Trial Rights in the EU

Citizens facing criminal proceedings across the EU will should better and more consistent protection, said the European Commission while presenting proposed new legislation in this area.

Procedural safeguards, the presumption of innocence of suspects and accused persons, special protections for children facing criminal proceedings, and access to provisional legal aid at the early stages of proceedings are included in the proposal, which the Commission says will foster mutual trust among national judicial authorities, according to a package presented by the Commission on the 27 November.

The Commission has proposed three Directives as part of its Procedural Rights Agenda, a legislative programme that implements the Stockholm Programme, the European Council’s five-year plan for justice and home affairs agreed in 2009.

The proposed package complements the so-called Procedural Rights Directives, adopted between 2010 and 2013, concerning the right to interpretation and translation for suspects, the right to information in criminal proceedings and the right of access to a lawyer.

The package presented by the Commission includes a Communication explaining and justifying the propsed legal measures, along with the three proposals for Directives and two Recommendations.

The proposals are for Directives on:
Strengthening certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings;
Introducing special safeguards for children suspected or accused in criminal proceedings;
Provisional legal aid for suspects or those accused deprived of liberty and legal aid in European arrest warrant proceedings;
The Commission has also presented two Recommendations on:
Procedural safeguards for vulnerable people suspected or accused in criminal proceedings;
The right to legal aid for suspects or those accused in criminal proceedings.

Communication on the Progress in the Procedural Rights Agenda

The Communication “Strengthening the foundation of the European area of criminal justice” introduces the package of proposals implementing the Commission’s Agenda on Procedural Rights and explains why further action at EU level is needed.

Despite fundamental procedural rights such as the right to an effective remedy, to a fair trial, the right of defence and the presumption of innocence are already recognised in Member States national laws in application of Article 6 of the European Convention for the Protection of Human Rights (ECHR) and Article 47 and 48 of the EU Charter of Fundamental Rights. The introduction of several EU legal instruments for judicial cooperation and mutual recognition, notably the European Arrest Warrant, national systems have to recognise and execute investigation measures and judicial decisions adopted in another Member State.

To overcome the mistrust resulting from the fact that procedural rights for suspects and those accused in these proceedings can differ greatly across the EU, the Commission wants to ensure that all Member States have a common minimum level of procedural rights enforceable through EU law.

In addition to the protection afforded by the existing Procedural Rights Directives, the Commission thus wants to reinforce the Procedural Rights Agenda by proposing three more Directives:

A Directive on the presumption of innocence.

 As enshrined in Article 6(2) of the ECHR and Article 48(1) of the EU Charter, this is one of the oldest and most important principles in criminal proceedings. Since the presumption of innocence is the foundation of other fair trial rights protected by existing EU laws, certain aspects need to be strengthened to ensure an effective application of the principle;

A Directive on special protection for children.

 Even if the existing Procedural Rights Directives apply to all suspects or accused persons, the Commission believes that special safeguards need to be set out for vulnerable people. This concerns firstly children, due to their young age and ongoing physical and emotional development and immaturity. Therefore the proposed Directive will take into account the special needs of children facing criminal proceedings, while a Recommendation will consider the situation of adults;

A Directive on provisional legal aid.

 To be effective, the Directive on the right to access a lawyer needs to be complemented by a measure providing for “provisional legal aid”, also in cases where an European Arrest Warrant has been issued. According to the Commission, suspects or accused persons deprived of their liberty should have access to provisional legal aid at an early stage of the proceedings until the decision on legal aid has been made by the judge.

From a wider perspective, the procedural safeguards introduced by the existing and the proposed directives will contribute to create a stronger framework of individuals’ rights in proceedings led by the European Public Prosecutor’s Office, whose establishment was proposed by the Commission in July 2013.

Reinforcing the presumption of innocence and the right to be present at trial

Presumption of Innocence

The first proposal addressed by the Communication aims to adopt a Directive laying down minimum requirements at EU level governing certain aspects of the right of suspects or the accused to be presumed innocent, in line with the Stockholm Programme and European Court of Human Rights (ECtHR) case law.

The presumption of innocence is guaranteed by Article 48 of the EU Charter in accordance with Article 6(2) of the ECHR. The latter stipulates that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Over the years this principle has been developed by ECtHR case law and it now encompasses three key aspects: the right not to be publicly presented as convicted by public authorities before the final judgment, the fact that the burden of proof is on the prosecution and the right to remain silent. This case-law also recognises the right not to incriminate one-self and the right not to cooperate as complementary to the presumption of innocence.

The proposal focuses on some aspects of the presumption of innocence deriving from the above-mentioned ECtHR case law. In particular, it would introduce some new elements:

No public reference to guilt before conviction

According to Article 4 official decisions and statements by public authorities, such as police or judicial authorities, should not present the suspect or accused as guilty before the final judgement has been pronounced by the judge. The aim is to protect the reputation and privacy of the person involved in the proceeding but also to prevent the jury or the court from being influenced in their assessment of the case.

Burden of proof

In application of the principle in dubio pro reo, Article 5 makes clear that the burden of proof is on the prosecution and any doubt over guilt should benefit the suspect or accused. However, the provision admits exceptions to this principle, meaning that burden of proof can be shifted to the defence if the specific circumstances of the individual case are “…of sufficient importance to justify overriding that principle” (e.g. force majeure). Moreover, the reversal of the burden of proof should be rebuttable if the defence adduces enough evidence to raise a reasonable doubt regarding the suspects or accused guilt.

Right not to incriminate oneself and not to cooperate

Article 6 codifies the protection against self-incrimination: the suspect or accused has the right not to be compelled to testify against themselves and not to cooperate in any criminal proceeding. However, paragraph 2 points out that this right would not extend to the use in criminal proceedings of material which may be obtained from the suspects or accused persons through the use of lawful compulsory powers but which exists independently of their will. If evidence has been obtained in breach of this right, the Directive prescribes its inadmissibility in the proceeding.

Right to remain silent

As a complement to the protection against self-incrimination, under Article 7 the suspect and/or the accused have the right to remain silent when questioned, by law enforcement or judicial authorities, in relation to the allegations against them. They should be promptly informed of this right and of the consequences of renouncing or invoking it. The provision also clarifies that the right to remain silent should not be used against a suspect or accused at a later stage in the proceedings. An immediate remedy is then provided for, since any evidence obtained in breach of these rights cannot be used.

Right to be present at trial

The Directive also addresses in Articles 8 and 9 the right of the accused person to be present at trial, as an essential right of defence and of fair trial.

In accordance with the ECHR case law, Article 8 requires Member States to ensure the right of suspects or accused persons not to be judged in absentia. Nevertheless, this would be still possible if the person has been informed in due time and is thus unequivocally aware of the date of the trial and they do not appear or gave mandate to a lawyer to be present at the hearings. If these conditions are not met, Article 8 authorises Member State to execute the final decision if the person does not waive his or her right to appeal or retrial, once informed of these remedies.

Article 9 establishes a remedy in cases where the right to be present at trial has not been observed according to the requirements set in Article 8. The provision creates an obligation to provide a re-trial at which they have the right to be present and which allows a fresh determination of the merits of the case.


Under Article 10 Member States would be required to provide for effective remedy if the rights of suspects or accused persons have been violated. The aim of the remedy should have the effect of placing suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to preserving the right to a fair trial and the right to a defence.

Special safeguards for the vulnerable

The second proposal takes into account the special needs of vulnerable persons facing criminal proceedings, such as age, mental or physical condition, in accordance with international standards and the ECtHR case law. The proposal aims to set common minimum standards throughout the EU on the rights of children (meaning people under the age of 18), suspected or accused in criminal proceedings or subject to proceedings under the European Arrest Warrant.

The proposed Directive will make sure that children are able to understand and follow the criminal proceeding by introducing new requirements:

Right to information

Under Article 4, the child would be informed promptly of its procedural rights according to the Directive 2012/13 on the Right to Information. In particular, if arrested or detained the child should receive a written Letter of Rights including the rights to:
• have the holders of parental responsibility informed;
• a lawyer;
• to an individual assessment;
• to a medical examination;
• to liberty and the right to specific treatment in detention;
• to appear in person at the trial;
• to legal aid.
Right to be assisted

Article 5 and 6 provide for the right of children to be assisted by appropriate adults. This requirement refers to parents, who should be promptly informed with the information specified in Article 4 and take part to the court hearings involving the child (Article 15). Article 6 also requires Member States to ensure that children are assisted by a lawyer throughout the criminal proceedings; this access to a lawyer cannot be waived. This is a mandatory requirement and can be considered as the core element of this proposal;

Right to an individual assessment

According to Article 7, the specific needs of the child in terms of personality and maturity as well as its family situation need to be taken into account when assessing the case. The individual assessment should take place with the close involvement of the child and be updated throughout the criminal proceedings. Furthermore, pursuant to Article 9, during the proceedings any questioning of children by police or judicial authority would have to be recorded audio-visually;

Right to medical examination

In case of deprivation of liberty, children would have access to a medical examination with the aim of determining the child capacity to face investigative acts or any measures taken or envisaged against the child, such as questioning by the police or detention. Medical examination can be requested by the child, the person with parental responsibility or the lawyer;

Right to liberty

While imprisonment or detention should be seen only as a measure of last resort (Article 10), the proposal wants Member States to ensure the recourse to alternative measures wherever possible, such as the obligation for the child to reside in a specific place, undergoing of therapeutic treatment or treatment for addiction or participation in educational measures. In case of conviction children should be detained separately from adults and granted specific assistance as far their development, education and integration into society is concerned (Article 12);

Interdiction of trial in absentia

Children should not be tried in their absence, in order to exercise their right to defence but also to understand the grounds of a possible conviction and thus be prevented from re-offending (Article 16);

Right to legal aid

Under Article 18, Member States will ensure that national law in relation to legal aid guarantees the effective exercise of the right to access to a lawyer.

While the proposed Directive would only apply to children, the Commission addresses the situation of vulnerable adults in a Recommendation to give Member States more flexibility, as there is no standard definition concerning this category of citizens. The core of the Recommendation consists of ensuring that people suffering for example from physical or mental disabilities are detected and recognised, and that their special needs are taken into account in criminal proceedings. The Commission also proposes that vulnerable suspects benefit from special safeguards such as mandatory access to a lawyer, assistance by an appropriate third person and medical assistance.

Ensuring legal aid at early stages of the proceedings

The right to receive legal aid for people who lack sufficient resources is a fundamental right enshrined in Article 6(3) of the ECHR and Article 47(3) of the EU Charter. In order for the existing Directive on access to a lawyer to be effective in such cases, the Commission has proposed a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings. The aim is to set common minimum standards for the right to provisional legal aid from the moment one is taken into police custody or similar custody, until the decision on legal aid has been taken.

Article 3 of the proposal defines “legal aid” as funding and assistance from the Member State ensuring the exercise of the right of access to a lawyer, while “provisional legal aid” means legal aid to a person deprived of liberty until the final decision on legal aid.

Access to provisional legal aid would be granted under Article 4 to suspects or those accused in criminal proceedings deprived of liberty, without delay and in any event before questioning, until the final decision on legal aid has been made and comes into effect.

Member States would be required to put in place procedures or mechanisms, for example duty lawyer schemes or emergency defence services, allowing intervention with short notice at police stations or detention centres, so that the right to provisional legal aid and access to a lawyer becomes practicable and effective.

As far as European arrest warrant proceedings are concerned, Article 4 also provides that people who are deprived of liberty in the Member State executing the warrant have right to provisional legal aid under the same conditions. Article 5 would require people sought under European arrest warrant proceedings are granted access to legal aid in the executing Member State upon arrest and until the surrender. In this case, access to legal aid can be subject to an assessment of the means of the requested person and/or whether it is in the interests of justice to provide legal aid, according to the applicable eligibility criteria in the Member State in question.

This proposal is presented together with a Recommendation on the right to legal aid for suspects or accused people in criminal proceedings. The Recommendation seeks to foster a certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration.

Common objective criteria to be considered when assessing the eligibility for legal aid include means testing (factors such as income, capital, family situation, standard of living and the cost of a defence lawyer) and merit testing (complexity of the case, social and personal situation of the suspect or accused person or requested person, seriousness of the offence and severity of the potential penalty that can be incurred).

Next Steps

The Directives included in the package presented by the Commission have been transmitted to the European Parliament and the Council for examination. These proposals will be adopted through the ordinary legislative procedure.