360 ||  266.173 / 267.655  
 Czech Republic || 0 || 0 || 0 || 0 || 0 || 0 ||  76.320 ||  82.378 ||  158.698 
 Estonia || 0 || 0 || 0 || 0 || 0 || 0 ||  38.848 ||  17.824 ||  56.703 / 56.983 
 Finland || 0 || 0 || 0 || 0 ||  429.370 || 0 ||  108.756 ||  102.538 ||  640.664 
 France || 0 || 0 || 0 || 0 ||  7.757.873 || 0 ||  136.528 ||  888.752 ||  8.783.153 
 Germany || 0 || 0 || 0 || 0 || 0 || 0 ||  115.432 ||  6.514.856 ||  6.630.288 
 Greece || 0 || 0 || 0 || 0 || 0 || 0 ||  75.364 ||  115.426 ||  190.790 
 Hungary || 0 || 0 || 0 || 0 || 0 ||  168.680 ||  62.964 ||  207 ||  231.851 
 Ireland || 0 || 0 ||  173 ||  1.727 ||  438.540 || 0 ||  123.064 ||  28.824 ||  590.601 /  592.155  
 Italy || 0 || 0 || 0 || 0 || 0 || 0 ||  95.400 ||  384.988 ||  480.388 
 Latvia || 0 || 0 || 0 || 0 ||  159.135 ||  24.000 ||  32.852 ||  66.010 ||  281.997 
 Lithuania || 0 || 0 ||  43 ||  433 || 0 || 0 ||  62.964 ||  30.650 ||  93.657 / 94.047 
 Luxembourg || 0 || 0 ||  49 ||  487 || 0 || 0 ||  197.264 ||  10.452 ||  207.765 / 208.203  
 Malta || 0 || 0 || 0 || 0 || 0 || 0 ||  81.088 ||  1.762 ||  82.850 
 Netherlands || 0 || 0 ||  1.016 ||  10.161 ||  6.156.420 || 0 ||  179.240 ||  253.928 ||  6.590.604 / 6.599.749 
 Poland || 0 || 0 ||  981 ||  9.810 || 0 || 0 ||  61.056 ||  311.916 ||  373.953 / 382.782  
 Portugal || 0 || 0 || 0 || 0 || 0 || 0 ||  73.456 ||  153.262 ||  226.718 
 Romania || 0 || 0 || 0 || 0 || 0 || 0 ||  21.680 ||  122.658 ||  144.338 
 Slovakia || 0 || 0 || 0 || 0 || 0 || 0 ||  42.764 ||  919.044 ||  961.808 
 Slovenia || 0 || 0 || 0 || 0 || 0 || 0 ||  80.136 ||  53.112 ||  133.248 
 Spain || 0 || 0 ||  2.701 ||  27.011 || 0 || 0 ||  97.612 ||  543.466 ||  643.779 / 668.089  
 Sweden || 0 || 0 ||  202 ||  2.025 ||  1.273.164 || 0 ||  156.820 ||  159.434 ||  1.589.620 / 1.591.443 
 UK || 0 || 0 ||  1.564 ||  15.640 ||  9.347.852 || 0 ||  155.700 ||  159.434 ||  9.664.550 / 9.678.626  
NB:     The figures above have been rounded up
from excel sheets.
10.         Transposition,
monitoring and evaluation 
With the preferred option the following
mechanism will be used. 
The timeframe for transposition of the
Directive by Member States will be two years from its entry into force. As the
Directive creates only a comparatively limited number of Member States'
obligations (which, to some extent, mirror existing ECHR obligations or are
obligations which already exist in a number of Member States), it is expected
that a two-year deadline would provide Member States with sufficient time to
effect necessary changes to their respective national laws and practice. The
Commission will assist Member States and their national authorities in
transposition of the Directive. Planned measures taken by the Commission aimed
at countering any potentional difficulties of implementation will be listed in an
Implementation Plan. 
Providing for a robust monitoring and
evaluation mechanism is crucial to ensure that the rights envisaged in the
Directive are complied with in practice as well as in legislation. The
Directive will stipulate that Member States should report on the effective
implementation of legislative or non-legislative measures based on the nature
of the proposed changes.
A legislative instrument (Directive) opens
the possibility of EU enforcement mechanisms under Articles 258 and 259 of the
TFEU and also of preliminary rulings under Article 267 of the TFEU. This is
also an important element to be taken into account, as it ensures the effective
transposition and implementation of the provisions laid down in that
legislative instrument, if necessary with the intervention of the Court of
Justice of the European Union. This represents an important step forward
compared to the protection offered by the ECtHR, which does not have the power
to ensure that its decisions are enforced.
Member States should be encouraged to
collect relevant data to assist in this process as there is currently a lack of
reliable empirical data.
The indicators that would be relevant to
monitor the attainment of the objectives are summarised in the table below.  
 Main policy objectives || Potential indicators for preferred option || Sources of information 
 To enhance mutual trust between Member States' authorities and thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU || ·   Number of refusals by Member State judicial authorities to execute another Member States' judicial decision on fair trial grounds, specifically on which component of fair trial ·   Member States' authorities' perception on the compliance with fair trial standards of proceedings in other Member States. This could be measured through questionnaires distributed to individual members of these authorities.   || ·   Member States' governments, also: Eurojust   ·   Judges' associations (e.g. European Network of Councils for the Judiciary) 
 To guarantee for EU citizens an effective high-level standard of protection of fundamental procedural rights in criminal procedure by:   - ensuring that suspects and accused persons are presumed innocent and treated as such during the procedure - ensuring 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 (EAW) are confident that the underlying decision was taken in full respect of the principle of presumption of innocence. || ·   Number of EAWs per MS (issuing executing) ·   Number of cases where EAWs are refused on PoI grounds ·   Number of cases which could be considered unfair or inadequate in terms of ECHR rights ·   Legislation passed by Member State to implement the changes by providing for the minimum common standards agreed ·   Number of successful and unsuccessful applications to the ECtHR where procedures that could be considered unfair or inadequate were used ·   Number of successful appeals against a final judgment or pre-trial decision on ground of procedures that could be considered unfair or inadequate || ·   Member States' governments ·   Member States' governments   ·   Member States' governments     ·   ECtHR     ·   Member States' governments, Bar Associations 
The Commission envisages carrying out
specific empirical study with an emphasis on data collection 3-5 years into the
implementation of the instrument[95],
to gain in-depth quantitative and qualitative insights into the effectiveness
of the proposal. All the data collected would enable the Commission to evaluate
the actual compliance in Member States more robustly than using the means
hitherto available.
ANNEX I
Summary of cited ECtHR case law
Krause v Switzerland (Application
7986/77, judgement of 3 October 1978)
P. Krause was arrested in 1975 on suspicion of having committed
various crimes in Switzerland and remanded in custody.  She was extradited to
Italy in 1977.  Ahead of that, in 1976, the Federal Department of Justice and
Police of Switzerland stated that P. Krause had “committed common law
offences”.  The court, taking into consideration the whole interview stated
that article 6(2) had not been violated.
Minelli v Switzerland (Application 8660/79, judgement of 25 March 1983)
The court held that the presumption of innocence would
be violated if “without the accused’s having previously been proved guilty
according to law and, notably, without his having had the opportunity of
exercising his rights of defence, a judicial decision concerning him reflects
an opinion that he is guilty. This may be so even in the absence of any formal
findings; it suffices that there is some reasoning suggesting that the court
regards the accused as guilty”. 
Colozza v. Italy (Application 9024/80,
judgment of 12 February 1985)
Mr Colozza was judged in Rome in his absence and sentenced to six
years' imprisonment and a fine for various a offences, including fraud.
However, certain services of the Rome public prosecutor’s office and of the
Rome police had succeeded, in the context of other criminal proceedings, in
obtaining Mr. Colozza’s address, which showed that it was thus possible to
locate him. The Court concluded that Mr. Colozza had not waived exercise of his
right to appear and to defend himself or that he was seeking to evade justice.
The Court said that "When domestic law permits a trial to be held
notwithstanding the absence of a person "charged with a criminal
offence" (…), that person should, once he becomes aware of the
proceedings, be able to obtain, from a court which has heard him, a fresh
determination of the merits of the charge." It added that "the
resources available under domestic law must be shown to be effective and a
person "charged with a criminal offence" (…) must not be left with
the burden of proving that he was not seeking to evade justice or that his
absence was due to force majeure."
Such conditions were not met in Mr Colozza's case, and the
Court therefore concluded that there was a breach of the requirements of
Article 6(1) of the ECHR.
Salabiaku v. France (Application 10519/83, judgment of 7
October 1988)
This case concerned a person who had passed
through customs with cannabis in a suitcase which he declared to be his
property; he was convicted under the relevant provision of the Customs Code,
which deems anyone carrying in contraband goods (consciously or not) guilty of
an offence. Here the Strasbourg Court accepted the respondent state's argument
that the strict liability offence was not disproportionate. The Court said that
"Presumptions of fact or of law operate in every
legal system. Clearly, the Convention does not prohibit such presumptions in
principle. It does, however, require the Contracting States to remain within
certain limits in this respect as regards criminal law". The Court
added that "Article 6-2 does not therefore regard presumptions of fact
or of law provided for in the criminal law with indifference. It requires
States to confine them within reasonable limits which take into account the
importance of what is at stake and maintain the rights of the defence."
Barberà, Messegué and Jabardo v.
Spain (Application 10590/83, judgement of 6
December 1988)
The court held that
the presumption of innocence requires, inter alia, that when carrying out their
duties, 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.
Funke v France (Application 10828/84, judgement of 25 February 1993)
Mr Funke started proceedings against France
arguing that the country’s court’s demands that he produce documents amounted
to an attempt to compel self-incrimination.  The Court agreed that the initial
request for documents and the subsequent penalties were not unreasonable or
contrary to the right of a fair trial - the request was a balanced part of a
declaratory regime which saved individuals from strict and systematic
investigation in return for their accepting certain duties and requirements;
the subsequent penalties were a consequence of the refusal to cooperate. 
However the Court decided that the customs authorities using the conviction of
Funke in order to compel him to produce documents they believed to exist,
without trying to procure the documents by other means, was a breach of Article
6-1.
Allenet de Ribemont v. France (Application no. 15175/89, judgement
of 10 February 1995)
Following a press conference during which
the director of the Paris criminal investigation department made the statement
that “the haul was complete and the people involved in the case were under
arrest”.  Mr de Ribemont took the matter to the ECtHR saying that France was in
breach of articles 6(1) and 6(2) ECHR.  The court found that “the
presumption of innocence [...] will be violated if a statement of a public
official concerning a person charged with a criminal
offence reflects an opinion that he is guilty before he has been proved guilty
according to law. It suffices, even in the absence of any formal finding, that
there is some reasoning suggesting that the court regards the accused as guilty “
John Murray v UK (Application 18731/91, judgement of 26 January 1996)
During his trial, Mr Murray, who had been
arrest in Northern Ireland under the Prevention of Terrorism (Temporary
Provisions) Act 1989, chose not to give evidence and to keep silent.  The
court held that the right to remain silent was not absolute and that the drawing of reasonable inferences from silence
was possible if, as was the case, it had not the effect of shifting the burden
of proof from the prosecution to the defence so as to infringe the principle of
the presumption of innocence.
Saunders v UK (Application 19187/91, judgement of 17 December 1996)
 In R v Saunders (1996) the accused was
convicted on a number of counts of fraud relating to share dealing. During the
investigation of the offence, the police relied on the Companies act (1985),
which made it an offence to refuse to answer questions posed by fraud
investigators. The ECtHR stated that "the public interest cannot be
invoked to justify the use of answers compulsorily obtained in a non-judicial
investigation to incriminate the accused during the trial proceedings" and
"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."
Condron v. UK (Application 35718/97, judgement of 2 May 2000)
The applicants in this case decided to
remain silent during police questioning following the advice of their
solicitor, who was of the opinion that they were unfit to be interviewed due to
the fact that they were suffering from heroin withdrawal symptoms. They were
warned by the police that they did not have to say anything, but also that it
might harm their defence if they did not mention when questioned something
which they later rely on in court. The trials judge direction to the jury in
that respect was in such terms that the ECtHR considered to have left the jury at liberty to draw an
adverse inference from the accused's silence notwithstanding that it may have
been satisfied as to the plausibility of the explanation. In the ECtHR's
opinion, the jury should have been directed that it could only draw an adverse
inference if satisfied that the applicants' silence at the police interview
could only sensibly be attributed to their having no answer or none that would
stand up to cross-examination. The ECtHR found there had been a violation of
Article 6(1) of the ECHR and, as regards Article 6(2), considered that the
applicants' argument amounted to a restatement of their case under Article
6(1); for that reason, it concluded that no separate issue arose under that
head.
Daktaras v. Lithuania (Application 42095/98, judgement of 10 October 2000)
Mr Daktaras was portrayed in Lithuanian
media as a local mafia chief. He complained that during his trial had not been
impartial and that the prosecutor had commented that his guilt had been proved
before the trial had started.  The court held that in
asserting that the applicant's guilt had been "proved" by the
evidence in the case-file, the prosecutor had used the same terminology as the
applicant in his request to discontinue the case. The Court considered that,
while the use of the term "proved" was unfortunate, both the
applicant and the prosecutor were actually referring not to the question
whether the applicant's guilt had been established by the evidence, but to the
question whether the case-file had disclosed sufficient evidence of the
applicant's guilt to justify proceeding to trial. The Court thus found no
breach of article 6 paragraph 2.
Kudla v. Poland (Application 30210/96, judgment of
26 October 2000)
Mr Kudla was held in pre-trial detention
for a period of a total of … months. The Court stated, first of all, that "the question of
whether or not a period of detention is reasonable cannot be assessed in the
abstract" and "must be assessed in each case according to its
special features. Continued detention can be justified in a given case only if
there are specific indications of a genuine requirement of public interest
which, notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the Convention".
The Court added that it is for "National judicial authorities to ensure
that, in a given case, the pre-trial detention of an accused person does not
exceed a reasonable time."
The Court concluded
that "The persistence of reasonable suspicion that the person arrested
has committed an offence is a condition sine qua non for the lawfulness of the continued
detention, but after a certain lapse of time it no longer suffices. The Court
must then establish whether the other grounds given by the judicial authorities
continued to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must also be satisfied that the national
authorities displayed “special diligence” in the conduct of the proceedings
(…)."
J.B. v. Switzerland (Application 31827/96, judgement of 5 March 2001)
The defendant alleged that he was obliged
by the national courts to provide documents that could have incriminated him.
The right not to incriminate oneself presupposes that the authorities seek to
prove their case without resort to evidence obtained through methods of
coercion or oppression in defiance of the will of the "person
charged". By providing the accused with protection against improper
compulsion by the authorities these immunities contribute to avoiding
miscarriages of justice and securing the aims of article 6. The Court
considered that there had been a violation of the right under article 6(1) not
to incriminate oneself.
Telfner v. Austria (Application 33501/96, judgment of 20 March 2001)
The Court recalled
its consistent jurisprudence according to which "Article 6 § 2
requires, inter
alia, that when
carrying out their duties, 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
(…). Thus, the presumption of innocence will be infringed where the burden of
proof is shifted from the prosecution to the defence (…)."
Mr. Telfner was found
guilty of a crime following a road accident in which his car had been involved.
He did not reply to the police request to provide with information of who was
the driver of the car at the moment when the accident had occurred and was
convicted, in essence, "on a report of the local police station that
the applicant was the main user of the car and had not been home on the night
of the accident". The Court concluded that in requiring the
applicant to provide an explanation although they had not been able to
establish a convincing prima facie case against him, the courts shifted the
burden of proof from the prosecution to the defence. Consequently, there
was a violation of Article 6 § 2 of the
Convention.
Butkevičius v. Lithuania (Application
48297/99, judgment of 26 March 2002)
Mr Butkevičius, who was Minister of Defence of Lithuania and a Member of the Parliament from
1996 to 2000, was arrested and referred to by the
Prosecutor General and the Chairman of the Parliament, in the national press,
with statements such as the following: “The
Prosecutor General confirmed that [he had] enough sound evidence of the guilt
of A. Butkevičius.”. "The Prosecutor General was quoted (…):
'I qualify the offence as an attempt to cheat… ". “When asked
whether or not he doubts that A. Butkevičius accepted a bribe, the
Chairman of the Seimas said: ‘on the basis of the material in my possession I
entertain no doubt". “One or two facts were and are convincing.
[The applicant] took the money while promising criminal services”.
The Court
acknowledged that the fact that the applicant was an important political figure
at the time of the alleged offence required the highest State officials,
including the Prosecutor General and the Chairman of the Seimas, to keep the
public informed of the alleged offence and the ensuing criminal proceedings.
However, it cannot agree with the Government’s argument that this circumstance
could justify any use of words chosen by the officials in their interviews with
the press.
The Court also
recalled that the presumption of innocence may be infringed not only by a judge
or court but also by other public authorities. The Court concluded that there
had been a breach of Article 6 § 2 of the
Convention.
Kyprianou v. Cyprus (Application 73797/01, judgement of 15 December 2005)
The court held that “judicial
authorities are required to exercise maximum discretion with regards to the
cases with which they deal in order to preserve their image as impartial
judges. [...]Thus, where a court president publicly used expressions which
implied that he had already formed an unfavourable view of the applicant’s case
before presiding over the court that had to decide it, his statements were such
as to justify objectively the accused’s fears as to his impartiality”.
Jalloh v.
Germany (Application 5481000, judgement of
11 July 2006)
Mr Jalloh was going arrested in Germany on
the street under suspicion of being a drug dealer. When he was about to be
arrested, he swallowed a little bad 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.
Pandy v. Belgium (Application 13583/02, judgment of 21 September 2006)
In the course of a
criminal investigation into the applicant for several counts of murder, the
investigating judge made remarks during a public hearing to the effect that the
applicant should be comparing himself not with Dreyfus, but with Landru and Dr
Petiot (two notorious serial killers). The applicant’s request for the judge to
be withdrawn was dismissed. The appeal court found that the investigating judge
had delivered an objective report on a difficult investigation and that the
impugned remarks had been of minimal importance. The applicant was committed
for trial before an assize court. The indictment was released to the press by a
prosecution service spokesperson, as permitted by the law (the case was the
subject of intense media interest), and was served on the applicant the same
day, a few weeks ahead of the commencement of the proceedings before the assize
court. The applicant was sentenced to life imprisonment for, among other
offences, the murder of his two wives and four of his children and the rape and
indecent assault of several of his daughters. 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.
Nestak v. Slovakia (Application 65559/01, judgement of 27 February 2007)
In a decision concerning pre-trial
detention, the national courts stated that it had been
proved that the applicant had committed the offence of which he had been
charged. The ECtHR emphasised "that a fundamental distinction must be
made between a statement that someone is merely suspected of having committed a
crime and a clear judicial declaration, in the absence of a final conviction,
that an individual has committed the crime in question". The Court
concluded that "the statements impugned in the present case implied the
applicant’s guilt before it was proved according to law". It added
that "the fact that the applicant was ultimately found guilty and
sentenced to a term of imprisonment cannot vacate his initial right to be
presumed innocent until proved guilty according to law". There was
accordingly a violation of Article 6 § 2 of the ECHR.
Tendam v. Spain
(Application 25720/05, judgement of 13 July 2010)
Two sets of criminal
proceedings were brought against the applicant. In the first set, he was detained
pending trial for 135 days, and was subsequently convicted at first instance
and acquitted on appeal. In the second set of proceedings he was likewise
acquitted and sought the recovery of possessions seized from him during the
investigation. Although some of the items were returned to him, he noticed that
they were damaged and that others had disappeared. He unsuccessfully applied
for compensation, both for the damage resulting from his pre-trial detention
and for the malfunctioning of the justice system that had led to the failure to
return the seized items or to their loss in value. His application was
dismissed under both heads. In dismissing the applicant’s claim for
compensation for his pre-trial detention, the Ministry of Justice and the
Interior had relied on the fact that he had been acquitted on appeal for lack
of sufficient evidence. Such reasoning, without qualification or reservation,
cast doubt on the applicant’s innocence. In making a distinction between an
acquittal for lack of evidence and an acquittal based on the finding that the
alleged offence had not been committed, it had disregarded the applicant’s
previous acquittal, which had to be taken into account by any judicial
authority regardless of the reasons given for the criminal court’s decision.
The national courts, for their part, had simply endorsed the Ministry’s
reasoning without remedying the issue arising. The ECtHR therefore considered
that there had been a breach of presumption of innocence.
Garlicki v. Poland (Application 36921/07, judgment of 14 June 2011)
Mr Garlicki, 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.
Poncelet v. Belgium (Application 44418/07, judgment of 30 March 2010)
The applicant was a
senior civil servant. In 1994 an inspector was asked to conduct an
administrative inquiry into certain public procurement contracts. He was of the
opinion that there had been anomalies in the performance of those contracts and
submitted various reports whose content displayed a hostile and biased attitude
towards the applicant. In 1995 a judicial investigation was opened on charges
of forgery and bribery. In 2006 the investigation division of the criminal
court found that the inspector’s stance had breached the applicant’s right to
be presumed innocent. In 2008 the criminal court, ruling on the merits after
appeal proceedings before higher courts, came to the same conclusion. In 2009
the court of appeal declared the proceedings against the applicant admissible
but found that the prosecution had become time-barred. It thus invalidated the
effects of the investigation division’s decision and the criminal court’s
judgment finding a breach of the right to be presumed innocent. The proceedings
against the applicant having been brought and pursued in spite of the breach of
the right to be presumed innocent and of defence rights, the court of appeal
crystallised the feeling that only the limitation period had prevented the
applicant’s conviction. The ECtHR therefore considered that there had been a
breach of the applicant’s right to be presumed innocent.
Diacenco v. Romania
Mr Diacenco was involved in an accident in
November 1998 in which the car he was driving hit a cart pulled by a horse,
injuring one of the cart’s passengers. Indicted for battery, he was acquitted
by the Court of Appeal in a final judgment of 9 July 2003. At the same time,
that court held him criminally liable in the reasoning part of its judgment and
ordered him to pay civil damages to the injured person. In fact, in seeking to protect the legitimate
interests of the purported victim, the Court of Appeal expressly declared the
applicant “guilty of the offence for which he was correctly indicted”.
Consequently, the ECtHR considered that the language employed by the Court of
Appeal overstepped the bounds of the civil forum, thereby casting doubt on the
correctness of the acquittal. Accordingly, for the ECtHR there was a sufficient
link to the criminal proceedings which was incompatible with the presumption of
innocence.
Lagardère v. France (Application 18851/07, judgment of 12 April 2012)
In December 1992 a
company lodged a complaint against Jean-Luc Lagardère, the applicant’s father, for misappropriation
of corporate assets, and applied to join the criminal proceedings as a civil
party. In June 1999 the father was brought before the criminal court, which
declared the prosecution time-barred. In January 2002 the Paris Court of Appeal
upheld all the provisions of that judgment. The company appealed on points of
law. Jean-Luc Lagardère died in March 2003. In October 2003, after
declaring that the prosecution had lapsed as a result of the accused’s death,
the Court of Cassation quashed and annulled the civil provisions of the
judgment of the Paris Court of Appeal and fixed a new, later date at which time
had started to run for the purposes of the limitation period. The Versailles
Court of Appeal, to which the case was referred for fresh examination, found
that the constituent elements of the offence of misappropriation of corporate
assets were established and ordered Jean-Luc Lagardère’s heirs to pay approximately fourteen million
euros to the civil party. The applicant appealed on points of law, arguing that
there had been a violation of Article 6 of the Convention because the criminal
court had no authority to judge the matter after his father’s death. The Court
of Cassation rejected the appeal.
The accused had died
before his guilt had been lawfully established by a “tribunal”, so prior to his
death he had been presumed innocent. Accordingly, in terms of both the language
it had used and the reasoning it had given, the Versailles Court of Appeal had
declared the applicant’s father guilty of the charges against him even though
the prosecution had lapsed as a result of his death and no court had ever found
him guilty during his lifetime. According to the EctHR, it had therefore
violated his right to be presumed innocent.
ANNEX II
List of stakeholders consulted - on-line survey on presumption of innocence
The stakeholders below were informed
by the Commission about the on line survey carried out by CSES:
1) Members
of the Expert Group on EU Criminal Policy
 NAME || AFFILIATION || NATIONALITY 
 Petter Asp || Professor, University of Stockholm || SE 
 Luigi Foffani || Professor, University of Modena || IT 
 Dan Frände || Professor, University of Helsinki || FI 
 Estella Baker || Professor, University of Sheffield || UK 
 Berend Ferdinand Keulen || Professor, University of Groningen || NL 
 Valsamis Mitsilegas || Professor, University of London, Queen Mary || EL 
 Helmut Satzger || Professor, University of Munich || DE 
 Jocelyne Leblois-Happe || Professor, University of Strasbourg || FR 
 Pedro Caeiro || Professor, University of Coimbra || PT 
 Kristine Strada-Rozenberga || Professor, University of Latvia || LV 
 Jorge Espina || Prosecutor || ES 
 Joachim Ettenhofer || Prosecutor; EJN Contact Point || DE 
 Mike Kennedy || Crown Prosecution Service || UK 
 Galina Toneva || Deputy Prosecutor General || BG 
 Ignazio Patrone || Prosecutor General's Office || IT 
 Margarete von Galen || Defence Lawyer || DE 
 Paul Garlick || Barrister, QC || UK 
 Hans Sundberg || Judge, Court of Appeal || SE 
 Béatrice Blanc || Judge, President Tribunal de Grande Instance || FR 
 Igor Dzialuk || Independent Expert (former Undersecretary of State, Ministry of Justice and former Prosecutor) || PL 
2) European Associations
1) International Association of Penal Law
2) Association of European Administrative
Judges
3) Association of the Councils of State and
Supreme Administrative Jurisdictions of the European Union
4) Council of Bars and Law Societies of
European Commission
5) Council of the Notariats of the European
Union 
6) European Criminal Bar Association
7) ECLAN
8) European Association of Judges
9) European Judges and Prosecutors
Association
10) European Judicial Network
11) European Union of Rechtspfleger
12) Ludwig Maximilians-University,
Institute for Criminal Law and Criminal
Sciences
13) Justice
14) Network Of The Presidents Of The
Supreme Judicial Courts Of The European Union
15) U.A.E. - Union des Avocats Européens
16) Victim support Europe
17) Amnesty International
18) Open Society
19) Fair Trial International
Annex III
Overview of the responses to the survey questionnaire
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
 Case || Application Number || Date of Judgement 
 GARYCKI v. POLAND || 14348/02 || 06/02/2007 
 NESTAK v. SLOVAKIA || 65559/01 || 27/02/2007 
 KAMPANELLIS v. GREECE || 9029/05 || 21/06/2007 
 VASSILIOS STAVROPOULOS v. GREECE || 35522/04 || 27/09/2007 
 SAMOILA AND CIONCA v. ROMANIA || 33065/03 || 04/03/2008 
 VITAN v. ROMANIA || 42084/02 || 25/03/2008 
 GEERINGS v. THE NETHERLANDS || 30810/03 || 01/03/2007 
 PARAPONIARIS v. GREECE || 42132/06 || 25/09/2008 
 RUPA v. ROMANIA || 58478/00 || 16/12/2008 
 NERATTINI v. GREECE || 43529/07 || 18/12/2008 
 DIDU v. ROMANIA || 34814/02 || 14/04/2009 
 PESA v. CROATIA || 40523/08 || 08/04/2010 
 TENDAM v. SPAIN || 25720/05 || 13/07/2010 
 PETYO PETKOV v. BULGARIA || 32130/03 || 07/01/2010 
 JIGA v. ROMANIA || 14352/04 || 16/03/2010 
 KRUMPHOLZ v. AUSTRIA || 13201/05 || 18/03/2010 
 FINSTER v. POLAND || 24860/08 || 08/02/2011 
 GIOSAKIS v. GREECE || 5689/08 || 03/05/2011 
 PONCELET v. BELGIUM || 44418/07 || 30/03/2010 
 TENDAM v. SPAIN || 25720/05 || 13/07/2010 
 KONSTAS v. GREECE || 53466/07 || 24/05/2011 
 LIZASO AZCONOBIETA v. SPAIN || 28834/08 || 28/06/2011 
 G.C.P. c. ROUMANIE || 20899/03 || 20/12/2011 
 PAVALACHE v. ROMANIA || 38746/03 || 18/10/2011 
 DIACENCO v. ROMANIA || 124/04 || 07/02/2012 
 LAGARDÈRE v. France || 18851/07 || 12/04/2012 
ANNEX V
Legal situation in the Member States regarding presumption of innocence ('PoI')
   || Absence of public references to guilt || Burden of proof and standard of proof || Right to remain silent, right not to cooperate and privilege against self-incrimination || In absentia decisions 
 How is this enshrined in law : Explicitly in constitution, criminal procedural code or case law - ○ Derived from the PoI ●[96] || Existence of specific remedies Yes – ○ No, but can be derived from general PoI - ● || The burden of proof always on the prosecution – ○ Reverse burdens of proof in certain circumstances - ● || Existence of specific remedies Yes – ○ No, but can be derived from general PoI - ● || Possibility to challenge the proof when reversed Yes – ○ No - ● || Right to remain silent is explicitly provided in law - ● Adverse inferences permitted - ◊ || Right not to cooperate and privilege against self-incrimination in national law - ○ The right is qualified: - where the information requested from the suspect exists independently of his will - ◊ - In certain additional circumstances ♦ No specific right not to cooperate and no privilege against self-incrimination-● Adverse inferences permitted - ■ || Existence of specific remedies Yes evidence can be inadmissible– ○ Yes decision can be nullified - ◊ No - ● || Explicit right to be present at trial - ● Suspect / accused’s presence at trial is without exceptions mandatory - ○ In absentia proceedings possible if: -Suspect / accused has voluntarily absconded - ◊ -In other circumstances - ♦ || If in absentia proceedings possible, the suspect / accused person may subsequently: -a fresh determination of the merits of the case - ○ -appeal the decision - ● 
 AT || ○ || ○ || ○ || ○ || N/A || ● || ○ ◊ || ◊ || ● ◊ || ○ 
 BE || ○ || ● || ● || ● || ○ || ● ◊ || ● || ● || ● ◊ || ● 
 BG || ● || ● || ○ || ● || N/A || ● || ○ ◊ || ● || ● ◊ ♦ || ● 
 CY || ○ || ● || ○ || ● || N/A || ● ◊ || ○ ◊ || ● || ● ○ || N/A 
 CZ || ○ || ● || ○ || ● || N/A || ● || ○ ◊ || ○ || ● ◊ || ○ 
 DE || ○ || ● || ○ || ● || N/A || ● ◊ || ○ ◊ ■ || ○ ◊ || ● ♦ || ○ 
 DK ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 EE || ○ || ● || ● || ● || ○ || ● || ● || ● || ● ◊ ♦ || ○ 
 EL || ● || ● || ● || ● || ○ || ● || ● || ◊ || ● || ○ 
 ES || ● || ● || ● || ● || ○ || ● || ○ ◊ || ● || ● ◊ || ○ 
 FI || ○ || ○ || ○ || ○ || N/A || ● ◊ || ○ ◊ || ○ || ● ♦ || ○ 
 FR || ○ || ● || ● || ○ || ○ || ● || ○ ◊ || ◊ || ● ◊ ♦ || ○ 
 HU || ○ || ● || ● || ● || ○ || ● || ○ ◊ || ○ || ● ♦ || ● 
 HR || ○ || ● || ○ || ● || N/A || ● || ○ ◊ || ● || ● ◊ || ○ 
 IE || ● || ● || ● || ● || ○ || ● ◊ || ○ ◊ ■ || ● || ○ || N/A 
 IT ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 LT || ○ || ○ || ○ || ● || N/A || ● || ○ ◊ || ● || ● ♦ || ○ 
 LU || ● || ● || ● || ● || ○ || ● || ○ ◊ || ○ || ● ◊ || ○ 
 LV || ● || ● || ● || ● || ○ || ● ◊ || ○ || ● || ● || ● 
 MT || ● || ● || ● || ● || ○ || ● ◊ || ○ ◊ || ○ || ● ◊ || ○ 
 NL || ● || ● || ○ || ● || N/A || ● ◊ || ● || ● || ♦ || ○ 
 PL || ● || ○ || ● || ● || ○ || ● || ○ || ● || ● ◊ || ○ 
 PT || ● || ● || ● || ● || ○ || ● || ● || ● || ● ◊ || ○ 
 RO || ● || ● ||   ||   ||   || ● || ○ ◊ || ○ ◊ ||   ||   
 SE || ● || ○ || ● || ● || ○ || ● ◊ || ○ ◊ ■ || ● || ● ◊ ♦ || ○ 
 SI || ● || ● || ○ || ● || N/A || ● || ○ ◊ || ○ || ● ◊ || ○ 
 SK ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   
 UK || E&W ||   ||   || ● || ○ || ○ || ◊♦ || ○ ◊ ♦[97] || ● || ● ◊ || ○ 
 SC || ● || ● || ● || ○ || ○ || ◊♦ || ○ ◊ ♦ || ● || ● ◊ || ○ 
ANNEX VI
Financial impacts
This Annex provides the detailed
calculations used to assess the financial costs of the policy options
Nota Bene:
(1) Data of the extent of the problem
have proved very difficult to obtain.  The research team has constantly sought
to identify data on the number of breaches of each of these issues to no
avail.  Ad hoc conversations with some practitioners and magistrates have
subsequently shown that for each of the issues, the number of breaches per case
can be counted in thousands rather than hundreds.  Consequently, throughout
this appendix, three scenarios have been used to calculate to potential
financial impacts of the different policy options.  
(2) The figures in the tables of this Annex have been
rounded up from excel sheets and consequently do not always look to add up.
The right not to be referred to as guilty
Option 1 – Status Quo
Costs
linked to damages
It is
difficult to assess the current cost of the right not to be referred to as guilty
as not data are available on the number of cases where the right not to be referred
to as guilty is breached.  Only anecdotal evidence is available.  Any separate remedy of damages
available to the “victim” would in most national legal systems potentially
include both the restitution of pecuniary losses caused by the breach (as well
as legal costs) and non-pecuniary damages to compensate for consequences such
as distress or humiliation. In Garlicki –v- Poland where a doctor had
been charged with corruption and homicide and his guilt had been alleged in
slanderous terms by the Prosecutor General in a press conference, the victim
brought a civil action against the Prosecutor General claiming PLN 70,000
non-pecuniary damages for loss of reputation, as well as demanding a public
apology. The Polish court ordered an apology and awarded the doctor PLN 7,000
compensation for his moral suffering, and this sum was increased to PLN 30,000
(EUR 7,500) on appeal. In other cases, the ECtHR itself has considered the
measure of damages for this type of breach and the awards it has made in this
respect may not differ greatly from those provided by national courts[98]. By
way of example, in Kyprianou –v- Cyprus[99] it awarded the victim EUR 15,000 as
non-pecuniary damages for frustration and distress and in Pesa –v- Croatia[100]
it awarded EUR 9,900 in a case of violation of the presumption of innocence.
Figures are also available for a number of ECtHR
cases, namely Lizaso Azconobieta v. Spain, where the court ordered the
responding country to pay damages of €12,000, G.C.P v. Romania where it was
ordered to pay €2,000, Pavalach v. Romania (€10,000) and Kardas v. Greece
(€12,000).
Based on an extrapolation using GDP per capita at
PPP, the table below provides figures for each Member State of the damages that
would be awarded in case of a breach of the right not to be referred to as guilty.
Column A – Member State
Column B – GDP per capita at PPP (base point)
Column C – Available data damages awarded per case (only
one case known)
Column D – Amount of damage per base point (Column C /
Column B)
Column E – Damages awarded per case (Column B x 135.43)
Table D1
 A - EU jurisdiction || B - GDP/capita in PPS (2010) - EUROSTAT (base point) || C - Known damages || D - damages per base point (C/B) || E – Extrapolation – Cost of damages per case (B x average D) 
 Austria || 126 ||   ||   ||            17,064 
 Belgium || 119 ||   ||   ||            16,116 
 Bulgaria || 44 ||   ||   ||              5,959 
 Croatia || 61 || 9,900 ||        162.30 ||              8,261 
 Cyprus || 99 || 15,000 ||        151.52 ||            13,407 
 Czech Republic || 80 ||   ||   ||            10,834 
 Estonia || 64 ||   ||   ||              8,667 
 Finland || 115 ||   ||   ||            15,574 
 France || 108 ||   ||   ||            14,626 
 Germany || 118 ||   ||   ||            15,980 
 Greece || 90 || 12,000 ||        133.33 ||            12,188 
 Hungary || 65 ||   ||   ||              8,803 
 Ireland || 128 ||   ||   ||            17,335 
 Italy || 101 ||   ||   ||            13,678 
 Latvia || 51 ||   ||   ||              6,907 
 Lithuania || 57 ||   ||   ||              7,719 
 Luxembourg || 271 ||   ||   ||            36,701 
 Malta || 83 ||   ||   ||            11,240 
 Netherlands || 133 ||   ||   ||            18,012 
 Poland || 63 || 7,244 ||        114.98 ||              8,532 
 Portugal || 80 ||   ||   ||            10,834 
 Romania || 46 || 6,000 ||        130.43 ||              6,230 
 Slovakia || 74 ||   ||   ||            10,022 
 Slovenia || 85 ||   ||   ||            11,511 
 Spain || 100 || 12,000 ||        120.00 ||            13,543 
 Sweden || 123 ||   ||   ||            16,658 
 UK || 112 ||   ||   ||            15,168 
Throughout the research phase, we have not been
able to find any figures on the number of cases where the absence of public references
to guilt had been breached.  Consequently, we have based the following
extrapolations on different scenarios to provide some broad figures which would
allow for some estimation of the costs of this option.  Ad hoc conversations
with practitioners have indicated that cases where this right is breached are
not common and were of the view that they are counted in breaches out of
thousands rather than hundreds of cases.  We have thus developed three
scenarios where 1/10,000, 1/50,000 and 1/100,000 criminal cases are awarded
damages.
The table below provides estimates of the total
cost of the status quo option based on the three scenarios.
Table D2
 A - EU jurisdiction || Cost of damages per case || Number of criminal cases || 1 / 10,000 cases receiving damages || 1 / 50,000 cases receiving damages || 1 / 100,000 cases receiving damages 
 Austria ||   17,064 ||  60,726 ||  103,622 ||  20,724 ||   10,362 
 Belgium ||   16,116 ||   189,716 ||  305,744 ||  61,149 ||   30,574 
 Bulgaria ||  5,959 ||   118,262 || 70,470 ||  14,094 ||  7,047 
 Croatia ||  8,261 ||   110,524 || 91,304 ||  18,261 ||  9,130 
 Cyprus ||   13,407 ||   117,495 ||  157,529 ||  31,506 ||   15,753 
 Czech Republic ||   10,834 ||  97,675 ||  105,823 ||  21,165 ||   10,582 
 Estonia ||  8,667 ||  48,359 || 41,914 || 8,383 ||  4,191 
 Finland ||   15,574 ||  59,683 || 92,951 ||  18,590 ||  9,295 
 France ||   14,626 ||   1,061,097 ||  1,551,974 ||   310,395 || 155,197 
 Germany ||   15,980 ||   1,181,995 ||  1,888,875 ||   377,775 || 188,887 
 Greece ||   12,188 ||   195,929 ||  238,807 ||  47,761 ||   23,881 
 Hungary ||  8,803 ||   269,691 ||  237,403 ||  47,481 ||   23,740 
 Ireland ||   17,335 ||  77,625 ||  134,560 ||  26,912 ||   13,456 
 Italy ||   13,678 ||   1,607,646 ||  2,198,960 ||   439,792 || 219,896 
 Latvia ||  6,907 || 9,959 ||   6,878 || 1,376 ||  688 
 Lithuania ||  7,719 ||  81,277 || 62,741 ||  12,548 ||  6,274 
 Luxembourg ||   36,701 ||  14,579 || 53,506 ||  10,701 ||  5,351 
 Malta ||   11,240 ||  19,613 || 22,046 || 4,409 ||  2,205 
 Netherlands ||   18,012 ||   441,911 ||  795,961 ||   159,192 ||   79,596 
 Poland ||  8,532 ||   1,111,772 ||  948,553 ||   189,711 ||   94,855 
 Portugal ||   10,834 ||   115,466 ||  125,098 ||  25,020 ||   12,510 
 Romania ||  6,230 ||   171,480 ||  106,826 ||  21,365 ||   10,683 
 Slovakia ||   10,022 ||  41,189 || 41,278 || 8,256 ||  4,128 
 Slovenia ||   11,511 ||  90,205 ||  103,838 ||  20,768 ||   10,384 
 Spain ||   13,543 ||   1,336,505 ||  1,809,990 ||   361,998 || 180,999 
 Sweden ||   16,658 ||  91,000 ||  151,584 ||  30,317 ||   15,158 
 UK ||   15,168 ||   1,096,664 ||  1,663,402 ||   332,680 || 166,340 
 Total ||   ||   ||   11,752,184 ||   2,350,437 || 1,175,218 
Based on those different scenarios, we can
estimate the current situation (status quo) to have a financial impact of
between and €1.2 million and €11.7 million per annum. 
Due to the lack of precise data, we do not find it
prudent to provide a set figure. 
Furthermore, extra costs could be incurred by
procedure being brought against a Member State, having the potential to be
receivable by the ECtHR.  As an example, it is estimated that the Cadder
case in Scotland cost in excess of €175,000[101].
Option 2 – Non-legislative option
Set up a system to exchange best practice to
develop trust between lawyers, judicial and law enforcement authorities to
develop understanding of each other’s role and reduce forcing suspects or
accused persons to speak or cooperate. Draw up guidelines on the way in which
this right should be understood.  Encourage the training of law enforcement
officer and judicial authorities staff.
Under this option:
·         
Pan-European
guidelines would be drawn up;
·         
Workshops would be
organised to exchange best practices
·         
Monitoring and
evaluation 
·         
Training
Drawing up guidelines
The first step would be for the Commission to
organise a series of 3 experts meetings.  
Based on the estimate that each EU workshop it
would cost travel expenses for each MS expert at an average of €250, in
addition to subsistence costs of €280, the total amount for the participants would
be (€250+€280=) €530.  In addition, the cost of renting a room for the meeting
as well as related food and drinks costs can be estimated at €1,000.  Overall,
each workshop would cost a total of (€530 x 28 Member States =) €14,840 +
€1,000 = €15,840.  The total annual cost of the workshops would thus be
(€15,840 x 3 =) €47,520
The cost of
disseminating the results can be seen as negligible as these can take the form
of memos, internal guidelines or existing training could be amended to include
the new guidelines.  
Best
practice workshops
A series of workshops cold also be organised. 
Each workshop would include 
The impact of such workshops in individual Member
States would depend on (i) what is discussed, (ii) the extent to which best
practices are introduced in Member States with less efficient systems and (iii)
other factors.  
In order to calculate the impacts of this option,
we will assume that Member States will be divided into 6 groups (4 groups of 5
MS and 2 groups of 4 MS) with 5 workshops organised per group, making a total
of 30 workshops. . 
Assuming 60 people would participate in each
workshop and based on the similar participations costs cost (travel expenses at
an average of €250, in addition to subsistence costs of €280, the total amount
for the participants would be (€250+€280=) €530), each workshop would cost €530
x 60 = € 31,800.  
Overall, the costs of organising the 30 workshops
are as follow:
Travel + subsistence costs                                          €31,800                       x30      =         €954,000
Renting the room + logistics                                       €1,000             x30      =         €30,000
Total cost of Workshops                                                                                           €984,000
Monitoring
and evaluation
In addition to
the costs detailed above, the monitoring scheme would involve an estimated two
full time employees either from the Ministry of Justice.
Based on the
cost of the wage of an employee in the “business service” sector, the table
below provides the costs of two full time equivalents (FTE) FTE in each of the
MS.  
Table D3
   || Cost of FTE || Cost of 2 FTE 
 Belgium || 43,423 ||          86,846 
 Bulgaria || 4,058 ||            8,116 
 Czech Republic || 19,080 ||          38,160 
 Germany ||       28,858 ||          57,716 
 Estonia ||        9,712 ||          19,424 
 Ireland ||       30,766 ||          61,532 
 Greece ||       18,841 ||          37,682 
 Spain ||       24,403 ||          48,806 
 France ||       34,132 ||          68,264 
 Italy ||       23,850 ||          47,700 
 Cyprus ||       25,251 ||          50,502 
 Latvia ||        8,213 ||          16,426 
 Lithuania ||       15,741 ||          31,482 
 Luxembourg ||       49,316 ||          98,632 
 Hungary ||       15,741 ||          31,482 
 Malta ||       20,272 ||          40,544 
 Netherlands ||       44,810 ||          89,620 
 Austria ||       41,123 ||          82,246 
 Poland ||       15,264 ||          30,528 
 Portugal ||       18,364 ||          36,728 
 Romania ||        5,420 ||          10,840 
 Slovenia ||       20,034 ||          40,068 
 Slovakia ||       10,691 ||          21,382 
 Finland ||       27,189 ||          54,378 
 Sweden ||       39,205 ||          78,410 
 United Kingdom ||       38,925 ||          77,850 
 Croatia ||       14,548 ||          29,096 
   ||   || 1,294,460 
Source:
Eurostat
Overall,
monitoring and evaluation would thus cost €1.3 million
Training
Based on a 2007 study[102], the hourly fee of a lawyer
in the EU is estimated to be between €51 and €574.  Assuming that the legal
experts providing the training charge half the price of a lawyer, we estimated
that the training session would be calculated assuming a length of 2 hours. 
The cost of the trainer therefore ranges between €51 and €574. 
Further assuming that the training would be done
in groups of 10 staff (judge and prosecutors), and that all judges and
prosecutors in Member States will receive the training, the costs are presented
in the following table.  For instance, in Austria, the cost of the trainer is
assumed to be €383 per session.  Considering there are 1,837 staff to train,
there would be a total of 184 training session, for a total cost of €70,336.
In addition, we assume that the costs of the
premises do not have to be taken into account as the training sessions will
take place in rooms belonging to the judicial system (tribunals etc...).
Finally, we have excluded travel costs as we assume that due to the limited
number of participants in the training sessions, those could take place in
different local premises, rather than in the capital city.  
The total cost of training would stand at € 5.5
million
Table D4
 EU jurisdiction || Number of judges || Number of prosecutors || Cost of trainer || number of staff to train || number of training sessions || cost of training 
 Austria || 1,491 || 346 || 383 || 1,837 || 184 || 70,336 
 Belgium || 1,607 || 835 || 223 || 2,442 || 244 || 54,542 
 Bulgaria || 2,198 || 1,455 || 51 || 3,653 || 365 || 18,649 
 Croatia || 1,887 || 619 || 137 || 2,506 || 251 || 34,382 
 Cyprus || 104 || 106 || 128 || 210 || 21 || 2,680 
 Czech Republic || 3,063 || 1,240 || 96 ||  4,303 ||     430 ||   41,189 
 Estonia || 224 || 175 || 223 || 399 || 40 || 8,912 
 Finland || 967 || 372 || 383 || 1,339 || 134 || 51,268 
 France || 9,645 || 1,961 || 383 || 11,606 || 1,161 || 444,376 
 Germany || 79,832 || 5,244 || 383 || 85,076 || 8,508 || 3,257,428 
 Greece || 2,041 || 543 || 223 || 2,584 || 258 || 57,713 
 Hungary || 2,891 || 1,741 || 223 || 4,632 || 463 || 103,455 
 Ireland || 147 || 191 || 574 || 338 || 34 || 19,412 
 Italy || 6,654 || 1,978 || 223 || 8,632 || 863 || 192,494 
 Latvia || 472 || 390 || 383 || 862 || 86 || 33,005 
 Lithuania || 767 || 834 || 96 || 1,601 || 160 || 15,325 
 Luxembourg || 188 || 46 || 223 || 234 || 23 || 5,226 
 Malta || 39 || 30 || 128 || 69 || 7 || 881 
 Netherlands || 2,530 || 786 || 383 || 3,316 || 332 || 126,964 
 Poland || 10,625 || 5,668 || 96 || 16,293 || 1,629 || 155,958 
 Portugal || 1,956 || 1,475 || 223 || 3,431 || 343 || 76,631 
 Romania || 4,081 || 2,326 || 96 || 6,407 || 641 || 61,329 
 Slovakia || 1,351 || 935 || 96 || 2,286 || 229 || 21,882 
 Slovenia || 1,024 || 165 || 223 || 1,189 || 119 || 26,556 
 Spain || 4,689 || 2,408 || 383 || 7,097 || 710 || 271,733 
 Sweden || 1,081 || 1,001 || 383 || 2,082 || 208 || 79,717 
 UK || 1,984 || 3,035 || 574 || 5,019 || 502 || 288,255 
 Total || 143,538 ||        35,905 ||   ||   ||   || 5,520,298 
Source:
CEPEJ, CSES
Overall, if
all the elements of this option are put in place, we can estimate the total
cost to be:
Guidelines
(one off cost)                                             €47,520
Workshops
(annually)                                      €984,000
Evaluation and
monitoring (annually)             €1,294,460
Training
(annually)                                          €5,520,298
Total                                                                €7,846,278
Option 3 – Legislative option
Set out the obligation for judicial authorities and
their representatives not to refer in public to a suspect or accused person as
being guilty, before the final decision of a court.  This principle would be
set out without any exceptions.  Furthermore, the option would set out
appropriate remedies in case of breach of the principle
The cost of this option would be linked to the
number of retrials as the remedy would have to take place before the final
decision of a court.
Cost of retrial
No data exist for the cost of prosecution purely
in criminal cases.  Based on the data available, it is only possible to
calculate a cost of the prosecution per case in all judicial procedures.  Assuming
that 65% of judicial cases in the EU are criminal cases[103], we can extrapolate the
total number of judicial cases for each Member State.  By taking the total
public budget allocated to all courts (CEPEJ), we can then estimate the cost of
a procedure.  Based on the assumptions set out under option 1 that the number
of breaches can be counted per thousand cases rather than hundred cases, we
provide the same three scenarios (1/10,000, 1/50,000 and 1/100,000) that would
require a re-trial, we can therefore estimate the extra procedural costs in
each Member State.
Column A – Member State
Column B – Number of criminal cases (CEPEJ)
Column C – Total number of cases (civil + criminal) =
Column B / 65 x 100
Column D – Total annual approved public budget – where
this was not available (*), we have calculated the Total annual approved public
budget per inhabitant and have extrapolated it by the population
Column E – Population
Column F – Total annual approved public budget per
inhabitant (Column D / Column E)
Column G – Cost per case (Column D / Column F)
Column H – Number of cases leading to a retrial (Column B /
scenario )
Column I – Cost of retrial = (Column G x Column H)
Table D5
 A EU jurisdiction || B Number of criminal cases (CEPEJ) || C Total number of cases (civil and criminal) || D Total annual approved public budget (CEPEJ) || E Population || F Total annual approved public budget per inhabitant || G Cost per case || 1/10,000 || 1/50,000 || 1/100,000 
 H Number of cases leading to a retrial || I Cost of retrial || H Number of cases leading to a retrial || I Cost of retrial || H Number of cases leading to a retrial || I Cost of retrial 
 Austria ||        60,726 ||            93,425 || 304,454,631 || 8,404,252 ||   ||          3,259 ||                  6 ||             19,790 ||                  1 ||             3,958 ||                 1 ||            1,979 
 Belgium ||      189,716 ||          291,871 || 396,723,427 || 10,951,266 ||   ||          1,359 ||                19 ||             25,787 ||                  4 ||             5,157 ||                 2 ||            2,579 
 Bulgaria ||      118,262 ||          181,942 || 112,211,184 || 7,504,868 ||                15 ||             617 ||                12 ||               7,294 ||                  2 ||             1,459 ||                 1 ||                729 
 Croatia ||      110,524 ||          170,037 || 211,304,301 || 4,412,137 ||                48 ||          1,243 ||                11 ||             13,735 ||                  2 ||             2,747 ||                 1 ||            1,373 
 Cyprus ||      117,495 ||          180,762 || 33,546,827 || 804,435 ||                42 ||             186 ||                12 ||               2,181 ||                  2 ||                436 ||                 1 ||                218 
 Czech Republic ||        97,675 ||          150,269 || 346,497,809 || 10,532,770 ||                33 ||          2,306 ||                10 ||             22,522 ||                  2 ||             4,504 ||                 1 ||            2,252 
 Estonia ||        48,359 ||            74,398 || 26,797,340 || 1,340,194 ||                20 ||             360 ||                  5 ||               1,742 ||                  1 ||                348 ||                 0 ||                174 
 Finland ||        59,683 ||            91,820 || 243,066,350 || 5,375,276 ||                45 ||          2,647 ||                  6 ||             15,799 ||                  1 ||             3,160 ||                 1 ||            1,580 
 France ||   1,061,097 ||       1,632,457 || 2,356,460,787 || 65,048,412 ||   ||          1,444 ||              106 ||           153,170 ||                21 ||           30,634 ||               11 ||          15,317 
 Germany ||   1,181,995 ||       1,818,454 || 2,961,554,917 || 81,751,602 ||   ||          1,629 ||              118 ||           192,501 ||                24 ||           38,500 ||               12 ||          19,250 
 Greece ||      195,929 ||          301,429 || 409,714,852 || 11,309,885 ||   ||          1,359 ||                20 ||             26,631 ||                  4 ||             5,326 ||                 2 ||            2,663 
 Hungary ||      269,691 ||          414,909 || 259,501,133 || 9,985,722 ||                26 ||             625 ||                27 ||             16,868 ||                  5 ||             3,374 ||                 3 ||            1,687 
 Ireland ||        77,625 ||          119,423 || 148,722,000 || 4,480,858 ||                33 ||          1,245 ||                  8 ||               9,667 ||                  2 ||             1,933 ||                 1 ||                967 
 Italy ||   1,607,646 ||       2,473,302 || 3,051,375,987 || 60,626,442 ||                50 ||          1,234 ||              161 ||           198,339 ||                32 ||           39,668 ||               16 ||          19,834 
 Latvia ||          9,959 ||            15,322 || 36,919,820 || 2,229,641 ||                17 ||          2,410 ||                  1 ||               2,400 ||                  0 ||                480 ||                 0 ||                240 
 Lithuania ||        81,277 ||          125,042 || 50,567,945 || 3,244,601 ||                16 ||             404 ||                  8 ||               3,287 ||                  2 ||                657 ||                 1 ||                329 
 Luxembourg ||        14,579 ||            22,429 || 18,542,050 || 511,840 ||   ||             827 ||                  1 ||               1,205 ||                  0 ||                241 ||                 0 ||                121 
 Malta ||        19,613 ||            30,174 || 10,260,000 || 417,617 ||                25 ||             340 ||                  2 ||                  667 ||                  0 ||                133 ||                 0 ||                  67 
 Netherlands ||      441,911 ||          679,863 || 990,667,000 || 16,655,799 ||                59 ||          1,457 ||                44 ||             64,393 ||                  9 ||           12,879 ||                 4 ||            6,439 
 Poland ||   1,111,772 ||       1,710,418 || 1,365,085,000 || 38,200,037 ||                36 ||             798 ||              111 ||             88,731 ||                22 ||           17,746 ||               11 ||            8,873 
 Portugal ||      115,466 ||          177,640 || 528,943,165 || 10,636,979 ||                50 ||          2,978 ||                12 ||             34,381 ||                  2 ||             6,876 ||                 1 ||            3,438 
 Romania ||      171,480 ||          263,815 || 355,246,737 || 21,390,000 ||                17 ||          1,347 ||                17 ||             23,091 ||                  3 ||             4,618 ||                 2 ||            2,309 
 Slovakia ||        41,189 ||            63,368 || 138,493,788 || 5,435,273 ||                25 ||          2,186 ||                  4 ||               9,002 ||                  1 ||             1,800 ||                 0 ||                900 
 Slovenia ||        90,205 ||          138,777 || 178,158,919 || 2,050,189 ||                87 ||          1,284 ||                  9 ||             11,580 ||                  2 ||             2,316 ||                 1 ||            1,158 
 Spain ||   1,336,505 ||       2,056,162 || 1,671,947,969 || 46,152,926 ||   ||             813 ||              134 ||           108,677 ||                27 ||           21,735 ||               13 ||          10,868 
 Sweden ||        91,000 ||          140,000 || 557,260,358 || 9,415,570 ||                59 ||          3,980 ||                  9 ||             36,222 ||                  2 ||             7,244 ||                 1 ||            3,622 
 UK ||   1,096,664 ||       1,687,175 || 1,411,574,820 || 62,641,000 ||                23 ||             837 ||              110 ||             91,752 ||                22 ||           18,350 ||               11 ||            9,175 
 Total ||   ||   ||   ||   ||   ||   ||     982 ||    1,181,414 ||     196 ||       236,283 ||      98 ||     118,141 
Overall, the total cost of this option would be
between €120,000 and €1.2 million. Taking the median scenario, we can estimate
the costs of this option to stand at €240,000 per annum.
Burden of proof and standards of proof
Option 1 – Status Quo
It is difficult to assess the current financial
impacts linked to the burden and standards of proof. However, one can assume
that the reversal of the burden of proof in some Member States lead to a
reduction in the cost of prosecution which can be calculated as being
equivalent to the cost of the introduction of Option 3(b): € 55 million.
Furthermore, extra costs could be incurred by
procedure being brought against a Member State, having the potential to be
receivable by the ECtHR.  As an example, it is estimated that the Cadder
case in Scotland cost in excess of €175,000[104].
Option 2- Non-legislative option 
Set up a system to
exchange best practice to develop trust between lawyers, judicial and law
enforcement authorities to develop understanding of each other’s role and
reduce forcing suspects or accused persons to speak or cooperate. Draw up
guidelines on the way in which this right should be understood.  Encourage the
training of law enforcement officer and judicial authorities staff
The cost of Option 2 would be similar for each
issue.  Consequently, the cost of this option can be estimated to reach €7,846,278. 
If Option 2 is chosen for each of the research stands however, the total
cost would be significantly lower than €7,846,278 x 4 = €31,382,112 as
some significant synergies and saving would take place.
Option 3(a) – Legislative option (ECHR standards)
Establish
general principle that the burden of proof is on the prosecution and the doubt
should benefit the accused.
Allow for
some exceptions (i.e., reversed burden of proof) under certain conditions:
i) such
presumption must always be rebuttable (i.e. there should always be a
possibility to challenge a presumption of guilt);
ii)
proportionality principle (these presumptions must be confined within
reasonable limits and maintain the rights of defence);
+ Remedies
Cost of retrial
The cost of this option would be linked to the
remedies set out (cost of re-trial).  The table below provides the costs of
re-trial based on the assumption that one in 10,000, 50,000 and 100,000 cases
will lead to a retrial.
Table D6
 EU jurisdiction || Cost per case || 1/10,000 || 1/50,000 || 1/100,000 
 Number of cases leading to a retrial || cost of retrial || Number of cases leading to a retrial || cost of retrial || Number of cases leading to a retrial || cost of retrial 
 Austria ||          3,259 ||    6 ||    19,790 ||    1 ||      3,958 ||        1 ||       1,979 
 Belgium ||          1,359 ||       19 ||    25,787 ||    4 ||      5,157 ||        2 ||       2,579 
 Bulgaria ||             617 ||       12 ||      7,294 ||    2 ||      1,459 ||        1 ||      729 
 Croatia ||          1,243 ||       11 ||    13,735 ||    2 ||      2,747 ||        1 ||       1,373 
 Cyprus ||             186 ||       12 ||      2,181 ||    2 ||    436 ||        1 ||      218 
 Czech Republic ||          2,306 ||       10 ||    22,522 ||    2 ||      4,504 ||        1 ||       2,252 
 Estonia ||             360 ||    5 ||      1,742 ||    1 ||    348 ||        0 ||      174 
 Finland ||          2,647 ||    6 ||    15,799 ||    1 ||      3,160 ||        1 ||       1,580 
 France ||          1,444 ||     106 ||       153,170 ||       21 ||    30,634 ||     11 ||     15,317 
 Germany ||          1,629 ||     118 ||       192,501 ||       24 ||    38,500 ||     12 ||     19,250 
 Greece ||          1,359 ||       20 ||    26,631 ||    4 ||      5,326 ||        2 ||       2,663 
 Hungary ||             625 ||       27 ||    16,868 ||    5 ||      3,374 ||        3 ||       1,687 
 Ireland ||          1,245 ||    8 ||      9,667 ||    2 ||      1,933 ||        1 ||      967 
 Italy ||          1,234 ||     161 ||       198,339 ||       32 ||    39,668 ||     16 ||     19,834 
 Latvia ||          2,410 ||    1 ||      2,400 ||    0 ||    480 ||        0 ||      240 
 Lithuania ||             404 ||    8 ||      3,287 ||    2 ||    657 ||        1 ||      329 
 Luxembourg ||             827 ||    1 ||      1,205 ||    0 ||    241 ||        0 ||      121 
 Malta ||             340 ||    2 ||    667 ||    0 ||    133 ||        0 ||        67 
 Netherlands ||          1,457 ||       44 ||    64,393 ||    9 ||    12,879 ||        4 ||       6,439 
 Poland ||             798 ||     111 ||    88,731 ||       22 ||    17,746 ||     11 ||       8,873 
 Portugal ||          2,978 ||       12 ||    34,381 ||    2 ||      6,876 ||        1 ||       3,438 
 Romania ||          1,347 ||       17 ||    23,091 ||    3 ||      4,618 ||        2 ||       2,309 
 Slovakia ||          2,186 ||    4 ||      9,002 ||    1 ||      1,800 ||        0 ||      900 
 Slovenia ||          1,284 ||    9 ||    11,580 ||    2 ||      2,316 ||        1 ||       1,158 
 Spain ||             813 ||     134 ||       108,677 ||       27 ||    21,735 ||     13 ||     10,868 
 Sweden ||          3,980 ||    9 ||    36,222 ||    2 ||      7,244 ||        1 ||       3,622 
 UK ||             837 ||     110 ||    91,752 ||       22 ||    18,350 ||     11 ||       9,175 
 Total (minus AT, FR, UK) ||   || 760 || 916,702 || 152 || 183,340 || 76 || 91,670 
The total cost of this option would thus be
between € 92,000 and €920,000 per annum.
Option 3 (b) – Legislative option (beyond ECHR
standards)
Establish
general principle that the burden of proof is on the prosecution and the doubt
should benefit the accused.
Do not allow
any exceptions (i.e., reversed burden of proof)
+ Remedies
This option would lead to an increase in the costs
at the investigative stage, which can be translated into an increase in the
cost of the prosecution.  This is calculated below.
Increased costs of the prosecution
The table below provides figures on the total
annual budget allocated for public prosecution.  Figures are taken from the
CEPEJ report (2012), providing 2010 data.  Figures followed by an asterisk (*)
denote Member States for which the data was not provided.  We have calculated
the Public annual budget allocated to public prosecution per inhabitant where
possible and extrapolated the data based on the average (€11.9).  Overall, we
estimate that the total annual budget allocated to public prosecution in the EU
(with the exception of Denmark and the addition of Croatia) is €6,737,848,858
(€ 6.8 billion)
Table D7
 EU jurisdiction || Public annual budget allocated to public prosecution || Population || Public annual budget allocated to public prosecution per inhabitant 
 Austria ||              100,231,686* ||          8,404,252 || n/a 
 Belgium ||              130,608,155* ||        10,951,266 || n/a 
 Bulgaria ||                79,203,203 ||          7,504,868 || 10.6 
 Croatia ||                41,296,176 ||          4,412,137 || 9.4 
 Cyprus ||                15,964,412 ||             804,435 || 19.8 
 Czech Republic ||                83,446,289 ||        10,532,770 || 7.9 
 Estonia ||                  9,135,614 ||          1,340,194 || 6.8 
 Finland ||                42,937,000 ||          5,375,276 || 8.0 
 France ||              775,787,302* ||        65,048,412 || n/a 
 Germany ||              974,994,666* ||        81,751,602 || n/a 
 Greece ||              134,885,155* ||        11,309,885 || n/a 
 Hungary ||              102,321,320 ||          9,985,722 || 10.2 
 Ireland ||                43,854,000 ||          4,480,858 || 9.8 
 Italy ||           1,249,053,619 ||        60,626,442 || 20.6 
 Latvia ||                15,913,545 ||          2,229,641 || 7.1 
 Lithuania ||                29,555,000 ||          3,244,601 || 9.1 
 Luxembourg ||                  6,104,361* ||             511,840 || n/a 
 Malta ||                  2,569,000 ||             417,617 || 6.2 
 Netherlands ||              615,642,000 ||        16,655,799 || 37.0 
 Poland ||              312,514,570 ||        38,200,037 || 8.2 
 Portugal ||              113,901,622 ||        10,636,979 || 10.7 
 Romania ||              162,428,333 ||        21,390,000 || 7.6 
 Slovakia ||                63,702,886 ||          5,435,273 || 11.7 
 Slovenia ||                19,263,376 ||          2,050,189 || 9.4 
 Spain ||              550,433,943* ||        46,152,926 || n/a 
 Sweden ||              127,316,425 ||          9,415,570 || 13.5 
 UK ||              934,785,200 ||        62,641,000 || 14.9 
 Total ||           6,737,848,858 ||   ||   
 Total MS where burden of proof can be reversed (BE, HR, FR, HU, IE, PT, ES, SE, UK) ||           2,820,304,143 ||   ||   
While it is not possible to assess the exact
financial impact of the increased prosecution costs, we can provide some likely
scenarios.
In the case of Option 3(b), prosecution activity
would increase in those MS where the burden of proof can currently be reversed (BE,
HR, FR, HU, IE, PT, ES, SE, UK).  Below we provide different scenarios.  It is
very difficult to assess the increase of prosecution activity linked to option
3(b).  During the final stages of the research we have asked our experts and a
selected number of law enforcement and prosecution authorities to provide an
estimate of the increase in prosecution activity.  Because of the differences
in Member States systems, we have aggregated them to reach the estimated listed
below.
If prosecution activity increases by
-         
0.1%, the financial impact
of the measure would be €2,820,304,143 x 0.1%= €2,820,304
-         
0.5%, the financial impact
of the measure would be €2,820,304,143 x 0.5%= €14,101,521
-         
1%, the financial impact
of the measure would be €2,820,304,143 x 1%= €28,203,041
The total cost of Option 3(b) would therefore be a
minimum of €90,000 + €2,8 million = €2,9 million per annum.
Right to remain silent, right not to cooperate and
privilege against self-incrimination
Option 1 – Status Quo
The quantifiable financial impacts of the baseline
scenario (status quo) are linked to (i) the current costs no incurred by
evidence not being removed during the proceedings and (ii) those linked to
retrial, which are equivalent to any cost incurred by option 3(a). 
Furthermore, extra costs could be incurred by procedure being brought against a
Member State, having the potential to be receivable by the ECtHR.  As an
example, it is estimated that the Cadder case in Scotland cost in excess
of €175,000[105].
Option 2 – Non-legislative option 
Set up a system to
exchange best practice to develop trust between lawyers, judicial and law
enforcement authorities to develop understanding of each other’s role and
reduce forcing suspects or accused persons to speak or cooperate. Draw up
guidelines on the way in which this right should be understood.  Encourage the
training of law enforcement officer and judicial authorities staff
The cost of Option 2 would be similar for each
issue.  Consequently, the cost of this option can be estimated to reach €7,846,278. 
If Option 2 is chosen for each of the research stands however, the total
cost would be significantly lower than €7,846,278 x 4 = €31,382,112 as
some significant synergies and saving would take place.
Option 3(a) – Legislative option (ECHR standards)
Establish the
general principle of the right to silence, the right not to cooperate and the
right not to be compelled to produce self-incriminatory evidence (not allowing
improper pressure from police or judicial authorities).
Allow for
some exceptions:
(i) by allowing adverse inferences to be drawn from exercising such
right in exceptional cases according to the ECtHR case law;
-  
(ii) for the
right not to cooperate: by allowing for some very specific exceptions,
according to the ECtHR case law (e.g. blood samples, bodily tissue for DNA
testing).
+ Remedies: minimum rules on the consequences of
breach of these rights.
Costs relating to this option refer to (i)
increased costs of the prosecution and (ii) costs of retrials costs 
Costs of the removal of evidence at the trial 
In the case where evidence is removed, one can
assume that this will also have an incidence on the cost of the prosecution. 
The scale of this increase is impossible to set out in detail, as this will
depend on the complexity of each case.  Assuming that the average case where
the evidence is removed leads to an increase of two hours of the prosecution
time, the inadmissibility of the evidence in cases where the right to remain
silent is breached would be as follows.
Column A – Member State
Column B – Gross annual salary of a Public Prosecutor (CEPEJ)[106]
Column C – Gross weekly salary based on 47 weeks worked per annum
(Column B /47)
Column D – Gross hourly salary based on 40 hours worked per week
(Column C /40)
Column E – Extra cost of prosecution based on 1 day (Column
D x 8 hours)
Column F – Number of criminal cases - CEPEJ
Column G – Costs for 1/10,000 scenario ((Column F / 10,000)
x Column E)
Column H – Costs for 1/50,000 scenario ((Column F / 50,000)
x Column E)
Column I – Costs for 1/100,000 scenario ((Column F /
100,000) x Column E)
Table D8
 A   EU jurisdiction || B   Gross annual salary of a Public Prosecutor || C   Gross salary per week (number of weeks worked = 47 per annum) || D   Gross salary per hour (40 hours per week) || E   Extra cost of prosecution of not admitting evidence where the right to remain silent has been breached || F   Number of criminal cases || G   1 / 10,000 cases || H   1 / 50,000 cases || I   1 / 100,000 cases 
 Austria ||        50,653 || 1,078 || 27 ||             216 || 60,726 ||  1,309 || 262 || 131 
 Belgium ||        62,367 || 1,327 || 33 ||             265 || 189,716 ||  5,035 || 1,007 || 503 
 Bulgaria ||        10,230 || 218 || 5 ||               44 || 118,262 ||  515 || 103 ||   51 
 Croatia ||        30,396 || 647 || 16 ||             129 || 110,524 ||  1,430 || 286 || 143 
 Cyprus ||        32,942 || 701 || 18 ||             140 || 117,495 ||  1,647 || 329 || 165 
 Czech Republic ||        19,632 ||   418 ||  10 ||          84 ||   97,675 ||  816 || 163 ||   82 
 Estonia ||        15,108 || 321 || 8 ||               64 || 48,359 ||  311 ||   62 ||   31 
 Finland ||        45,048 || 958 || 24 ||             192 || 59,683 ||  1,144 || 229 || 114 
 France ||        40,660 || 865 || 22 ||             173 || 1,061,097 ||   18,359 || 3,672 || 1,836 
 Germany ||        41,127 || 875 || 22 ||             175 || 1,181,995 ||   20,686 || 4,137 || 2,069 
 Greece ||        32,704 || 696 || 17 ||             139 || 195,929 ||  2,727 || 545 || 273 
 Hungary ||        16,852 || 359 || 9 ||               72 || 269,691 ||  1,934 || 387 || 193 
 Ireland ||      52,290 * || 1,113 || 28 ||             223 || 77,625 ||  1,727 || 345 || 173 
 Italy ||        50,290 || 1,070 || 27 ||             214 || 1,607,646 ||   34,404 || 6,881 || 3,440 
 Latvia ||        13,524 || 288 || 7 ||               58 || 9,959 || 57 ||   11 ||  6 
 Lithuania ||        12,529 || 267 || 7 ||               53 || 81,277 ||  433 ||   87 ||   43 
 Luxembourg ||        78,483 || 1,670 || 42 ||             334 || 14,579 ||  487 ||   97 ||   49 
 Malta ||      35,699 * || 760 || 19 ||             152 || 19,613 ||  298 ||   60 ||   30 
 Netherlands ||        54,036 || 1,150 || 29 ||             230 || 441,911 ||   10,161 || 2,032 || 1,016 
 Poland ||        20,736 || 441 || 11 ||               88 || 1,111,772 ||  9,810 || 1,962 || 981 
 Portugal ||        35,699 || 760 || 19 ||             152 || 115,466 ||  1,754 || 351 || 175 
 Romania ||        25,750 || 548 || 14 ||             110 || 171,480 ||  1,879 || 376 || 188 
 Slovakia ||        26,585 || 566 || 14 ||             113 || 41,189 ||  466 ||   93 ||   47 
 Slovenia ||        34,858 || 742 || 19 ||             148 || 90,205 ||  1,338 || 268 || 134 
 Spain ||        47,494 || 1,011 || 25 ||             202 || 1,336,505 ||   27,011 || 5,402 || 2,701 
 Sweden ||        52,290 || 1,113 || 28 ||             223 || 91,000 ||  2,025 || 405 || 202 
 UK ||        33,515 || 713 || 18 ||             143 || 1,096,664 ||   15,640 || 3,128 || 1,564 
 Total (BE, BG, CY, EE, ES, HR, IE, LT, LV, NL, PL, SE, UK) ||   ||   ||   ||   ||   ||   75,803 ||   15,161 || 7,580 
The total cost of the removal of evidence at the
trial stage is thus estimated between €7,500 and €75,800 per annum for Member
States where the situation is known.  
Costs of retrials
The further remedy (re-trail) would bear re-trail
costs.  The table below provides the costs of re-trial based on the assumption
that one in 10,000, 50,000 and 100,000 cases will lead to a retrial.
Table D9
 A - EU jurisdiction || Cost per case || 1/10,000 || 1/50,000 || 1/100,000 
 Number of cases leading to a retrial || cost of retrial || Number of cases leading to a retrial || cost of retrial || Number of cases leading to a retrial || cost of retrial 
 Austria ||          3,259 ||                  6 ||              19,790 ||                  1 ||            3,958 ||                  1 ||            1,979 
 Belgium ||          1,359 ||                19 ||              25,787 ||                  4 ||            5,157 ||                  2 ||            2,579 
 Bulgaria ||             617 ||                12 ||                7,294 ||                  2 ||            1,459 ||                  1 ||               729 
 Croatia ||          1,243 ||                11 ||              13,735 ||                  2 ||            2,747 ||                  1 ||            1,373 
 Cyprus ||             186 ||                12 ||                2,181 ||                  2 ||               436 ||                  1 ||               218 
 Czech Republic ||          2,306 ||                10 ||              22,522 ||                  2 ||            4,504 ||                  1 ||            2,252 
 Estonia ||             360 ||                  5 ||                1,742 ||                  1 ||               348 ||                  0 ||               174 
 Finland ||          2,647 ||                  6 ||              15,799 ||                  1 ||            3,160 ||                  1 ||            1,580 
 France ||          1,444 ||              106 ||            153,170 ||                21 ||          30,634 ||                11 ||          15,317 
 Germany ||          1,629 ||              118 ||            192,501 ||                24 ||          38,500 ||                12 ||          19,250 
 Greece ||          1,359 ||                20 ||              26,631 ||                  4 ||            5,326 ||                  2 ||            2,663 
 Hungary ||             625 ||                27 ||              16,868 ||                  5 ||            3,374 ||                  3 ||            1,687 
 Ireland ||          1,245 ||                  8 ||                9,667 ||                  2 ||            1,933 ||                  1 ||               967 
 Italy ||          1,234 ||              161 ||            198,339 ||                32 ||          39,668 ||                16 ||          19,834 
 Latvia ||          2,410 ||                  1 ||                2,400 ||                  0 ||               480 ||                  0 ||               240 
 Lithuania ||             404 ||                  8 ||                3,287 ||                  2 ||               657 ||                  1 ||               329 
 Luxembourg ||             827 ||                  1 ||                1,205 ||                  0 ||               241 ||                  0 ||               121 
 Malta ||             340 ||                  2 ||                   667 ||                  0 ||               133 ||                  0 ||                 67 
 Netherlands ||          1,457 ||                44 ||              64,393 ||                  9 ||          12,879 ||                  4 ||            6,439 
 Poland ||             798 ||              111 ||              88,731 ||                22 ||          17,746 ||                11 ||            8,873 
 Portugal ||          2,978 ||                12 ||              34,381 ||                  2 ||            6,876 ||                  1 ||            3,438 
 Romania ||          1,347 ||                17 ||              23,091 ||                  3 ||            4,618 ||                  2 ||            2,309 
 Slovakia ||          2,186 ||                  4 ||                9,002 ||                  1 ||            1,800 ||                  0 ||               900 
 Slovenia ||          1,284 ||                  9 ||              11,580 ||                  2 ||            2,316 ||                  1 ||            1,158 
 Spain ||             813 ||              134 ||            108,677 ||                27 ||          21,735 ||                13 ||          10,868 
 Sweden ||          3,980 ||                  9 ||              36,222 ||                  2 ||            7,244 ||                  1 ||            3,622 
 UK ||             837 ||              110 ||              91,752 ||                22 ||          18,350 ||                11 ||            9,175 
 Total (minus AT,FI,FR,HU) ||   ||              837 ||            975,788 ||              167 ||        195,158 ||                84 ||          97,579 
The total costs of retrials under this option
would thus be between € 98,000 and € 980,000 per annum.
The total cost of option 3(a) would therefore be
between € 105,500 and €1.05 million per annum.
Option 3(b) – Legislative option (beyond ECHR
standards)
Similar to option Option 3 (a) but with exceptions
drafted in a narrower way than ECtHR /no exceptions
This option would lead to an increase in the costs
at the investigative stage, which can be translated into an increase in the
cost of the prosecution.  This is calculated below.
Increased costs of prosecution
The table below provides figures on the total
annual budget allocated for public prosecution.  Figures are taken from the
CEPEJ report (2012), providing 2010 data.  Figures followed by an asterisk (*)
denote Member States for which the data was not provided.  We have calculated
the public annual budget allocated to public prosecution per inhabitant where
possible and extrapolated the data based on the average (€11.9).  Overall, we
estimate that the total annual budget allocated to public prosecution in the EU
(with the exception of Denmark and the addition of Croatia) is €6,737,848,858
(€ 6.8 billion)
Table D10
 EU jurisdiction || Public annual budget allocated to public prosecution || Population || Public annual budget allocated to public prosecution per inhabitant 
 Austria ||              100,231,686* ||          8,404,252 || n/a 
 Belgium ||              130,608,155* ||        10,951,266 || n/a 
 Bulgaria ||                79,203,203 ||          7,504,868 || 10.6 
 Croatia ||                41,296,176 ||          4,412,137 || 9.4 
 Cyprus ||                15,964,412 ||             804,435 || 19.8 
 Czech Republic ||                83,446,289 ||        10,532,770 || 7.9 
 Estonia ||                  9,135,614 ||          1,340,194 || 6.8 
 Finland ||                42,937,000 ||          5,375,276 || 8.0 
 France ||              775,787,302* ||        65,048,412 || n/a 
 Germany ||              974,994,666* ||        81,751,602 || n/a 
 Greece ||              134,885,155* ||        11,309,885 || n/a 
 Hungary ||              102,321,320 ||          9,985,722 || 10.2 
 Ireland ||                43,854,000 ||          4,480,858 || 9.8 
 Italy ||           1,249,053,619 ||        60,626,442 || 20.6 
 Latvia ||                15,913,545 ||          2,229,641 || 7.1 
 Lithuania ||                29,555,000 ||          3,244,601 || 9.1 
 Luxembourg ||                  6,104,361* ||             511,840 || n/a 
 Malta ||                  2,569,000 ||             417,617 || 6.2 
 Netherlands ||              615,642,000 ||        16,655,799 || 37.0 
 Poland ||              312,514,570 ||        38,200,037 || 8.2 
 Portugal ||              113,901,622 ||        10,636,979 || 10.7 
 Romania ||              162,428,333 ||        21,390,000 || 7.6 
 Slovakia ||                63,702,886 ||          5,435,273 || 11.7 
 Slovenia ||                19,263,376 ||          2,050,189 || 9.4 
 Spain ||              550,433,943* ||        46,152,926 || n/a 
 Sweden ||              127,316,425 ||          9,415,570 || 13.5 
 UK ||              934,785,200 ||        62,641,000 || 14.9 
 Total ||           6,737,848,858 ||   ||   
 Total MS where adverse inferences can be drawn (BE, CY, FI, FR, IE, LV, NL, SE, UK) ||           2,702,808,039 ||   ||   
While it is not possible to assess the exact
financial impact of the increased prosecution costs, we can provide some likely
scenarios. Below we provide different scenarios.  It is very difficult to
assess the increase of prosecution activity linked to option 3(b).  During the
final stages of the research we have asked our experts and a selected number of
law enforcement and prosecution authorities to provide an estimate of the
increase in prosecution activity.  Because of the differences in Member States systems,
we have aggregated them to reach the estimated listed below.
In the event where the measure increases
prosecution activity in those MS where the burden of proof can currently be
reversed by 
-         
0.5%, the financial
impact of the measure would be €2,702,808,039 x 0.5%= €13,514,040
-         
1%, the financial
impact of the measure would be €2,702,808,039 x 1%= €27,028,080
-         
2%, the financial
impact of the measure would be €2,702,808,039 x 2%= €54,056,161
While it is difficult to assess the exact increase
in the costs at the investigative stage, one can assume that these will be
greater under Option 3(b). Assuming that the costs of the prosecution
increase by 2%, the cost of this option would be €54 million.
Taking into account the “worst scenario”, the
total cost of Option 3(b) would be €54 million per annum.
Right to be tried in one’s presence
Option 1 – Status Quo
The financial impacts of the status quo can be
assessed as (i) costs not incurred linked to some Member States having too low
a threshold for trial to be held in the absence of the defendant and (ii) extra
costs could be incurred by procedure being brought against a Member State,
having the potential to be receivable by the ECtHR.  As an example, it is
estimated that the Cadder case in Scotland cost in excess of €175,000[107].
Option 2 – Non legislative option
Set up a system to
exchange best practice to develop trust between lawyers, judicial and law
enforcement authorities to develop understanding of each other’s role and
reduce forcing suspects or accused persons to speak or cooperate. Draw up
guidelines on the way in which this right should be understood.  Encourage the
training of law enforcement officer and judicial authorities staff
The cost of Option 2 would be similar for each
issue.  Consequently, the cost of this option can be estimated to reach €7,846,278. 
If Option 2 is chosen for each of the research stands however, the total
cost would be significantly lower than €7,846,278 x 4 = €31,382,112 as
some significant synergies and saving would take place.
Option 3(a) – Legislative option (ECHR standards)
Establish the
general principles according to the ECtHR case law (person charged with a
criminal offence is entitled to take part in the hearing, and can be tried in
absentia only if he had an opportunity to waive his right to be present).
+ Remedy:
right to re-open the criminal proceedings (not only the right to appeal) if the
in absentia rules were not respected.
Costs linked to retrials
This Option would lead to an increase in the
number of re-trials.  Currently, in four jurisdictions (BE, BG, HU and LV) a
defendant who was not tried in his present may not obtain a fresh determination of the merits of the
charge from the court which heard the case. Assuming that 1 in 1,000 trials is
held in absentia, and using the figures calculated above, the table below shows
that the total cost of this measure would amount to €523,480 per annum.
Table D11
 EU jurisdiction || Cost per case || Number of cases leading to a retrial || Cost of retrial 
 Austria ||          3,259 ||   60 ||  197,900 
 Belgium ||          1,359 || 190 ||  257,870 
 Bulgaria ||             617 || 120 || 72,940 
 Croatia ||          1,243 || 110 ||  137,350 
 Cyprus ||             186 || 120 || 21,810 
 Czech Republic ||          2,306 || 100 ||  225,220 
 Estonia ||             360 ||   50 || 17,420 
 Finland ||          2,647 ||   60 ||  157,990 
 France ||          1,444 ||  1060 ||   1531,700 
 Germany ||          1,629 ||  1180 ||   1925,010 
 Greece ||          1,359 || 200 ||  266,310 
 Hungary ||             625 || 270 ||  168,680 
 Ireland ||          1,245 ||   80 || 966,700 
 Italy ||          1,234 ||  1610 ||   1,983,390 
 Latvia ||          2,410 ||   100 || 24,000 
 Lithuania ||             404 ||   80 || 32,870 
 Luxembourg ||             827 ||   10 || 12,050 
 Malta ||             340 ||   20 || 6,670 
 Netherlands ||          1,457 || 440 ||  643,930 
 Poland ||             798 ||  1110 ||  887,310 
 Portugal ||          2,978 || 120 ||  343,810 
 Romania ||          1,347 || 170 ||  230,910 
 Slovakia ||          2,186 ||   40 || 90,020 
 Slovenia ||          1,284 ||   90 ||  115,800 
 Spain ||             813 ||  1340 ||   1,086,770 
 Sweden ||          3,980 ||   90 ||  362,220 
 UK ||             837 ||  1100 ||  917,520 
 Total for BE, BG, HU and LV ||   ||   || 523,480 
Option 3(b) - Legislative option (beyond ECHR
standards)
Option 3 (a)
but increasing the safeguards to ensure that even less trials take place
without the presence of the accused.
Costs
linked to ensuring the presence of the defendant at his or her trial
There are no
data to calculate the costs of Option 3(b), however, by limiting the cases in
which in absentia proceedings can take place, one can assume that the costs of
this option would be linked to the resources used to ensure that a suspect or
accused is physically brought to trial.  Assuming that each intervention would
occupy 3 police officers for 3 hours, the total cost of this measure if we
accept the scenario where between 0.5% and 2% of cases would be affected would
be between €5.5 million and €22 million per annum.
It is not
possible to know how many cases will be affected so we only provide a ranged
figure as result of the costs for this option 
Column A – Member State
Column B – GDP per capita in PPS (base point –
Eurostat)
Column C – Average salary of a police officer
(sources – Belgium – SPF interieur figures, Home Office figures)
Column D – Average salary of a police officer per
GDP base point – where known (Column C / Column B)
Column E – Salary of a police officer per annum
(Column B x average column C)
Column F – Cost of police officer for 3
hours (Column E / 47 working weeks / 40 hours *3 hours per intervention)
Column G – Number of criminal cases
Column H – I - J – Cost of the different
scenarii
Table D12
 A   EU jurisdiction || B   GDP/capita in PPS (2010) - EUROSTAT (base point) || C   Average salary of a police officer  (where known) || D   Average salary of a police officer per base point || E   Salary of a police officer per annum (average per base pint x base point) || F   Cost of police officer for 3 hours (Column E / 47 working weeks / 40 hours *3 hours per intervention) || G   Number of criminal cases || H   0.5% cases || I   1% cases || J   2% cases 
 Austria || 126 ||   ||   || 28,989 || 139 || 60,726 ||   42,138 || 84,275 || 168,550 
 Belgium || 119 || 16,872 || 142 ||   || 131 || 189,716 ||   76,617 ||  153,234 || 306,469 
 Bulgaria || 44 ||   ||   || 10,123 ||   48 || 118,262 ||   28,656 || 57,313 || 114,626 
 Croatia || 61 ||   ||   || 14,035 ||   67 || 110,524 ||   37,129 || 74,258 || 148,515 
 Cyprus || 99 ||   ||   || 22,777 || 109 || 117,495 ||   64,059 ||  128,117 || 256,235 
 Czech Republic || 80 ||   ||   || 18,406 ||   88 || 97,675 ||   43,033 || 86,065 || 172,130 
 Estonia || 64 ||   ||   || 14,725 ||   70 || 48,359 ||   17,044 || 34,089 ||   68,178 
 Finland || 115 ||   ||   || 26,459 || 127 || 59,683 ||   37,798 || 75,597 || 151,193 
 France || 108 ||   ||   || 24,848 || 119 || 1,061,097 || 631,107 ||  1,262,213 || 2,524,426 
 Germany || 118 ||   ||   || 27,149 || 130 || 1,181,995 || 768,107 ||  1,536,213 || 3,072,426 
 Greece || 90 ||   ||   || 20,707 ||   99 || 195,929 ||   97,110 ||  194,221 || 388,441 
 Hungary || 65 ||   ||   || 14,955 ||   72 || 269,691 ||   96,539 ||  193,078 || 386,157 
 Ireland || 128 ||   ||   || 29,450 || 141 || 77,625 ||   54,719 ||  109,437 || 218,875 
 Italy || 101 ||   ||   || 23,238 || 111 || 1,607,646 || 894,202 ||  1,788,404 || 3,576,808 
 Latvia || 51 ||   ||   || 11,734 ||   56 || 9,959 ||  2,797 ||   5,594 ||   11,188 
 Lithuania || 57 ||   ||   || 13,114 ||   63 || 81,277 ||   25,513 || 51,027 || 102,053 
 Luxembourg || 271 ||   ||   || 62,350 || 298 || 14,579 ||   21,758 || 43,516 ||   87,032 
 Malta || 83 ||   ||   || 19,096 ||   91 || 19,613 ||  8,965 || 17,930 ||   35,860 
 Netherlands || 133 ||   ||   || 30,600 || 146 || 441,911 || 323,676 ||  647,352 || 1,294,703 
 Poland || 63 ||   ||   || 14,495 ||   69 || 1,111,772 || 385,727 ||  771,454 || 1,542,908 
 Portugal || 80 ||   ||   || 18,406 ||   88 || 115,466 ||   50,871 ||  101,741 || 203,483 
 Romania || 46 ||   ||   || 10,583 ||   51 || 171,480 ||   43,441 || 86,881 || 173,762 
 Slovakia || 74 ||   ||   || 17,026 ||   82 || 41,189 ||   16,786 || 33,571 ||   67,142 
 Slovenia || 85 ||   ||   || 19,556 ||   94 || 90,205 ||   42,225 || 84,451 || 168,901 
 Spain || 100 ||   ||   || 23,007 || 110 || 1,336,505 || 736,028 ||  1,472,056 || 2,944,113 
 Sweden || 123 ||   ||   || 28,299 || 135 || 91,000 ||   61,641 ||  123,282 || 246,564 
 UK || 112 || 35,657 || 318 ||   || 171 ||  1,096,664 || 936,000 ||  1,872,001 || 3,744,001 
 Total ||   ||   || 230 ||   ||   ||   || 5,543,685 || 11,087,371 || 22,174,741 
ANNEX VII
Examples of when lack of mutual trust can hinder judicial cooperation
Ø     
The
subject matter of a number of the recent preliminary references from
national courts to the European Court Justice (ECJ) on the Framework Decision
on the European arrest warrant[108]
(FD-EAW) are illustrative of the continuing gaps in mutual trust between Member
States that can be closed by EU common minimum standards of procedural rights
as follows: 
Ø     
In
the recent Radu case[109]
(judgment on the 29 January 2013) the Romanian court of appeal demonstrated by
the nature and breadth of its questions to the ECJ that they did not have
the required levels of trust in the EAW system. The wide-ranging questions were
about the compatibility of the arrest of a person and the execution of an EAW
with fair trial rights and rights to liberty in the EU Charter of Fundamental
Rights (the Charter) and in the European Convention on Human Rights (the ECHR)
and about the adequacy and compatibility of transposition of the FD-EAW in both
issuing and executing Member States. The Court ultimately interpreted the
questions in a narrow manner and ruled that judicial authorities cannot refuse
to execute an EAW on the ground that the requested person was not heard in the
issuing Member State before that arrest warrant was issued. However the case
illustrates that in very recent times judicial authorities are questioning the
levels of procedural rights for suspects and accused persons in other Member
States with the potential to lead to considerable delay in the ultimate
decision on judicial cooperation.
Ø     
The
questions raised by the Spanish constitutional court in the Melloni
case[110]
(judgment 26th February 2013) on the obligations of an executing
judicial authority where there are different standards of protection in respect
of In Absentia trials (despite this issue having been harmonised in respect of
EAW cases in the Framework Decision on In Absentia judgments[111]) shows a lack of trust in the
standards of protection of the presumption of innocence  that has the potential
to delay judicial cooperation and did in this case. The ECJ concluded that the
difference in the standard of protection between the issuing and the executing
Member State was not a reason to refuse the surrender as long as certain minimum
standards were respected. As a consequence, the person was surrendered, but
only after a serious delay following several court proceedings.
Ø     
The
issue of the application of the rule of speciality (which prohibits prosecution
for prior offences other than those in the warrant)  has been the subject of a
very recent ECJ case Jeremy F[112]
(judgment on 4 April 2013) and was also the subject of the case of Leymann
and Pustovarov[113]
(judgment on 1 December 2008).  In the recent case of Melvin West[114] (judgment
28 June 2012) the issue raised was about consent to onward surrender to another
Member State. In the case of Advocaten voor de Wereld[115] (judgment of 3 May
2007) the ECJ was asked to consider the compatibility of the non-verification
of dual criminality for listed offences with the principle of equality and
non-discrimination. The fact that all of these issues continue to be raised at
ECJ level indicates the distance we still have to travel in terms of achieving
mutual trust. This is because the FD-EAW gave Member States a number of
options, which were largely not availed of, to have a very high level of
judicial cooperation. These included the possibility to dispense with the
requirement of dual criminality altogether (Article 2.4) the possibility to
waive the rule of speciality entirely in dealings with other Member State
(Article 27.1) and the possibility not to require consent for onward surrender
to another Member State (Article 28.1).  Ensuring minimum standards of
procedural rights will help to create the conditions for Member States to be
happy to enhance cooperation by availing of these possibilities. The ECJ would
no longer be required to deal with issues such as dual criminality, speciality
and onward surrender as they would not arise where mutual trust is optimum.
Ø     
It
is clear from the experience with the EAW that lack of mutual trust can result
in complex and long-drawn out investigations into the systems of other MS
because of procedural rights issues raised at first instance and on appeal.
This creates delays that can ultimately prejudice the resolution of cases for
all parties involved, despite the fact that in the vast majority of EAW cases
the ultimate decision (unless an agreed refusal ground applies) is to surrender
the person.  A high-profile recent illustration of this scenario is the Swedish-UK
case of Mr. Julian Assange[116] whose surrender
was ultimately confirmed by the UK Supreme Court in June 2012, a year and a
half after his initial arrest in December 2010 in the UK pursuant to the EAW
issued by Sweden. Mr. Assange raised wide-ranging issues including the
legitimacy of the authority that issued the EAW, dual criminality, whether a
decision to prosecute had been taken by the Swedish authorities and the
proportionality of the request.  The lack of common minimum standards of
procedural rights can be exploited to lead to challenges that have the
potential to considerably delay judicial co-operation. 
Ø     
It
is the case that in their implementation of the EAW FD, a number of Member
States have chosen to go beyond the EAW-FD in providing for more stringent
rules for surrender of their own citizens, indicating a level of mistrust that
the procedural rights measures will help to address. One example is the case of
Klaas
Karel Faber[117], a former Member of the
Waffen SS in the Netherlands, who was sought by the Netherlands from Germany
pursuant to an EAW following his convicted to life imprisonment for murders. In
2011, a German court refused to surrender Faber to serve his sentence in the
Netherlands on the grounds that his consent to surrender was required, thus
adding an element that is not in the FD-EAW.
Ø     
The
case of Gary Mann[118] shows the
effect that a lack of EU minimum procedural safeguards can have on intra-EU
judicial cooperation. The case relates to the execution of a Portuguese
European arrest warrant by UK courts, for the surrender of Gary Mann, a British
citizen, which took more than 14 months (the Framework Decision on the EAW
provides for a sixty-day deadline) and involved five decisions by UK courts. The
main issue raised was inadequate legal advice, since Mann and eleven other
defendants were represented by only one lawyer. In addition, Mann was unable
properly to instruct his lawyer due to the lack of time before the hearing.
Following his arrest, trial and conviction that took place in less than 48
hours, he was finally sentenced to two years' imprisonment for his role in a riot
at the Euro 2004 tournament. The case clearly shows that the execution of
the EAW will happen much more swiftly if the executing judicial authority can
be confident that there are minimum standards of procedural safeguards that are
enforceable across the EU.
Ø     
The case of Deborah Dark shows that insufficient
trust in the standards of protection of fair trial rights (lack of notification
of the appeal, no legal representation during the appeal hearing and lack of
information of the conviction, delay) may hinder effective judicial
co-operation. In 1989 Deborah Dark was arrested in France on suspicion of drug
related offenses but the court acquitted her of all charges. In 1990, she was
convicted and sentenced to prison on appeal without herself or her French
lawyer being notified.  In 2005, an EAW was issued by the French authorities.
In 2008 and 2009, Ms. Dark was arrested successively in Spain and in UK, and at
the extradition hearing both of the national courts refused to extradite Ms.
Dark to France. In May 2010, France finally agreed to remove the warrant. This
case shows that there work remains to be done on minimum procedural rights to
ensure the effective right of a suspect to fair trial and the essential
confidence of  judicial authorities in the systems of other Member States.
Ø     
The impact of concerns including those relating
to the presumption of innocence in undermining mutual trust are illustrated by
a recent English Appeal court case of Sofia City Court v Dimintrinka
Atanasova-Kalaidzheiva of 2011[119].
The UK courts refused to execute an EAW at first instance and on appeal on the basis
that they had doubts that a fair trial was possible in this particular case and
were not satisfied about the independence of the investigation and prosecution
process in Bulgaria.  Judicial authorities must be confident that the key right
to be presumed innocent that underpins a fair trial is guaranteed
ANNEX VIII
Glossary of main legal terms used
Appeal (in connection to retrial) – both mechanisms seek re-evaluation of a judicial decision by a
different court than the one which took that decision. The main differences
between the two are:
·     
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. A retrial
means, as defined by the ECtHR, a procedure whereby a fresh determination of
the merits of the charges is ensured, 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 does not
exist in practice.
'In absentia' decisions – judicial decisions taken
without the presence of the suspect or accused person concerned.
Natural persons (as opposed to legal
persons) – a natural person is any human being,
with legal capacity commencing from the time of birth. A legal person is
an association of people or special-purpose fund (e.g. a foundation)
whose legal personality is recognized by law.
Rebuttable
(in relation to a presumption) - possibility to contradict a presumption
(in particular, a presumption of guilt), by means of, e.g., providing enough
evidence to prove innocence.
Strict liability offences – offences for which the mere proof of certain objective facts is
sufficient to prove guilt (as opposed to the general rule according to which
criminal liability also requires an element of intention).
Suspect -
someone who is suspected of having committed a criminal offence but has not yet
been formally charged; accused person - someone who has been formally
charged with an offence. Their rights are different according to their status
in accordance with national law. There is no EU definition of these notions.
[1] A glossary of the main legal terms
used in this Impact Assessment is available in Annex VIII. A suspect is someone who is suspected of
having committed a criminal offence but has not yet been formally charged. An
accused person is someone who has been formally charged with an offence. Their
rights are different according to their status in accordance with national law.
There is no EU definition of these notions. However, both categories are
entitled to be presumed innocent.
[2] This impact assessment therefore does not cover
administrative proceedings.
[3] CSES study referred to under point 3.2.
[4] Article 6(2) ECHR: "Everyone
charged with a criminal offence shall be presumed innocent until proved guilty
by law."
[5] Article 11(1) of the Universal Declaration
of Human Rights safeguards the principle as follows: "Everyone charged
with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary
for his defence." Similar principles are laid down in Article 14 of
the United Nations International Covenant on Civil and Political Rights.
[6] See Annex V. Similarly to some Common law EU Member States, the US
legal system does not enshrine the presumption of innocence in the US
Constitution; however it is widely recognised to be implied in the 5th, 6th and
14th amendments. Moreover, the US Supreme Court has developed the so-called
Miranda doctrine. Under this doctrine, prior to any questioning during
custodial investigation, the person must be warned that he has a right to
remain silent, that any statement he gives may be used as evidence against him,
and that he has the right to the presence of an attorney, either retained or
appointed.
[7] Barberà, Messegué and Jabardo v. Spain, Application
No.s 10588/83, 10589/83 and 10590/83, judgment of 6.12.1988.
[8] E.g., Murray v. UK (application
18731/91, judgement of 8.2.1996), Saunders v. UK (Application 19187/91,
judgement of 17.12.1996).
[9] E.g., Kudla v. Poland (application 30210/96,
judgment of 26 October 2010).
[10] COM(2011) 326 final, 8.6.2011. The themes
of the Green Paper were pre-trial detention and mutual recognition of custodial
and non-custodial decisions. The Commission received 81 replies from Member
States, civil society and NGOs. A summary of the replies has been published on
the website of the Commission. http://ec.europa.eu/justice/newsroom/criminal/opinion/110614_en.htm.
See also Framework Decision 2009/829/JHA of 23 October 2009 on the application
of the principle of mutual recognition to decisions on supervision measures as
an alternative to provisional detention (OJ L 294, 11.11.2009, p. 20).
[11] E.g., Colozza v. Italy (application 9024/80,
judgment of 12.2.1985).
[12] Article 6(1) reads:
“In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.”
[13] See, e.g., Heaney and McGuiness v. Ireland
(Application 34720/97, Judgment of 21 December 2000), paragraph 59.
[14]             See, inter alia, Case C-301/04 P Commission v
SGL Carbon [2006] ECR I-5915; Case T-112/98 Mannesmannröhren-Werke v Commission [2001] ECR II-732, Case C-374/87 Orkem v Commission [1989] ECR
3343. The recognition of more limited rights of legal persons also finds
support in international practice (e.g. in the US the privilege against
self-incrimination is recognised solely for natural persons, with legal persons
having no such right: United States v. Kordel, 397, U.S. 1 (1970) and Braswell
v United States, 487 U.S. 99 (1988)).
[15] "Study on Analysis of the future of mutual
recognition in criminal matters in the European Union", G.Vernimmen – Van Tiggelen and Laura Surano,
Call for tenders JLS D3/2007/03, European Commission, 20 November 2008, para.
18.
[16] OJ C 115, 4.5.2010, p. 1.
[17] OJ C 291, 4.12.2009, p. 1.
[18] The first two measures have already been
adopted: Directive 2010/64/EU of the European Parliament and of the Council on
the right to interpretation and translation in criminal proceedings (OJ L 280,
26.10.2010, p. 1); Directive 2012/13/EU of the European Parliament and of the
Council on the right to information in criminal proceedings (OJ L 142,
1.6.2012, p. 1. The third measure, access to a lawyer and legal aid, was split
into two parts and a Directive on the right to access to a lawyer has also been
adopted: Directive 2013/48/EU of the
European Parliament and of the Council of 22 October 2013 on the right of access
to a lawyer in criminal proceedings and in European arrest warrant proceedings,
and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived
of liberty (OJ L 294, 6.11.2013, p. 1) (COM(2011) 326 final,
8.6.2011); this Directive also includes the fourth measure, on the right for a
detained person to communicate with family members, employers and consular
authorities; The fifth measure on the protection of vulnerable persons
suspected or accused in criminal proceedings and the measure on legal aid (the
part of the third measure not included in Directive 2013/48/EU) are presented
as a package together with the present initiative. Green Paper Strengthening
mutual trust in the European judicial area – A Green Paper on the application
of EU criminal justice legislation in the field of detention, COM/2011/0327
final (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0327:FIN:EN:PDF).
[19] Directive
2012/29/EU of the European Parliament and of the Council establishing minimum
standards on the rights, support and protection of victims of crime, and
replacing Council Framework Decision 2001/220/JHA (OJ L 315, 14. 11. 2012, p.
57)
[20] COM(2006) 174 final, 26.4.2006.
[21] Annex II – list of stakeholders consulted.
[22] Available at:
http://www.fairtrials.net/publications/policy-and-campaigns/defence-rights-in-the-eu-report/.

[23] Available at
http://www.justice.org.uk/resources.php/328/european-arrest-warrants
[24] Ed Cape, Zaza Namoradze, Roger Smith and Taru
Spronken, Intersentia, 2010.
[25] Ed Cape and Zaza Namoradze, LARN, 2012.
[26] See footnote 12.
[27] Available at the ECtHR's website;
http://www.echr.coe.int/echr/homepage_EN
[28] See Annex IV.
[29] As regards what are the key requirements of
presumption of innocence and what are other rights closely related to it, see
introduction to this Impact Assessment.
[30] See CSES study, p. 10.
[31] Member States'
potential savings owing to a reduction in a number of appeals, condemnations by
the ECtHR, or delays in judicial cooperation proceedings cannot be estimated
with any statistical precision due to lack of Member States' data on costs per
case. Only indicative qualitative expectations in non-numerical terms can
therefore be provided based on stakeholders' judgments. However, as an example
of the cost of a case being brought through the domestic systems and ultimately
before the ECtHR, it is
estimated that the Cadder case in Scotland on insufficient legal
representation cost in excess of €175,000 (see further explanation in Annex VI
and its Table D2).
[32] See e.g. Christou et al, European Cross Border
Justice: A Case Study of the EAW, The AIRE Centre, 2010.
[33] Statement
of ECBA on the Green Paper on Presumption of Innocence of 26 April 2006, July 2006, pp 5-6.
[34] See Colozza v.
Italy (application 9024/80, judgment of 12.2.1985).
[35] See "Effective Criminal Defence in
Europe", p. 13.
[36] Article 1(3) of the EAW Framework Decision
presupposes that the underlying procedure should respect the principle in
articles 47 and 48 of the Charter, but it is not a ground for refusal of
execution of an EAW.
[37] Court of Justice of the European Union, case C-399/11.
[38] [2011] EWHC 2335 (Admin).
[39] Moreover, the
absence of common minimum standards on procedural rights may also affect the
effectiveness of the criminal proceedings in the issuing Member State. The
issuing Member State has no guarantees that the evidence is collected, a house
is searched, a person is heard, or assets in a bank account frozen according to
a procedure that is in respect of fair trial rights in the executing Member
State. This can affect the possibility to rely on such evidence in court in the
issuing Member State.
[40] Lord Justice Thomas, the most senior English judge
responsible for EAW cases, spoke of judges in the Netherlands who “hold the
view that you have expressed here, which is the fact that we have the common
area for justice that was put in place with mutual confidence but we know that
there are countries where what is on paper is not the actuality. My concern is
that you [the Inquiry] might be perceived as looking at this through
Anglo-Saxon eyes. [In fact] our views on the problems of EAWs, which arise
largely because procedural standards are not common across Europe, are shared
by quite a lot of judges.”

[41] Page 330 of the
Report.
[42] In their submission
to the online survey organized in the framework of the study referred to in
point 3.2, one NGO ('JUSTICE') has replied to be in principle in favour of EU
action, stating that “although there are few cases (of cross-border criminal
proceedings) to show mistrust across borders on (the ground of failures to
protect suspects or accuseds’ right to the presumption of innocence), there are
clear areas where EU legislation could improve trial standards.”
Furthermore, it was thought unlikely that a court in the executing state would
refuse to grant an EAW on the basis of any breaches of the right to be presumed
innocent and its related fair trial rights, given all the other factors for the
court to consider in relation to the trial. It should however be noted that
participants in the UK discussion group, organized in the framework of the CSES
study referred to in point 3.2, thought the UK courts reject EAWs
approximately once a month on Article 6 of the ECHR/fair trial grounds.
[43] See e.g. recent research by JUSTICE, ‘European
Arrest Warrants – ensuring an effective defence’, 2012, referred to in
point 3.2.
[44] See Minelli v. Switzerland (Application
8660/79, judgment of 25.3.1983).
[45] See Krause v. Switzerland (Application 7986/77,
judgment of 13.12.1978.
[46] See Allenet de Ribemont v. France (Application
15175/89, judgment of 10.2.1995).
[47] See table on legal situation in the Member States, in Annex
V.
[48] Application 42095/98, judgement of 10 October 2000.
[49] Application 48297/99, judgment of 26 March 2002.
[50] Application 13583/02, judgment of 21 September 2006.
[51] Application 25720/05, judgment of 13 July 2010.
[52] Application 124/04, judgment of 7 February 2012.
[53] Application 44418/07, judgment of 14 June 2011.
[54] Application 18851/07, judgment of 12 April 2012.
[55] Application 13583/02, judgment of 21 September 2006.
[56] Application 36921/07, judgment of 14 June 2011.
[57] Report of Fair Trials International on "Defence
Rigths in the EU", p. 50.
[58] Ibid.
[59] Barberà, Messegué and Jabardo v. Spain,
paragraph 77.
[60] Telfner v. Austria, Application 33501/96,
paragraph 19.
[61] Application 10519/83, judgment of
7.10.1988. This case concerned a person who had passed through customs with
cannabis in a suitcase which he declared to be his property; he was convicted
under the relevant provision of the Customs Code, which deems anyone carrying
in contraband goods (consciously or not) guilty of an offence. Here the
Strasbourg Court accepted the respondent state's argument that the strict
liability offence was not disproportionate.
[62] See e.g. the very precise rules on reversal
of proof set out by the UK higher courts to comply with the standard of Article
6(2) ECHR. They have developed “reasonable limits” criteria for circumstances
in which placing a legal burden of proof on the defendant is in the court’s
view proportionate. See CSES study, p. 19.
[63] See http://www.theguardian.com/world/2013/jul/31/sture-bergwall-thomas-quick-meeting
[64] Report of Fair
Trials International on "Defence Rigths in the EU", p. 61.
[65] See Effective Criminal Defence in Europe, p.
347.
[66] See Effective Criminal Defence in Eastern Europe,
p. 137.
[67] Heaney and McGuiness v. Ireland, Application
34720/97, judgment of 21 December 2000.
[68] Ibid.
[69] See Saunders v. UK (Application
19187/91, judgment of 17 December 1996), Funke v. France (Application
10821/84, Judgment of 25 February 1993).
[70] See Condron v. UK, Application 35718/97
(Judgement of 2 May, 2000), paragraph 69.
[71] E.g. ECBA (European Criminal Bar Association).
[72] See e.g. the situation in Germany, where
case law has established that "full silence" (as opposed to partial
silence) during police questioning may never be held against the accused later
in the criminal proceeding. However, it appears from discussions with German
stakeholders that in practice the rigour of this position is mitigated by the
principle of the free evaluation of evidence that is followed by German judges.
[73] Notwithstanding that there is a system of
free admissibility of evidence in Finland, in May 2012 the Finnish Supreme Court
ruled that statements obtained where the defendant’s right to a lawyer had been
breached could not be used at trial. The Supreme Court held that if the
defendant’s right not to incriminate oneself has been breached, this right
cannot be corrected simply by allowing the evidence to be presented to the
court and the court later on deciding not to give credibility to the statement.
The Supreme Court noted that the only way to avoid a violation of the rights
of the defendant in these cases is for the incriminating evidence to not be
brought to trial at all.
[74] ECtHR Application
54810/00, judgment of 11 July 2006.
[75] On-going study
"Inside Police Custody", referred to in point 3.2.
[76] See Colozza v. Italy, paragraph 29.
[77] See Colozza v. Italy, paragraph 29.
[78] See Annex V.
[79] Council Framework Decision 2009/299/JHA
enhancing the procedural rights of persons and fostering the application of the
principle of mutual recognition to decisions rendered in the absence of the
person concerned at the trial (OJ L 81,
27.3.2009, p. 24) amending Framework Decisions 2002/584/JHA on the European arrest
warrant and the surrender procedures between Member States, 2005/214/JHA on the
application of the principle of mutual recognition to financial penalties,
2006/783/JHA on the application of the principle of mutual recognition to
confiscation orders, 2008/909/JHA on the application of the principle of mutual
recognition to judgments in criminal matters imposing custodial sentences or
measures involving deprivation of liberty for the purpose of their enforcement
in the European Union, 2008/947/JHA on the application of the principle of
mutual recognition to judgments and probation decisions with a view to the
supervision of probation measures and alternative sanctions.
[80] CEPEJ Report, 2012, referred to on p. 37 of the CSES
final report.
[81] However, were they to do so this would
still not reveal the number of abuses of rights that occurs. The on-line survey
carried out by the CSES in the framework of the Study on presumption of
innocence show the inevitable gaps between theoretical safeguards and reality,
even in those states whose criminal procedures appear on paper to be compliant
with ECHR jurisprudence. To this extent the precise scope of the human rights
problems concerning presumption of innocence is unknown.
[82] See Annex IV.
[83] In the Netherlands a target has been set
out that at least 50% of criminal proceedings will be dealt with by a form of
summary procedure for minor offences.
[84] Denmark, Ireland and the UK do not take
part in the adoption of measures in the justice field (protocols 21 and 22 to
the TFEU). However, Ireland and the UK have the possibility to opt in.
[85] Eurobarometer 337/2010.
[86] http://ec.europa.eu/justice/news/intro/doc/com_2010_573_4_en.pdf 
[87] See introduction, footnote 1.
[88] For details of calculation of all costs for each
policy option, see Annex VI.
[89] As pointed out
before, Member States' potential savings owing to a reduction in a number of
appeals, condemnations by the ECtHR, or delays in judicial cooperation
proceedings cannot be estimated with any statistical precision due to lack of
Member state data on costs per case. Only indicative qualitative expectations
in non-numerical terms can therefore be provided based on stakeholders'
judgments. However, as an example of the cost of a case being brought through
the domestic judicial system and ultimately before the ECtHR, it is estimated that the Cadder case
in Scotland on insufficient legal representation cost in excess of €175,000
(see further explanation in Annex VI and its Table D2).
[90]             Table D3 in Annex VI explains the calculation of
monitoring and evaluation costs for of one of the four aspects of presumption
of innocence (costs of two full time equivalents). If monitoring and evaluation
is done four all four aspects, the costs would be significantly lower than
multiplying the costs for one aspect per four (costs of 8 full time
equivalents), since significant synergies and savings would take place. The
present table includes the costs of four full time equivalents.
[91]             Same reasoning as for monitoring and evaluation. Table
D4 in Annex VI explains that costs for training are based on costs per number
of training session required. For the present table, it is estimated that one
would need the double of training sessions to teach all four aspects of
presumption of innocence rather than the quadruple.
[92]             These costs occur only for those Member States which do
not yet have a specific remedy in their national law (see Annex VI, table D8).
[93]             These costs occur only for those Member States in which
the law permits inferences to be drawn from silence. Calculation based on the
assumption that public annual budget allocated to public prosecution will increase
by 1% (seen further explanations in Annex VI, table D10).
[94]             These costs occur only for those Member States where a
defendant who was not tried in his presence is not entitled to obtain a fresh
determination of his case (see Annex IV, table D11).
[95]             OJ C 291, 4.12.2009, p. 1.
[96]
'Derived from
the PoI' refers to
situations where there are no specific law on the issue but the right and / or
the remedy can be derived from the general rules governing the presumption of
innocence ('PoI').
[97] The defence is required to
lodge a defence statement in solemn proceedings.
[98] In a report by the Law Commission
of England and Wales and the Scottish Law Commission in October 2000 on Damages
under the Human Rights Act 1998, the E&W Law Commission concluded that
although the Strasbourg court’s terminology and concepts with regard to the
awarding of damages were different “it frequently reaches very similar results
to those reached under the rules of tort”.
lawcommission.justice.gov.uk/docs/lc266_damages_under_the_human_rights_act_1998.pdf_
[99] Application 73797/01.
[100] Application 40523/08.
[101] The appeal process involved the
refusal of Scottish courts to give permission to appeal and refusal to permit
appeal to the Supreme Court. Cadder's representatives eventually succeeded in
obtaining special leave to appeal to the Supreme Court under the Scotland Act
1998. Peter Cadder's legal costs throughout this process were borne by legal
aid and have been estimated as at least £30,000 (35,000 euros).[101]
The prosecution's costs falling directly on the state were likely to have been
similar, if not greater, and there would have been further indirect costs, such
as court and judges' time and delays caused to other proceedings.  As a
consequence the total costs of the Supreme Court decision are estimated at
around £150,000 (176,000 euros).(JUSTICE and Maria Fletcher).
[102] Inflation weighed cost of a
lawyer with figures taken from the 2007 Study on the Transparency of Costs of
Civil Judicial Proceedings in the European Union.
[103] There are no available data on
the number of non-criminal cases in the EU.  We have therefore assumed that the
share of criminal cases out of total cases is equivalent to the share of
criminal legal aid out of all legal aid expenditure = 65%.
[104] The appeal process involved the refusal
of Scottish courts to give permission to appeal and refusal to permit appeal to
the Supreme Court. Cadder's representatives eventually succeeded in obtaining
special leave to appeal to the Supreme Court under the Scotland Act 1998. Peter
Cadder's legal costs throughout this process were borne by legal aid and have
been estimated as at least £30,000 (35,000 euros).[104] The
prosecution's costs falling directly on the state were likely to have been
similar, if not greater, and there would have been further indirect costs, such
as court and judges' time and delays caused to other proceedings.  As a
consequence the total costs of the Supreme Court decision are estimated at
around £150,000 (176,000 euros).(JUSTICE and Maria Fletcher).
[105] The appeal process involved the
refusal of Scottish courts to give permission to appeal and refusal to permit
appeal to the Supreme Court. Cadder's representatives eventually succeeded in
obtaining special leave to appeal to the Supreme Court under the Scotland Act
1998. Peter Cadder's legal costs throughout this process were borne by legal
aid and have been estimated as at least £30,000 (35,000 euros).[105]
The prosecution's costs falling directly on the state were likely to have been
similar, if not greater, and there would have been further indirect costs, such
as court and judges' time and delays caused to other proceedings.  As a
consequence the total costs of the Supreme Court decision are estimated at
around £150,000 (176,000 euros).(JUSTICE and Maria Fletcher).
[106] In the case of Malta and Ireland,
not data were available so we have assumed that the cost was equivalent to that
of the MS whose GDP per capita at PPP is the closet, namely Sweden in he case
of Ireland and Portugal in the case of Malta.
[107] The appeal process involved the
refusal of Scottish courts to give permission to appeal and refusal to permit
appeal to the Supreme Court. Cadder's representatives eventually succeeded in
obtaining special leave to appeal to the Supreme Court under the Scotland Act
1998. Peter Cadder's legal costs throughout this process were borne by legal
aid and have been estimated as at least £30,000 (35,000 euros).[107]
The prosecution's costs falling directly on the state were likely to have been
similar, if not greater, and there would have been further indirect costs, such
as court and judges' time and delays caused to other proceedings.  As a
consequence the total costs of the Supreme Court decision are estimated at
around £150,000 (176,000 euros).(JUSTICE and Maria Fletcher).
[108] Framework Decision 2002/584/JHA of 13 June
2002 on the European arrest warrant and the surrender procedures between Member
States OJ L190/1 18.07.2002.
[109] ECJ Case C-396/11.
[110] Court of Justice of the European Union, (Grand
Chamber), 26 February 2013, case C-399/11.
[111] Council Framework Decision 2009/299/JHA of
26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA,
2006/783/JHA, 2008/909/JHA and 2008/909/JHA, thereby enhancing the procedural
rights of persons and fostering the application of the principle of mutual
recognition to decisions rendered in the absence of the person concerned at the
trial OJ L81/54 27.3.2009.
[112] ECJ Case C-168/13 
[113] ECJ Case C-388/08
[114] ECJ Case C-192/12
[115] ECJ Case C-303/05
[116] Assange (Appellant) v The Swedish
Prosecution Authority (Respondent) [2011] UKSC 22 On appeal from [2012] EWHC
Admin 2849, 30 May 2012,
Supreme Court of the United Kingdom
[117] Oberlandsgericht
München, 16 Mai 2011.
[118] R (Gary Mann) v City of Westminster
Magistrates’ Court & Anor [2010] EWHC 48 (Admin), Garry
Norman MANN against Portugual and the United Kingdom 1 February 2011,
Application no. 360/10, European Court of Human Rights (Fourth Section).
[119] Sofia City Court
v Dimintrinka Atanasova-Kalaidzheiva, 9 September 2011, EWHC 2335.