REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings
Date: 2021-03-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, access to the courts, criminal procedure, criminal proceedings, judicial cooperation in criminal matters in the EU, national implementing measure, right to justice, rights of the defence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.3.2021  COM(2021) 144 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings  
 
 
1.  INTRODUCTION 

The presumption of innocence and the right to a fair trial are enshrined in Articles 47 and 48 
of the Charter of Fundamental Rights of the European Union1 (‘the Charter’) and Article 6 of 
the European Convention on Human Rights (ECHR).   

Directive  (EU)  2016/343  on  the  strengthening  of  certain  aspects  of  the  presumption  of 
innocence and of the right to be present at the trial in criminal proceedings2 (‘the Directive’) 
aims  to  enhance  the  right  to  a  fair  trial  in  criminal  proceedings  by  laying  down  common 
minimum rules concerning certain aspects of the presumption of innocence and the right to be 
present at the trial.  

The  Directive  is  the  fourth  instrument  adopted  under  Article  82(2)(b)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU) 3 ,  which  provides  the  legal  basis  to  adopt 
minimum rules on ‘the rights of individuals in criminal procedure’. The Directive applies in 
25 Member States4. 

The  EU  has  adopted  six  directives  in  this  field:  besides  Directive  2016/343,  there  are  
directives on the right to interpretation and translation5, on the right to information6, on the 
right  of  access  to  a  lawyer  and  communication  with  third  persons  while  being  deprived  of 
liberty7, on procedural safeguards for children8 and on legal aid9. The European Commission 
has  already  produced  implementation  reports  on  the  first  three  directives10.  The  directives 
help  enhance  mutual  trust  and  thereby  strengthen  the  principle  of  mutual  recognition  of 
judgments and other judicial decisions. 

Article  12  of  the  Directive  requires  the  Commission  to  submit  a  report  to  the 
European Parliament and to the Council on the implementation of the Directive. 

This  report  is  primarily  based  on  information  that  the  Member  States  provided  to  the 
Commission through the notification of national measures transposing the Directive.  It  also 

1 OJ C 326, 26.10.2012, p. 392. 
2 OJ L 65, 11.3.2016, p. 1.  
3 OJ C 326, 26.10.2012, p. 47. 
4 In accordance with Protocol No 21 and Protocol No 22, respectively, Ireland and Denmark are not bound by 
the Directive and are therefore not considered in this assessment. 
5  Directive  2010/64/EU  on  the  right  to  interpretation  and  translation  in  criminal  proceedings,  OJ  L  280, 
26.10.2010, p. 1. 
6 Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
7 Directive  2013/48/EU  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. 
8 Directive  (EU)  2016/800  on  procedural  safeguards  for  children  who  are  suspects  or  accused  persons  in 
criminal proceedings, OJ L 132, 21.5.2016, p. 1. 
9 Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for 
requested  persons  in  European  arrest  warrant  proceedings,  OJ  L  297,  4.11.2016,  p.  1;  corrigendum  OJ  L  91, 
5.4.2017, p. 40. 
10 COM(2018) 857 final, COM(2018) 858 final and COM(2019) 560 final. 

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draws on publicly available information from the European Union Agency for Fundamental 
Rights11 and from Commission-funded studies by external stakeholders12.  

While Article 11 of the Directive requires Member States to send the Commission available 
data showing how the rights laid down in the Directive have been implemented, by 1 April 
2020  and  every  3  years  thereafter,  only  Austria  has  fulfilled  this  obligation  to  date13.  This 
absence  of  information  from  Member  States  impedes  the  full  assessment  of  the  Directive’s 
practical implementation. 

The report therefore focuses on the measures Member States have taken so far to transpose 
the Directive14. It assesses whether Member States have transposed the Directive and whether 
national legislation achieves the Directive’s objectives and fulfils its requirements. 

The Court of Justice of the European Union has to date interpreted Directive (EU) 2016/343 
on several occasions, and such interpretation has been taken into account in this report15.  

2.  GENERAL ASSESSMENT 

According to Article 14, Member States had to transpose the Directive into national law by 
1 April 2018.  On  this  date,  11  Member  States  –  Bulgaria,  Cyprus,  Greece,  Croatia,  Latvia, 
Luxembourg, Malta, Austria, Romania, Slovakia and Sweden – had not communicated all the 
necessary measures to the Commission. As a result, in May 2018 the Commission  launched 
infringement  proceedings  under  Article 258  TFEU  against  those  Member  States  for  non-
communication or partial communication of transposing measures. Most of them have since 
complied  with  the  obligation,  and  the  infringement  proceedings  have  been  discontinued. 
However, following completeness checks, four infringement proceedings are still ongoing in 
cases  where  some  provisions  of  the  Directive  have  yet  to  be  transposed.  In  addition,  three 
new infringement proceedings for partial communication were launched in February 2021. 

11 Study  done  by  the  European  Union  Agency  for  Fundamental  Rights  (FRA),  Presumption  of  innocence  and 
related  rights  –  Professional  perspectives.  Available  at  https://fra.europa.eu/en/publication/2021/presumption-
of-innocence. 
12 See e.g. the project coordinated by the Hungarian Helsinki Committee, The Importance of Appearances: How 
Suspects and Accused Persons are Presented in the Courtroom, in Public and in the  Media, and notably Fair 
Trials’  report  Innocent  until proven  guilty?  The  presentation of  suspects  in  criminal  proceedings,  available  at 
https://www.fairtrials.org/publication/importance-appearances.  
13 In  relation  to  the  remedies  linked  to  trials  in  absentia  and  procedures  in  writing  under  national  law,  as 
provided for by Article 8 of the Directive. 
14 The Commission has organised two experts’ meetings with representatives of the Member States in May and 
November  2017,  to  discuss  and  facilitate  Member  States’  work  on  the  transposition  and  application  of  the 
Directive.  
15 See in particular judgments of 27 October 2016, Milev, C-439/16 PPU; 19 September 2018, Milev, C-310/18 
PPU;  5 September  2019,  AH,  C-377/18;  19  September  2019,  Rayonna  Procuratura  Lom,  C-467/18; 
28 November 2019,  Spetsializirana  Prokuratura,  C-653/19  PPU;  13  February  2020,  Spetsializirana 
Prokuratura, C-688/18; 17 December 2020, Generalstaatsanwaltschaft Hamburg, C-416/20 PPU; and Orders of 
12  February  2019,  RH,  C-8/19  PPU;  24  September  2019,  Spetsializirana  Prokuratura,  C-467/19  PPU; 
28 May 2020, UL and VM, C-709/18. 

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The  approach  to  transposing  the  Directive  varies  between  Member  States.  Some  Member 
States  introduced  specific  measures  explicitly  transposing  the  rights  under  the  Directive 
alongside  legal  or  practical  implementation  measures.  In  others,  existing  measures  were 
considered  to  be  already  broadly  in  line  with  the  Directive’s  requirements,  and  no  specific 
measures to transpose it were adopted. While the absence of express transposing provisions is 
sometimes remedied to at least some extent through practical implementation measures and 
case-law, this is not always the case.  

This  results  in  the  national  provisions  often  being  insufficient  to  fully  comply  with  certain 
key provisions of the Directive. This is particularly the case where the scope of the national 
measures is  narrower than as set  out  in  Article  2 of the  Directive. The  assessment has  also 
disclosed  other  shortcomings  in  several  Member  States,  in  particular  in  relation  to  public 
references to guilt and the right not to incriminate oneself.  

Such  failure  to  comply  with  all  the  provisions  of  the  Directive  negatively  affects  the 
effectiveness  of  the  rights  provided  for  by  it.  The  Commission  will  take  every  appropriate 
measure to remedy it, including infringement proceedings pursuant to Article 258 TFEU. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Scope (Chapter 1 - Article 2) 

Article 2 sets out the scope of application of the Directive’s requirements. It applies to natural 
persons who are suspects or accused in criminal proceedings and at all stages of the criminal 
proceedings, from the moment when a person is suspected or accused of having committed a 
criminal offence, or an alleged criminal offence, until the decision on the final determination 
of whether that person has committed the criminal offence concerned has become definitive.  

While  some  Member  States  did  not  expressly  transpose  Article  2,  the  scope  of  national 
measures  giving  effect  to  the  Directive’s  rights  is  nevertheless  mostly  in  line  with  the 
Directive.  However,  in  one  Member  State  the  transposing  measures  only  apply  to  persons 
who  have  been  detained  or  charged,  but  not  to  de  facto  suspects16,  significantly  hindering 
compliance with the Directive. In a few Member States compliance issues arise as a result of 
the  more  limited  temporal  scope  of  the  national  measures.  These  limitations  on  temporal 
scope could  affect  the personal  scope too,  where they have an impact  on the way in  which 
proceedings are initiated or the point at which a person is considered a suspect.  

These compliance issues are essential as they may also affect the scope of the presumption of 
innocence  and  limit  the  coverage  of  national  provisions  implementing  specific  rights  under 
the Directive. 

16 De facto suspects are persons who are suspected of having committed a criminal offence, but have not been 
notified of their status of suspect by the competent authorities of a Member State. 

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3.2.  Presumption of innocence (Chapter 2) 

Chapter  2  of  the  Directive  deals  with  the  principle  of  presumption  of  innocence.  Article  3 
requires Member States to  ensure that suspects  and accused persons are presumed innocent 
until  proved  guilty  according  to  law.  In  one  Member  State,  the  principle  is  ensured  for 
defendants and detainees, but not for suspects who are not detained. 

3.2.1.  Public references to guilt — Article 4 

The  legislation  of  only  six  Member  States  is  fully  compliant  with  Article  4(1)  requiring 
Member States  to  take the necessary measures to  ensure that for as long  as a suspect  or an 
accused  person  has  not  been  proved  guilty  according  to  law,  public  statements  made  by 
public authorities, and judicial decisions, other than those on guilt, do not refer to that person 
as being guilty. This is  without prejudice to  acts of the prosecution which aim to prove the 
guilt  of the suspect  or  accused person,  and to  preliminary  decisions of a procedural  nature, 
which are taken by judicial or other competent authorities and which are based on suspicion 
or incriminating evidence. On this basis, and in line with Recital 16, the Court of Justice has 
ruled  that  the  Directive  ‘does  not  govern  the  circumstances  in  which  decisions  on  pre-trial 
detention may be adopted’ 17.  

In a few Member States, while the transposition of Article 4(1) is not explicit, the Directive’s 
requirement is given effect by general provisions on the presumption of innocence or limiting 
the dissemination of information, and by case-law.  

However, compliance issues were noted in 19 Member States, making this the provision with 
the highest number of issues.  

In some Member States these issues result mainly from the absence of transposition and in 13 
Member States mainly from the more limited reach of national provisions that do not cover 
all  public  authorities  or  stages  of  the  proceedings,  or  do  not  cover  judicial  decisions,  as 
required by the Directive. 

In  some  cases,  the  compliance  issues  identified  have  less  impact  in  practice  because  in  a 
national context, the prohibition on public references to guilt can be considered an essential 
dimension  of  the  principle  of  presumption  of  innocence.  Additionally,  provisions  on 
defamation and publication of information in the media, data protection rules or non-legally 
binding  guidelines  or  other  practical  implementation  measures  already  ensure  partial 
compliance with the Directive’s requirement in practice.  

In  other  Member  States,  practical  implementation  appears  to  be  problematic.  For  example, 
practice  shows  that  while  judges  and  prosecutors  usually  comply  with  Article  4(1),  other 
bodies,  such  as  Ministers  or  Members  of  Parliament,  sometimes  refer  to  the  defendant  as 
guilty.  

17 CJEU, 19 September 2018, Milev, C-310/18 PPU. 

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The  national  law  of  12  Member  States  is  not  fully  compliant  with  Article  4(2),  which 
requires  Member  States  to  ensure  that  appropriate  measures  are  available  in  the  event  of  a 
breach of the obligation laid down in Article 4(1).  

In  four  Member  States  this  results  from  limitations  in  the  scope  of  national  measures 
transposing Article 4(1), for example when the transposition is  limited to judicial decisions 
but there are no measures in place for public authorities.   

According to Article 4(3), the obligation laid down in Article 4(1) not to refer to suspects or 
accused  persons  as  being  guilty  does  not  prevent  public  authorities  from  publicly 
disseminating  information  on  the  criminal  proceedings  where  strictly  necessary  for  reasons 
relating to the criminal investigation or the public interest. The national law of some Member 
States  is  not  fully  compliant  with  this,  for  one  or  more  of  the  following  reasons.  Not  all 
public  authorities  or  types  of  information  are  covered  by  the  relevant  national  measures, 
absence of the ‘where strictly necessary’ requirement, or absence of clear conditions limiting 
the  dissemination  of  information.  In  some  cases,  compliance  issues  have  less  impact  in 
practice,  as  non-legally  binding  guidelines  are  also  relevant,  such  as  press  guidelines  for 
contact with journalists and provision of information to them. 

3.2.2.  Presentation of suspects and accused persons — Article 5 

Article 5(1) requires Member States to take appropriate measures to ensure that suspects and 
accused  persons  are  not  presented  as  being  guilty,  in  court  or  in  public,  through  the  use  of 
measures  of  physical  restraint.  Many  Member  States  failed  to  adopt  specific  rules  to 
transpose this provision.  

According  to  Article  5(2),  Article  5(1)  does  not  prevent  Member  States  from  applying 
measures of physical restraint that are required for case-specific reasons, relating to security 
or to the prevention of suspects or accused persons from absconding or from having contact 
with third persons. Issues concerning the absence of a guarantee that an individual assessment 
is carried out were identified in two Member States.  

In addition, in some Member States compliance with Article 5 also appears to be problematic 
in  practice.  In  a  few,  for  example,  handcuffs  are  used  regardless  of  why  the  accused  is  in 
custody. While being transported to the courtroom, the accused in handcuffs can be seen by 
the public and the press, and pictures of  the accused can be taken. In other Member States, 
there is a widespread use of glass boxes in courtrooms. 

3.2.3.  Burden of proof — Article 6 

Article  6(1) requires Member States to  ensure that  the burden of proof  for establishing the 
guilt of suspects and accused persons is on the prosecution. This is without prejudice to any 
obligation  on  the  judge  or  the  competent  court  to  seek  both  inculpatory  and  exculpatory 
evidence, and to the right of the defence to submit evidence in accordance with the applicable 
national law.  

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Recital 22 of the Directive specifies that the presumption of innocence would be infringed if 
the  burden  of  proof  were  shifted  from  the  prosecution  to  the  defence.  This  is  without 
prejudice  to  the  use  of  presumptions  of  fact  or  law  concerning  the  criminal  liability  of  a 
suspect  or  accused  person.  In  those  Member  States  where  these  presumptions  exist,  they 
comply with the conditions set out in Recital 22, i.e. they are rebuttable and respect the rights 
of the defence, and are limited and proportionate to the legitimate aim pursued. It seems that 
such presumptions are used to a limited extent and with respect to specific cases such as road 
traffic offences, defamation, commercial fraud and drug-related offences. The legislation of 
two Member States is not fully compliant with Article 6(1), because their national law shifts 
the burden of proof away from the prosecution without clear limits in certain cases. In one of 
those, the role of the prosecutor is taken over by the judge, who then takes on the burden of 
proof. 

Article 6(2) requires Member States to ensure that any doubt as to the question of guilt is to 
benefit the suspect or accused person, including where the court assesses whether the person 
concerned  should  be  acquitted.  In  some  Member  States,  while  there  is  no  express 
transposition  of  this  principle,  it  is  a  general  principle  recognised  by  case-law.  Only  one 
Member State is not fully compliant with Article 6(2), because when the prosecution or the 
defence lawyer chooses not to cross-examine a witness, the judge has discretion to conclude 
that  the  defence  lawyer  and  the  client  accept  the  position  of  that  witness,  hence 
compromising the presumption of innocence.  

3.2.4.  Right to remain silent and right not to incriminate oneself — Article 7 

Article  7(1)  requires  Member  States  to  ensure  that  suspects  and  accused  persons  have  the 
right to remain silent in relation to the criminal offence that they are suspected or accused of 
having  committed.  However,  in  a  few  Member  States,  transposition  is  not  fully  compliant 
with the Directive, due to the more limited scope of national measures.   

This issue also affects compliance with Article 7(2), which requires Member States to ensure 
that suspects and accused persons have the right not to incriminate themselves. In addition, 
other Member States did not expressly transpose Article 7(2). In one of them, this right has 
nonetheless  been  recognised  on  several  occasions  by  the  supreme  courts,  while  in  two 
Member States there is no explicit guarantee of the right not to incriminate oneself in national 
law or in the case-law of the supreme courts.  

Other  compliance  issues  identified  in  two  Member  States  are  considered  to  be  particularly 
important,  because  they  appear  to  be  in  direct  conflict  with  the  right  not  to  incriminate 
oneself through measures that could penalise the exercise of this right, or coerce suspects or 
accused persons to point to circumstances excluding criminal liability.  

All  Member  States  transposed  Article  7(3)  whereby  the  exercise  of  the  right  not  to 
incriminate  oneself  does  not  prevent  the  competent  authorities  from  gathering  evidence 
which may be lawfully obtained through the use of legal powers of compulsion.  

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Article 7(4), whereby Member States may allow their judicial authorities to take into account, 
when  sentencing,  cooperative  behaviour  of  suspects  and  accused  persons,  has  not  been 
expressly  transposed  by  the  Member  States.  Nevertheless,  none  of  the  Member  States 
prohibit this, and it is typically possible under general criminal procedural rules to take what 
may be considered as cooperative behaviour into account when sentencing. 

In accordance with Article 7(5), the exercise by suspects and accused persons of the right to 
remain  silent  or  of  the  right  not  to  incriminate  oneself  must  not  be  used  against  them  and 
must  not  be  considered  to  be  evidence  that  they  have  committed  the  criminal  offence 
concerned.  In  14  Member  States  there  are  no  national  provisions  explicitly  prohibiting 
negative inferences from being drawn. However, it is not considered to affect conformity in 
some  of  these  Member  States,  because  conformity  is  either  inferable  from  the  general 
provisions on the admissibility of evidence, or the case-law shows that this rule is constantly 
followed  in  practice.  An  example  of  this  is  when  constitutional  courts  consider  the 
prohibition on drawing negative inferences to be an integral part of the rights to remain silent 
and  not  to  incriminate  oneself.  In  the  other  Member  States,  the  gap  is  considered  to  also 
affect  conformity since the general  provisions  are not  sufficient  or  are not  broad enough in 
scope. In one Member State, despite Article 7(5) having been transposed, conformity is only 
partial  because  although  courts  are  sensitive  not  to  allow  negative  conclusions  to  be  drawn 
from  the  defendant’s  silence  or  refusal  to  give  self-incriminating  evidence,  this  protection 
does not extend to de facto suspects. 

3.3.  Right to be present at the trial (Chapter 3) 

Chapter 3 of the Directive consists of two articles: Article 8 concerns the right to be present 
at  the  trial,  and  Article  9  lays  down  the  right  to  a  new  trial  as  in  the  event  of  a  breach  of 
Article 8.  

3.3.1.  Right to be present at the trial — Article 8 

The national law of all 25 Member States covered by the Directive complies with Article 8(1) 
requiring  Member  States  to  ensure  that  suspects  and  accused  persons  have  the  right  to  be 
present at their trial.  

Article  8(2)  grants  Member  States  the  option  to  provide  that  a  trial  which  can  result  in  a 
decision on the  guilt  or  innocence of  a suspect  or accused person  can be held  in  his  or her 
absence, provided that: 

the suspect or accused person has been informed, in due time, of the trial and of the 

(a) 
consequences of non-appearance; or 

(b) 
the suspect or accused person, having been informed of the trial, is represented by a 
mandated lawyer, who was appointed either by the suspect or accused person or by the State. 

As  regards  Article  8(2)(a),  Recital  36  of  the  Directive  clarifies  that  informing  suspects  or 
accused persons of the trial should be understood to mean summoning them in person or, by 
other means, providing them with official information about the date and place of the trial in 

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a manner that enables them to become aware of the trial. Information on the consequences of 
non-appearance should, in  particular, be understood to  mean informing suspects  or accused 
persons that a decision might be handed down if they do not appear at the trial. 

Recital 37 of the Directive refers to the requirement that the person must have been informed 
of the trial and given a mandate to a lawyer who was appointed by that person or by the State 
as provided for in Article 8(2)(b).  

In cases where these conditions are met, the Court of Justice has clarified that the Directive 
does not preclude national legislation which provides that the right to be present at the trial is 
not  infringed  where  the  accused  person  decided  unequivocally  not  to  appear  at  one  of  the 
hearings held in connection with his trial18. 

The  law  of  some  Member  States  is  not  fully  compliant  with  Article  8(2)(a),  because  the 
requirement to  inform the accused of the trial in  due time or the requirement to  inform  the 
accused  of  the  consequences  of  non-appearance  is  not  met.  In  practice,  it  is  sometimes 
difficult for accused persons to prove that they were not aware of the trial, as a result of the 
notification method (e.g. simple post with proof of deposit). The law of a few Member States 
is not fully compliant with Article 8(2)(b), as it does not ensure that the lawyer appointed by 
the  State  would  receive  a  mandate  from  the  accused  person,  particularly  when  mandatory 
assistance by a lawyer in the absence of the accused person is widespread in practice.  

While trials in absentia are possible in most Member States, practice shows that in some of 
them, in the absence of defendants, courts often adjourn the hearings and issue a warrant to 
appear in court or an arrest warrant. 

Article 8(4) provides that where Member States provide for the possibility of holding trials in 
the absence of suspects or accused persons but it is not possible to comply with the conditions 
laid  down  in  Article  8(2)  because  a  suspect  or  accused  person  cannot  be  located  despite 
reasonable  efforts  having  been  made,  Member  States  may  provide  that  a  decision  can 
nevertheless  be  taken  and  enforced.  Compliance  issues  were  identified  in  some  Member 
States, because of the broader scope of the national measures allowing trials in absentia that 
do  not  contain  an  explicit  requirement  that  ‘reasonable’  efforts  must  be  made  to  locate  the 
person.  

Where Member States make use of the above option, they must ensure that when suspects or 
accused persons are informed of the decision, in particular when they are apprehended, they 
are also informed of the possibility to challenge the decision and of the right to a new trial or 
to another legal remedy, in accordance with Article 9. Compliance issues were identified in 
ten Member States as a result of the absence of a relevant provision in national law or a lack 
of legal clarity. 

In accordance with Article 8(5), Article 8 is without prejudice to national rules that provide 
that  the  judge  or  the  competent  court  can  exclude  a  suspect  or  accused  person  temporarily 
from the trial where necessary in the interests of securing the proper conduct of the criminal 

18 CJEU, 13 February 2020, Spetsializirana Prokuratura, C-688/18. 

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proceedings,  provided  that  the  rights  of  the  defence  are  complied  with.  In  a  few  Member 
States  transposition  is  not  in  conformity  with  the  Directive  as  a  result  of  the  more  limited 
scope of the national measures (e.g. when conformity is not guaranteed in the context of trials 
for misdemeanours and minor offences) or the absence of limits on the temporal scope of the 
exclusion of suspects or accused persons from the trial, making it possible to exclude them 
from the entire trial.  

3.3.2.  Right to a new trial — Article 9 

Article 9 requires Member States to ensure that, where suspects or accused persons were not 
present at their trial and the conditions laid down in Article 8(2) were not met, they have the 
right  to  a  new  trial,  or  to  another  legal  remedy,  which  allows  a  fresh  determination  of  the 
merits  of  the  case,  including  examination  of  new  evidence,  and  which  may  lead  to  the 
original  decision  being  reversed.  In  that  regard,  Member  States  must  ensure  that  those 
suspects  and  accused  persons  have  the  right  to  be  present,  to  participate  effectively,  in 
accordance with procedures under national law, and to exercise the rights of the defence. 

Most Member States comply with these conditions, as a fresh determination of the merits of 
the case following a  conviction  in  absentia  is  possible through appeal  or  a specific  remedy 
leading to a new trial. In two Member States, however, the available remedies do not always 
allow for a fresh determination of the case, affecting conformity.  

3.4.  Remedies (Chapter 4 – Article 10) 

Article  10(1)  requires  Member  States  to  ensure  that  suspects  and  accused  persons  have  an 
effective remedy if their rights under the Directive are breached.  

Some Member States are not fully compliant due to the more limited scope of their national 
measures,  either  with  respect  to  the  authorities  or  stages  of  the  proceedings  for  which 
remedies  are  available,  or  with  respect  to  the  rights  whose  breaches  are  covered  by  the 
available remedies. 

In one Member State, the issue relates directly to the potential ineffectiveness of the remedies 
in  practice,  because  of  the  strict  qualifications  set  for  liability  for  breaches  committed  by 
authorities that set a high threshold of proof and exclude compensation for any breaches that 
authorities may have committed by omission or while acting in good faith. 

Article 10(2) states that without prejudice to national rules and systems on the admissibility 
of  evidence,  Member  States  must  ensure  that,  in  the  assessment  of  statements  made  by 
suspects or accused persons or of evidence obtained in breach of the right to remain silent or 
the  right  not  to  incriminate  oneself,  the  rights  of  the  defence  and  the  fairness  of  the 
proceedings are respected.  

Compliance issues were identified in a few Member States due to the more limited scope of 
the national law (no guarantee with respect to de facto suspects), the admissibility of illegally 
obtained  evidence  under  national  law,  or  the  absence  of  provisions  that  would  ensure 

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effective protection against the use of statements made or evidence obtained in breach of the 
right to remain silent or the right not to incriminate oneself. 

4.  CONCLUSION 

The  Directive  was  introduced  to  improve  the  effective  application  of  the  presumption  of 
innocence  and  of  the  right  to  be  present  at  the  trial  in  criminal  proceedings.  Overall,  the 
Directive has provided EU added value by raising the level of protection of citizens involved 
in  criminal  proceedings,  especially  in  some  Member  States  where  certain  aspects  of  the 
presumption of innocence were not enshrined in national legislation. 

However, this report highlights that there are still difficulties relating to key provisions of the 
Directive in some Member States. This is particularly true as regards the scope of the national 
measures implementing the Directive, and the transposition of the Directive’s provisions on 
the prohibition of public references to guilt and on the right not to incriminate oneself. 

The  Commission  will,  as  a  matter  of  priority,  continue  pursuing  the  infringement  cases 
opened for lack of full transposition of the Directive. The Commission will continue to assess 
Member  States’  compliance  with  the  Directive  and  will  take  every  appropriate  measure  to 
ensure conformity with its provisions throughout the European Union.  

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