of the European Criminal Bar Association (ECBA)
on the Greenpaper Presumption of Innocence of 26 April 2006

The European Criminal Bar Association (ECBA) is the pre-eminent independent organisation of specialist defence lawyers in all Council of Europe countries. The ECBA aims to promote the fundamental rights of persons under investigation, suspects, accused and convicted persons.
Membership is open to all lawyers, whether practicing or in academic life, who support those aims. The ECBA also acts as a platform for lawyers to meet with colleagues from all Member States and to exchange information and knowledge.

The ECBA is a partner organisation in the AGIS funded Eurowarrant Project of the T.M.C. Asser Institute. As an active partner, the ECBA conducts its own European Arrest Warrant Project, focusing on the defence rights of suspects in surrender proceedings. Developing this website is a substantive part of this project.

The ECBA supports the Commission’s view that a common legal basis for the elaboration of binding minimum standards for the procedural rights of accused persons and defendants in criminal proceedings is to be deduced from Article 31 (1) (c) of the Treaty on the European Union (TEU). At present, Article 31 (1) (c) TEU is in any case the basis for all cross-border criminal cases. However, judicial cooperation that follows the principle of mutual recognition of national decisions taken by EU Member States will only attain the desired standard if the Member States can trust a particular judicial decision [completely]. The ECBA believes that in order to establish such trust, it is absolutely necessary that decisions are „taken fairly” (cf. Green Paper p. 3), which in turn requires common and binding minimum standards, applied by all EU-Member States in their codes of criminal procedure.  As the European borders have been taken down, there is an increase in movement of citizens between Member States coupled with an increase in potential international elements in even the most mundane criminal cases. Any European criminal case can potentially develop into a case requiring judicial cooperation according to the principle of mutual recognition. Therefore the ECBA shares the Commission’s position that there should be binding minimum standards which apply to all criminal procedures in every EU Member State via an existing and sufficient legal basis.

The ECBA welcomes the fact that the Commission includes the presumption of innocence in its work on the elaboration of common evidence-based safeguards in the EU for the collection and use of evidence. However, we stress again that first of all a catalogue of common minimum standards is needed protect the rights for accused persons and defendants in EU criminal proceedings, starting with the right to be informed about the precise charges brought against them (including obligatory provisions with respect to advising the suspect or accused of their rights), the right of defence (consultation of a defence lawyer at every stage of the proceedings) and the comprehensive right to remain silent at any stage of the proceedings, as well as other aspects of the presumption of innocence.

In this paper, we shall elaborate the right to silence. Certain other aspects of the presumption of innocence are addressed in the Green Paper. These individual aspects overlap and interact. For example, a reversal of the burden of proof could trigger an obligation to give evidence; the obligation to produce incriminating evidence would logically lead to self-incrimination; assessment of remaining silent against the accused violates the accused person’s right regarding liberty to testify.

The Green Paper fails to recognise that the right of silence and human dignity are inseparable. Human dignity holds the highest constitutional rank in the most EU member states (see also Article 1 of the EU Charter of Human Rights). According to established practice of some national courts the accused person’s right to refuse to give evidence, or the right to remain silent, should be an absolute right insofar as the exercise of this right is neither subject to any kind of evaluation nor to employment against the accused person. From a human dignity point of view, the accused is not a (mere) object of proceedings, but a subject with procedural rights.

In our view, there must be a (absolutely protected) possibility for the accused to behave in a neutral manner, without the court viewing this behaviour negatively or evaluating it to the accused’s disadvantage.

The right to silence lies at the heart of the notion of a fair procedure and protects inter alia the accused against improper compulsion by the authorties and thereby to the avoidance of miscarriages of justice and to the fulfillment of the aims of a fair trial. The right to silence presupposes that in a criminal trial the prosecution has to seek to prove their case and should not use methods of coercion or oppression in defiance of the will of the accused.

Regarding the scope of the right of silence, the Green Paper only refers to ECtHR case-law and states that the right of silence is not an absolute right. That complies with, for instance, the legal situation in United Kingdom, Ireland and the Netherlands. Using the case of Murray v. UK as an example, the Green Paper states that adverse inferences from an accused’s silence are possible. It was then at the court’s discretion to draw inferences; but only those that were “common sense inferences are permissible”. The evidence against the accused had to be “overwhelming”. In that case, evidence obtained using indirect pressure could be used. Only if the evidence against the accused called for an explanation which he ought to be able to give, then a failure to do so could, as a matter of common sense, allow the drawing of an inference that there was no explanations and that the accused was guilty. The caution in United Kingdom reads accordingly: “You don’t have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court”. In addition under section 35 of the Criminal Justice and Public Order Act 1994, if the defendant  chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permisssible for the court or jury to draw such interferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

This way of reasoning should be vigorously rejected. It violates human dignity and is unconstitutional according to national law in some EU member states. The Commission deduces the authorisation to restrict the right of silence – in accordance to some national law - by citing isolated fragments of the Murray case, despite the fact that in this case the accused’s silence had no importance whatsoever in the evaluation of the evidence. In actual fact, the Court had not drawn conclusions from the accused’s silence, but from other circumstances that were evident and could be used without objections from a procedural point of view. There are two other, more recent ECtHR decisions – not mentioned in the Green Paper – which limit the criteria established by the ECtHR in the Murray case considerably (Condron v. UK, ECtHR Third Section of 2.5.2000, Reports 2000-V no. 56; Telfner v. Austria, ECtHR Third Section of 20.03.2001).

In the view of the ECBA it is dangerous to use ECtHR’s judgments as guidelines to establish minimum standards for criminal procedure since the Court necessarily makes these judgments in retrospect, i.e. from an ex post control perspective, taking into account the entirety of all national criminal proceedings. This means that possible infringements resulting from subsequent control mechanisms of national law can be compensated to the effect that ultimately the ECtHR denies a violation of Article 6 ECHR.

The German Federal Constitutional Court (Bundesverfassungsgericht) ruled in 1995: The accused’s right of silence, derived from human dignity, would be an illusion if the accused had to fear that his silence will be used against him later, when the evidence is evaluated. Using silence to prove the accused’s guilt would indirectly put the accused under an inadmissible mental compulsion to give evidence.  The ECBA believes this is the right benchmark.

Article 14 (3) (g) of the International Covenant on Civil and Political Rights states:
“(.. everyone shall be entitled to the following minimum guarantees, in full equality):
Not to be compelled to testify against himself or to confess guilt.”

We thank the Commission for the opportunity to comment on the Green Paper and welcome the commitment to ensure minimum standards and procedural safeguards for all EU citizens.