Right to presence at the hearing under Directive 2016/343/EU and right to retrial

1. Right to a new trial in
Directive 2016/343
Nicola Canestrini
ERA Academy of European Law , 9 JUNE 2020
The presumption of innocence and the right to be present at trial in criminal proceedings

2. common minimum rules concerning
(a) certain aspects of the presumption of
innocence
(b) the right to be present at the trial in
criminal proceedings.
Directive
2016/343

3. presumption of
innocence?
New trial
under directive
2016/343

4. Member States shall ensure that
suspects and accused persons have
an effective remedy if their rights
under this Directive are breached.
art. 10 remedies

5. Presence = fair trial right in “EU law”
Secondary EU law
Art 47 EU CHARTA
art 6 ECHR
directive 343/16
Primary EU LAW
..

6. In absentia trial?

7. “Without being present, it is difficult to see how that
person could exercise the specific rights set out in sub-
paragraphs (c), (d) d (e) of paragraph 3 of Article 6, i.e. the
right to “defend himself in person”, “to examine or have
examined witnesses” and “to have the free assistance of
an interpreter if he cannot understand or speak the
language used in court”. The duty to guarantee the right of a
criminal defendant to be present in the courtroom ranks
therefore as one of the essential requirements of Article 6.”
Hermi v. Italy [GC],
18 October 2006

8. trials in absentia are not per se incompatible with the right
to a fair trial, provided the following safeguards are in
place:
1.the accused must have effective knowledge of the
proceeding / hearing;
2.the accused must be legally represented in the
proceedings and have effective assistance of counsel; and
3.the accused should have the right to retrial or an ex novo
trial in his or her presence
Colozza v. Italy , 1985
Sejdovic v. Italy [GC], 2006

9. Right to be present at the trial (art. 8)
1. Member States shall ensure that suspects and accused persons
have the right to be present at their trial.
2. Member States may provide that a trial which can result in a
decision on the guilt or innocence of a suspect or accused person
can be held in his or her absence, provided that:
(a) the suspect/accused person has been informed, in due time, of
the trial and of the consequences of non-appearance; or
(b) the suspect or accused person, having been informed of the
trial, is represented by a mandated lawyer, who was appointed
either by the suspect or accused person or by the State. Videolink?

10. the defendant's participation in the proceedings by
videoconference is not as such contrary to the
Convention.
it is incumbent on the Court to ensure that recourse to
this measure in any given case serves a legitimate aim
and that the arrangements for the giving of evidence
are compatible with the requirements of respect for
due process, as laid down in Article 6 of the Convention.
ECthr, Viola v Italy, 2006

11. "virtual reality is rarely a
substitute for actual presence."
“the quality of the video conference
connection is irrelevant in this
situation”.
United States Court of Appeals,
Sixth CircuitMay 11, 2011-641 F.3d 758 (6th Cir. 2011)

12. “The right to a fair trial of an accused
person includes the right of the person
concerned to appear in person at the trial.”
Considerandum 8 Framework Decision 2009/299/JHA of 26 February
2009 amending Framework Decisions 2002/584/JHA et alia

13. "“Trial judges and lawyers should keep
in mind that the many meanings or
interpretations of nonverbal
behaviours, influenced by cultural
backgrounds or other contextual
factors, prohibit literal translations,
and that only paying attention to words
at the expense of gestures, facial
displays, and eye gaze, is not without
hazards.”
(Denault, Vincent & Dunbar, Norah. 2017).