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Green Paper on the presumption of innocence
The Commission is in the process of promoting the approximation of criminal procedures, notably in relation to procedural safeguards. It is using this Green Paper to reach out to legal practitioners and people in general in the European Union (EU) in order to ascertain whether the principle of the presumption of innocence and the rights flowing from it are understood in the same way throughout the EU. The way in which Member States interpret this principle is, in the Commission's view, in need of clarification.
Commission Green Paper of 26 April 2006 on the presumption of innocence [COM(2006) 174 final - Not published in the Official Journal].
The Green Paper is concerned with the presumption of innocence and the rights which flow from it. This presumption is a fundamental right accorded, both in international and in European law, to anyone who has been charged with an offence, regardless of what type of proceedings are involved.
Article 6 of the European Convention on Human Rights (ECHR) offers a definition of the presumption of innocence, in the sense of the right to a fair trial. The case law of the European Court of Human Rights indicates that an accused should not be declared guilty until a court has established his or her guilt, and that pre-trial detention should be the exception rather than the rule.
The Commission is looking for any differences of interpretation and application of the principle of the presumption of innocence as between Member States. It is putting forward the idea of drawing up common minimum standards in the field of criminal procedure, which would help to eliminate any discrepancies between criminal procedure safeguard levels in each Member State.
Approximation of national laws on the subject of procedural safeguards
This Commission initiative on the presumption of innocence is to be seen against the background of the process of harmonising criminal law. A core of common standards based in particular on mutual recognition should gradually replace the entire current system of mutual legal assistance, especially when it comes to questions concerned with the gathering of evidence, including the presumption of innocence.
The principle of mutual recognition implies enforcing a judgment handed down by a judicial authority in another Member State. As a rule, Member States give no legal effect in their territory to criminal judgments handed down in other Member States. Criminal law emanates from Member State sovereignty.
Mutual recognition is designed precisely to ensure - as part of the creation of an area of freedom, security and justice - that decisions handed down in a Member State have legal effect throughout the EU. The principle of mutual recognition can operate effectively only if there is trust in other justice systems. As underlined by the Commission's Green Paper on procedural safeguards, such mutual trust stems from a common regard for fundamental rights.
The principle of mutual recognition is far from absolute, however, and comes up in practice against various constraints. There are, for example, considerable differences in the severity of the penalties prescribed by Member States, and the decisions taken during the phase preceding the enforcement of a penalty are not always implemented on the basis of common standards aimed at ensuring a common level of protection for fundamental rights throughout the EU.
Application of the presumption of innocence
The Green Paper is concerned with the principle of the presumption of innocence. This principle comes into play during the course of criminal proceedings. Several legal principles linked to the presumption of innocence operate in this context, such as:
- the burden of proof. In general, the prosecution must prove the case against the accused beyond all reasonable doubt. From the case law of the European Court of Human Rights, the Commission has, however, identified various instances where the burden of proof does not rest wholly on the prosecution;
- the privilege against self-incrimination, including the right to silence. The accused may refuse to answer questions and to produce evidence. The aim is to protect the accused against attempts by the authorities to obtain evidence by compulsion. The right to silence applies to police questioning and in court. The accused should have the right not to testify. Member States recognise the right to remain silent, but in the Commission's view the accused must be systematically informed of this right;
- the right not to produce evidence, as a guarantee of a fair trial.
The Commission considers that, as part of the third pillar, the area of freedom, security and justice must be built on clear foundations in terms of the same procedural rights and safeguards for everyone. Ever since the Tampere European Council conclusions of October 1999, the mutual recognition of court judgments has been regarded as the cornerstone of judicial cooperation.
The Commission is continuing this work of setting common procedural standards by tackling the issue of how to define the presumption of innocence in this Green Paper. The deadline for answering the questions contained in the Green Paper was 9 June 2006. No proposal for the mutual recognition of criminal judgments has been adopted since the 2004 proposal for a Council Framework Decision on certain procedural rights in criminal proceedings. On 22 February 2007 the German Presidency of the European Union presented a proposal for a Decision on the law of criminal procedure which focuses mainly on three fundamental rights already listed in the 2004 proposal for a Framework Decision. These are the accused's right to legal information, the right to legal assistance and the right to have the assistance of an interpreter and to have documents translated. For a variety of reasons, several Member States have already shown themselves to be reticent about harmonising procedural safeguards. Some Member States perceive it as being the first stage in a process of creating a European Criminal Code. The impasse in which the Commission finds itself is nudging it more in the direction of enhanced cooperation than in that of a harmonisation of procedural safeguards.