In focus: the proposed directive on presumption of innocence

“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law” (ICCPR - article 14.2).

The presumption of innocence is a fundamental right and a key element of the right to a fair trial. It is also and above all an essential principle if we are to prevent arbitrary judgments and abuses of power in criminal proceedings.

As member of the European Parliament and member of the Civil liberties, justice and home affairs (LIBE) committee, I warmly welcomed the initiative of the European Commission to propose a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.

First and mostly, such a Directive is needed, as serious violations of the principle of presumption of innocence still occur in Member States. Secondly, this Directive will clearly strengthen the legal safeguards that protect individuals involved in criminal proceedings. Last, as a part of a more general roadmap to setting common minimum standards on fair trial rights, this Directive will bring us one step closer towards a real European area of Justice, based on mutual trust, on mutual recognition and on the respect of common principles.

This Directive establishes minimum rules and sets down some key elements: the right not to be publicly presented as convicted by public authorities before the final judgment, the fact that the burden of proof is on the prosecution, the fact that any doubt on guilt shall benefit the accused person, the right to be present at trial, the right to remain silent and the right to an effective remedy in a case of a breach of the above elements. The LIBE committee clearly beefed up the European Commission’s draft proposal by inserting provisions to ensure that the burden of proof stays with the prosecution, to guarantee the right to remain silent, to ensure that the suspect or accused person is well and promptly informed about his/her rights and to ensure that public authorities refrain from making public statements referring to suspects or accused persons “as if they were guilty”.

As Rapporteur of the European Parliament, I particularly insisted on the question of the burden of proof: allowing presumptions that shift the burden of proof from the prosecution to suspects or accused persons is unacceptable. The burden of proof must rest with the prosecution and “any doubt always benefits the suspect or accused persons”. My second red line is that any evidence obtained in violation of these rights or by torture shall be inadmissible.

In March 2015, the LIBE committee gave me a clear mandate, with a strong majority (43 votes in favour), to start the negotiations with the Council and we directly started the trilogues. Three trilogues took place between April and September. We reached an agreement on Article 3 on the principle of presumption of innocence and on Article 2 regarding the temporal scope of the Directive. We also made good progress on the right to remain silent and the right not to incriminate oneself as well as on the principle that any doubt on guilt shall benefit the accused person. Several hard points remain such as: the burden of proof, the inadmissibility of evidence obtained through the use of torture, the question of trials in absentia and the material and personal scope of the Directive. The 4th trilogue will take place on 17 September and I have good hopes that we will achieve, under the Luxembourgish Presidency, a strong and ambitious Directive for the defence of EU citizens’ rights!

Editorial team’s note: The UK has indicated that it does not wish to opt in to this instrument.