1. European fair trial &
effective partecipation rights
Nicola Canestrini
ERA Academy of European Law , 9 JUNE 2020
The presumption of innocence and the right to be present at trial in criminal proceedings

2. "Those who would give up essential Liberty,
to purchase a little temporary Safety,
deserve neither Liberty nor Safety."
Benjamin Franklin, 1755

3. “Constitutions are chains with which
men bind themselves in their sane
moments that they may not die by a
suicidal hand in the day of their
frenzy.”
John Potter Stockton, 1871

4. “Feindstrafrecht”
“international criminal law
enforcement needs cannot
prejudice fundamental
rights”
Italian Constitutional court, judgement 280/1985

5. “Feindstrafrecht”
EU FAIR TRIAL RIGHTS
art. 6 European Convention HR
art. 47 - 48/2 EU Charta
art. 6 Treaty of European Union
52 & 53 Charta fundamental rights

6. “not rights that
are theoretical or
illusory but rights
that are practical
and effective”
ECtHR, Artico v Italy judgment (1980)

7. “Although all the Member States are party to the
ECHR, experience has shown that that alone does
not always provide a sufficient degree of trust in
the criminal justice systems of other Member
States.”
(considerandum n. 6 dir. 64;
considerando n. 7 dir. 13;
considerando n. 5 dir. 48
Why EU
procedural
rights?

8. “Strengthening mutual trust requires a
more consistent implementation of the
rights and guarantees set out in Article 6
of the ECHR. It also requires, by means of
this Directive and other measures, further
development within the Union of the
minimum standards set out in the ECHR and
the Charter.”
(considerandum n. 7 Dir. 64;
considerando n. 8 Dir. 13;
considerando n. 6 Dir. 48
EU
procedural
rights!

9. area
freedom, justice
security
post Tampere 1999
procedural rights
trust
mutual recognition
the rights of individuals in
criminal procedure (art 82 TFEU)
- fundamental rights (ECJ)

10. Swedish
ROADMAP
(Stockholm Program 2009)
“procedural
rights”
Right to
Interpretation and
Translation (A)
Right to
Information (B)
Access to a Lawyer (C1)
Legal Aid Reform
(Measure C2)
Vulnerable Accused
and Suspected
Persons (Measure E)
Pre-Trial Detention
(Measure F)
Presumption of Innocence

11. The Roadmap is
designed to operate as
a whole; only when
all its components are
implemented will its
benefits be felt in full.
(considerandum 9 directive 2013/48/UE).
Presumption of
innocence and presence
Dir. 2016/343
Right to Interpretation
and Translation
Dir. 2010/64
Legal aid
Dir. 2016/1919
Right to
Information
Dir. 2012/13
Access to a Lawyer
Dir. 2013/48
Children
safeguards
Dir. 2016/800
Vulnerable suspects
Rec 2013/C 378/2

12. Vulnerable
suspects
rec 2013/C 378/2
4 characteristics
age, mental or physical
conditions or disabilities
“prompt identification”
a. No discriminatory treatment t
b. Presumption of vulnerability in cases
concerning a person with serious
psychological, intellectual, physical or
sensory impairments, or mental illness or
cognitive disorders
c. Right to receive information on their
procedural rights in an accessible manner
d. Right to access to a lawyer, which it is not
possible to waive.
e. Right to access medical assistance if
deprived of liberty
f. Right to have any questioning audio-
visually recorded
g. Deprivation of liberty shall be a measure
of last resort

13. Directive 2010/64/EU
right to interpretation
and translation in
criminal proceedings
quality (ensure fair trial
and rights of defense)
no costs for individuals
Court assessment re need
register of independent
translators and
interpreters
waiver for translation:
informed, unequivocal
and voluntarily
(interpretation cannot be
waived!)
List of essential documents
“first EU fair trial law”

14. Article 6, read as a whole, guarantees the
right of an accused to participate
effectively in a criminal trial
ECtHR, Murtazaliyevav v. Russia[GC] 2018

15. Effective
partecipation?
Information rights, translation and interpretation
(quality assessment?) presence, hear&follow
hearing, take notes, confidential comunication with
the defence lawyer (cage or glass cabin?),
videolink?