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Knowledge, Advisory and Capacity Building Information Tool for Criminal Procedural Rights in Judicial Cooperation (CROSSJUSTICE)

The project focuses on the evaluation of the implementation of EU directives and the extent to which EU law is applied in EU Member States (in the part carried out by the Polish team – in Poland). Between 2010 and 2016, the European Union adopted six directives establishing minimum rights for the suspect and the accused in the criminal process:

1. Directive 2010/64 on the right of access to interpretation and translation in criminal proceedings;

2. Directives 2012/13 on the right to information in criminal proceedings;

3. Directive 2013/48 on the right of access to a lawyer in criminal proceedings and European Arrest Warrant proceedings and on the right to communicate with third parties and consular authorities during deprivation of liberty;

4. Directive 2016/343 on enhancing certain aspects of the presumption of innocence and the right to be present at the trial in criminal proceedings;

5. Directive 2016/800 on procedural guarantees for children who are suspects or accused in criminal proceedings;

6. Directive 2016/1919 on ex officio legal aid to suspects and accused persons in criminal proceedings and requested persons in European Arrest Warrant proceedings.

By establishing a common minimum standard, the EU legislature intended to improve the level of protection of the accused (suspect) in criminal proceedings and reduce national differences. The existence of the principle of mutual recognition of judgments, the simplified procedure for transferring accused persons and suspects between the EU countries, makes it vital that EU law is correctly implemented and applied in practice in all Member States. Legal practitioners from the EU should have simple access to information on what laws apply in the various Member States and what rights – based on the directives – suspects and defendants actually benefit from.

Reports and information provided to the European Commission by the Member States suggested that Poland (and other Member States) had implemented EU directives correctly and in completely. The aim of the project was to examine whether this position is correct and whether, in practice, a suspect or accused person can exercise all his rights under the Directives. Countries do not always make reliable declarations on the fulfilment of their implementation obligations, and EU internal control procedures are lengthy and ineffective. External monitoring of the correct implementation of EU legislation is essential so that in individual cases and specific criminal proceedings, the accused/suspected person or a person transferred under a European Arrest Warrant can exercise the rights arising from the provisions of EU law. And if these rights are at risk, to be able to demonstrate before a court in another country the substantial irregularities that threaten the right of the accused to a fair trial.

Information on the level and adequacy of the implementation of the EU directives, as well as specific provisions of laws implementing EU law, together with expert commentary, were provided on the CrossJustice platform. As it turned out, none of the directives has been fully implemented correctly, although the scale of deficiencies in implementation varies. In case of Poland, these range from minor deficiencies that the legislator could easily remedy (e.g. by introducing a provision allowing the quality of the translation received by the accused to be called into question), to deficiencies of a systemic (structural) nature that render the Directive incapable of fulfilling its guaranteeing role (e.g. in the case of the Directive on the right of access to a lawyer).

Most implementation flaws can be corrected through interpretation of the legislation and by invoking the direct effect of directives. However, research has shown that Polish courts rarely apply EU law and do not benefit from the opportunities offered by legal interpretation mechanisms.