With the adoption of several Directives guaranteeing defence rights, the European Union has made an important step towards providing all suspects and accused within the Area of Freedom Security and Justice with a normative framework for a fair trial. Whilst a Directive in general obliges Member States to implement its provisions and live up to its obligations, all Directives are silent on what to do when these rights are violated. In a situation in which gradually cases concerning the interpretation of the Directives are brought to the Court, practice in the Member States demands an answer to the question: What is the procedural consequence in the national criminal proceeding of a violation of a right recognised in an EU Directive? That is the theme of this contribution.
Second, it is important to recognise the autonomous EU-dimension of the rights of the defence. In a context in which the EU offers to its citizens an Area of Freedom, Security and Justice, that is one single legal area, rights recognized in Directives must have the same meaning throughout the EU. It is a context that facilitates more effective recognition of rights than in the legal order of the ECHR. This is especially so, because the preliminary reference procedure offers a possibility to prevent violations from taking place. Whereas the ECHR supervisory mechanism focuses on a compensation after the fact, the Union legal order can do more. This is a unique dimension to the Union legal order, which empowers human rights protection.
The situation of a national norm of substantive criminal law that violates Union law is somewhat different from the situation of procedural norms. Whereas the violation of Union law through national norm of substantive criminal law is likely to lead to a procedural decision that makes an end to the proceedings, such an outcome may be different with procedural norms. As a general rule, one can presume that the violation of a procedural rule has consequences for the issue to which it relates. For instance, if rules on the collection of evidence have not been respected, the evidence to which the violation relates may not be used. There is no indication that the Court will reason that failure to respect the rights of the defence with regard to one element of the procedure will have consequences for the entire proceedings, in the sense that they may not be continued.
The answer to the question what to do in the case of a violation of a procedural rule is that it depends on the meaning of the rule and whether the situation ex ante might be restored or compensated.
(Violations of Defence Rights’ Directives, European Journal of Crime, Criminal Law and Criminal Justice, nr. 26 (4), noiembrie 2018, pp. 271, 277, 279 ) pentru accesul integral contra cost a se vedea aici)