Maintaining a balance between judicial cooperation and fundamental rights protection within the Area of Freedom, Security and Justice

Transcription

1 Maintaining a balance between judicial cooperation and fundamental rights protection within the Area of Freedom, Security and Justice A study into the rules governing trials in absentia Author: R. Rampersad Student number: Date: 23th October 2015 Project: Master s thesis LL.M. European Law and Dutch Criminal law Supervisors: Dr. M.J.J.P. Luchtman and Prof. dr. S.A. de Vries

2 Abbreviations AFSJ ECE EAW EU ECHR ECtHR Charter CJEU Framework Decision on the EAW Amending Framework Decision Member States Roadmap for strengthening procedural rights Third Pillar TEU TFEU Area of Freedom, Security and Justice European Convention on Extradition European Arrest Warrant European Union European Convention for the Protection of Human Rights and Fundamental Freedoms European Court for Human Rights Charter of Fundamental Rights of the European Union Court of Justice of the European Union/Court of Justice of the European Communities Council Framework Decision 2002/584/JHA of 13 th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States Council Framework Decision 2009/299/JHA of 26 th February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial Member States of the European Union Resolution of the Council of 30th November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings Justice and Home Affairs pillar / Police and judicial cooperation in criminal matters (pre-lisbon Treaty) Treaty on European Union Treaty on the functioning of the European Union 2

3 Table of Contents Chapter 1 Introduction Introduction Structure of the research Method and methodology Concepts... 8 Chapter 2 - Trials in absentia in national criminal proceedings Trials in absentia Introduction Trials in absentia according to the ECtHR Case law of the ECtHR Overview Trials in absentia according to European Union law Introduction The Commission proposal Trials in absentia Comment Spain Introduction The right to be present at trial Trials in absentia The Netherlands Introduction The right to be present at trial Trials in absentia Interim conclusion Introduction Rules governing trials in absentia Analysis Chapter 3 Trials in absentia in extradition proceedings Extradition Introduction The General Framework of Extradition The European Convention on Extradition Human rights and extradition Fundamental rights in extradition procedures Introduction The Soering judgment Flagrant denial of justice Third States and Contracting Parties to the ECHR Introduction The Cenaj judgment Aftermath of Cenaj Trials in absentia Introduction European Convention on the international validity of criminal judgments Second protocol and the ECE Case law of the European Court of Human Rights Overview Spain Introduction General Trials in absentia

4 5.4. Case law Overview The Netherlands General Trials in absentia Case law Overview Interim conclusion Rules governing trials in absentia Analysis in light of judicial cooperation and the position of the individual Chapter 4 - Trials in absentia in the European Arrest Warrant The European Arrest Warrant Introduction The proposal on the European Arrest Warrant Important aspects of the European arrest warrant The system of surrender and fundamental rights Introduction Fundamental rights and the Framework Decision on the European arrest warrant Case law of the CJEU The system of surrender v. extradition law Trials in absentia Introduction Trials in absentia Article 4a of the Framework decision on the EAW Melloni Comment on Melloni Spain Introduction The European Arrest Warrant Fundamental rights and EAW Law 3/ Trials in absentia in general The Netherlands General Flagrant denial of a fundamental right Trials in absentia Interim conclusion Rules governing trials in absentia Analysis in light of mutual recognition of judicial decisions and the position of the individual Chapter 5 Synthesis Applicable standard Conclusion Chapter 6 - Conclusion Recommendations Future research References Annex TABLE TABLE TABLE

5 Chapter 1 Introduction 1.1. Introduction Different theories exist on what the appropriate balance should be in criminal law between the two core state powers of providing security on the one hand, and protecting individual rights on the other. 1 Over the last decades, this old discussion has also become a matter concerning the European Union. With the establishment of the Area of Freedom, Security and Justice (hereafter: AFSJ) by the Treaty of Amsterdam, the EU should offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to the prevention and combating of crime. 2 While a balance had to be maintained, it appears, however, that Security became the top priority within the EU after the 9/11 attacks in order to compensate for the absence of internal border controls in the AFSJ. 3 The principle of mutual recognition of judicial decisions was perceived as an appropriate policy in order to enhance judicial cooperation between states. This principle could work if Member States have a high level of trust in each other s criminal law system. In order to react quickly to the perceived rise in cross-border crime the Framework Decision on the European Arrest Warrant (hereafter: EAW) was adopted in The EAW measure replaced all previous extradition arrangements between Member States of the EU in order to ensure swift and effective judicial cooperation. It has fully harmonised the system of surrender in the EU. One of the main critiques on the EAW measure is that it marginalized fundamental rights protection, creating a tension between Member States. 4 This tension can be perfectly illustrated by Melloni. 5 In Melloni, the question was whether Member States were still allowed to impose higher constitutional standards within a fully harmonised system of surrender. At stake was protection afforded to individuals in transnational criminal procedures derived from rules governing trials in absentia. Due to the principle of mutual recognition of judicial decisions and the consensus between Member States on what the appropriate level of protection is on rules governing trials in absentia, EU law prevailed over 1 R. Foqué and A.C. t Hart, Instrumentaliteit en rechtsbescherming, Antwerpen: Kluwer rechtswetenschappen 1990, pp Article 3 (2) TEU; Article 67 TFEU encompasses the objectives of the AFSJ: 1) The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2) It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals. 3) The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4) The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. 3 The Treaty of Amsterdam replaced the Treaty of Maastricht and incorporated the Schengen Agreement, which strengthened judicial cooperation with the introduction of the SIS- system, enabled citizens to travel freely across the area without internal borders and has become the largest passport- free zone in the world: 1999/307/EC Council Decision of 1 May 1999 laying down the detailed arrangements for the integration of the Schengen Secretariat into the General Secretariat of the Council, OJ L119. The Schengen agreement was adopted outside of the framework of the European Community (EC) by six Western European states, and cooperation concerned external frontier policies, asylum and migration issues and the creation of a Schengen Information System (SIS) which allowed law enforcement authorities to share information; 1999/435/EC Council Decision of 20 May 1999 concerning the definition of the Schengen acquis for the purpose of determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the acquis, OJ L176; 1999/436/EC Council Decision of 20 May 1999 determining, in conformity with the relevant provisions of the Treaty establishing the European Community and the Treaty on European Union, the legal basis for each of the provisions or decisions which constitute the Schengen acquis, OJ L See for instance: S. Douglas-Scott, Justice, Injustice and the Rule of Law in the EU, in: D. Kochenov, G. de Búrca and A. Williams, Europe s justice deficit?, Oxford: Hart publishing 2015, p C-399/11, Melloni, ECLI:EU:C:2013:107. 5

6 the Spanish constitutional right. The CJEU established that that Framework Decision on the EAW exhaustively standardised the fundamental right to be present at trial and the rules governing trials in absentia. The CJEU held that the Spanish constitutional right, which afforded a higher level of protection, has to be set aside. The follow-up judgment in Spain reveals the real impact. The Spanish Constitutional Court had no other option than to lower its fundamental rights standard. It is not the first time that the CJEU had to assess a national constitutional standard. 6 Melloni, however, opened Pandora s box: who has the final say on the balance between fundamental rights protection and the need of judicial cooperation in the AFSJ? At present there are lacunae in the system of protection of the position of the accused in transnational criminal procedures and the implications of fundamental rights standards in a European transnational criminal law setting. This research will mainly focus on transnational criminal matters. The problem of transnational proceedings is that more than one state is involved in the criminal matter. As a result, different rules apply on the same matter. There is an interaction between different jurisdictions: EU law, ECHR law and national law. This may lead to different levels of protection and uncertainty about the position of the individual in transnational criminal proceedings Structure of the research The research is based on a number of research questions, divided into a main research question and several sub-questions. The main question is as follows: How are trials in absentia embedded in surrender procedures and which recommendations can be made in light of the principle of mutual recognition of judicial decisions and the protection of fundamental rights of legal subjects within the EU? In order to answer these questions an inquiry should be made into the origins of trials in absentia as both a refusal ground and securing fundamental rights in in extradition law. Therefore, the following sub-questions have been established: 1. What is meant by the right to be present at trial and under which circumstances are trials in absentia compatible with the ECHR? 2. How are trials in absentia embedded in extradition law? 3. How are trials in absentia embedded in the European Arrest Warrant? 4. How is the balance maintained between the principle of mutual recognition of judicial decisions and the protection of fundamental rights of legal subjects within the EU? This research aims to provide a comprehensive analysis of the interactions in the field of European criminal law. In order to narrow the concept of trials in absentia down, three fundamental elements will be examined because of their general application: the waiver, the retrial and the representation by a lawyer. This research will start with an analysis of the ratio, history and rules governing trials in absentia in a national criminal procedure. The ECHR and the case law of the ECtHR will be analysed. This will provide the minimum norm in the comparison between international law, EU law and national law. In this respect, the recent Commission proposal on this matter will be examined. After analysing the case law of the ECtHR, the implementation of this case law and the national rules governing trials in absentia in Spain and the Netherlands will be examined in order to finalise the chapter with providing an analysis of the rules governing trials in absentia in the light of law enforcement and the position of 6 From the Solange saga, it follows that the German Bundesverfassungsgericht held that where EU law does not provide fundamental rights protection with an equivalent level to the German Constitution, German law would prevail, see: FCC, 29 May 1974, Solange I, BVerfGE 37, 271, p. 285; and more: D. Tyme, Seperation versus fusion or: how to accommodate national autonomy and the Charter? Diverging visions of the German Constitutional Court and the European Court of Justice, European Constitutional law review , pp

7 the individual. This analysis will include to what extent Spain and the Netherlands differ or agree with each other, to what extent national law meets up with the minimum requirements of the ECHR. Furthermore, it will also be assessed to what extent EU law meets the minimum norms and how national law relates to EU law. As will be noted, trial in absentia as a refusal ground in transnational proceedings is derived from extradition law. After defining the national dimension of trials in absentia in Chapter 2, Chapter 3 will therefore operationalise the concept of trials in absentia as a refusal ground in transnational criminal procedures. This chapter will firstly discuss the highlights of extradition law, its relation with fundamental rights and under which circumstances may an extradition be executed for the purpose of the execution of a sentence in absentia. The analysis of the national implementation will provide examples of how the national law relates to the ECHR rules and how they comply with each other. This chapter will end with an analysis of the refusal ground for trials in absentia in light of judicial cooperation and the protection of fundamental rights of individuals. Against this background, the system of surrender will be examined. Chapter 4 will start off with an examination of the highlights and history of the European Arrest Warrant. Thereafter, the rules governing trials in absentia as laid down in the amending Framework Decision 2009/299 will be examined. The Melloni judgment and its aftermath will also be discussed in detail. The analysis of the national implementation in this chapter will provide examples of how the national law relates to the EU rules and how they comply with each other. This chapter will end with an analysis of the refusal ground trials in absentia in light of the principle of mutual recognition of judicial decisions and the protection of fundamental rights of legal subjects. After inquiring the rationale of trials in absentia, the embedding of trials in absentia as a refusal ground in extradition law and the balance that has been maintained in both extradition law and surrender law, Chapter 5 will provide for a critical assessment. In this chapter the balance maintained in the EU will be assessed. Finally, a conclusion will be drawn on the entrenchment of trials in absentia in extradition procedures and surrender procedures and recommendations will be made in light of judicial cooperation and judicial protection of individuals Method and methodology The method used in this research is legal research, in which relevant legislation, case law and literature will be analysed. Furthermore, two case studies are performed in this research. The first case study is a comparison between trials in absentia as a refusal ground in extradition procedures and surrender procedures. The law that will be analysed is the ECHR and EU law and their corresponding case law. The aim is to examine the evolution of rules governing trials in absentia, to examine the different legal concepts of extradition and surrender and to examine the interaction between the different jurisdictions. The second case study is a comparison between Spain and The Netherlands. The reason for choosing Spain lies in the origins of the Melloni ruling. Besides, Spain has the reputation of maintaining a high level of protection of individuals in absentia proceedings. In the Netherlands, trials held in the absence of the accused occur often. Therefore, it is interesting to examine to what extent both countries meet the minimum requirements of the ECHR, and whether they are compatible with EU law. 7

8 In order to understand this research in its proper judicial context, it is necessary to introduce some key elements to provide a proper understanding Concepts The principle of mutual recognition of judicial decisions Within the AFSJ, the principle of mutual recognition of judicial decisions forms the basis of judicial cooperation. This principle has existed for a longer time within the EU acquis. It was firstly established for the purpose of achieving the goals of the internal market in which there would be free movement of persons, services, goods and capital. 7 The CJEU was confronted with diverging standards of legislation in Member States, which led to barriers to complete the internal market. In the landmark ruling Cassis de Dijon the CJEU established the principle of mutual recognition in the internal market, which entails that all products that are lawfully manufactured in one Member State should be equally accepted in another. 8 During the Tampere Council meeting in 1999, it was decided that the principle of mutual recognition should be the cornerstone of the ASFJ. 9 As a result, the principle of mutual recognition was transplanted to the AFSJ. The mutual recognition principle can only function of EU Member States have a high level of mutual trust between each other. 10 Its aim is to improve cooperation in criminal matters. 11 Mutual recognition in the AFSJ can only work if Member States can trust each other s respect for fundamental rights. 12 Mutual trust therefore means mutual confidence in the criminal justice systems of other Member States. This means that there is not only trust in the adequacy of the legislation of the other States, but also trust that the provisions are correctly applied. 13 In the absolute form of mutual recognition, an order must be executed automatically. 14 However, as will be seen in Chapter 4, the Framework Decision on the European Arrest Warrant includes refusal grounds limiting the principle of mutual recognition. Therefore, mutual recognition is not considered as absolute, but it entails a balance between individual rights and the public interest. 15 The system of mutual recognition is characterised as an order model by Klip. 16 Accordingly, the role of the ordered state is executing the order. There is no room for a second check on the legality or proportionality of the order due to the principle of mutual recognition. Therefore, the definition of the principle of mutual recognition of judicial decisions used in this research is: decisions of criminal courts and other competent judicial authorities of one Member State should be accepted by the competent authorities of the other Member State and enforced on the same manner as their own judgments. 17 This principle implies that national courts are bound, more or less automatically, to accept, recognise and execute judgments issued by a national criminal court in a Member State. This implies that mutual recognition acknowledges and respects differences. These differences are not regarded as an obstacle in cooperation because of the similarities between national laws. Judicial decisions are therefore mutually recognised in each legal systems. In order to have 7 C. Bernard and S. Peers, European Union Law, Oxford: Oxford University Press 2014, pp C-120/78, Rewe v Bundesmonopolverwaltung für Branntwein, ECLI:EU:C:1979:42. 9 Tampere European Council 15 and 16 October 1999, Conclusions of the Presidency, available at < accessed on L. Klimek, European Arrest Warrant, Cham: Springer International Publishing 2015, pp. 19; J.W. Ouwerkerk, Quid Pro Quo?: A Comparative Law Perspective on the Mutual Recognition of Judicial Decisions in Criminal Matters, Antwerp: Intersentia 2011, pp Klimek 2015, pp. 19; Tampere Conclusions A. Klip, European Criminal Law, Antwerp: Intersentia 2012, p For more information on this concept, see Ouwerkerk 2011, pp ; N. Suominen, Mutual recognition in the EU, Antwerp: Intersentia 2011, pp ; Schunk 2014, pp Ouwerkerk 2011, pp K. Lenaerts, The principle of mutual recognition of in the Area of Freedom, Security and Justice, the Fourth annual Sir Jeremy Lever lecture, All Souls College at the University of Oxford 2015, p Ibid. 17 See more in: V. Mitsilegas, EU criminal law, Oxford and Portland, Oregon: Hart publishing 2009, p. 101; Ouwerkerk 2011, pp

9 similarities, approximation of laws is necessary in order to have common values. 18 This will generate mutual trust, which is a precondition for having a sound application of mutual recognition 19 As mentioned in section 1.1, the EAW measure is a Framework Decision. Framework Decisions oblige the Member States to implement the established result. Framework decisions do not have direct effect while directives, which are mostly used in the first pillar, do have direct effect and can therefore be directly invoked by citizens. 20 Situations occurred in the Third pillar where citizens were confronted with a low level of protection afforded by national law, while EU law provided a higher level of protection. This situation formed the backdrop to the Pupino case. 21 In that case, the CJEU developed the doctrine of consistent interpretation, by stating: the principle of conforming interpretation is binding in relation to framework decisions. When applying national law, the national court must interpret it so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues. Any provisions that cannot be interpreted in such a way must be set aside. 22 With the entry into force of the Treaty of Lisbon, the pillar structure is now officially abolished. Directives, regulations and decisions are now used for the integration of criminal law. However, the already existing instruments under the old third pillar legislation remain in force and the legal effects of the instruments will continue to exist unless the measures are amended or replaced. Protocol 36, attached to the Treaties, limited some of the innovations introduced by the Treaty of Lisbon over EU cooperation on Justice and Home Affairs, for a period of five years after the entry into force of the Treaty of Lisbon. 23 Since 1 December 2014, the European Commission has been able to exercise its enforcement powers and the CJEU can conduct judicial scrutiny with respect to legislative measures adopted in these domains. 24 Interaction between fundamental rights protection A key part of this research is the interaction between the ECHR, EU law and national law. With the establishment of the EU, a new supranational legal order was created. 25 This brought about some consequences for different jurisdictions and individuals. The Court was forced to provide answers as to the relationship between EU law and national law. In Costa Enel the Court held that EU law has supremacy over national law, by establishing that the Member States: have limited their sovereign rights [ ] and have thus created a body of law which binds both their nationals and themselves. The executive force of community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty [ ]. 26 In Van Gend and Loos, the CJEU had to assess whether the EEC Treaty has direct application in national law and whether nationals could claim EU rights, which the national court must protect. The CJEU held that: 18 Case C-303/05, Advocaten voor de Wereld VZWv Leden van de Ministerraad, ECLI:EU:C:2007:261, para. 29; Opinion 2/13, ECLI:EU:C:2014:2454, para Communication on Mutual recognition of final decisions in criminal matters, COM (2000) 495 final. 20 Only when sufficiently clear, precise and unconditional; Kostakopoulou, 2006, p explains that this difference is created due to the intergovernmental nature of the third pillar. 21 C-105/03, Pupino, ECLI:EU:C:2005: Ibid, para Protocol 36 is titled Transitional provisions concerning acts adopted on the basis of Titles V and VI of the former version of the TEU prior the entry into force of the Treaty of Lisbon ; The Treaty of Lisbon came into effect on 1 December For more information, see V. Mitsilegas, S. Carrera and K. Eisele, Study on The End of the Transitional Period for Police and Criminal Justice Measures Adopted before the Lisbon Treaty. Who Monitors Trust in the European Justice Area?, Brussels: European Parliament, OJ 1987, L 169/1; See also J.H. Gerards and M. Claes, Bescherming van fundamentele rechten post-lissabon. De interactie tussen het EU-Handvest van de grondrechten, het EVRM en de Grondwet, SEW 2012, p Case 6/64, Costa v. E.N.E.L., ECLI:EU:C:1964:66, On the submission that the court was obliged to apply the national law, p

10 The objective of the EEC Treaty [ ] implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. [ ] It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. 27 From Van Gend and Loos and Costa Enel, it follows that EU law became an integral part of the legal systems of the Member States and which their national courts are bound to apply. 28 This means that EU law has precedence over conflicting national law. The principle of primacy affects furthermore individuals, because they can now directly rely on certain EU laws. 29 It appears from these landmark cases that the EU is primarily there for its citizens and integration is effectuated through their rights. 30 An innovative aspect of the Treaty of Lisbon is the introduction of the legally binding character of the EU Charter of Fundamental Rights (hereafter: Charter). 31 The Charter regulates fundamental rights within the EU. The interaction between different jurisdictions is currently partially regulated by the Treaty of Lisbon, the Charter and the CJEU. From Article 6 TEU, it follows that: The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. ( ) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law. The Treaty of Lisbon introduced the legally binding character of the EU Charter of Fundamental Rights (hereafter: Charter). 32 The Charter regulates fundamental rights within the EU. While the EU has not accessed to the ECHR, it must be noted that the ECHR is used by the CJEU as a source of inspiration 33. This is necessary since the Member States of the EU are bound by the ECHR. The relation between the CJEU and the ECtHR is regulated by Bosphorus and Michaud. 34 From Bosphorus, it follows that the ECtHR assumes that a ECHR obligations are complied with when an EU Member State is implementing EU law. The ECtHR assumes that EU law provides for an equivalent protection of fundamental rights. In that case, the ECtHR does not assess a complaint of an individual on the basis of EU law. From Michaud, if follows that ECtHR can examine a possible incompatibility with the ECHR. This may occur when where an EU directive provides for enough discretion to implement it in an ECHR consistent way. It must be noted that the ECtHR does not have direct jurisdiction over EU law as long as the EU does not accede to the ECHR. At this moment, accession to the ECHR is frustrated due to the negative opinion of the CJEU on the draft agreement on the accession of the EU to the ECHR. 35 In practice, this means that for now, when establishing EU legislation and its resulting instruments, these instruments must meet the requirements of the Charter. Article 51 (1) of the Charter states: 27 Case 26-62, Van Gend en Loos, ECLI:EU:C:1963:1, para. B. 28 Case 6/64, Costa v. E.N.E.L., ECLI:EU:C:1964: A provision of a directive can have direct effect if it is: unconditional, sufficiently precise and the member state in question failed to implement the directive by the end of the period prescribed therein or failed to implement the directive correctly; See more in Bernard and Peers 2014, p L.F.M. Besselink, The Parameters of Constitutional Conflict after Melloni, European Law Review Gerards and Cleas Gerards and Cleas J. Bast and A. von Bogdandy, Principles of European Constitutional law, Oxford: Hart Publishing 2009, p ECtHR 30 June 2005, App. No /98, Bosphorus Hava Yollari Turizmve Ticaret Anonim Sirketi v. Ireland; ECtHR 6 December 2012, App. No /11, Michaud v. France. 35 Opinion 2/13, ECLI:EU:C:2014:

11 The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers. According to Ward, this Article is an umbrella provision, defining the entities that are bound to comply with the Charter. 36 These entities are: institutions, bodies, offices and agencies of the EU and EU Member States when they are implementing EU law. Article 52 (3) of the Charter states: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. This Article sets out the relationship between the Charter and the ECHR. In the ruling of Åkerberg Fransson, the CJEU held that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law. 37 Nonetheless, the CJEU held that the ECHR forms an important source of inspiration. 38 In this ruling, the CJEU applied the reasoning of the ECtHR in Engel in order to assess whether a measure should be regarded as a criminal charge. The scope of Article 52 (3) applies only where Charter rights correspond to rights guaranteed by the ECHR. Therefore, the meaning and the scope of the Charter rights which correspond to the rights of the ECHR are the same as the meaning of the right laid down in the ECHR. 39 As stated in the last sentence, the EU has the possibility to provide more extensive protection. As will be put forward in Chapter 2, rules governing trials in absentia derive from Article 6 ECHR. The CJEU held that Articles 47 and 48 of the Charter correspond with Article 6 of the ECHR. 40 Article 52 (3), last sentence, forms the basis of a more extensive protection afforded by EU law. EU law in this context means all sources of EU law. 41 This means that the EU is not prevented from providing a more strict approach to the possible limitations that the EU and/or its Members States can place on a particular Charter right. The level of protection in the EU may never be lower than that guaranteed by the ECHR. Such a higher level of protection must not lead to a conflict with a Charter right that corresponds to a right guaranteed by the ECHR. To conclude, Article 6 of the TEU in conjunction with Articles 51 (1) and 52 (3) of the Charter means that the Charter must comply with the minimum rules of the ECHR and should consequently be interpreted in that way. The Charter is furthermore binding upon all institutions and bodies of the EU and to the Member States of the EU when they are implementing EU law. This means that EU law must comply with the provisions of the Charter and implicitly with the minimum standards of the ECHR. EU Member States are not only bound by the Charter, but also by the ECHR. Article 53 of the ECHR prescribes that Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party. From this provision, it follows 36 A. Ward, Article 51 of the Charter, in: S. Peers, T. Hervey, J. Kenner and A. Ward, The EU Charter of Fundamental Rights. A commentary, Oxford, Portland: Hart Publishing 2014, p Case C , Åkerberg Fransson, ECLI:EU:C:2013:105, para S. Peers and S. Prechal, Article 52 of the Charter, in: Peers, Hervey, Kenner and Ward 2014, p. 1490; See for instance 39 See also: Peers and Prechal, in: Peers, Hervey, Kenner and Ward 2014, p Ibid, p. 1493; See also: Case C-396/11, Radu, ECLI:EU:C:2013:39, para. 32; Case C-199/11, Otis e.a., ECLI:EU:C:2012:684, para. 47; Case C-386/10 P, Chalkor, ECLI:EU:C:2011:815, para Peers and Prechal, in: Peers, Hervey, Kenner and Ward 2014, p

12 that there is no absolute uniform implementation. Instead, the ECHR offers a minimum standard of fundamental rights protection, while respecting the cultural, legal and political particularities of each state. The ECtHR also describes this as states having a margin of appreciation in how the Contracting Parties implement their obligations. 42 Hence, the Contracting Parties are allowed to decide to impose a higher norm. Legal subjects within the EU Another key element of this research is legal subjectivity. In criminal law literature one of the key questions has always been at way can the interests of a whole community be weighed against the interest of the individual. How much freedom should an individual to be able to enjoy and to what extent should this freedom be limited in order to protect the interest of all the individuals? Ever since the Magna Carta, the absolute power of the sovereign has been limited in order to prevent arbitrary use of powers. 43 Criminal law has always been regarded as an internal matter of sovereign states because the latter are democratically legitimized to act on criminal law. 44 A sovereign state has the instruments to fight crime in order to secure the general interest of the whole. Yet, these instruments have to be limited in order to prevent arbitrary or disproportionate interferences with the fundamental rights of the individuals. This is inherently linked with the Rule of Law, a concept that constrains the powers of a sovereign state by the law. 45 It is interesting to note that individuals within the territory of a state have in this respect always been regarded as subjects that carry fundamental rights in order to protect their human dignity. 46 After the atrocities of the Second World War and the desire to prevent such happening again, sovereign states were not only limited in their powers and competences, but they are nowadays internationally obliged to guarantee and to protect fundamental rights within their territory. 47 Therefore, protecting and guaranteeing fundamental rights is essential in the field of criminal law. Legal subjectivity is a concept that originates from international public law. The concept entails that a legal subject is defined as a carrier of rights and duties, which are derived from the law. 48 Although both natural and legal persons can have legal subjectivity, this research will only focus on natural persons. Individuals as legal subjects were not always considered that way. Earlier, international public law was always described as the law between states the international public order. In this setting, individuals were seen as objects. In earlier transnational proceedings, the individual was mostly dependent on the goodwill of a state in order to effectuate his fundamental rights. What occurred within the territory of a state was not the concern of the international public order. 49 This situation has been changed. As this research primarily focuses on transnational situations, it is helpful to note that after Soering, some of the ECHR-rights are nowadays also applicable on transnational situations, for instance, the right to a fair trial (Article 6). This has led to a change of views. While the EU was initially established for economic purposes, the establishment of the AFSJ has led to other objectives of the EU such as judicial cooperation in criminal matters. In combination with the supranational character of the EU, the EU affects the position of the individual. As a result, individuals have gained the same status, as they would have received within the territory of the state in which they remained. Individuals within the EU should be seen as legal subjects. This has been strongly 42 ECtHR 26 April 1979, App. No. 6538/74, Sunday Times v. United Kingdom; Moeckli et al. 2014, pp : rationality of the margin of appreciation if that states and domestic courts are better suited to assess local peculiarities and that there is uncertainty about how fundamental rights are to be implemented in practice for international supervisions. 43 D. Moeckli, S. Shah and S. Sivakumaran, International human rights law, Oxford: Oxford University Press 2014, pp Foque and t Hart 1990, pp Douglas-Scott in: Kochenov, de B urca and Williams 2015, p Foque and t Hart 1990, pp See for instance: Article 1 of the ECHR. 48 P. Rijpkema, De persoon op de grenzen van het recht, Amsterdam: Vossiuspers 2011, p Rijpkema 2011, p

13 developed by the legally binding character of the Charter and Article 6 TEU. The case law of the CJEU has also provided a contribution to fundamental rights protection of its legal subjects. For instance in the well-known Kadi judgment, it held that with respect to the implementation of international norm it cannot ( ) be understood to authorize any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6 (1) TEU as a foundation of the Union. 50 The legal subject is therefore is composed of fundamental rights protection and duties deriving from national law, the ECHR, EU law and the Charter. As a result, their claim for fundamental rights can be held against different Members States, and possibly before a court, or the CJEU, or the ECtHR. In order to gain protection, they are not dependant on the goodwill of a Member State of the EU. The central question on how to strike a fair balance between the instrumentality of criminal law and the protection of fundamental rights of legal subject, must thus also be answered with regard to the EU. The principle of fair trial is an important principle in the field of criminal law. Fair trial or due process is internationally recognized and is seen as an essential part of the rule of law. 51 It is codified Article 6 of the ECHR. One of the fair trial rights concerns the right to be present at trial. This right is not explicitly mentioned in Article 6 ECHR, but the application of Article 6, specifically the defense rights laid down in the third limb, would be pointless without it. As will be explained more in detail in Chapter 2, the right to be present at trial is a fundamental right. According to the ECtHR, without being present at trial one cannot have judicial protection nor can one exercise his defence rights. A trial can nevertheless be held in absentia under certain circumstances. Therefore, it will be assessed to extent the legal subject is guaranteed with the protection afforded by the minimum requirements of Article 6 ECHR in extradition and surrender procedures. From the foregoing, it appears that all legal subjects have the right on the minimum requirements of Article 6 ECHR and EU law. In this research it will be assessed to what extent the minimum requirements of Article 6 ECHR are guaranteed in a transnational criminal procedure. 50 Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, ECLI:EU:C:2008:461, para E. de Wit and J. Vidmar, Hierarchy of International norms. The place of human rights, Oxford: Oxford University Press 2012: de Wet argues that the right to a Fair Trial is a jus cogen; S.J. Summers, Fair trials. The European Criminal Procedural Tradition and the European Court of human rights, Oxford: Hart Publishing

14 Chapter 2 - Trials in absentia in national criminal proceedings 1. Trials in absentia 1.1. Introduction This chapter will examine the concept of the right to be present at trial and trials in absentia. This will be done by examining its meaning, its content and rationale and its position in the case law of the European Court of Human Rights (hereafter: ECtHR). Thereafter, the three fundamental elements of trials in absentia, the waiver, the retrial and the representation by a lawyer, will be examined. It will be assessed how they are positioned in the case law of the ECtHR, the European Union proposal by the European Commission on the presumption of innocence and in Dutch and Spanish law. The aim of this chapter is to establish what the minimum requirements of the compatibility of trials in absentia are according to the ECHR, EU law and national law. This will provide an insight to what norm the individual is used to in getting protection in national criminal proceedings. This chapter will end with a comparison Right to be present at trial The right to be present at trial is laid down in Article 14 (3d) of the United Nations International Covenant on Civil and Political Rights. The European Convention on Human Rights (hereafter: ECHR) on the other hand, does not contain provisions on the right to be present at trial, but the fundamental aspect of this right has been developed in the case law of the ECtHR. The right to be present at trial is linked with the idea that the accused must be able to participate in criminal proceedings, 52 in order to participate in a meaningful and informed manner in the criminal proceedings against him. 53 If the accused is absent, he cannot utilise his defence rights, such as the right to defend oneself in person, to examine witnesses or have witnesses examined and to have the free assistance of an interpreter if the accused cannot understand or speak the language of the court. 54 These defence rights are generally recognised as essential to the conduct of a fair trial by most international human rights conventions and by the jurisprudence of the ECtHR. 55 According to Trechsel, the right to be present at trial also relates to the assumption that the ability of the accused to face his judge and accusers adds a dimension of credibility to the proceedings and improves the likelihood of arriving at the truth. 56 Therefore, presence of the accused at his trial is fundamental in order to have a fair trial. The fundamental aspect of the presence of the accused was also emphasised by the ECtHR in the Colozza judgment. 57 Mr Colozza was accused of crimes including fraud, but the Italian police could not question him because he could not be located. 58 The judicial notification that included information about the accusation against Mr Colozza could not be delivered, and arrest warrants could not be executed because his domicile was unknown. 59 Though Mr Colozza renewed his driver s license and gave his current address to the authorities, the judicial authorities could not find him. 60 The Italian judicial authorities declared him as untraceable and declared him as latitante, meaning that he was 52 S. Trechsel, Human rights in criminal proceedings, Oxford: Oxford University Press R.S.K. Lee, The international Criminal Court: the making of the Rome Statute: issues, negotiations and results, The Hague: Kluwer International 1999, pp. 255; G.J. Knoops, An introduction to law of the international criminal tribunals, Leiden: Martijn Nijhoff Publishers 2003, pp. 327; Summers 2007, pp ECtHR 12 February 1985, App. No 9024/80, Colozza v. Italy, para For instance: Article 14 (3d) ICCPR, Article 6 (3d) ECHR; Case of Colozza, para Trechsel ECtHR 12 February 1985, App. No 9024/80, Colozza v. Italy. 58 Ibid., para Ibid., paras Ibid., par

15 regarded as a person wilfully evading the execution of a warrant issued by a court. 61 In the presence of the state-appointed defence lawyer, the regional court sentenced Mr Colozza to six years imprisonment and a fine of 600,000 Lire on 17 December The decision became final on 16 January 1977 and the applicant was arrested on 24 September Mr Colozza argued that he had not received any information about the accusation against him and that he was wrongly declared latitante. 64 Therefore, he argued, the notifications of the summons to appear and the judgment rendered by default were null and void. 65 At the hearings before the ECtHR, the applicant s lawyer contended that there had been a violation of Article 6 (3). 66 The Italian Government denied that there had been any breach at all. 67 The ECtHR recalled that the guarantees contained in Article 6 (3) are constituent elements, amongst others, of the general notion of a fair trial. In the circumstances of the case, the Court, having regard to those guarantees, considered that it should examine the complaint under paragraph 1, which provides: in the determination of... any criminal charge against him, everyone is entitled to a fair... hearing... by [a]... tribunal The ECtHR stated further that the object and purpose of Article 6 ECHR taken as a whole show that a person charged with a criminal offence is entitled to take part in the hearing. 69 Moreover, Article 6 guarantees to everyone charged with a criminal offence the right to defend himself in person, to examine or have examined witnesses and to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 70 It would be difficult to see how the accused could exercise these rights without being present. Based on the foregoing, the rationale behind the right to be present at trial according to the ECtHR is therefore to guarantee the accused a fair trial by attending the criminal proceedings and participating in them. After all, it is essential that a defendant is present at criminal proceedings in order to defend himself in person, to examine or have examined witnesses and more. 71 The right to be present at trial is therefore a fundamental right because of the nature and the character of the right as such. Nonetheless, the ECtHR concluded that right to be present at trial is not an absolute right, meaning that a trial can under certain circumstances be held in the absence of the defendant Trials in absentia Proceedings in the absence of the accused are called trials in absentia. The term in absentia is Latin and means in absence of. The origin of trials in absentia can be found in French law in the Criminal Ordinance of 1670, but most European countries know some form of trials in absentia Ibid., para Ibid., para Ibid. 64 Ibid., para Ibid. 66 Ibid., paras ; Article 6 (3) ECHR states: Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and the facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 67 Ibid., paras Case of Colozza par Ibid., para Ibid., par Such as the defendants right as laid down in Article 6 (3) ECHR. 72 Knoops 2003, pp