Fair trial rights are of fundamental importance to democratic societies; they underpin the rule of law, protecting the individual against arbitrary rule even in the most exigent circumstances. The rights of the defence are set out in skeleton form in the European Convention on Human Rights (ECHR) but have been fleshed out substantially by the jurisprudence of the European Court of Human Rights (ECtHR), which has delineated both their substance and scope. These rights constitute the elementary level of protection required to ensure the effective conduct of the defence and to guarantee ‘equality of arms’ and the right to an adversial trial. All EU Member States are State Parties to the Convention and bound by its obligations. Additionally, the EU Charter of Fundamental Rights (‘the Charter’), which became legally binding with the Lisbon Treaty, guarantees the rights of the defence (for example, in Article 47 and 48) at a level which is, at least, commensurate with the standards of the ECHR. The Charter binds EU institutions. It also binds Member States when implementing or derogating from EU law. 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. Thus, the Court of Justice (CJEU) may define standards more expansively, but it may not reduce the level of protection below that required by the ECHR. Consequently, if an action by an EU Institution (or a Member State implementing EU law) breaches the ECHR, it will also breach the Charter. This presents a complex problem for standard setting within the EU because although the ECHR establishes a minimum level of protection, even these rudimentary safeguards have not been consistently respected within the EU.
In advance of the impending implementation of the Lisbon Treaty, an alternative pathway was presented by the Swedish Presidency. This abandoned the idea of a global procedural safeguard document in favour of a ‘Roadmap’ containing individual measures purporting to add ‘greater value’.
The ‘Roadmap’ for harmonising certain criminal procedural standards acknowledges that ‘a person who is involved in criminal proceedings in a country which is not his/her country of residence will know less about his/her rights than residents of that country’ and this ‘calls for specific measures on procedural rights, in order to ensure the fairness of the criminal proceedings’ and to ‘enhance citizens’ confidence that the EU and its Member States will protect and guarantee their rights’. The aim is to create a genuine equivalence where ECHR standards have failed. To date, three Directives have been agree with a further package recently proposed.
This article will analyse the agreed proposals to consider whether they enhance the fair trial rights already provided by the ECHR. The ECHR is used as a baseline for comparison because it provides the agreed minimum level of protection below which states may not fall. The conclusion of this human rights ‘audit’ is that the Directives, in some circumstances, undermine the protection offered by the ECHR and consequently potentially conflict with the Charter. If the agreed instruments are not consistent with the ECHR, it is difficult to conclude they will have any positive benefit for the accused. This raises the question: is the exercise worth it? If the Roadmap is not significantly improving human rights protection, where does it take us?
(…) (s.n. – M.M.-B.)
(Protecting Fair Trial Rights in Criminal Cases in the European Union: Where does the Roadmap take Us, Human Rights Law Review, nr. 14, 2014, pp. 733-760, la p. 733-4 și pp. 735-6)