Guidebook STANDARDS 1. STANDARDS 1.1. EU instruments on procedural safeguards Since 2009 the EU has adopted a series of secondary law instruments, covering the right to information, the right to interpretation and translation, the right of access to a lawyer and legal aid, the right to presumption of innocence as well as the rights of persons in especially vulnerable situations, such as children and persons with psychosocial and/or intellectual disabilities.23 These EU instruments build upon Articles 3, 5, 6 and 8 ECHR and the case law of the ECtHR as well as promote the application of the EU Charter, in particular Articles 4, 6, 7, 47 and 48. The Area of Freedom, Security and Justice is rooted in Article 3 (2) Treaty on European Union (TEU) requiring EU Member States to establish an area without internal borders enabling free movement throughout the EU. To compensate for the abolition of internal borders and deal with crossborder criminality, a more effective judicial cooperation was deemed essential.24 Mutual recognition of decisions and enforcement of judgments in criminal law seemed the most suitable option in order to enhance the cooperation, while safeguarding Member States’ sovereignty.25 To further intensify and ameliorate the cooperation, instruments in the form of Framework Decisions related to detention were adopted, the most significant being the European arrest warrant (EAW). 26 Mutual recognition instruments are “based on the presumption that criminal justice systems within the EU, whilst not the same, are at least equivalent”.27 In other words, they demand a high level of mutual trust - trust in each other’s (criminal) justice systems.28 This also includes the presumption that the Member States share a commitment to general principles such as the respect for fundamental rights,29 the ECHR and the EU Charter establishing the framework in this regard.30 Although all Member States are bound by these instruments, experience has shown that this does not automatically guarantee compliance nor ensure mutual trust.31 Thus, the EU emphasised the need to move towards stronger procedural rights for suspects and accused in numerous reports and policy papers over the years. A “Procedural Roadmap”32 was adopted with the aim to counterbalance the simplified and speeded up cooperation instruments and to 20 enhance human rights within criminal proceedings. In order to overcome the partly highly divergent standards in the Member States, common minimum regulations on an EU level were deemed essential, on the one hand, to strengthen the procedural rights, and on the other end, to enhance mutual trust and consequently mutual recognition.33 Due to the reasoning behind their adoption, EU instruments are not necessarily perceived as human rights instruments in the classical sense (e.g. Bill of Rights, ECHR, EU Charter). Nevertheless, EU instruments do address fundamental rights, especially the right to a fair trial, the right to liberty and security, and the prevention of torture and ill-treatment, and may bring several advantages vis-a-vis other international instruments (see below, Chapter 1.3). 1.2. Scope of the EU instruments Personal scope Building upon the case law of the ECtHR, EU instruments (i.e., Directives and Recommendation) explicitly make clear that procedural rights are applicable for all phases of the criminal proceedings from the moment that a person is made aware of being suspected or accused of having committed a crime by a competent authority.34 The ECtHR clarified the scope of application of Article 6 ECHR (right to fair trial) and more specifically the meaning of “criminal charges” in Imbriosca v Switzerland. There it is affirmed that the primary purpose of Article 6 is to ensure a fair trial by a tribunal competent to determine any criminal charge. However, this does not mean that the Article does not apply to pretrial proceedings.35 This case-law was confirmed in numerous other decisions, e.g. concerning access to a lawyer36 and right to translation and interpretation.37 Yet, in some of its decisions the ECtHR also found no violation of Article 6 ECHR in a situation where procedural rights, i.e. access to a lawyer, are derogated, if the “[p]olice questioning was used only to determine the necessity of initiating criminal proceedings”.38 In contrast, EU Directives more concretely clarify the scope of application of procedural rights extending it explicitly to the pre-trial stage and leaving less leeway for interpretation. In practice, the application of Directives should not be made strictly dependent on a formal act.39 Accordingly, procedural rights enshrined in 21