SCHEME EUROPEAN CRIMINAL LAW SESSION 4
The influence of national PROCEDURAL criminal law on ECL
Literature:
- Andre Klip p. 231-238, 247-284, 306-334.
- Case law:
o Gavril Covaci
o Dworzecki
o Paoletti
o Milev
o Dublin Well Woman v Ireland
- Legislation:
o Protocol (8) relating to article 6(2) of TEU on accession of the Union to the ECHR
o Directive 2010/64
o Directive 2012/13
o Directive 2013/48
o Directive 2012/29
o Directive 2016/800
o Directive 2016/343
o Directive 2016/1919
DEFENSE RIGHTS
Fair trial and the rights = a general right (art 6 ECHR) and a specific procedural right. The
of the defense principle that everyone has a right to a fair trial cannot be interpreted as
meaning that documents containing incriminating evidence must
automatically be exclude as evidence, when certain information must
remain confidential. It also includes the right to be informed of the
charge, the right of access to the file, to privacy..
Access to a lawyer Access to a lawyer Directive 2013/48: minimum standards concerning
the rights of suspects and accused persons in all criminal proceedings
(eurocrimes & free movement; all criminal proceedings applicable).
Regardless of whether they relate to eurocrimes (p. 231 Klip) or whether
there is a link with free movement. The Directive does not apply in
respect of minor offences that will be adjudicated by administrative
proceedings. The exclusion is not absolute and subject to the right of a
fair trial (art 2 p4). Article 3: what does access to a lawyer consist of?
Also article 47 Charter + 6 ECHR.
Free choice of defense Accused persons are entitled to a lawyer of their own choice to represent
counsel them. D 77/249 on Lawyers’ freedom freedom to provide legal
counselling services, or to establish himself in another MS other than the
, one in which the lawyer is registered as a lawyer, and where he is subject
to a professional code of ethics.
D 98/5 on Lawyers’ Title
Lawyer-client privilege Art 4 D 2003/48 right of access to a lawyer a general confidentiality of
communication between suspects or accused and their lawyer.
Lawyer- client privilege does not exempt defence counsel from reporting
their suspicions concerning possible unlawful activities (money
laundering) of their clients under D 2015/849 Money on Laundering.
Access to the file Art 7 D 2012/13 on Right to information The right of access to the
materials of the case free of charge.
Arrested and detained persons must have access to documents related to
the specific case in the possession of the competent authorities which
are essential to effectively challenging, in accordance with NL, the
lawfulness of the arrest of detention.
The right to liberty Art 6 Charter (art 5 ECHR).
and security FD 2008/675 on taking account of convictions It establishes the
obligation for MS to take into account previous convictions handed down
in other MS, when making decisions at 3 different stages:
1. The pre-trail stage
= When decisions are made to detain or release an accused before
trial, previous convictions elsewhere must be taken into
consideration.
2. The trial stage
3. The execution of the sentence
EU nationals who make use of free movement rights, but also commit
crimes, may not be regarded as waiving their freedoms. Since none of
the freedoms is absolute, EU nationals may also be subject to
restrictions, on suspicion or conviction of having committed offences.
With both restrictions, the proportionality applies, and with regard to
accused persons who are not finally convicted, the presumption of
innocence also applies. So the offence and the facts supporting the
suspicion must be very strong.
EU nationals may not be placed in a less favourable position than
nationals of the MS where they find themselves, with regard to
provisional release and bail.
The presumption of This is intended to ensure that no-one is declared guilty or treated as
innocence (p. 273 Klip) being guilty, of an offence before his guilt has been established by a court
of law. This implies that an accused has the right to demonstrate that his
conduct was legal. Art 48 Charter + FD 2009/829 on Supervision
measures
The right to remain This does not imply that the defendant cannot be under an obligation to
silent (p. 274 Klip) submit information to the Commission.
The right to privacy – Art 7-8 Charter: respect for private and family life, as well as protection
the inviolability of the of personal data.
home (p. 274 Klip) Art 8 ECHR.
Interpretation and The right applies to suspects or accused from the moment of an official
translation notification up to and including the resolution of any appeal.
When NL entitles its own citizens to choose in which of the national
languages proceedings will be conducted, this right must also be given to
other EU nationals. Directive 2010/64: presentation.
, To all criminal proceedings + EAW in MSs. Applicable to all people,
regardless whether they are nationals or not (EU nationals, non EU
nationals, own MS & another MS). It is the key to all other Directives.
Article 1: subject matter + scope.
The choice of language: to nationals but also to non nationals.
Article 3: translation of essential documents. There is no right to the
translation of documents produced buy the defence (Covaci).
You can waive the right but only if the person is informed.
Article 5; quality.
Impartiality (p. 277 The right to a fair trial embodies the right to an independent and
Klip) impartial tribunal.
The Court has held that there are 2 aspects of impartiality:
I. The members of the tribunal themselves must be impartial, so none
of its members must show bias or personal prejudice, there being a
presumption of personal impartiality in the absence of evidence to
the contrary.
II. The tribunal must be objectively impartial, it must offer guarantees
sufficient to exclude any legitimate doubt in this respect. This does
not preclude the dame judge from sitting in 2 chambers and hearing
and determining the same case in succession.
The reasoning of the The reasoning must enable the persons concerned to know why the
decision (p. 277 Klip) measures in question were taken. The reasoning should provide the
reviewing court with sufficient material for it to exercise its power of
review. These rules can be transplanted and applied in criminal
proceedings as a specific right under the chapeau of a fair trial.
Pre-trial rights
Right to be informed D 2012/13 right to information art 1 = clear scope.
of the charge (p. 278 The right to information about rights entails:
Klip) a. The right of access to a lawyer.
b. Any entitlement to free legal advice and the conditions for
obtaining such advice.
c. The right to be informed of the accusation (art 6).
d. The right to interpretation and translation.
e. The right to remain silent.
Art 3: The information must be provided promptly and in manner that
allows those entitled to exercise their right effectively. It allows the MS to
give the information orally or in writing…
Art 4: Letter of Right; this must be given in a written form and the
accused is allowed to keep it in possession...
The D sets minimum rules. MS may extend the level of protection. The
must make sure that they draft the Letter in simple and accessible
language.
Gavril Covaci
Rights to inform
others of arrest
Rights apply during
trial
Right to be It is the national criminal procedure that determines whether the
present/represented accused must be resent at trial. Regardless of whether NL requires the
(p. 281) presence of the accused, there is always a right to be present and to be
represented.
The influence of national PROCEDURAL criminal law on ECL
Literature:
- Andre Klip p. 231-238, 247-284, 306-334.
- Case law:
o Gavril Covaci
o Dworzecki
o Paoletti
o Milev
o Dublin Well Woman v Ireland
- Legislation:
o Protocol (8) relating to article 6(2) of TEU on accession of the Union to the ECHR
o Directive 2010/64
o Directive 2012/13
o Directive 2013/48
o Directive 2012/29
o Directive 2016/800
o Directive 2016/343
o Directive 2016/1919
DEFENSE RIGHTS
Fair trial and the rights = a general right (art 6 ECHR) and a specific procedural right. The
of the defense principle that everyone has a right to a fair trial cannot be interpreted as
meaning that documents containing incriminating evidence must
automatically be exclude as evidence, when certain information must
remain confidential. It also includes the right to be informed of the
charge, the right of access to the file, to privacy..
Access to a lawyer Access to a lawyer Directive 2013/48: minimum standards concerning
the rights of suspects and accused persons in all criminal proceedings
(eurocrimes & free movement; all criminal proceedings applicable).
Regardless of whether they relate to eurocrimes (p. 231 Klip) or whether
there is a link with free movement. The Directive does not apply in
respect of minor offences that will be adjudicated by administrative
proceedings. The exclusion is not absolute and subject to the right of a
fair trial (art 2 p4). Article 3: what does access to a lawyer consist of?
Also article 47 Charter + 6 ECHR.
Free choice of defense Accused persons are entitled to a lawyer of their own choice to represent
counsel them. D 77/249 on Lawyers’ freedom freedom to provide legal
counselling services, or to establish himself in another MS other than the
, one in which the lawyer is registered as a lawyer, and where he is subject
to a professional code of ethics.
D 98/5 on Lawyers’ Title
Lawyer-client privilege Art 4 D 2003/48 right of access to a lawyer a general confidentiality of
communication between suspects or accused and their lawyer.
Lawyer- client privilege does not exempt defence counsel from reporting
their suspicions concerning possible unlawful activities (money
laundering) of their clients under D 2015/849 Money on Laundering.
Access to the file Art 7 D 2012/13 on Right to information The right of access to the
materials of the case free of charge.
Arrested and detained persons must have access to documents related to
the specific case in the possession of the competent authorities which
are essential to effectively challenging, in accordance with NL, the
lawfulness of the arrest of detention.
The right to liberty Art 6 Charter (art 5 ECHR).
and security FD 2008/675 on taking account of convictions It establishes the
obligation for MS to take into account previous convictions handed down
in other MS, when making decisions at 3 different stages:
1. The pre-trail stage
= When decisions are made to detain or release an accused before
trial, previous convictions elsewhere must be taken into
consideration.
2. The trial stage
3. The execution of the sentence
EU nationals who make use of free movement rights, but also commit
crimes, may not be regarded as waiving their freedoms. Since none of
the freedoms is absolute, EU nationals may also be subject to
restrictions, on suspicion or conviction of having committed offences.
With both restrictions, the proportionality applies, and with regard to
accused persons who are not finally convicted, the presumption of
innocence also applies. So the offence and the facts supporting the
suspicion must be very strong.
EU nationals may not be placed in a less favourable position than
nationals of the MS where they find themselves, with regard to
provisional release and bail.
The presumption of This is intended to ensure that no-one is declared guilty or treated as
innocence (p. 273 Klip) being guilty, of an offence before his guilt has been established by a court
of law. This implies that an accused has the right to demonstrate that his
conduct was legal. Art 48 Charter + FD 2009/829 on Supervision
measures
The right to remain This does not imply that the defendant cannot be under an obligation to
silent (p. 274 Klip) submit information to the Commission.
The right to privacy – Art 7-8 Charter: respect for private and family life, as well as protection
the inviolability of the of personal data.
home (p. 274 Klip) Art 8 ECHR.
Interpretation and The right applies to suspects or accused from the moment of an official
translation notification up to and including the resolution of any appeal.
When NL entitles its own citizens to choose in which of the national
languages proceedings will be conducted, this right must also be given to
other EU nationals. Directive 2010/64: presentation.
, To all criminal proceedings + EAW in MSs. Applicable to all people,
regardless whether they are nationals or not (EU nationals, non EU
nationals, own MS & another MS). It is the key to all other Directives.
Article 1: subject matter + scope.
The choice of language: to nationals but also to non nationals.
Article 3: translation of essential documents. There is no right to the
translation of documents produced buy the defence (Covaci).
You can waive the right but only if the person is informed.
Article 5; quality.
Impartiality (p. 277 The right to a fair trial embodies the right to an independent and
Klip) impartial tribunal.
The Court has held that there are 2 aspects of impartiality:
I. The members of the tribunal themselves must be impartial, so none
of its members must show bias or personal prejudice, there being a
presumption of personal impartiality in the absence of evidence to
the contrary.
II. The tribunal must be objectively impartial, it must offer guarantees
sufficient to exclude any legitimate doubt in this respect. This does
not preclude the dame judge from sitting in 2 chambers and hearing
and determining the same case in succession.
The reasoning of the The reasoning must enable the persons concerned to know why the
decision (p. 277 Klip) measures in question were taken. The reasoning should provide the
reviewing court with sufficient material for it to exercise its power of
review. These rules can be transplanted and applied in criminal
proceedings as a specific right under the chapeau of a fair trial.
Pre-trial rights
Right to be informed D 2012/13 right to information art 1 = clear scope.
of the charge (p. 278 The right to information about rights entails:
Klip) a. The right of access to a lawyer.
b. Any entitlement to free legal advice and the conditions for
obtaining such advice.
c. The right to be informed of the accusation (art 6).
d. The right to interpretation and translation.
e. The right to remain silent.
Art 3: The information must be provided promptly and in manner that
allows those entitled to exercise their right effectively. It allows the MS to
give the information orally or in writing…
Art 4: Letter of Right; this must be given in a written form and the
accused is allowed to keep it in possession...
The D sets minimum rules. MS may extend the level of protection. The
must make sure that they draft the Letter in simple and accessible
language.
Gavril Covaci
Rights to inform
others of arrest
Rights apply during
trial
Right to be It is the national criminal procedure that determines whether the
present/represented accused must be resent at trial. Regardless of whether NL requires the
(p. 281) presence of the accused, there is always a right to be present and to be
represented.
