Summary of 31st January Seminar - abstracts
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Effectiveness of the appeals procedure – Prohibition of double annulment of the first-
- by prof. dr. sc. Zoran Burić - Associate Professor at University of Zagreb
The Croatian criminal justice system is generally considered ineffective. In addition to other
problems, there is a general impression that first-instance judgements are often overturned in the appeal procedure, and cases are returned to the first-instance court for a new trial. In some cases, first-instance judgements are repeatedly overturned. This practice renders the criminal procedure meaningless and creates a highly negative perception of the work of the judiciary in public. One of the possible causes of this phenomenon is the reluctance of the appeals courts to take responsibility for the conclusion of the case. In order to try to solve this problem, amendments to the Criminal Procedure Act from the summer of 2022 introduced a ban on the double annulment of the first-instance judgement and the obligation of the second-instance court to conduct a trial in order to finally resolve the case, if it finds that the first-instance judgement should be annulled a second time.
Length of the Trial and Abbreviated Procedure. What is fair? An Analysis of the
European Courts Perspective
- by Benedetta Arrighini, Ph.D. Candidate at Free University of Brussels
‘Everyone is entitled to a fair and public hearing within a reasonable time’, per Article 6(1)
European Convention of Human Rights; ‘everyone is entitled to a fair and public hearing within a reasonable time’- although it seems a mere repetition, yet it is the wording of Article 47(2) of EU Charter of Fundamental Rights. The reasonable trial length is, without any doubt, a fundamental right which guarantees twofold protection at the Council of Europe and EU levels. Given that this principle covers civil, criminal, and administrative justice, our discussion will focus on the second aspect, underlining the sensitivity of criminal matters. Indeed, the length of procedure in criminal trials contributes to hollowing out the victims’ and defendants’ rights and the justice of the juridical system. Consequently, there is a need, claimed by the Council of Europe and the EU, to find a remedy to this issue.
Among different proposals, projects and requests, most Member States introduced the
abbreviated procedure in their criminal codes. The principle of this special proceeding is ‘to
cut’ part of the trial, the preliminary stage or the first judgment, or even to conclude an
agreement with the Prosecutor to avoid the appeal. This ‘cut’ has inevitable consequences:
reducing the penalty and the discussion during the trial. In brief, with time, the defence rights are undermined. The presentation will start with the European Court’s recommendation concerning the length of the proceedings and continue with an analysis of the judicial systems’ reaction with the introduction of the abbreviated proceedings, focusing on such in Italy. The aim is to find the pros and cons of these procedures by asking: what is fairer? Neither to condemn nor to exalt, but to discuss the effectiveness of justice, which is not always immediate when a trial is shortened.
Instituto de Estudios del Proceso Penal Acusatorio Effectiveness and/or Reasonability in International Criminal Proceedings
- by Eduardo Bernabe Toledo, MA
Measuring elements and procedures within international criminal proceedings is not a simple endeavour. For this reason, it has been easy for some actors to provide biased results depending on the interests of these persons, institutions or States behind the measuring exercise. The capacity to perform different activities to properly understand the cases at the International Criminal Court could entail an investment of time and money that not many organisations or States can do. Eduardo Toledo had the opportunity to participate in the research project “Length of the Proceedings at the International Criminal Court”. This study was carried out by International Nuremberg Principles Academy and Friedrich-Alexander University Erlangen-Nuremberg from 2019 to 2022 based on resolutions of the German Parliament. Using some examples of the cases of the International Criminal Court, Mr Toledo will analyse the importance and impact of the concepts of effectiveness and reasonability regarding the duration of the proceedings at the Court.
The European Union’s Strategy on the Digitalisation of Judicial Cooperation in Criminal
Matters: Towards a More Effective Justice in Cross-Border Scenarios?
- by Alejandro Hernández López, Ph.D. - University of Valladolid
The digitalization of justice and, specifically, of judicial cooperation in criminal matters, is one of the main unresolved issues in the development and strengthening of the Area of Freedom, Security, and Justice. The latest information available from the Commission on the
digitalization of judicial cooperation in the European Union shows that vast differences still
exist between Member States in terms of the level of digitalization of their justice
administration systems and how most of the formal exchanges of information continue to take place in paper-based format and channels. Efficient judicial cooperation in criminal matters requires a secure, reliable, and agile communication infrastructure between competent authorities, capable of adapting to contingent situations. From the perspective of suspects and accused persons, they have the right to access justice in a reasonable time as part of their right to due process. In this sense, digitalization appears as an opportunity and optimal path for achieving these objectives. The exceptional situation experienced during the COVID-19 pandemic has only served to underline this issue. The impossibility of carrying out face-to-face actions and hearings during the peak of the crisis, along with the severe restrictions on mobility established both nationally and internationally, led to the temporary adoption of solutions based on digital means —which until then had only been applied to an exceptional basis— to avoid the total paralysis of procedures. The lessons learned during this dark period have driven Member States and the European Union to consider the need to standardize the use of ICT, making the digitization of all areas of our society, including judicial cooperation and access to justice, a high priority. Within this broad strategy, this contribution focuses on some of the latest proposals on the digitalization of judicial cooperation published by the Commission in December 2021 as part of a legislative package designed to bring about this paradigm shift. Specifically, this work critically analyses the Proposal for a Regulation on the digitalization of judicial cooperation and access to justice in cross-border civil, commercial, and criminal matters, and the Proposal for a Directive accompanying it.
The Right to Effective Judicial Protection in EAW Proceedings Under the Article 47 of
the Charter of Fundamental Rights of the European Union
- Aneta Fraser - Adam Mickiewicz University in Poznań
The Framework Decision of 13 June 2002 2002/584/JHA on the European arrest warrant and
the surrender procedures between Member States appears to leave some discretion to the
Member States regarding how they interpret effective legal protection during EAW procedures. In this presentation, I will consider how the 'requirements of effective judicial protection' guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union should be interpreted based on the EAW application. Examining the case law, one can make various conclusions in this respect. In this speech, the first posed question refers to the view that judicial protection is exhaustively regulated at the European level and that the case law has contributed to the limitation of the national procedural autonomy of the Member States. The second question refers to an opposite point of view, that current European judicial protection is too general and that the Framework Decision should provide for a separate legal remedy against an EAW decision. It seems that constituting such a remedy would also require, on the one hand, a change in the nature of the definition of the EAW itself and, on the other hand, the reinterpretation of the principle of mutual trust and recognition of judgments.