Is the ECJ revisiting the European ‘fifth amendment’? The CJEU rules on the right to silence

 

                                   

Inês Pereira de Sousa, Lecturer and PhD candidate at Porto Faculty of Law, Universidade Católica Portuguesa; Researcher at CEID – Católica Research Centre for the Future of Law; Member of ANESC – Academic Network on the European Social Charter and Social Rights; Member of EUCRIM –European Criminal Law Associations’ Forum - isousa@porto.ucp.pt

 

On 2 February 2021, the Court of Justice had the opportunity to reanalyse the right to remain silent and the right to avoid self-incrimination in a preliminary ruling from the Italian Constitutional Court.

In Case C-481/19,  DB v Commissione Nazionale per le Società e la Borsa (Consob), Consob had imposed (in 2012) on DB, a natural person, financial penalties for two administrative offences of insider trading in 2009, plus another financial penalty for the fact that DB had asked several times for the postponement of his hearing and, when finally heard, had declined to cooperate and to answer the questions of the national authority, an administrative offence which is contained in Article 187 of the Italian Decreto legislativo n. 58 (Legislative Decree No. 58). In addition, Consob also imposed the ancillary penalty of temporary loss of fit and proper person status for a period of 18 months and ordered confiscation of assets of equivalent value to the profit or the means employed to obtain it under Articles 187quater(1) and 187sexies of the such national law.

The Italian law in question, the Decreto Legislative n. 58, consolidates all provisions in the field of financial intermediation and includes the transposition of the Directive 2003/6/EC on insider dealing and market manipulation, which was repealed by Regulation (EU) No 596/2014 on market abuse.

DB brought an appeal against those penalties before the Corte d’appello di Roma (Court of Appeal of Rome), which was dismissed. Faced with this decision, he lodged an appeal before the Corte Suprema di Cassazione (Supreme Court of Cassation), which referred two interlocutory questions of constitutionality to the Corte Costituzionale (Constitutional Court). The Corte Costituzionale then decided to stay the proceedings and to ask the Court of Justice whether Article 14(3) of Directive 2003/6, in so far as it continues to apply ratione temporis, and Article 30(1)(b) of Regulation No 596/2014, in the light of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (Charter) and the European Court of Human Rights (ECtHR) case-law, should be interpreted as permitting Member States to refrain from penalising individuals who refuse to answer questions by the competent authorities and which might establish their liability for an offence punishable by administrative sanctions of a ‘punitive’ nature.

In fact, Articles 47 and 48 of the Charter enshrine the right to a fair trial and the presumption of innocence, which are also guaranteed in Article 6 of the European Convention of Human Rights (ECHR). Although the European Union has not acceded to the ECHR yet, it should be recalled that Article 6(3) TEU confirms that fundamental rights recognized by the ECHR constitute general principles of EU law, and Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR ((the so-called homogeneity clause).

Both the right to remain silent and to avoid self-incrimination, whose ponderation was at the heart of the questions referred for a preliminary ruling in the DB v Consob case, arise from Article 6 (right to a fair trial) ECHR and Articles 47 (right to an effective remedy and to a fair trial) and 48 (presumption of innocence and right of defence) of the Charter.   

Historically, the protection against self-incrimination is linked to human dignity. It was developed as a protection for individuals to avoid torture aimed at extracting a criminal confession, and to prevent the cruelty of being faced with only three options (the ‘trilemma’): (1)  to be sanctioned for refusing to cooperate; (2) to provide the authorities with incriminating information; (3) or to lie and risk prosecution for perjury. However, this privilege is not exclusively for natural persons, nor is it limited to criminal offences.

In fact, such right has been developed thanks to both CJEU and ECtHR case-law. In the Engel and others v Netherlands judgment, the ECtHR extended the scope of this right to administrative decisions which could imply sanctions. According to the ECtHR, the right not to be obliged to produce evidence against oneself includes the right to remain silent and not to answer any question, even factual ones. In other words, the ECtHR has excluded the admissibility of answers obtained from the accused through compulsory questioning during a non-judicial investigation as evidence, including answers to purely factual questions (see, e.g., ECtHR, Funke v France; ECtHR, John Murray v United Kingdom; and ECtHR, Saunders v United Kingdom).

In the EU legal context, one of the areas that involves these administrative decisions is competition law. In this field, the undertakings must cooperate by answering questions and providing documents; yet they cannot be forced to confess their participation in the infringements.

The first significant case in this matter, in the EU, was Orkem (judgment of 18 October 1989, Case C-374/87), in which the ECJ recognized that the duty to provide information related to the subject of the inquiry was not absolute and undertakings could refuse to answer certain questions that could involve the provision of self-incriminating information. In this case, the undertaking was a legal person, and the Court excluded the answers to purely factual questions from the protection against self-incrimination.

In DB v Consob, on the one hand, the ECJ was faced with a right to remain silent by an individual, and, on the other hand, it was necessary to establish the conditions under which such right must be respected in the case of proceedings potentially leading to administrative sanctions of a criminal nature.

 Regarding the fact that the person who did not cooperate with the national authority was an individual, the Italian Government argued that the case-law on the legal person’s right to avoid self-incrimination could be applied by analogy when establishing the scope of the right of natural persons to remain silent in administrative procedures for detecting market abuse. From the Opinion of Advocate-General Pikamäe, delivered on 27 October 2020, it results that the scope of natural persons’ right to remain silent does not seem to have been considered by the Court until that moment. In the judgment, the ECJ considered that it was not possible to apply the Orkem formula by analogy when determining the scope of individuals’ right to silence because that jurisprudence concerns procedures against undertakings and associations of undertakings.

As for the second issue, the jurisprudence has been stating that if the administrative procedure in question is likely to lead to a penalty falling within the ‘criminal sphere’, the full range of guarantees under the criminal head of Article 6 ECHR applies, including the right to silence. CJEU case-law highlights three criteria for verifying a sanction’s criminal nature: the legal classification of the offence under national law; the intrinsic nature of the offence; and the degree of severity of the penalty that the person concerned is likely to incur in (Case C-537/16, Garlsson Real Estate and Others).

In DB v Consob, another important question was presented to the ECJ. Once again, in the Advocate-General’s words, until that moment, neither the Court, nor EU legislature had addressed the question of whether, regarding the case-law of the ECtHR concerning Article 6 ECHR, and Articles 47 and 48 of the Charter, required such right to be recognized in administrative proceedings which could lead to the imposition of ‘punitive’ penalties. Consequently, it was necessary to clarify whether those provisions allowed not sanctioning persons refusing to answer questions which might establish their liability for an offence punishable by criminal penalties, or by administrative penalties of a punitive nature.

The Court addressed the question objectively, recognizing that, even if the penalties imposed on DB were not criminal in nature, the right to silence could also stem from the fact that, in accordance with national legislation, the evidence obtained in those proceedings may be used in criminal proceedings against that person to establish that a criminal offence was committed. Accordingly, in judgment DB v Consob, it was established that authorities should respect the privilege against self-incrimination in two different cases: in administrative proceedings that may lead to the imposition of administrative sanctions of a criminal nature; and in administrative proceedings that may not lead to the imposition of sanctions of a criminal nature, if the evidence produced in this proceeding may be used in criminal proceedings against that person in order to establish that a criminal offence was committed.

Finally, the Court concluded that Article 14(3) of Directive 2003/6, and Article 30(1)(b) of Regulation No 596/2014, read in the light of Articles 47 and 48 of the Charter, must be interpreted as allowing Member States not to penalise natural persons who refuse to provide the competent authority with answers capable of establishing either their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.

It is thus clear that the ECJ refused to transfer to individuals its more restrictive position towards legal entities developed in the field of competition law, which leads us to the distinctive treatment of natural and legal persons in what concerns the right to avoid self-incrimination. Furthermore, could the DB v Consob judgment be understood as a broader interpretation of punitive proceedings against legal entities?

Regarding the distinctive treatment, it should be recalled that the extension of fundamental rights to legal persons follows a general criterion based on the nature of the right. For this reason, most arguments of legal scholars in favour of the exclusion of legal persons from the scope of the right to avoid self-incrimination or to justify a different protection in terms of such privilege, are related to its nature as a purely personal privilege, based on human dignity and autonomy. Moreover, Directive 2016/343, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, excludes legal persons from its scope (in its Recitals 13 to 15), making it clear that the protection that results from the presumption of innocence is not applicable to legal persons in the same way as it is to natural persons.

Nevertheless, some arguments could justify the extension of this protection to legal persons, such as the close link to the right to a fair trial, the need to limit the Commission and national authorities’ powers of investigation, and to harmonize ECtHR and CJEU’s application of the right to a fair trial.

Undoubtedly, it is necessary to balance the right of defence and the public interest and, while recognizing that human dignity justifies a different treatment of individuals, it can be observed that, in recent years, the application of fundamental rights, ‘whose nature is more individual, to legal persons has expanded. Therefore, the question remains – should legal entities have the right to remain silent against the provision of any evidence that may constitute an admission of guilt?

CJEU case-law has been confirming that the scope of legal persons’ privilege against self-incrimination is restricted to questions that require the provision of self-incriminatory information, and it does not cover answers to questions relating to facts, unless their purpose is to obtain an admission from the undertaking concerned. This position has been confirmed in more recent cases such as Buzzi Unicem v Commission (Case C-267/14 P), HeidelbergCement v. Commission (Case C-247/14 P) and Qualcomm and Qualcomm Europe v Commission (Case C‑466/19 P).

As a matter of fact, this interpretation obliges undertakings to answer purely factual questions and to comply with requests for the production of documents already in existence, and CJEU has already declared that these obligations do not breach the rights of the defence and the right to fair trial (see Case T‑446/05, Amann & Söhne and Cousin Filterie v Commission).

This understanding leads to a (very) slight distinction between factual and non-factual questions. Answers to factual questions can also encompass self-incriminating information, and the characterization of a question as factual or non-factual can be the result of an incorrect assessment on the part of national courts or the CJEU, which clearly happened in many CJEU judgments, such as Buzzi Unicem.

In this particular case, one of the Commission’s questions required the undertakings to comment on the level of its profit margins. Although the answer to that question was equivalent to an infringement admission, the General Court did not censured the Commission’s questionnaire and dismissed the action, arguing that “the applicant was entitled, at a later stage of the administrative procedure or in the course of an appeal against the Commission’s final decision, to put forward an alternative interpretation of its answer to that question” (Case T-297/11, Buzzi Unicem). This justification caused perplexity: the undertakings’ possibility to challenge the self-incriminatory nature of question, if and when the Commission adopted a decision imposing a fine upon it, does not mean that the Court cannot censure the violation of rights. Accordingly, the Advocate-General Wahl considered that the General Court made an incorrect interpretation and breached the undertaking’s privilege against self-incrimination. However, the ECJ did not address the incorrect classification of the question as purely factual and avoided to take a stance about scope of the right to avoid self-incrimination (Case C-267/14 P, Buzzi Unicem).

It appears from CJEU case-law that this delimitation between factual and non-factual questions is constant, and that the recognition of an absolute right to silence to legal persons, covering each and every question, would constitute an unjustified obstacle to ensuring compliance with competition rules.

The different protection for individuals and legal persons was once again confirmed in DB v Consob. It is worth recalling that this differentiation is not always as unequivocal as EU jurisprudence states. Under EU competition law, the concept of undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, e.g., Case C-41/90, Klaus Höfner and Fritz Elser v Macrotron GmbH). Thus, single traders and professionals exercising their profession alone and unincorporated can be considered undertakings. EU case‑law has also specified that the concept of undertaking must be understood as designating an economic unit, even if it consists of several persons, whether natural or legal (see Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio and Case T‑325/01, Daimler Chrysler v Commission). In this situation, the undertaking is an individual and it seems that the different treatment is not justified.

Notwithstanding this strict interpretation of the Court regarding the protection of legal persons and its refusal to apply this position in DB v Consob, I believe the intention of the Court was not to change its point of view regarding legal persons, but to clarify that individuals are entitled to a different treatment, a more protective treatment that allows them not to provide any self-incriminatory information and to be silent in any proceedings that could result in a sanction of criminal nature or evidence of criminal responsibility.

The judgment in DB v Consob established decisive aspect of the scope of individuals’ right to silence, and concluded that Articles 47 and 48 of the Charter require such right to be recognized in administrative proceedings that may lead to the imposition of administrative sanctions of a criminal nature, as well as in other administrative proceedings where the evidence produced may be used against that person in criminal proceedings to establish criminal liability.

This case has (involuntarily) left a small window open for relaunching the debate on the protection of individuals and legal entities to avoid self-incrimination in punitive proceedings. However, contrary to some legal scholars’ expectations, I dare to state that no room for manoeuvre has been created in this judgment for revisiting legal persons’ privilege against self-incrimination.

Barnard & Peers: chapter 10, chapter 24

Photo credit: Jastrow, via Wikimedia Commons

Pilate washing his hands. The CJEU on pre-trial detention

By Adriano Martufi (Assistant Professor, Leiden University) and Christina Peristeridou (Assistant Professor, Maastricht University)

Introduction

The very recent ruling of the CJEU in DK (C-653/19 PPU, 28 November 2019) came to verify two quite depressing suspicions about the current status of European criminal law. First, Directive 2016/343 on the presumption of innocence remains an instrument with staggeringly limited applicability especially in the field of pre-trial detention. Second, pre-trial detention stands as a political and legal hot potato: neither the CJEU nor the EU legislator are eager to provide common standards on pre-trial detention, even if the lack of these standards is partly to blame for problems of mutual trust between judicial authorities in the Member States.

The facts

In DK, the Bulgarian Specialised Criminal Court requested a preliminary ruling for the compatibility of the national code of criminal procedure with Article 6 of the Directive on the presumption of innocence, and Articles 6 (right to liberty) and 47 (fair trial and effective remedy) of the EU Charter of Fundamental Rights. In Bulgarian criminal procedure, when the case of an already detained suspect reaches trial, the trial court is responsible to deal with the detention, next to the merits of the case. Once the trial court finds the detention lawful, it becomes indefinite and can only be reviewed on application of the defendant; in such application the defendant must convince the court of changed circumstances that would justify release.

The Bulgarian court wonders whether this national rule shifts the onus from the prosecution to the defendant in providing evidence for release, thereby conflicting with Article 6 of the Directive on the burden of proof, which states that the burden of proof in proving guilt is for the prosecution. DK has been in custody since 11 June 2016 and has filed various applications for release to the trial courts (first and second instances). All of these were rejected since he failed to provide evidence of changed circumstances pointing towards release.

The ruling

The Court, ruling under the urgent procedure, delivered a short and to the point judgement where it found that Article 6 of the Directive on the presumption of innocence and Articles 6 and 47 of the Charter do not apply to the situation at hand (para 42). The syllogism is based on a collection of arguments from the wording of the Directive together with previous jurisprudence. First, the Directive only provides for minimum harmonisation and it does not lay down rules on pre-trial detention exhaustively. Indeed, in previous case law the Court verified that the examination of reasonable suspicion, the evidence used and the judicial reasoning in ordering pre-trial detention remain subject to national law (Milev). Second, a grammatical reading of Articles 4 and 6, and recitals 16 and 22 of the Directive reveals, according to the Court, an implicit distinction between judicial decisions on guilt and other procedural acts such as remand procedures. Following AG Pitruzzella’s Opinion, the argument is that, in contrast with Article 4 (public reference of guilt) which applies only to decisions of pre-trial nature, Article 6 (burden of proof) applies solely to decisions on guilt. Thus, the burden of proof must be borne by the prosecution only for judicial decisions pertaining to a finding of guilt, and not for other decisions of pre-trial nature. Third, since this case falls outside the realm of the Directive – and thus EU law – the Charter is not applicable (Article 51). Articles 6 and 47 of the Charter cannot be invoked ad hoc, as there is no application of EU law.

Commentary

The Court in DK confirms the European Union legislator’s view on the presumption of innocence being a thin, limited concept. The Directive on the presumption of innocence had little ambition, putting forward a minimalistic presumption. To this extent, DK has no transformative effect: there is no brave expansion of EU law with some sort of judicial activism. The Court upholds the status quo. Yet this mundane result does not sit well with the increasing discomfort of having judicial cooperation without common pre-trial detention standards. Given that the overuse of detention on remand has become increasingly problematic in numerous EU legal systems – even leading to exceptions to the once unyielding mutual trust in Aranyosi – one could hope that this Directive would form a stepping stone to regulate certain aspects of pre-trial detention.

After all, the ECtHR has repeatedly linked the presumption of innocence and pre-trial detention, as the latter may negatively affect the former. In the absence of legislative harmonisation, it would arguably fall to the CJEU to fill the ‘gaps’ of protection left by the EU legislator. DK could offer such opportunity: very recent ECtHR case law has taken aim at practices of shifting the burden of proof within remand proceedings similar to those seen in DK. It would have been quite easy for the CJEU to fall back to ECHR standards, which seemed tailored to the problem raised in DK. Yet the Court did not engage into a carpe diem moment. What is more, the arguments developed by the Luxembourg judges are far from flawless and deserve closer scrutiny.

Interpretation of the Directive

To begin with, the Court held that the situation in DK escapes the scope of the Directive in a simplified and incomplete manner. The Court draws the strength of its arguments from the grammatical reading of the Directive as provided by AG Pitruzzella. According to the latter, while some provisions of the Directive cover trial and pre-trial measures alike, others target exclusively trial measures. This is extracted from references made in Article 4 (public references to guilt) to all ‘judicial decisions’ other the one on guilt. An all-encompassing notion is surely not repeated by Article 6 (burden of proof) and the elucidations on this article provided by the preamble. This grammatical analysis, according to the AG and the Court, points to the conclusion that the two provisions are meant to apply to different stages of criminal process. It is indeed the case that Article 6 speaks of the ‘burden of proof for establishing the guilt’ of the suspect, and not of any burden of proof. Having said that, one could argue that if the legislator had made such distinction between pre-trial and trial stage pertinent for the applicability of these articles, it would have made that more explicit in the text.

In light of the above, it is perplexing that in the previous case of RH the Court dealt with the issue quite differently. There it provided a different reading of Article 6 of the Directive by stating that this provision broadly refers to ‘any obligation on the judge or the competent court to seek both elements of inculpatory and exculpatory evidence’ (para 56 in RH). In doing so, it established a conceptual connection between Articles 4 and 6 of the Directive, implying that Article 6 would be relevant for pre-trial detention. By contrast, the Court in DK tried to nuance this link, in an effort to rule out the relevance of Article 6 for pre-trial detention proceedings. This is however surprising as, in reality, the presumption of innocence does indeed apply to those proceedings under ECHR standards and under most, if not all, national legal systems.

Conclusively, even if the Court’s reading of the Directive is not prime facie implausible, the lack of any further argumentation against extending Article 6 to pre-trial detention leaves much to be desired. All in all, the AG’s Opinion offers a more complete and holistic account to support such a thin understanding of the presumption of innocence. The travaux preparatoires showed that the Commission had insisted on excluding pre-trial detention from this Directive all together (point 33 of Opinion). The Court's reading of the Directive would have appeared less legalistic and more convincing, had it explained its change of heart from RH by referring to the telos of the Directive as intended by the drafters.

The Charter

But the Court was also asked to interpret Articles 6 (right to liberty) and – surprisingly – 47 (effective remedy and fair trial) of the Charter. Based on the facts of the case, one would have expected the Bulgarian court to request the interpretation of Article 48 (presumption of innocence). It is not apparent why the right to an effective remedy (or generally to a fair trial) is relevant here, although one may argue that the shift of the burden of proof described above challenges the effectiveness of the remedy: being in custody, DK could not easily provide new circumstances to challenge his detention. Having said that, an (additional) argument including the presumption of innocence (Article 48 Charter) would have been stronger. This is confirmed by the Opinion, as AG Pitruzzella groups Articles 47 and 48 together although no reference to Article 48 was made by the referring court.

In spite of these inconsistencies, the Court’s way of dealing with the interpretation of the Charter is bizarrely introvert. With a few laconic sentences (para 40-41), it dismisses the national court's requests stating that the situation at hand did not fall under EU law (the Directive) and therefore the Charter's safeguards could not be consistently triggered. Relying on Article 51, the Court aseptically reiterates that the Charter comes into play only when national authorities are ‘implementing EU law’.

Yet, the Court has taken the view in the past that the Charter could be applicable not only when EU law is implemented, but also when a more tenuous connection exists. In our case, whereas pre-trial detention is not exhaustively regulated by the Directive, some parts are indeed affected (Article 4 prohibits references to guilt in pre-trial detention orders). Thus, a connection with EU law does exist, and there could be an argument in favour of using further the Charter following Åkeberg Fransson. Furthermore, the Charter has been used in the past to cover lacunas. In Aranyosi, while the EAW Framework Decision did not provide any ground for refusal on grounds of (potential) fundamental rights' violations, the Court used the Charter to fill up this lacuna and substantially created one.

In Aranyosi, the Court followed a more principled approach, even going against a literal or teleological interpretation of the legal instrument in question. Remarkably, this happened even though the Luxembourg judges were under huge pressure to uphold mutual trust and maintain the EAW procedure unaltered. Why didn’t the Court do the same in DK?

Notably, we are not the only ones to raise this question. AG Pitruzzella himself criticises heavily (and in a rather strong tone) the lack of common standards for pre-trial detention and urges the EU legislator to move forward with this subject (points 20-22). Quite interestingly, however, he concedes that he has ‘no choice’ but to conclude that the facts in DK fall outside Union law. Similar remarks were expressed by the Opinion in Milev, with AG Wathelet disagreeing strongly with the Commission’s view that the Directive did not include any substantial provisions for pre-trial detention (points 55-57).

Explanation of Court’s approach

So why didn’t the Court extend Article 6 application on the burden of proof to pre-trial detention, following an application of the Charter?

One plausible explanation is that the Charter is not automatically conducive to an expansion of the protective scope of this Directive. The Court has reiterated in Milev (para 47) and in DK that harmonisation is not exhaustive. In this sense, this Directive provides for a partial (and minimum) harmonisation as only certain aspects of the presumption of innocence are dealt with. Thus, in this case the Charter cannot expand the scope of the harmonisation more than the way the Directive already defines it. In constitutional terms, one could argue that the Court may have been wary to step beyond the red lines set by the principles of subsidiarity and conferral. Of course, the Luxembourg judges could easily shield themselves behind the inherent vagueness of the presumption of innocence. This is a notoriously elusive concept, poorly implemented in practice and theoretically divisive. Some national laws hardly go any further that a statement of principle and, despite sincere and sophisticated efforts, scholarship is deeply divided on its meaning. In this sense, the EU legislator was quite brave to consider touching upon it. In our view, the Directive would have enjoyed more success and less uncertainty, had the harmonisation of the presumption of innocence been complete.

A second explanation for not following a principled approach may derive from a general unwillingness to engage in judicial activism, especially in light of the delicate legal issue underlying the preliminary ruling. Pre-trial detention is a controversial topic, as the debate on its harmonisation at EU level clearly reveals. On multiple occasions, the EU has indicated that it may adopt minimum rules in these matters (Green Paper, EP Resolution), and yet so far the reaction by Member States has been lukewarm. Pre-trial detention is regarded as being incredibly diverse and therefore complicated to harmonise, so that EU legislator has chosen to focus on the less troubling alternative measures (with the so-called ESO Framework Decision).

Arguably, in the case at hand, the Court is reluctant to touch upon pre-trial detention given the strong opposition of both the Commission and the Council to include this within the scope of the Directive. But pre-trial detention does have a strong human component that is difficult to ignore: before excluding the situation at hand from Union law, AG Pitruzzella half-heartedly admits that the defendants in the domestic proceeding had as only option to bring their case before the ECtHR – a scenario which, as the AG himself recognises, may take years to materialise (point 21). This is a simple but powerful remark, shifting the perspective from the European courts, with their intricacies and conflicts, to the one of the defendant. The question – implicitly but ever so powerfully posed – is whether or not the time has come for the EU to address pre-trial detention as an EU matter.

A third explanation invites us to look at DK in the light of the prior case law concerning references issued by Bulgarian courts. Before DK, two more cases were raised by the same court, challenging the compatibility of domestic pre-trial detention regime with EU law. Both in Milev and in RH, the Bulgarian court requested clarification for the same national legislation and its relation to the Directive. As explained by AG Wathelet in Milev, the pre-trial detention regime had been amended due to ECtHR developments but the status quo divided the judges. In RH, the Bulgarian court even revealed some details of the internal judicial struggles amongst the Bulgarian Supreme Court and the lower courts: the former had ordered the latter not to wait for the response of the preliminary reference procedure, in order to rule on the pending status of the detention ‘within reasonable time’. Due to the defiance of the lower court, even disciplinary proceedings were launched. This occurrence was even put forward as a question to the CJEU regarding judicial independence (a rather fashionable topic these days), with regard to the power to prevent lower courts from waiting for the CJEU’s response in preliminary reference procedure. With this background in mind, we could see DK as a request for the CJEU to play the referee for a national debate. This may provide further leads to understand the Court's reluctance to rule on this topic.

But leaving aside the domestic quarrels between Bulgarian courts, the fact remains that a struggle is taking place in that country to uphold human rights standards and enhance their level of protection in criminal proceedings. It is only natural that the Directive on the presumption of innocence – especially in light of the wider interpretation given in RH – would be used by Bulgarian judges as a breeding ground to achieve that result. DK could in fact be the opportunity for the CJEU to exercise its role as ‘competence regulator’ – aiguilleur des compétences (point 21 Opinion). Referring to Vedel’s theory of constitutional control, AG Pitruzzella advised the Court to seize this opportunity and give an indication to the national authorities of the right path for reforming their national procedure on pre-trial detention. As has become apparent, the Court did not follow his advice.

DK might have the effect of discouraging national courts to follow up with more questions on the application of the Directive in relation to pre-trial detention. Yet it is a wonderful addition to previous case law, demonstrating that pre-trial detention is increasingly becoming a candidate for intervention by the EU; the question of harmonising pre-trial detention cannot be ignored much longer if national courts keep asking the CJEU to intervene.

Barnard & Peers: chapter 9, chapter 25

JHA4: chapter II:4
Art credit: Jan Lieven, via Wikicommons 

The new Directive on the presumption of innocence: protecting the ‘golden thread’

Debbie Sayers, Legal Research Consultant, http://interalia.org.uk

"Throughout the web of the […] criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt”

Woolmington v DPP [1935] UKHL 1

(update: the law discussed in this blog post was adopted in February 2016, and must be applied by 1 April 2018)

Around nine million people are the subject of criminal proceedings every year in the EU.[1] All of them are entitled, by law, to a fair trial irrespective of the charge faced. The presumption of innocence (set out in Article 6 (2) ECHR and Article 48 (1) EU Charter) is the cornerstone of the right to a fair trial. It is rooted in the need to protect the individual against the improper use of coercive state power. The principle is derived from, and entrenched within, the constitutional traditions of all EU Member States. In essence, it relates to both the procedural burden and standard of proof (the prosecution must prove the case against the defendant beyond reasonable doubt) while also constituting a privilege in its own right.

In reality, the principle is persistently under attack within EU Member States because of concern about crime and security, because of rampant managerialism in a climate of austerity[2] and because of penal populism. Too often, a more ‘effective’ criminal justice system is portrayed solely as a system which convicts more people. Consequently, any discussion on how best to protect the presumption in contemporary criminal justice systems is to be welcomed. In the EU context, the effective standard promotion and enforcement of human rights is to be particularly encouraged because EU criminal cooperation, via mechanisms such as mutual recognition (e.g. the European Arrest Warrant - EAW), has laid bare the variability within criminal justice systems. Although fair trial standards are set out in the ECHR, and reflected in the EU Charter, their basic level of protection is neither uniformly transposed nor consistently enforced. This has undermined a model of criminal cooperation built on ‘mutual trust’ between Member States. The EU’s response has been the creation of EU-specific standards in the form of Directives issued in pursuance of the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings based on Article 82 of the TFEU. Thus far the following instruments have been agreed:

·         Directive on the right to information in criminal proceedings establishes that Member States must inform individuals of their rights, including the right of access to a lawyer and the right to remain silent;

·         Directive on the right to interpretation and translation in criminal proceedings;

·       Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings (the UK and Ireland have opted out);

·        Commission Recommendation on the right to legal aid for suspects; and

·    Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.

It is in this context that the EU has recently agreed a compromise text on the Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings. The stated purpose of the Directive is “to enhance the right to a fair trial in criminal proceedings by laying down minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial” (Recital 4a). This should: “strengthen the trust of Member States in the criminal justice systems of other Member States and […] thus help to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the territories of the Member States.” (Recital 5)

Before looking at some of the key points of the Directive, there are two points to note: first, although compliance with existing law (ECHR) is noted to be a problem, EU standard setting has not been based on any empirical legal study. The precise scope and substance of the presumption of innocence can be harder to define within comparative contexts and this required further consideration. Second, Article 52(3) of the Charter confirms that the EU may raise standards beyond those of the ECHR but it cannot permit States to fall below them (note also the non-regression clause in Article 12 of the Directive). The ECHR is thus the core baseline for any assessment of the efficacy of new standards. Consequently, if the agreed instrument is not, at the very least, consistent with the ECHR, it is difficult to conclude it will have any positive benefit for the accused or address the problems it seeks to resolve.

The Directive

Article 1 confirms that the Directive is intended to lay down minimum rules on “certain aspects” of the right to the presumption of innocence in criminal proceeding” and the right to be present at the trial in criminal proceedings. The Directive is not intended, therefore, to be an exhaustive study of the principle and the ECHR will still be the main guide to those aspects which are not included in the text.

Article 2: Scope

Article 2 confirms that the Directive will apply at “all stages from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the final determination of the question whether the person has committed the offence concerned and that decision has become definitive”. Recital 6 confirms that it applies “only to criminal proceedings, as interpreted in the case-law of the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights. Administrative proceedings, including administrative proceedings that can lead to sanctions, such as proceedings relating to competition, trade, financial services, traffic offences, or tax, including tax surcharge, and investigations by administrative authorities in relation to such proceedings, as well as civil proceedings, should not be covered by this Directive.”

There is no recognition of the possible consequences that admissions made in administrative proceedings could have on subsequent criminal proceedings. Further, despite the meaning of the term criminal proceedings being “without prejudice” to the definition established by the ECtHR, the Directive seems to contradict this. Article 6 (2) ECHR refers to a “criminal offence” but this has been interpreted to encompass types of cases beyond the classically “criminal”, for example, professional disciplinary proceedings or certain administrative offences which may fall within the ambit of the criminal head of Article 6 (e.g. Lutz v Germany, No. 9912/82, 25/08/1987; Bendenoun v. France 12547/86, 24/02/1994).

Further, the Directive applies only to natural persons and therefore excludes legal persons (e.g. companies). In a Joint Position Paper in 2014, Fair Trials International, noted that this leaves “their protection to existing safeguards, while acknowledging that the case law of the ECtHR has not clearly recognised the right of silence for legal persons” (para 12).[3] Given that legal persons can clearly be affected by the mutual recognition agenda, this is an opportunity missed in terms of clarifying and enhancing protection.

Additionally, as FTI has noted, unlike the Directive on access to a lawyer (Article 2(3)), this Directive does not extend protection explicitly to those “persons other than suspects or accused persons who, in the course of questioning, become suspects or accused persons”. There appears to be no justification for this inconsistency.

Article 3: Presumption of innocence

Article 3 is simply a restatement of the principle. It sets out “Member States shall ensure that suspects and accused persons are presumed innocent until proven guilty according to law”.  There is no attempt to articulate the nature of the provision further or set out the core aspects of the presumption for the purposes of the Directive.

For example, the ECtHR has confirmed that, in practice, for the presumption to be meaningful, certain procedural safeguards must be in place. For example, the prosecution will need to produce evidence of guilt in the trial (Barberá, Messegué and Jabardo v. Spain, No. 10590/83, 6.12.98) and the defendant must be given the right to be heard in his or her own defence (Minelli v. Switzerland No. 8660/79, 25.3.83). It will also be unlawful to base a conviction solely on the silence of an accused (Murray v. UK, No. 18731/91, 8.2.96). Consequently, the presumption is closely tied to the ability of the suspect to defend him/herself by receiving information about the charge so that s/he may prepare and present her/his defence accordingly (Barberá, Messegué and Jabardo v. Spain).  A document aimed at ensuring consistency should have articulated these issues more clearly.

Article 4: Public references to guilt before proven guilty

Article 4 puts Member States under an obligation to “take the necessary measures” to ensure that there are no public statements made by “public authorities”, as well as judicial decisions (save for verdicts), before suspects have been proven guilty according to law (see also Recitals 13 and 13a). This does not include prosecution attempts to prove the case or the public dissemination of information on the proceedings when it is “strictly necessary” for reasons relating to the criminal investigation or for the public interest. Appropriate remedies must be made available in the event of a breach (Article 10).

The case law of the ECtHR is quite substantial in this area (e.g. Allenet de Ribemont v. France, No. 15175/89, 10.02.1995) and more detailed guidance may help to drive up standards. Additionally, reference could have been made to the Council of Europe’s standards (CoE Recommendation Rec (2003)13 on the Provision of Information through the Media) particularly Principles 1 and 2 to assist in clarifying the scope and content of this Article.

Article 4a - Presentation of suspects and accused persons

This provision obliges Member States to “take appropriate measures” to ensure that suspects are not “presented as being guilty, in court or in public, through the use of measures of physical restraint” (see also Recital 13c). An exception is made under Article 4a (2) if the measures are required for security purposes or to prevent suspects absconding or having contact with third persons.

The ECtHR has established that an accused should not be treated in a way which undermines the presumption of innocence, e.g. by being in a caged dock without justification or being required to wear prison uniforms (Ramishvili and Kokhreidze v. Georgia, No. 1704/06, 27.1.09; Jiga v. Romania, App. No. 14352/04, 16.3.10). The Directive arguably offers less protection by focusing solely on physical restraint. The only concession to this lies in the rather weak assertion in Recital 13d which requests that Member States “refrain from presenting suspects in prison clothes where “practically possible”.

Article 5: Burden of proof

Article 5 deals with the burden of proof. It requires Member States to “ensure that the burden of proof in establishing the guilt of suspects and accused persons is on the prosecution”. This is an important issue. The burden of proof refers to the fact that the prosecution who must prove the case against the accused. The initial draft of Article 5 initially contained an article permitting the burden of proof to be shifted to the defence. The European Parliament’s Civil Liberties Committee successfully proposed an amendment deleting this burden of proof shifting provision.

However, Recital 14 permits presumptions of fact and law “confined within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved. The presumptions should be rebuttable; in any case, they may only be used provided the rights of the defence are respected”. Presumptions of fact and law create reverse burdens of proof which can clearly undermine the presumption of innocence. The ECtHR has permitted the evidential burden to be shifted to the defence but the importance of what is at stake and the safeguards which exist to protect the rights of the defence must be considered when determining whether a reverse burden is acceptable (Salabiaku v. France, Nos. 10519/83, 10519/83, 7.10.88).  No reference is made in the Directive for the need for specific safeguards to protect the rights of the defence in cases of presumptions of fact or law.

Article 6: Right to remain silent and right not to incriminate oneself

Article 6 (formerly Articles 6 and 7) requires that the suspect has the right to remain silent “in relation to the offence that they are suspected or accused of having committed”. This should surely have been extended to the right to silence in relation to the commission of any offence.

The Directive also confirms that “suspects and accused persons have the right not to incriminate themselves” (Saunders v. the United Kingdom, No. 19187/91, 17.12.96). Under Article 6 (1) ECHR, the right not to incriminate oneself presupposes that the prosecution must prove their case against the accused without recourse to evidence obtained “through methods of coercion or oppression in against the will of the accused”. The importance of informing a suspect of the right to remain silent is crucial yet the Directive makes no comment on this and makes no direct link in the operational text (as opposed to the Recitals) between this right and the Directive on the Right to Information or the Directive on the Right of Access to a Lawyer. Access to a lawyer is part of the procedural safeguards to which the ECtHR will have regard when examining whether any procedure has undermined the privilege against self-incrimination. If an accused has no lawyer, s/he has less chance of being informed of his/her rights and there is less chance that they will be respected (Pishchalnikov v. Russia, No. 7025/04, 24.9.09).

The ECtHR has noted that even where a person willingly agrees to give statements to the police after being informed that his/her words may be used in evidence against him/her, this cannot be regarded as a fully informed choice if s/he has not been expressly notified of his right to remain silent and if his/her decision has been taken without the assistance of counsel (Navone and Others v. Monaco, No. 62880/11, 24.10.13; Stojkovic v. France and Belgium, No. 25303/08, 27.10.11).

Yet, the Directive contains no reference to waiver of rights. The ECtHR has said, consistently, that a person can waive any fair trial guarantees of their own free will, either expressly or tacitly, but that a waiver requires safeguards for it to be effective, namely it must: (i) be established in an unequivocal manner; (ii) be attended by minimum safeguards commensurate to its importance; (iii) be voluntary; (iv) constitute a knowing and intelligent relinquishment of a right; and (v) if implicit from the accused’s conduct, it must be shown that s/he could reasonably have foreseen what the consequences of his/her conduct would be. Further, reasonable steps should be taken to ensure the accused has a level of understanding commensurate to their personal situation (Panovits v. Cyprus, No. 4268/04, 11.12.08). States will need to take additional steps to protect the rights of vulnerable suspects such as persons with disabilities and children, for example by arranging for third parties to support the individual.

It is of note that, in contrast, Article 9 of the Directive on the Right of Access to a Lawyer creates three conditions for a valid waiver: (i) the suspect must be provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; (ii) the waiver must be given voluntarily and unequivocally; and (iii) it must be recorded in accordance with the law of the EU Member State. However, it should be noted that the draft Directive on procedural safeguards for children suspected or accused in criminal proceedings confirms that children may not waive their right to a lawyer. Further, an EU Recommendation on procedural safeguards for vulnerable persons recommends that it should not be possible for vulnerable persons to waive their right to a lawyer (Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons). Waiver is not addressed in the Directive and it is not clear why similar protections to the right to silence have not been established. Although Recitals 25c and 25d make reference to vulnerable suspects, they make no specific direction on the substance of the protection they require.

Under Article 6 (2), in line with the ECtHR jurisprudence, “the exercise of the right not to incriminate oneself shall not prevent gathering evidence which may be lawfully obtained through the use of legal compulsory powers and which has an existence independent of the will of the suspects or accused persons”. The ECtHR has noted this includes documents acquired pursuant to a warrant, breath, blood and urine samples, and bodily tissue for the purpose of DNA testing (Ortiz and Martin v. Spain, No. 43486/98, 15.6.99).

Article 6 (2b) of the Directive permits Member States’ judicial authorities to take into account “the cooperative behaviour of suspects and accused persons when sentencing”. No explanation is given for what “cooperative behaviour” means and certainly an “admission of guilt” is not excluded. This appears contradictory, confused and potentially undermining. Discounts for ‘cooperative behaviour’ are common in many criminal justice systems but they may create perverse incentives to plead guilty. All incentives to guilty pleas may compromise the right of defendants to be presumed innocent as they relieve the prosecution of the burden of proving guilt, and place pressure on suspects to admit an offence. Further thought should have been given to the implications of this Article on practice.

Article 6 (3) notes that “the exercise of the right to remain silent and of the right not to incriminate oneself shall not be used against a suspect or accused person and shall not be considered as evidence that the person concerned has committed the offence which he or she is suspected or accused of having committed”. This is welcome and appears to go further than the ECtHR which has found that an accused’s decision to remain silent throughout criminal proceedings may carry consequences, such as ‘adverse inferences’ being draw from the silence. (Condron v. United Kingdom, No. 35718/97, 2.5.00; Murray v. UK, No. 18731/91, 8.2.96).

Under Article 6 (5) Member States are not precluded from deciding that “in minor offences, the conduct of proceedings, or certain stages thereof, may take place in writing and/or without questioning of the suspect or accused person by the police or other law enforcement or judicial authorities in relation to the offence concerned, provided this is in conformity with the right to a fair trial”. The Commission has made a specific statement in relation to this provision stating that it should not be used to allow derogations from the right or to allow Member States to draw negative consequences from the exercise of the suspects' right to remain silent.

A proposal by FTI for the audio-visual recording of police interviews to prevent violations was not taken on board. Thus, the circumstances in which an accused agrees to talk remain extremely important. This is particularly important as there is no specific provision reinforcing the prevention of subterfuge to undermine the right to silence by eliciting confessions (e.g. by the use of informants) and no specific prohibition on the use of such evidence at trial. The ECtHR has clearly held that the privilege against self-incrimination includes the right not to incriminate oneself through coercion or oppression, in defiance of the will of the accused: Allan v. the United Kingdom, No. 48539/99, 12.11.02. This should have been clearly restated.

Article 8: Trials in absentia

Article 8 (and Recitals 21 and 22) re-affirm the individual’s right to be present at their trial. The ECtHR has confirmed that this is implicit in the right to a fair trial by way of a public hearing (Jacobsson v. Sweden, No. 16970/90, 19.2.98) and that it is difficult to see how anyone can exercise their defence rights without being present at their own trial (Colozza v. Italy, No. 9024/80, 12.2.85).

However, this principle is not absolute and this is reflected in the provisions of the Directive. Articles 8 (2) and (2a) permit Member States to hold trials in someone’s absence (and to enforce the decision of that trial) only if: (a) the suspect or accused person has been informed in due time of the trial and of the consequences of a 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. This is narrower than the position set out by the ECtHR which has indicated that only “certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution” (Sejdovic v Italy, No. 56581/00, 1.3.06, at [99]). For example, “where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest …. or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces” ([99]).

Under Article 8 (3), if Member States cannot comply with Article 8 (2) because the 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 that such a decision can be enforced”. However, in this situation, Member States “shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they shall also be informed of the possibility to contest the decision and of the right to a new trial, or another legal remedy, in accordance with Article 9”. The ECHR makes no such distinction in relation to when an accused has a right to a retrial. Indeed, in the case of Sejdovic v Italy, (No. 56581/00, 1.3.06), the ECtHR confirmed that “a denial of justice … undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself” (at [82]).

Article 8 (4) and (5) are both made “without prejudice to national rules” to permit temporary exclusion of a suspect from their trial or proceedings being conducted in writing if certain conditions are met. It is unhelpful to refer back to national law in a document which aims to consolidate rights at European level.

Finally, it should be noted that the Directive attempts to set standards within national jurisdictions, a situation that should be distinguished from that in Melloni where national standards potentially impeded the uniform application of cross-border obligations. In dealing with a question of trial in absentia, the CJEU in the case C-399/11, Stefano Melloni v. Ministerio Fiscal, 26.2.13 appeared to suggest that the Charter embodies a maximum rather than a minimum standard of human rights protection (save where the EU has not fully harmonised the field). This was to prevent the efficacy of the EAW Framework Decision (as amended by a later Framework Decision concerning in absentia proceedings and mutual recognition) being compromised. The Directive on the presumption of innocence, however, is specifically articulated as a set of minimum standards meaning that Melloni does not prevent higher standards being established nationally. Indeed, Article 12 explicitly prohibits the Directive from limiting the law of any Member State which provides a higher level of protection.   

Article 9: Right to a new trial

This permits the right to a retrial only where the conditions in Article 8 (2) have not been met. In any retrial, “Member States shall ensure that the persons concerned have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise their rights of defence”. A previous proposal stipulating that retrials could be denied to those who fail to request a retrial or appeal “within a reasonable amount of time has been removed.  But this provision remains weak.

Under the ECHR, if a person is not present at trial, they cannot exercise their defence rights under Article 6 (3) ECHR. The ECtHR has held that without a clear demonstration of the accused’s actual knowledge of the proceedings, a court may not commence a trial in absentia unless the defendant has a right to retrial, Krombach v. France, No. 29731/96, 13.2.01 Such retrial or appeal must fully comply with the demands of Article 6 of the ECHR, including the right to confront previous evidence including the cross-examination of witnesses. This provision should have reflected the law more closely.

Article 10: Remedies

Article 10 confirms that “Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached”.  Further, “without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to remain silent or their right not to incriminate themselves, the rights of the defence and the fairness of the proceedings are respected”. Recital 26 confirms that “as far as possible” the suspect should be placed “in the same position” they would have been in but for the breach.

This could have been a much more robust provision. It could, as a minimum, have reflected the current state of ECHR/EU law. The right to an effective remedy is set out in Article 13 ECHR and Article 47 EU Charter. The primary requirement is that the remedy should be “effective in practice as well as in law”. The type of remedy required will depend on the circumstances of the case but some core principles have been developed to determine effectiveness. For example, an effective remedy must be: (i) accessible; (ii) capable of providing redress in respect of the applicant’s complaints; and (iii) offer reasonable prospects of success (Selmouni v. France, No. 25803/94, 28 July 1999). In terms of unlawfully obtained evidence, the question is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged unlawfulness in question (e.g. Khan v. the United Kingdom, No. 35394/97, 12.5.00). Particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence always raises serious issues as to the fairness of the proceedings, even if not decisive in securing a conviction (e.g. Jalloh v. Germany, No. 54810/00, 11.7.06).  Recital 26a merely notes that “regard should be had” to the case law on Article 3. This is disappointingly weak phrasing for such an essential protection.

Conclusion

Governments are constantly struggling to balance security fears with a respect for individual human rights. This is complicated further by the growing disconnect between citizens and their governments which, in itself, presents a challenge to the legitimacy of political actions. The result is that we have begun to lose faith in the capacity of our criminal justice systems to tackle crime and so we start to look for shortcuts to restore an order we believe has been lost. All too often, crime control has become mired in the kind of political debate which looks for simple answers. This makes it easy to overlook the fact that our criminal justice systems do not exist solely to churn out speedy convictions. It allows us to forget that suspects are individuals who have not yet been proved guilty of any offence.

In this context, an EU Directive restating the importance of the presumption of innocence is a welcome step.  But does this instrument go far enough? Based on the analysis above, my answer would be no.  There are three key reasons for this conclusion: first, standard setting has been built on assumptions rather than based on an empirical understanding of the operation of criminal justice systems and the reasons why current standards fail; second, the Directive does not consistently shore up the basic requirements of the ECHR and its case law despite the non-regression clause in Article 12; and third, the Directive fails to reference effectively previously agreed EU instruments to create a holistic framework for the protection of fundamental rights.

Under Article 13, the Directive is to be transposed 24 months after its publication. The true test of its efficacy will lie in its capacity to challenge unlawful practice.

Photo credit: The Guardian.com

Barnard & Peers: chapter 9, chapter 25

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[1] Fair trials: civil liberties MEPs back new EU rules on presumption of innocence, LIBE Press release, 10.11.15.

[2] For example, see the criminal courts charge Guardian Editorial, 18 October 2015. See also Access to Justice: A Comparative Analysis of Cuts to Legal Aid, Report of the Monash Warwick Legal Aid Workshop, 2014.

[3] See also, FTI, Presumption of innocence directive agreed, 11 November 2015.