b. The other Directives
The situation in relation to the other Directives is less clear. Article 8(2) of Directive 2012/13/EU
provides a general right obligation concerning remedies, providing:
‘Member States shall ensure that suspects or accused persons or their lawyers have
the right to challenge, in accordance with procedures in national law, the possible
failure or refusal of the competent authorities to provide information in accordance
with this Directive.’
In relation to Directive 2010/64/EU, very little is provided other than that there should be a ‘right to
challenge’ a decision that there is no need for linguistic assistance or a ‘possibility to complain’
regarding the quality of linguistic assistance provided. Both these Directives therefore leave a great
deal to Member States’ discretion. However, this is still subject to general requirements of EU law.
c. The right to an effective remedy
However, it should be borne in mind that even when something is left to Member State
competence, general principles of EU law still apply, including the right to an effective remedy. This
right, which has existed for a long time in the CJEU case-law, is contained in Article 47 of the Charter:
‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated
has the right to an effective remedy before a tribunal in compliance with the
conditions laid down in this Article.’
d. General approach in the Toolkits
Fair Trials relies on the following two assumptions in these Toolkits:
Whilst the provisions in the specific Directives differ in the extent of approximation they bring
about, all reflect the general assumption that EU law rights must be effectively protected
through judicial remedies.
In order to be legally effective, a judicial remedy offered in respect of a violation of one of the
Directives needs to be such as to achieve the purpose pursued, which with all the Directives is to
ensure the fairness of the proceedings.
Accordingly, the remedy which you should be seeking is one within the context of the criminal
proceedings, which has the ability to recognise a given act (e.g. a police questioning conducted
in violation of obligations in the Directives) as inconsistent with a right under the Directives and
take action to redress any prejudice this has caused to the fairness of the proceedings.
Start from the basis that you have a general right to an effective judicial remedy in
accordance with Article 47 of the Charter, of which there may in addition be a
specific articulation in the Directive. You must be able to call upon a court to
ensure the fairness of the proceedings and ensure the objective pursued by the
relevant Directive is achieved.
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