Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings

On March 9th 2016, the Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings has been finally adopted.

The Commission issued its proposal on 27 November 2013 (COM(2013) 821 final). The proposal only applies to natural persons suspected or accused in criminal proceedings (Art. 2). It includes a general provision on the presumption of innocence (Art. 3). It requires Member States to ensure that, before a final conviction, public authorities refrain from public statements that would refer to the suspects or accused persons as if they were convicted (Art. 4). Concerning the burden of proof, it specifies that any reversal of the burden of proof may be rebutted if the defence adduces enough evidence to raise a reasonable doubt regarding the suspect or accused person's guilt (Art. 5(2)). The proposal also lays down the principle that everyone has the right to remain silent as regards the facts he/she is accused of and obliges Member States to give sufficient information on the content of this right as well as the consequences of renouncing or invoking it (Art. 7). Finally, it provides that suspects or accused persons have the right to be present at their trial (Art. 8). The possibility to decide on the issue of guilt in their absence is nevertheless possible, under similar conditions to those provided for in the in absentia Framework Decision.

The Council adopted its general approach on 4 December 2014, at the end of the Italian Presidency’s mandate. It specified the personal and temporal scope of application of the Directive (Art. 2). It provides that the presumption of innocence is undermined if a public statement refers to the suspects or accused persons as if they were guilty but it introduces an exception to this principle for reasons relating to the criminal investigation or for the public interest (Art. 4). Concerning the burden of proof, it provides that presumptions must be rebuttable and that they may only be used provided the rights of the defence are respected (Art. 5(2)). The right against self-incrimination and the right to remain silent were merged into one provision, which no longer includes a rule on admissibility of evidence obtained in breach of such provision (Art. 6). Finally, with regard to “in abstentia” trials, substantial parts of the text of Article 8 were transferred to the recitals (Recitals 22 c) and 22 d)).

In turn, the LIBE Committee of the European Parliament adopted its draft report on 21 January 2015 and its orientation vote on 31 March 2015 (rapporteur: Nathalie Griesbeck). The Committee report was tabled for plenary 1st reading/single reading 21 April 2015. The Committee proposed some important amendments. First and foremost, it proposed to extend the scope of application of the Directive to legal persons and to similar proceedings of a criminal nature leading to comparable sanctions of a punitive and deterrent nature (Art. 2). It proposed to require Member States to ensure that, before a final conviction, public authorities refrain from public statements that would refer to the suspects or accused persons as if they were guilty, and it did not provide for any exception in this regard (Art. 4). It also proposed that in the event of breach of those requirements concerning public statements and official decisions from public authorities effective remedies be taken to ameliorate the breach (Art. 4(3)). Most importantly, the Committee rejected the proposed Art. 5(2) on the burden of proof, by arguing that the reversal of the burden of proof in criminal proceedings would be unacceptable, as the principle that the burden of proof rests with the prosecution must be left untouched. In addition, it demanded more stringent rules concerning “in abstentia” trials (Art. 8). Finally, the Committee wanted to reinforce the exclusionary rule by providing that any evidence obtained in violation of the right against self-incrimination and cooperation or of the right to remain silent must be inadmissible (Art. 10(3)).

Five trilogues were held between January and October 2015, under the Latvian and Luxembourg Presidencies. On 4 November 2015, COREPER approved the compromise text agreed with the European Parliament during the fifth trilogue.

The Directive was signed on 9 March 2016, and published in the Official Journal on 11 March 2016 (OJ L 65). It has to be implemented by the Member States by 1 April 2018. Contrary to the initial approach adopted by the LIBE Committee, this text excludes legal persons from the scope of the Directive, assuming that it would be premature to legislate at Union level on this issue (Recital 14). In this regard, it notably recalls that the ECJ recognised that the rights flowing from the presumption of innocence do not accrue to legal persons in the same way as to natural persons (Recital 13). It endorsed the Council’s proposal to provide for an exception to the prohibition of public statements by public authorities to refer to the suspects or accused persons as if they were guilty (Art. 4 (3)). Concerning the rule on admissibility of evidence obtained in breach of the right against self-incrimination or of the right to remain silent, the compromise text endorsed the Council’s proposal to delete Art. 6 (4) of the Commission’s proposal, but specifies that, 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 against self-incrimination, the rights of the defence and the fairness of the proceedings are respected (Art. 10 (2)). Concerning the burden of proof, it retained the LIBE Committee’s proposal to delete Article 5(2), while retaining comparable language in the recitals (Recital 22). The Commission expressed reservations with respect to the latter deletion and to the final version of Article 7(6) on the right to remain silent and the right not to incriminate oneself with regard to minor offences. Finally, with regard to “in abstentia” trials, it retained the lighter text of Article 8 of the Council’s general approach.