To Sanction (or not to Sanction) Procedural Flaws at EU Level? A Step forward in the Creation of an EU Criminal Process

sanctions – or cases of invalidity (or, again reversible errors), depending on the definition adopted by the national system.³

In other words, any person with some experience in cooking – as well as any musician confronted with a music score- knows that the more experience s/he has, the more s/he is allowed to depart from the guidelines contained in the recipe (or in the music score). Famous chefs never merely follow a recipe, but rather they reinvent it; the same holds true for famous music players. At the end of a concert in the last years of his career, Alfred Cortot said that he made so many changes to the Chopin Ballades that he almost “rewrote” the scores during the concert. In general, critics consider these kind of departures from the original screenplay as a touch of the artist, by which the performer makes the result more original and unique.⁴ This implies that, the more a performer is good, the more the departing from the score is accepted, or even required. In fact, one might regard as perfunctory and unsatisfactory the literal execution of the original play without any creative change: after all, without any variation from the written canovaccio, there is not any added value.

As we can easily understand from the above considerations, this is not the case of procedural rules. It is rare, not to say sometimes strictly prohibited, that the written scheme can be abandoned by an “expert performer”. No one would accept, or applaud, in the framework of their national procedural system, an hypothetical argument shaped in this way: the law prescribes that three conditions must be satisfied to perform a certain act (for example, a search in private premises), but we, as famous experts, changed the ingredients of the traditional recipe, and proceeded with the search in the presence of only two, or even one condition (or, again, in presence of a completely different set of conditions).

But why is it so? Because procedural provisions are written guidelines of a very special kind, and their speciality lies in sanctions. If the rules are not observed, the act performed, even by an expert or a distinguished performer, will be void (at least in one of its parts). This consideration leads us to the core of the problem: the real nature of procedural rules is constituted by the sanction. If there is no sanction, the rule changes its nature: from an order which must be strictly obeyed, to a mere suggestion, a guideline, as a cooking recipe or a music score, which can – or even must – be disregarded by a performer with a god experience in the field.

2. The Pursuit of Effectivity.

All the EU sources on criminal procedure provide for guidelines to be followed by any judicial officer (judges, prosecutors, police officers, and even defence counsels) in their activity. Except for a very few cases, no procedural sanction is provided for in these sources. The lack of procedural sanctions might compromise the effectivity of the directives, that is, their capacity to lead Member States to reach certain common objectives individuated by the directive

A recent arrêt by the Italian Court of Cassation might be considered an example of this lack of effectivity. The Cassation refused to nullify a judgment despite the fact that an evidence relevant for the adjudication of the case was not translated. The Court observed that

The well-established principle [that the lack of translation of an evidence is a procedural error of minor gravity, which becomes irrelevant if the defendant opts for special proceedings such as plea bargaining or abbreviated trial] conserves its validity even after the entry into force of the legislative decree n. 32 of 2014 [the law implementing the EU directive on interpretation and translation], which, under this aspect, did not introduce any significant change (emphasis added).⁵

According to the Italian Cassation, therefore, the right to interpretation and translation cannot be fully enforced due to the very adoption of the EU Directive, the legislative tool that was supposed to provide for a more effective protection of this right. It might be worth saying that the conclusion reached by the Cassation is probably correct. Because the directive does not provide for any specific consequence in case of violations concerning the translation of relevant evidence⁶, there is no need to change the well established jurisprudence on the point. In sum, nothing changes.

This, however, leads to regrettable results. On the one side, every EU Directive on procedural rights requires Member States to give them an effective protection through the process of implementation. This is repeated in various manners, while the rationale of all the provisions is the same. For example, the directive on interpretation and translation focuses on the fairness of the proceedings, as a general criterion to decide whether to appoint an interpreter or order the translation of certain documents , and on the quality of the service

Member States shall ensure that, […] suspected or accused persons have the right to […] complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings.

The directive on the right to information calls for “effective remedies” (art. 7); the directive on access to a lawyer focuses on an effective and practical exercise of the right to a lawyer (art. 3 par. 1):

Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively” (emphasis added).

The Directive on victims focuses on the criterion of appropriateness (art. 1 par. 1), that is another way to require from Member States an effective protection.

On the other side, however, the very absence of a procedural sanction risks to make the directives themselves ineffective. After all, because there is no provision on the negative consequences deriving from the violation of the rights protected by the EU directives, nothing really changes, and national judges – our expert chefs of the procedural dishes – can continue to behave the way they did before the approval of the new directives. ⁷

The ECHR case law supports this conclusion. Until recently, the Court would grant the applicant a mere restoration of the damages suffered due to a violation of one of the rights contained in the ECHR. As a consequence, States continued to develop their own way to implement the Convention, without taking into great consideration the Court’s interpretation. Things changed effectively – really effectively, this time – when the Court started to require the reopening of the trial, that is to say, when it started to consider the ECHR violations as reversible errors. This is, in general, the kind of sanction which any public actor in the criminal process mostly fears, because it thwarts the result of their work, which has to be recommenced from the beginning.

3. Legal Tradition and Subsidiarity as Obstacles to the Adoption of EU Procedural Sanctions.

Admittedly, there are very reasonable justifications for the lack of procedural sanctions in the new EU Directives under art. 82 par. 2 TFEU. One reason – probably the most important – is that individuating appropriate procedural sanctions is one of the most delicate decisions the legislator has to make. In other words, it is much easier to complain for the absence of any sanction as I am doing now, than to propose which sanction the EU should adopt to protect its procedural provisions. The thing is even more complicated by the fact that procedural sanctions are in general the result of each national legal tradition. For example, it would be completely useless to transplant the system of the nullité del acts, derived from the French tradition, in a common law system, where a completely different set of reactions takes place in case of procedural violations . The same is true for the opposite: It has been very complicated to transplant in the Italian civil law system, which has no jury and where the final decisions are adopted with motivated judgements as opposed to unmotivated verdicts, the set of rules of exclusion in the field of evidence (and the outcome cannot really be compared to the original source).⁸

There are, in other words, insurmountable differences in the way of conceiving the proceedings, which play a crucial role in shaping the procedural sanctions’ doctrine of each State. The most important difference concerns the idea of the process as a chain of acts, connected to each other, where the commission of one act is a necessary legal pre-condition for the performance of the subsequent one, up to the end of the proceedings. This way of depicting the criminal process is typical of legal systems, which have a strong body of administrative law and procedures. In those systems, the criminal process generally originates from administrative procedures, and is shaped⁹ as a hierarchical model. A complete different approach is taken by those Countries, which do not have such a strong tradition of administrative law and bureaucratic apparatus. These systems tend to shape proceedings – recalling the classic Aristotelian rules – as a drama celebrated with unity of action, place and time.

Due to the strong influence of national traditions, there is another reason why the adoption by the EU of procedural sanctions is problematic, and this is subsidiarity. On the one hand, common procedural sanctions could be seen as a threat to national sovereignty. On the other, States could be considered in the best position to asses this matter. In the recent past, one State – the Netherlands – complained in two occasions that the adoption of mandatory minimum sanctions would have infringed on the principle of subsidiarity.¹⁰ The problem, in those cases, was represented by minimum sanctions in the field of substantive criminal law; however, it seems reasonable to predict that the same objections could be raised if the Union decided to adopt minimum sanctions in the field of procedural law. As we have seen, in fact, procedural sanctions are deeply entrenched with national legal traditions.

In sum, the reason why the EU is so cautious when it comes to procedural sanctions is that this is a mined field. Passing through it requires experience both in criminal procedure and, possibly, in the practice and nuances of the national legal tradition which is called to implement the sanctions. At the moment, this is precisely the expertise that the EU is lacking. The EU is a “new” legislator in matters of criminal process; besides, it is a transnational institution, which, in most cases, does not have the knowledge of the procedural technicalities necessary to enforce procedural sanctions. Moreover, intervention in the field of procedural invalidities carries the risk of a yellow card for the violation of the subsidiarity principle.

4. Looking for an EU Identity on Criminal Procedure Sanctions. General Criteria.

These considerations could be considered final. Under these conditions, there is no room for such provisions, and the Union will continue to adopt directives devoid of procedural sanctions.

The problem is – as we have seen – that this way of legislating endangers the effectivity of the new sources, that is to realise the harmonisation of national criminal procedures, so to encourage and, at the same time, make the system of mutual recognition more effective, as article 82 par. 2 of the TFEU requires. In the long run, this problem represents a source of danger too, under both the proportionality and subsidiarity principles. A piece of EU legislation which, because of the absence of appropriate remedies in case of violation, is lacking of the ability to produce effective results could be considered disproportionate, not being able per se to make a difference in the field it aims to regulate. Besides, if States are in a better position to adopt legislation containing appropriate rules to sanction their violation, the Union should refrain to intervene, leaving to them the burden to legislate in the field. However, these considerations would end up to the unacceptable result of neutralising art. 82, par. 2, because, at the end of the day, and in the light of previous considerations, it would never be necessary to adopt an EU legislation in the area of criminal procedure.

This leads us to one conclusion, which can be summarised efficiently by the old Latin motto festina lente. There is a huge need of some common form of procedural sanction as much as the use of these tools must be cautious and thrifty. The problem, at this point, turns to the question of whether it is possible to identify some general criteria able to guide the EU legislator in its choices.

a. Harmless test

The first cornerstone on which we can identify the identity of EU sanction in criminal proceeding seems to be a form of harmless test. This is due to two sets of considerations. The first is that such a check on the actual prejudice suffered by the one invoking the procedural violation seems to be implied by the principle of effectivity itself. If all the directives – with various nuances in their literal formula – stress on the effectiveness of EU rights protection, it derives that, to sanction a right’s violation, there must be an effective prejudice suffered by the party complaining such a violation too. In other words, the principle of effectivity requires that a violation, to be sanctioned by a Court, needs to be harmful. This implies that harmless errors should not lead the judges to reverse a case.

The second reason is that a huge part of EU Member States have such a provision, within their own system, and thus the adoption of an harmless test would be respectful of their approach to the matter. To mention just very few examples, Sec. 78 of the PACE in England and Wales provides that

the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Which is a way of saying – it seems – that no exclusion of evidence gathered violating some procedural rule will take place if it does not affects the substantial rights of one party – and therefore the fairness of the proceeding.

Something similar is true for the nullités virtuelles d’ordre privé in the French system, which cannot be recognised by the Court if the applicant did not suffer an effective prejudice to its rights.¹¹ The German system presents analogous features. As Thomas Weigend observes

“The Court insists that each set of facts requires an open-ended weighing of the interests involved. On one side of the scales, there is the strong interest in determining the “substantive” truth, which favours admission of all relevant evidence, regardless of its source. On the other side, there is the interest in maintaining a criminal process in accordance with the law, which suggests the exclusion of evidence obtained illegally. Several factors are to be taken into account when deciding which side of the scales carries greater weight. Generally, the more serious the procedural violation, the more likely is exclusion of the evidence acquired through that violation”.¹²

In Italy too, despite the fact that the law does not in theory permit the harmless check on procedural faults, case law started to use it, starting from a rather famous judgement (at national level).¹³

More important we can say that the harmless test is already provided for at European level. Article 35 par. 3 (b) of the ECHR provides that

The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that […] the applicant has not suffered a significant disadvantage.

We can also affirm that an analogous – or not so different – test is provided for at international criminal level, looking at the art. 69 par. 7 (b) of the ICC Statute

Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if […] The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

In general terms, forms of harmless tests are provided for in the most part of national procedural systems, and are as well recognised at European and international level. The easiest thing to do, so on, is to develop this tradition at EU level.

b. Proportionality

The second cornerstone is proportionality. This check is, as it is well known, crucial in each field of EU law, and it showed to be essential as well also in the application of criminal procedure provisions. The first case in which the matter of proportionality was decisive in the adjudication of an EU criminal proceeding involved the FD on the European arrest warrant, and led to a new case of non recognition (when the EAW is per se disproportionate when balanced with other individual values worth of protection).¹⁴ With the adoption of the European Investigation Order directive, proportionality has been raised to a fundamental cornerstone in cooperation in criminal matters. According to articles 6 and 10, in fact, both the issuing State and the executing State needs to check on the proportionality of the measure required, before issuing or executing an investigation order. This means that the violation of proportionality should not remain without procedural sanction, both in the execution phase and in the proceeding celebrated before the issuing judicial authorities.

The previous examples show how proportionality is destined to play a fundamental role in every aspect of EU criminal justice. This holds true also for procedural sanctions, in cases where a procedural measure violated the proportionality check.

5. Specific Provisions.

It is most probable that the above two bedrocks will be developed by the case law rather than by the legislature. Judges are in fact in a far better position to assess the values at stake, when required to check if, in a specific case, an individual right was effectively violated, or if a procedural measure could be considered disproportionate when compared with other values at stake. Under this aspect the EU can only put in more clear terms the highest value given to the aforementioned principles, as it happened in the recent EIO directive, without entering in specific provisions, which would reduce the discretion necessary to the judges to assess properly each case. Besides, the European Court of Justice will probably develop the ECtHR jurisprudence on art 35 of the ECHR, sometimes implementing that case law, in other cases departing from them. This means that the development of a general clause of invalidity in procedural acts, inspired to the two above criteria, will be built primarily by the European Courts, and will thus represent a specific feature of the most general phenomenon known as “dialogue between Courts”.

The question is: Is there something that the EU legislature itself can do in the matter? Probably yes, and this should be increasing the specific provisions of procedural sanctions. Leaving the general framework to the Courts, the law can, in other words, provide for a higher number of specific provisions dealing with acts’ invalidity. This should not per se imply the risk of violating the subsidiarity principle, because the general criteria to assess the sanction within each national system would be left to the case law, in a constructive dialogue between the EU and the MS level. If, for example, a normative provision in a directive provided that, an act committed without certain safeguards – for example the questioning of a suspect – should not produce any legal effect in the criminal proceeding, then it would be left to the national system – taking into account the orientation of the EU Court of Justice, if necessary – how to implement it. In our example, it would be on the national jurisdiction to decide if opting either for an exclusionary rule, or for a prohibition to assess the statement gathered without respecting the required safeguard. At the same time, national legislation would be deprived of the possibility to entirely disregard the violation of a procedural rule provided for in a directive, because the directive itself requires that its violation needs to be sanctioned.

Concrete examples of what we are suggesting might be found in the proposal for a directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.¹⁵ Articles 6 and 7 of the proposal provide that the violation of the right respectively not to incriminate oneself and not to cooperate, on the one side, and of the right to remain silent, on the other, should be sanctioned with the inadmissibility of the evidence gathered:

Any evidence obtained in breach of this Article shall not be admissible, unless the use of such evidence would not prejudice the overall fairness of the proceedings

Wisely the provision permits a derogation when the admission of the evidence would not endanger the fairness of the proceeding, thus recalling the general framework of the system, inspired by the two principle of harmlessness and proportionality. Besides, the directive separates the provisions on procedural sanction from that concerning remedies, which is a good thing in itself, because it makes clear that we are speaking of two legal features that are close, but distinguished.¹⁶

Another example worth to be mentioned is provided for by article 31 par. 3(b) of the European Investigation Order in criminal matters. It envisages that interception of communication gathered in a third notified State cannot be used, if the law of this third State does not permit it. By the way, this is the only provision entered into force up to now explicitly containing a procedural sanction, of all the provisions approved, since the Stockholm Program, in the field of criminal procedure.

On the contrary, in my opinion, bad examples are constituted by the directive on access to lawyer¹⁷ and by the directive’s proposal on legal aid.¹⁸ In the latter, there is no provision ruling on the situation of legal aid illegally denied. This lacuna leaves too much discretion to national jurisdiction, and might lead to the directive being totally ineffective. In the former, article 12 par. 2 provides – rather disappointingly – that

Without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.

Such a formula gives to the national jurisdictions an excessive interpretative space. According to it, a violation of the rights recognised by the directive could run either completely unpunished, or have very mild consequences (for example, on the evaluation of the evidence). The provision seems to affirm that, no matter for the violation, evidence gathered violating article 3 can be assessed (just letting understand that, possibly, such evidence should have a minor weight in respect of the others, formed without violating the directive’s provision).

6. Conclusions.

Procedure is charming because every single act of it is related – legally and logically – to the others, and each act to the whole. This is also why, if small details are not disciplined clearly, the whole sometimes risks to be ineffective. Procedural sanctions are, for these reasons, crucial for the functioning of the system, because they link – in procedural law – the details with the overall framework.

After Stockholm, the EU succeed in paving the way to an European system of procedure, with the adoption of a set of directives that are changing the face of criminal justice in our Continent. This must be seen as a great success in itself, unthinkable just at the beginning of the new Century. However, just because of the success reached, it is perhaps time to look over, and to think about what can be added to the EU criminal justice building. On procedure, it might be time to ask not only for more law, but also for better law. In this sense, the drafting of an EU way to procedural sanctions could be the next step.