By taking a closer look at this reality, the findings presented support transparency about how fundamental rights are dealt with in practice across the EU. In so doing, they can encourage both better rights protection and stronger cooperation in criminal matters among Member States.
It is a principle so basic that most can recite it with ease: you are presumed innocent until proven guilty in a court. But our research underscores that truly ensuring this and related rights is far from simple.
Article 48 of the EU Charter of Fundamental Rights guarantees the presumption of innocence in criminal proceedings, as well as respect for related defence rights. Directive (EU) 2016/343 – on strengthening certain aspects of the presumption and of the right to be present at trial – spells these out in more detail. This report presents the agency’s findings on how select EU Member States implement them in practice.
The report is based on interviews with over 120 defence lawyers, judges, prosecutors, police officers and journalists in nine countries, covering broad ground in terms of both geography and legal traditions. They show that practical implementation varies – and underline that the presumption of innocence can be undermined in myriad ways.
In this report:
To reduce potential prejudice and bias, Member States should encourage and promote diversity among judges, prosecutors and criminal justice officials so that they are representative of all cultural, social and ethnic backgrounds of a given society, including with respect to gender.
Member States should consider developing guidance and materials to sensitise and provide guidelines to the media about the importance of the manner in which a suspect or accused person is presented in the media, highlighting the ways in which different practices can increase or decrease perceptions of guilt. When doing so, Member States should consider engaging with relevant national associations of journalists that have practical experience in reporting on criminal cases.
In this context, Member States should ensure that judicial authorities discourage the public presentation of defendants under restraining measures and discourage the taking of photographs of restrained persons, while allowing photographs to be taken when defendants are not restrained, to respect the freedom of the press. Moreover, law enforcement authorities should refrain from publishing footage of their operations containing photographs of restrained defendants. The application of these safeguards should be ensured with effective and persuasive sanctions, which authorities should rigidly enforce to ensure the right to the presumption of innocence. Member States should also explore opportunities for raising awareness among law enforcement officers, through training or other means, about the damaging effects of such images.
Member States should examine the possibility of allowing restrained defendants to use side entrances to courtrooms and separate waiting rooms to protect them from public view.
Defendants should be allowed to have their faces covered while being transported into and out of court. Prison or police regulations should be reviewed and, if needed, revised by relevant national authorities to include these requirements.
Authorities should make all necessary arrangements to allow defendants to select appropriate clothes when appearing in court. If necessary, authorities should provide defendants with clean and appropriate clothing.
In view of the inherent inequality between the capacity of defendants, on the one hand, and that of the prosecuting and investigating authorities, on the other, to seek and acquire evidence during pre-trial criminal proceedings, Member States should ensure that the defence can request investigating and prosecuting authorities, when justified, to investigate specific circumstances and search for crucial evidence on its behalf. Such requests may be justified, in particular, when it is not feasible for the defence to acquire such evidence.
Member States should ensure that legitimate presumptions of law or facts that reverse the burden of proof are limited to the extent necessary to ensure the effectiveness of criminal proceedings, and are always possible to rebut.
The examination of defendants and the provision of information about their rights should be recorded and any confessions or other testimony they make outside the strict procedural framework should be excluded from evidence. Hearsay testimony from police officers on what a defendant said or confessed to them before their formal questioning should be excluded from evidence. When in doubt about whether or not defendants were properly informed of their rights before incriminating themselves, their testimony should be excluded from evidence.
The police should operate according to strict guidelines on how to examine suspects and accused persons without infringing their right to remain silent and not incriminate themselves. Oversight and judicial authorities should reinforce their efforts to assess systematically how the police examine suspects and accused persons.
Indirect methods used to pressure defendants to provide incriminating evidence – such as the promise of milder treatment, reduced sentences or shorter proceedings – should never be used. Member States should provide systematic guidance and training to ensure that police officers always explain to defendants their rights, including the consequences of remaining silent, of a confession or of providing evidence or information that incriminates them. In sum, defendants should not be pressured by being told that exercising their right to remain silent could have negative consequences.
Systems that presume that defendants have been notified by a summons served at their address should take additional steps to ensure that the right of defendants to be present at trial is respected. In particular, these systems should be promptly updated to take account of circumstances in which defendants are in state custody rather than at their last known address.