Criminal Law in the EU and the Right to a Fair Trial
International Institute for Middle East and Balkan Studies (IFIMES) from Ljubljana, Slovenia, regularly analyses developments in the Middle East, Balkans and around the world. Carlos López-Veraza Pérez is a Public Prosecutor from Elche-Orihuela, Alicante, Spain. In his text entitled “Criminal Law in the EU and the Right to a Fair Trial” he is analysing how the study of the right to a fair trial is fundamental not only for understanding the concept and its principles, but also for observing the deficiencies that may exist within the European Union.
Criminal Law in the EU and the Right to a Fair Trial
“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to pot it to our lips as well”.
(Robert H. Jackson, opening address to the International Military Tribunal at the Nuremberg Trial)
Trials are the way to avoid injustices, but the fairness of criminal proceedings will depend on what is meant by the concept of justice. The roots of rights in trials are, with other principles and values, as old as the trial process itself and we could not even say when the first trial occurred. Moreover, in almost every civilization, there was a need to comply with some rules in the process of rendering justice. There were rights in criminal proceedings that could be considered modern rights in some sense, such as the right to be present at hearings in the legal system of Rome or the right to hire a lawyer in the Greek age.
But do we really know what a fair trial is? The term is familiar to everyone, but do we understand what it is and what principles a criminal procedure has to meet to be considered fair?
To answer those questions, we must start from two fundamental ideas: firstly, that there is no universally recognised definition of what a fair trial is, and secondly, that it is a human right that is dynamic and evolving. However, awareness of its importance did not grow until the aftermath of World War II. The atrocities experienced in Europe during the first half of the 20th Century led to a change of the meaning. Today, it is widely considered a human right, indivisible and inherent to all human beings. It is one of the essential elements of the rule of law and every democracy. It must be respected even in trials of those who have committed the most shocking crime and even at international and non-international armed conflicts as provided for in all four Geneva Conventions. Moreover, depriving a person of it can even constitute a case of war crime. For all this, it can even be labelled as the bedrock of human rights
2. The European Union and the right to a fair trial
The EU has evolved towards the protection of human rights. In the early years of the European Community, there were no provisions regarding human rights since the Community was aimed to establish a common market. However, the ECJ settled in the 1960s that EU law should be compatible with fundamental rights. But it was not until the year 2000 when it was promulgated the Charter of Fundamental Rights of the European Union (the Charter), legally binding after the Treaty of Lisbon. Today the European Union is based not only on economic interests but on the guarantee and promotion of fundamental rights both within and outside its borders. However, the European institutions are aware that the Charter is probably not enough to put an end to the reluctance that countries sometimes show, even within the European Union itself, to cooperate in international criminal matters. This cooperation is essential for the prosecution of modern crimes, which are increasingly specialised, complex, and internationalised. They are still some suspicious about the human rights protection between European Union Countries that undermine international cooperation. It is therefore essential to regularly study both the existing guarantees for the protection of fundamental rights in the Union and the possible shortcomings that may be found in its application.
With this regard, the European Council has expressed that a real European area of justice must be based on mutual trust in one another’s justice systems, being fundamental the strengthening of the rights of accused and suspected persons in criminal proceedings. For this reason, the European Parliament and the European Council have issued, in the framework of the Stockholm Roadmap, several directives establishing rules to guarantee a fair trial within the European Union. The European Union aims to ensure fundamental rights and the right to a fair trial, both within and outside its borders, but to be able to promote it abroad with authority, it must, first of all, be a point of reference within its borders, for which it must examine what the existing guarantees are common to all the Member States and whether these are sufficient to consider that the principles entailing the right to a fair trial such as the presumption of innocence, the right to a fair judge or the right to a lawyer are guaranteed.
3. Multilevel system of protection
Once the European Union is configured as a community that guarantees fundamental rights, we must take into account that there is a coexistence of different legal systems, which has given rise to what is known as the multilevel system of protection of fundamental rights. Thus, the protection of human rights in each country of the Union is provided by the United Nations, the European Union, the Council of Europe, and specifically through the European Court of Human Rights, as well as the domestic bodies of each country.
This system can give rise to certain conflicts of competence. But it also provides a greater guarantee of the protection of human rights than there could be if their control were only carried out at the domestic level. This multilevel system is a great guarantee of human rights within the European Union since different bodies and courts examine the situation of protection of human rights in the European Union states. However, this may lead to different positions between different courts and even between organisations, which shows that there is neither an international definition of the right to a fair trial nor what principles have to be met for a trial to be considered fair.
Therefore, to have a global vision of the right to a fair trial and of the real protection existing in the countries of the European Union, it is necessary to examine the rules and principles coined by the United Nations, the European Union, and the Council of Europe, as well as the functions and powers of each of them.
3.1. The Right to a fair trial in the International Arena: the ICCPR
International standards enshrined the right to a fair trial. In some of them, the right to a fair trial is exposed generally while others provide more detailed principles of this right. There are also universal non-treaty standards. The Declaration of human rights refer to the right to a fair trial in its article 10, but the most crucial treaty in relation to fairness in trials could be considered the International Covenant on Civil and Political Rights (ICCPR), which provided that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
It is a multilateral treaty adopted by the UNGA and in force from 1976. It compels its parties to respect all civil and political rights and ensures fairness in every trial. The right to a fair and public hearing must be extended to every act criminal in nature, regardless of their qualification in domestic law. A fair trial must ensure defendants’ rights during the hearing and during the previous phase. Although the ICCPR only uses the term fair concerning a fair hearing in its Article 14.1, other provisions of the ICCPR address every suspect’s rights in criminal proceedings during all the stages of proceedings. Pre-trial protections are essential in the administration of justice. They must ensure both the rights of suspects and the effectiveness of the investigation of crimes, but not forgetting the protection of victims of crimes. Furthermore, a fair trial does not conclude with the sentence. Every person convicted of a crime must have the right to appeal, and the right of compensation for miscarriage of justice. A fair trial must ensure the rights in every phase, from the beginning to the end of the proceedings.
The right to a fair trial has been deeply analysed by the United Nations Human Rights Committee through several explanations –always taking into account that a proceeding’s fairness level must be checked as a whole in assessing every particular case; for that reason, in most cases, it gives recommendations but not absolute statements. The States Parties to the ICCPR are obliged to submit regular reports to the UNHRC on implementing the Covenant, which gives fundamental recommendations to every State in the form of concluding observations. Although they are not legally binding, they have a certain authority and should influence the performance of Member States regarding human rights protection. For that reason, the United Nations can also be included as a pillar of human rights protection in the European Union Member States alongside the Council of Europe and the EU itself.
3.2. The European Convention on Human Rights (The Convention)
The collapse of Europe and the devastating consequences of the Second World War resulted in establishing new rules that were binding not only to citizens and parties but also to the states. A new European order was built. There was a creation of numerous and complex organisations such as the WEU (Western European Union), NATO (North Atlantic Treaty Organization), the OECD (Organization for Economic Cooperation and Development), the OEEC (Organization for European Economic Cooperation), the ECSC (European Coal and Steel Community) and the Council of Europe, which preceded the European Communities.But one of the most important milestones in the protection of rights in Europe, occurred on the fourth of November of 1950, when it was signed the European Convention on Human Rights. Its Sixth Article is entitled “The right to a fair trial”, and it describes, in detail, the principles that every fair trial must comply with. Although this is a detailed and lengthy legal provision that sets out the principles that every criminal and civil trial must comply with, the concepts integrated therein have been further developed by the European Court of Human Rights, which was created in 1959. It is a permanent court that received thousands of complaints annually against all the countries of the Union, as well as the rest of the member states of the Council of Europe, becoming the true guarantor of human rights within the Union. In the complaints, violations of the Convention that may have been committed in any of its member states can be recorded, and its rulings are binding on the states.
The European Court of Human Rights has been an active human rights watchdog within Europe and the European Union and has addressed the right to a fair trial in more concrete terms than the United Nations bodies, possibly because of its jurisdictional nature. It has developed a copious case-law regarding the right to a fair trial and has given many guidelines related to every principle subsumed under the right to a fair trial. It allows the Member States to choose the means to comply with the principles derived from the Convention and its case-law.
3.3. The Charter
The Charter of the fundamental rights of the EU brought together all personal, civil, political, economic, and social rights enjoyed by people within the EU in a single text. It covers rights found in the case-law of the European Court of Justice, and other rights and principles resulting both from common constitutional traditions of EU countries and other international instruments. Its Article 47 established the right to a fair trial albeit with a different wording than the European Convention on Human Rights, but with similar standards. Moreover, with entry into force of the Treaty of Lisbon, the Charter become a legally binding document, and the EU gained the constitutional power to seek accession to the Convention. However, to date it has not yet been signed by the European Union, and there is even reticence to the sign as it is not clear what the relationship between the Court of Justice of the European Union and the European Court of Human Rights would be. But the European institutions are aware that the Charter is probably not enough to guarantee human rights in every Member State and that they are still some suspicious about the human rights protection between them that undermines international cooperation. For that reason, the Council of the EU adopted a Resolution on a roadmap for strengthening suspected or accused persons' procedural rights in criminal proceedings. The roadmap that was adopted in the Stockholm Programme provides a framework for EU action on the issues of citizenship, justice, security, asylum, immigration, and visa policy for the period 2010-2014, a period in which were issued several directives on procedural rights.
4. Assessment of the Judgments of the European Court of Human Rights (ECtHR): Violations of the Convention’s Article 6 over the last Six Years
The number of violations of Article 6 of the Convention declared by the Chamber and Grand Chamber of the ECtHR in relation to criminal proceedings conducted in the Member States of the EU have been slightly higher than 100, and if we analyse the number of cases and the grounds of the violations of Article 6 of the Convention, it could be supported that there is no real reason to consider that fairness in criminal proceedings is not well assured within the EU’s borders.
In most of the cases, they are a result of the same flaws: lack of reasoning of judicial resolutions, an excessive length of the proceedings, violations of the presumptions of innocence, convictions at second instance without direct assessment of the evidence, lack of impartiality of trial judges, breach of defendant’s rights at second instance concerning the right to defend oneself and cases of statements to police without legal assistance.
There are other varied causes of Article 6 violations, such as rejections of proofs during the trial, breach of the equality of arms principle, a lack of notification of a resolution, errors in the evaluation of evidence, or flawed investigations. However, those convictions are unusual;possibly due to the member states' own mechanisms for resolving errors in the procedures themselvesbefore the last instance, which would be before the European Court of Justice.
One of the best ways to ensure the right to a fair trial in proceedings is the improvement of domestic remedies. In this regard, the Council of Europe recommended the establishment of effective remedies for anyone with an arguable complaint of a violation of the Convention. Remedies should also be used to prevent cases from being repeatedly brought before the ECtHR, and particular attention must be paid to complaints concerning the excessive length of judicial proceedings. It is almost impossible to avoid every kind of procedural irregularity in every criminal proceeding. The most decisive aspect of ensuring fairness in criminal proceedings is every national authority’s awareness of the need to ensure defendants’ rights. This will ensure judicial review and the existence of effective remedies that could solve any irregularity that can occur during a criminal proceeding or even during the hearing. Finally, it should be noted that the analysis of the judgments of the ECtHR constitutes an effective way to analyse criminal proceedings’ fairness among Member States. It gives us an unbiased view of the real situation of the right to a fair trial within the European Union. Despite the low number of violations, it is always necessary to check and see how to improve criminal proceedings' fairness.At stake is freedom and democracy, but also trust between countries, international cooperation, and thus the area of the greatest possible freedom, security, and justice, to which the European Union aspires to become.
The right to a fair trial depends on our concept of justice. Throughout history, every society has had its principles and values in the administration of justice, and what was considered fair in an ancient culture could be regarded as unfair today.
It is a dynamic and complex concept, and it was not until the nineteenth century that it shifted from a blemish-free meaning to a sense of procedural fairness. After the Second World War, the meaning, and the importance of the right to a fair trial changed, and, today, it is widely considered as a human right, indivisible and inherent to all human beings. It implies procedural rights and must be respected in every case, even in the trials of those who have committed the most shocking crimes. The right to a fair trial is a fundamental right that must be guaranteed in any case, even for the most serious and horrendous crimes.
Despite this, the fact that there is no internationally recognised concept of the right to a fair trial or its rules and principles, means that it is necessary to study the law from a multilevel perspective. It is necessary to analyse the norms, jurisprudence, and recommendations of the main actors in the protection of human rights from an international point of view in relation to a fair trial, which, in the European Union, would be, in addition to the Union itself, the United Nations and the European Court of Human Rights. The means of ensuring a proper administration of justice are guaranteed in the European Union by a multilevel system of protection, which complicates on some occasions the relations between the Courts in charge of human rights protection.
Furthermore, the study of the right to a fair trial is fundamental not only for understanding the concept and its principles, but also for observing the deficiencies that may exist within the European Union. In this sense, the study of the sentences handed down by the European Court of Human Rights to each of the Member States can give us an idea of the system of guarantees of the right to a fair trial in the European Union. It should not be forgotten that trust between states regarding the degree to which fundamental rights are guaranteed is a fundamental part of international cooperation in criminal matters. Nevertheless, the Union institutions are aware that there is insufficient trust among Member states in each other’s criminal justice systems, and that is why the European Union has promulgated several directives in the last few years.
Therefore, it is necessary to regularly study and analyse the right to a fair trial in the European Union. As a way of promoting knowledge of the rules governing the Union, but also as a way of promoting trust between member states about the guarantees that apply in all member states of the European Union, since without trust and international cooperation between member states, it is difficult to aspire to a true community cohesion that can face the new, increasingly sophisticated, and internationalised criminal challenges.
In view of the above, it can be considered that there is no prior reason to believe that the right to a fair trial is not correctly guaranteed among the EU Member States. The causes of violations referred to by the European Court of Human Rights do not seem to imply deep-seated problems. However, we cannot rest content, and we must strive to provide the highest level of protection within the European Union.At stake is the very meaning of the European Union and, as John F. Kennedy said, “The rights of every man are diminished when the rights of one man are threatened”.
About the author:
Carlos López-Veraza Pérez is Public Prosecutor from Elche-Orihuela, Alicante, Spain. He has L.L.M in EU law and Multilevel system of fundamental Rights and is author of the book “Criminal Law in the EU and the Right to a Fair Trial”.
Ljubljana/Alicante, 11 February 2021
 IFIMES – International Institute for Middle East and Balkan Studies, based in Ljubljana, Slovenia, has Special Consultative status at ECOSOC/UN, New York, since 2018.
 Robinson, P., “The Right to a fair trial in International Law, with Specific Reference to the Work of the ICTY”, Berkley Journal of International Law, Vol.3, 2009, p.1
 The Tables of the Law, Table 2, Law 1
 Chroust, A., “The Legal Profession in Ancient Athens”, Notre Dame Law Review, Volume 29, Issue 3, 1954, p. 342
 Leanza, P., Pridal, O., The right to a fair trial, Kluwer Law International, 2014, p .7
 See Geneva Conventions, common Article 3
 Pikis, G., Justice and the Judiciary, Brill, Leiden, 2012, p. 63
 Laurent, P., Groussot, X., “Fundamental Rights Protection in the European Union post Lisbon Treaty”, European Issue no173, Foundation Robert Schuman ,2014, p.2, available at http://www.robertschuman.eu/question_ europe.php?num=qe- 173
 For further information, see, López-Veraza, C., Criminal Law in the EU, with Particular Reference to International Standards and the Case-Law of the European Court of Human Rights, 2021, McGraw-Hill
 Recommendation Rec (2004) 6 of the Committee of Ministers to Member States on the improvement of domestic remedies, 12 May 2004