Spotlight on the CCBE activities in the area of Criminal Law

Its creation arose due to discussions at an EU level regarding the European Arrest Warrant (EAW). The EAW was the first EU instrument of mutual recognition in criminal matters. As it happens, twenty years later, the Committee is still examining issues related to the EAW! For the first time ever, two of the four members of the CCBE Presidency – the current CCBE President, Margarete von Galen, and First Vice-President, James MacGuill, are defence practitioners.

The CCBE Criminal Law Committee, currently chaired by Ondrej Laciak, PhD, is involved in a broad range of issues. As part of its activities, the Committee prepared submissions on all the 6 procedural safeguards for suspects and defendants in criminal proceedings, submissions on the European Public Prosecutor, submissions on countering money laundering by criminal law and submissions on the confiscation and freezing of assets, to name but a few. In addition, members from the Committee participate and represent the CCBE in hearings and expert meetings before the Parliament, Commission and other bodies on a range of subjects.

Procedural safeguards: one of the key areas of concern

Procedural safeguards for suspects and defendants in criminal proceedings is one of the key areas of concerns for the CCBE. The EU has adopted six Directives in this field: there are now Directives on the right to interpretation and translation, on the right to information, on the right of access to a lawyer and communication with third persons while being deprived of liberty, on procedural safeguards for children, on legal aid, and on the presumption of innocence. The European Commission has produced implementation reports on the first four Directives. These reports are of interest as they evaluate the application of the Directives and focus on the measures Member States have taken to implement the Directive. The assessment reports determine whether Member States have implemented the Directives within the given timeframe, and whether national legislations achieves the objectives and fulfils the requirements of the Directive. The CCBE Criminal Law Committee provided input with regard to each of the Directives during the legislative stages. Following implementation, the Committee also ensures that the Commission is aware of the views of the defence with respect to the practical implementation of the Directives in order to ensure that Member States are in compliance with their obligations.

In addition, the Committee has called for future procedural safeguards for the period 2019-2024 in a number of areas. The areas identified include the need to reform the European Arrest Warrant procedures, the need for safeguards regarding pre-trial detention, problems regarding access to a lawyer and legal aid, problems regarding access to documents and access to the case file, issues regarding access to evidence and issues regarding evidential admissibility.

Other issues

In addition to monitoring the implementation of the current procedural safeguards and calling for further measures to be introduced, the Committee is also focussed on a number of other issues of great importance:

- European Public Prosecutor Office (EPPO) - the EPPO is due to start operational work in the near future. The Committee has been engaged in discussions on a continuous basis with the Commission for many years regarding the EPPO and the Committee participated in a number of high-level meetings in order to raise the views of the defence. Recently, the CCBE had a meeting with representatives from the EPPO, and it aims to meet with the EPPO on a systematic basis going forward.

- European Arrest Warrant (EAW) – the Committee has examined the Council conclusions and the Parliament Report on the EAW which both contain a considerable number of expected deliverables. The Committee has identified a number of EAW related issues which require revision and the Committee will continue to focus on this issue (the Commission will also be updating the EAW Handbook, including adding Guidance on extradition to third countries).

- Assessment of the Children’s Rights Directive - the Commission is launching a procedure to assess Member State compliance of the Children’s Rights Directive (the Fundamental Rights Agency will also be beginning work on this). The Committee will be following developments in this regard.

- Admissibility of evidence - the Commission will be carrying out a study on the Admissibility of evidence. This is an issue of interest for the Committee.

- Pre-trial detention - there will be a Commission study on pre-trial detention (the Commission will be updating its 2016 study). This is an issue of great interest for the Committee.

- Digitalisation – the Committee is following developments regarding digitalisation. The Commission has launched an Impact Assessment study into which judicial cooperation instruments should be digitalised and whether such digitalisation should be voluntary or mandatory. The Commission will aim for a proposal before the end of this year.

- Brexit – the committee is considering on a continuous basis the implications of Brexit in the area of criminal law.

- Meeting with the Fundamental Rights Agency (FRA): The Committee meets with the Fundamental Rights Agency on an annual basis. These meetings take place at the FRA offices in Vienna. The Committee maintains contact throughout the year with the FRA on a range of issues including issues regarding Access to a lawyer and the EAW, detention, presumption of innocence, procedural safeguards, Artificial Intelligence and many other issues. The FRA has wonderful resources on its website which the Committee refers to. including a “one-stop-shop” for judges and other practitioners when transferring individuals using the European Arrest Warrant to assess the compatibility of criminal detention conditions with fundamental rights. Charterpedia is also an excellent resource as it is possible to find special case-law on both the Strasbourg and Luxembourg court jurisprudence. Charterpedia also includes a case-law database on how the Charter was used by the Constitutional courts all over the years, including by national Parliaments and in legislation.

- Relationship building - the Committee also puts great emphasis on the importance of relationship building. The Committee is delighted to welcome guest speakers on a regular basis which enriches the Committee meetings.

Thanks to the dedication and commitment of the practitioners composing the Criminal Law Committee, for the past twenty years, the result of the discussions and influence of the CCBE is reflected throughout various aspects of EU legislation. The CCBE aims to have the same impact over the next twenty years.