LEAP Annual Conference, 5-6 February 2016

6 FEBRUARY (pm) – CURRENT CRIMINAL DEFENCE CHALLENGES IN THE EU

WORKSHOP I: REMEDIES

Background

As you know, LEAP has spent a lot of time working on the implementation of the Roadmap Directives and generally studying the question of procedural rights as they apply in the early phases of criminal proceedings. The key question keeps arising: what should happen when a right is infringed?

The Directives themselves are unclear as to what remedies should apply. This is because they are intended to respect national systems of remedies (nullity of acts, exclusion of evidence, procedural sanctions such as dismissal of the case). However, this is a key question: not all remedies will necessarily be fully effective. We have doubts, for instance, as to whether a reduction in sentence can be an appropriate remedy for procedural violations impacting on the suspect’s defence rights.

Evolving case-law

There is alsouncertainty in the case-law of the ECtHR as to what sort of remedies are required in order to ensure that early breaches of Article 6 guarantees, such as the right to a lawyer during police questioning, as established by Salduz v. Turkey. Whilst it is clear that a breach arises where the ‘incriminating statements made without access to a lawyer are used for a conviction, there is continued uncertainty as to what constitutes ‘use’ of an incriminating statement for a conviction, and whether it is possible for national courts to place some reliance upon evidence obtained in absence of a lawyer amid a complex of other evidence, if they do so carefully. See the extracts from Fair Trials’ intervention in two ECtHR cases and the extracts from opinions of ECtHR judges (both behind this paper), including Ms Zdravka Kalaydjieva who is speaking in this session.

The Judicial Remedies Working Group

In 2016/17, LEAP will create a sub-group to entertain a discussion about remedies over the course of the next LEAP year, running from April 2016 to March 2017. This will be chaired by one LEAP member and will involve ‘virtual’ meetings via Google Hangouts, occasional email exchanges as well as one in-person roundtable in October 2016. The Judicial Remedies Working Group will be formally constituted following this conference and will present a report on the subject to the next Annual Conference in February 2017. LEAP members will have significant input into the development of the policy positions adopted in this report.

Questions for discussion

  • How are procedural rights judicially protected in your system? Which court is competent for making the relevant decisions?
  • About the judicial remedies system in your country: does it work well, and are the measures adopted in response to procedural violations adequate?
  • Can incriminating statements obtained without a lawyer be taken into account at all, either to a decisive degree or to a lesser extent?