Activities of Jan Philipp ALBRECHT related to 2013/0407(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings PDF (785 KB) DOC (515 KB)
Amendments (37)
Amendment 47 #
Proposal for a directive
Recital -1 (new)
Recital -1 (new)
(-1) Article 48 of the Charter of Fundamental Rights of the European Union stipulates that everyone who has been charged shall be presumed innocent until proved guilty according to law; respect for the rights of the defence of anyone who has been charged shall be guaranteed. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms protects the right to a fair trial, which implies that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law and has a right to defend himself in person or through legal assistance of his choosing. Article 14 of the International Covenant on Civil and Political Rights stipulates that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law and the right to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.
Amendment 50 #
Proposal for a directive
Recital 1
Recital 1
(1) The purpose of this Directive is to enhance the right to a fair trial in criminal proceedings by laying down minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial, and to ensure that a common and sufficiently high level of protection and the procedural safeguards linked thereto are available to suspects and accused persons throughout the EU, without prejudice to the higher protection standards which may be in use in a given Member State.
Amendment 61 #
Proposal for a directive
Recital 6
Recital 6
(6) This Directive should apply only to criminal proceedings. A and similar administrative proceedings leading to sanctions such as competition, trade, tax, financial services proceedings and othercomparable sanctions of a punitive and deterrent nature Administrative proceedings leading to sanctions of a non- punitive nature and investigations by administrative authorities in relation to these proceedings, and also civil proceedings are not covered by this Directive.
Amendment 66 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should apply to natural and legal persons who are suspected or accused of having committed a criminal offence. It should apply at any stage of the proceedings, even before those persons are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, until the conclusion of such proceedings.
Amendment 69 #
Proposal for a directive
Recital 9
Recital 9
Amendment 73 #
Proposal for a directive
Recital 10
Recital 10
Amendment 76 #
Proposal for a directive
Recital 11
Recital 11
Amendment 78 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) If a person other than a suspect or accused person, for example a witness, becomes a suspect or accused person, that person's right to the presumption of innocence and his or her right not to incriminate him or herself should be protected, and he or she should have the right to remain silent, as confirmed by the case law of the European Court of Human Rights. This Directive therefore makes express reference to the practical situation where such a person becomes a suspect or accused person during questioning by the police or by another law enforcement authority in the context of criminal proceedings. Where, in the course of such questioning, a person other than a suspect or accused person becomes a suspect or accused person, questioning should be suspended immediately. However, it should be possible to continue the questioning if the person concerned has been informed that he or she is a suspect or accused person and of his or her procedural rights in accordance with Directive 2012/13/EU. Evidence collected prior to the notification of rights should not be admissible during the criminal proceedings which follow.
Amendment 84 #
Proposal for a directive
Recital 13
Recital 13
(13) The presumption of innocence is violated if, without the accused’'s having previously been proved guilty according to law, a judicial decision or, a public statement or other act by judicial or other public authorities or public officials presents the suspects or accused persons as if they were convicted.
Amendment 94 #
Proposal for a directive
Recital 15
Recital 15
Amendment 96 #
Proposal for a directive
Recital 17
Recital 17
Amendment 103 #
Proposal for a directive
Recital 18
Recital 18
(18) The right not to incriminate oneself and not to cooperate should not extend to the use in criminal proceedings of material which may be obtained from the suspect or accused person through the use of lawful compulsory powers but which has an existence independent of the will of the suspects or accused persons, such as. However, this should only apply to material acquired pursuant to a warrant, material in respect of which there is a legal obligation of retention and production upon request, and breath, blood and urine samples and bodily tissue for the purpose of DNA testing.
Amendment 106 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
(19a) Possible violations of the right to silence or not to incriminate oneself should be assessed by reference to all relevant factors including the use of physical compulsion, compliance with the notification obligations under Directive 2012/13/EU and the authorities' reference to possible pre-trial detention to discourage the exercise of the right to silence.
Amendment 109 #
Proposal for a directive
Recital 20 a (new)
Recital 20 a (new)
(20a) Any evidence obtained in violation of the right not to incriminate oneself and to refuse to cooperate and in violation of the right to remain silent, as laid down in this Directive, should be declared inadmissible. The use in criminal proceedings of statements or evidence obtained in violation of these rights automatically renders the proceedings as a whole unfair.
Amendment 113 #
Proposal for a directive
Recital 22
Recital 22
(22) However, the right of the accused person to be present at the trial is not absolute. Under certain conditions the accused person may, expressly or tacitly butand unequivocally, waive that right.
Amendment 117 #
Proposal for a directive
Recital 26
Recital 26
(26) The principle of effectiveness of Union law requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by Union law. An effective remedy available in the event of a breach of any of the principles laid down in this Directive should have, as far as possible,both consist of an appropriate mechanism of compensation for damages and have the effect of placing the suspects or accused persons in the same position in which they would have found themselves had the breach not occurred.
Amendment 124 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) The transposition of this Directive should contribute to the creation of an Area of Freedom, Security and Justice within the Union, whose overarching value is the respect of fundamental rights. Consequently, if there are substantial grounds for believing that this Directive may have the effect of modifying the obligation incumbent on public authorities to respect the fundamental rights and legal principles as enshrined in Article 6 of the Treaty on European Union, including the rights of persons subject to criminal proceedings, such obligations should remain unaffected.
Amendment 129 #
Proposal for a directive
Article 2
Article 2
This Directive applies to natural persons suspected or accused in criminal proceedingsand legal persons, regardless of their nationality, place of residence or place of registration or incorporation, suspected or accused in criminal proceedings and similar administrative proceedings leading to comparable sanctions of a punitive and deterrent nature until the final conclusion of those proceedings.
Amendment 135 #
Proposal for a directive
Article 3
Article 3
Member States shall ensure that suspects or accused persons are presumed innocent until proven guilty according to lawby a final judgment, delivered according to law, in a public trial at which they have had all the guarantees necessary for their defence.
Amendment 137 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall ensure that, before a final conviction or after a final acquittal, public statements and, official decisions from public authorities do not refer to the suspects or accused persons as if they were convicted(including on pre-trial detention) and other acts by public authorities or public officials do not refer to the suspects or accused persons as if they were convicted. In particular, any statements should not be of such a nature as to serve to encourage the public to believe the person is guilty and to prejudge assessment of the facts by the competent judiciary authority. Member States shall ensure that appropriate measures are taken in the event of a breach of that requirement, such as a retrial and compensation.
Amendment 149 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Presentation of suspects or accused persons 1. Member States shall ensure that suspects or accused persons are not presented in court or to the media in ways that suggest their guilt, including in particular in prison clothing, handcuffs or the use of enclosures. 2. Paragraph 1 shall not prevent a Member State from applying measures which are genuinely required for case- specific security reasons, on the basis of specific identified risks posed by the individual suspected or accused person.
Amendment 151 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that the burden of proof in establishing the guilt of suspects or accused persons is on the prosecution. This is without prejudice to any ex officio fact finding powers of the trial court and to the right of the defence to present evidence in accordance with the applicable national rules.
Amendment 154 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 159 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Any doubt shall benefit natural persons suspected or accused in criminal proceedings. Member States shall ensure that where the trial court makes an assessment as to the guilt of a suspect or accused person and there is reasonable doubt as to the guilt of that person, the person concerned shall be acquitted.
Amendment 170 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. The right referred to in paragraph 1 shall not extend to the use in criminal proceedings of material which may bethe following material, provided that the latter is obtained from the suspects or accused persons through the use of lawful compulsory powers but whichand has an existence independent of the will of the suspects or accused persons: a) material acquired pursuant to a warrant; b) material in respect of which there is a legal obligation of retention and production upon request; c) breath, blood and urine samples and bodily tissue for the purpose of DNA testing.
Amendment 178 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. Any evidence obtained in breach of this Article shall not be admissible, unless the use of such evidence would not prejudice the overall fairness of the proceedings.
Amendment 192 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Any evidence obtained in breach of this Article shall not be admissible, unless the use of such evidence would not prejudice the overall fairness of the proceedings.
Amendment 194 #
Proposal for a directive
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4a. In order to facilitate the effective protection of the right to remain silent, Member States shall ensure that questioning of suspects and accused persons is audio-visually recorded.
Amendment 197 #
Proposal for a directive
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. Member States may provide for a possibility under which the trial court may decide on the guilt in the absence of the suspect or the accused person, only if the offence which gave rise to the proceedings is punishable by a fine, and under no circumstances if the offence is punishable by a term of imprisonment, provided that the suspect or accused person:
Amendment 202 #
Proposal for a directive
Article 8 – paragraph 2 – point a – point i
Article 8 – paragraph 2 – point a – point i
(i) either was summoned in person and thereby clearly and unequivocally informed of the scheduled date and place of the trial, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trialand of the consequences of an unexcused non-appearance;
Amendment 203 #
Proposal for a directive
Article 8 – paragraph 2 – point a – point ii
Article 8 – paragraph 2 – point a – point ii
Amendment 208 #
Proposal for a directive
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2a. Suspects or accused persons shall always have the right to request a new trial or a new date for a trial if, for reasons beyond their control, they were unable to be present.
Amendment 209 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
Amendment 218 #
Proposal for a directive
Article 9
Article 9
Member States shall ensure that where the suspects or accused persons were not present at the trial referred to in Article 8(1) and the conditions laid down in Article 8(2) and (3) are not met, the person concerned has the right to a new trial at which they have the right to be present and which allows a fresh determination of the merits of the case, includingmeeting at least all the requirements of Article 6 of the ECHR and any Directives adopted under Article 82(2)(b) TFEU, at which they have the right to be present and which allows a fresh determination of the merits of the case, including confrontation or evidence which served as the basis for the initial determination, cross- examination of witnesses and examination of new evidence, and which may lead to the original decision to be reversed.
Amendment 220 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. The remedy shall have, as far as possible,both consist of an appropriate mechanism of compensation for damages and the effect of placing suspects or accused persons in the same position in which they would have found themselves had the breach not occurred, with a view to preserving the right to a fair trial and the right to defence.
Amendment 221 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Evidence collected in administrative proceedings, where such collection would have infringed the terms of this Directive had the proceedings been criminal, shall not be admissible as evidence in criminal proceedings covered by this Directive.
Amendment 223 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the Treaty on European Union, including the rights of persons subject to criminal proceedings, and any obligations incumbent on public authorities in this respect shall remain unaffected.