1920 Mar 12:00
- 15:30
A Criminal Law event

Fair criminal proceedings in Europe: the limits of regulating by legal rules

 

Location: Maastricht University, TBD

March 19 and 20, 2020

The EU plays an increasingly important role in security and justice-related issues of the Member States. It deals with matters like border control, terrorism, organised crime and criminal justice. EU actions on cooperation in criminal matters aim at improving mutual confidence between Member States' judicial systems. These objectives are sought to be achieved primarily through the approximation of national procedural laws. EU has been criticised for prioritising ‘safety and security’, or effective law enforcement cooperation, over ‘justice’, or the rights of individuals. EU has attempted to address the ‘human rights deficit’, notably, by adopting legislation on procedural rights in criminal proceedings.

Critical voices are increasingly raised concerning whether EU action aimed mainly at harmonising Member States’ criminal procedural laws is sufficient to achieve the above-mentioned objectives. This area is incredibly complex to regulate. It requires expertise in forensic science, psychology, policing and other relevant disciplines. It also requires careful balancing of the various interests and values involved, such as the protection of individual freedoms versus effective law enforcement. Another difficulty is to determine the role of legal regulation, as opposed to ‘soft regulation’ or other measures, in achieving the goals of bringing Member States' criminal justice systems closer to the ‘vision’ embedded in the EU area of freedom, security and justice. Certain concepts, such as ‘vulnerability’ in criminal proceedings, are very difficult, if not impossible, to regulate by law in any meaningful detail. National laws can provide a general definition of ‘vulnerability’; the question then remains how to ensure that national criminal justice institutions adequately deal with vulnerabilities in their daily practice.

The goal of this conference is to identify the impediments to improving cooperation in the area of criminal matters. The method is to bring together experts from various disciplines to discuss the challenges in the ‘harmonisation’ of the criminal procedural systems of the EU Member States by means of legislation.

The following challenges will be discussed:
-  Defining certain interdisciplinary concepts, such as ‘risk’, ‘vulnerability’, ‘proof’ or ‘procedural justice' for the purposes of EU legal regulation;
- Determining the paths for ensuring proper enforcement of these concepts: legislation, policy or other paths (including: to what extent these matters could be left to the individual discretion of criminal justice actors)?
- Enforcing the respective regulations and other measures in practice: What are the most important obstacles (culture, lack of expertise/training, funding, etc.)? What is our ‘theory of change’ with respect to enforcement by Member States’ governments, national criminal justice institutions, and individual criminal justice actors?

The conference will focus on those concepts, which raise important interdisciplinary questions, and which are subject to the current or prospective EU regulation. It is organised by Dr. Anna Pivaty, Prof. André Klip and Dr. Dorris de Vocht (FoL), Dr. Melanie Sauerland (FHML) with participation from UNU-MERIT (FaSoS). 

Programme

 

Thursday 19 March 

12:00 - 12:30 

Registration

12:30 - 13:00 Opening and welcome
13:00 - 14:30                                                                                                                                                       

Session 1: EU fair trial standards and ‘procedural justice’.
The new EU legislation on fair trial rights in criminal proceedings aims to enhance ‘procedural justice’ or ‘procedural fairness’ in EU Member States. Is the (implicit) definition of ‘procedural fairness’ adopted in the EU instruments adequate? For instance, in view of the recent developments in national criminal procedures, contemporary societal challenges or threats (including threats to fundamental rights), or the emerging inter-disciplinary knowledge? Is the EU approach to promoting fairness in criminal proceedings sufficiently effective?

14:30 – 15:00  

Coffee break

15:00 -  16:30                 

Session 2: ‘Vulnerability’ in criminal proceedings.
The EU has recognized the need to improve the treatment of vulnerable persons in the national criminal proceedings, but struggled to adopt binding legislative instruments in this area. Instead, the European Commission adopted a recommendation on procedural safeguards for vulnerable persons suspected or accused in the criminal proceedings. Psychological research, however, points at various challenges of defining ‘vulnerability’ and the difficulties of translating these definitions into the legal field. Vulnerability must also be assessed individually with regard to the particular stage/action in the criminal proceedings. This makes the enforcement of the requirement to treat each vulnerable suspect (witness/victim) ‘fairly’ in the criminal proceedings particularly challenging. In view of this, can a ‘working definition’ of vulnerability in criminal proceedings be formulated, and how can it be enforced? What, if anything can EU realistically do to promote fair treatment of vulnerable persons in criminal proceedings?

16:30 - 18:00

Book launch A. Pivaty ‘Criminal Defence at Police Stations: A Comparative and Empirical Study’

18:00 - 21:00 Reception/walking dinner
 

Friday 20 March

9:00 – 11:00

Session 3: Standard and burden of proof in criminal proceedings.
The newly-adopted EU Directive 2016/343 on the presumption of innocence stipulates that the burden of proof for the establishing of guilt must be on the prosecution, and that any doubt concerning the accused’s guilt must lead to acquittal, with the exception inter alia of the independence of judges in the assessment of the evidence. This formulation, which may be perceived as inherently contradictory, leaves many questions open. For instance, should there be a common approach with regard to how judges in the MS should assess the sufficiency of evidence, i.e. when and how the standard of proof should be met? Another question is whether the assessment of the standard and burden of proof should or could be further regulated on the EU level, or should other measures be taken to ‘harmonise’ these processes in practice?

11:00 – 11:30   Coffee break
11:30 - 13:00  

Session 4: Forensic expert evidence in (cross-border) criminal proceedings. 
The EU supports the exchange of forensic evidence across Member States, and takes measures aimed to facilitate such exchange. Thus, it has pledged to create a ‘European Forensic Science Area’ in 2020, which would facilitate exchange of forensic knowledge among MS and develop quality standards for forensic investigations. There are also calls to develop EU-wide minimum standards on the admissibility of expert evidence in criminal proceedings. However, the assessment of forensic evidence and expert reports in the framework of legal proceedings is a very challenging task for legal actors. These challenges are likely to be amplified where evidence originates from a different Member State.

13:00 – 14:00 Lunch
14:00 – 15:30  

Session 5: Risk of re-offending: pre-trial detention and sentencing.
Framework Decision 2008/829 on Supervising Detention on Remand aims at reducing pre-trial detention within the EU, especially for those accused not residing in the trial state. With Framework Decisions 2008/909 and 2008/947 the EU strives for stimulating the resocialisation and integration of the offender as well as reducing the application of prison sentences. This is generally regarded as a stimulus to reduce re-offending as well. Do these instruments and tools achieve the goals set?

15:00 – 15:30   Closing remarks

Registration

Participation fee (regular participants or non-speakers):
 50 EUR - for students/PhDs
100 EUR - for others

Registration by 1 February 2020. (Click on the green button on the right side of this page.)

Participation as speaker in individual panels is by invitation only. Speakers will present their responses and remarks on the questions suggested by organisers. Limited financial support is available for conference speakers. If you would like to act as a speaker, please contact Dr. Anna Pivaty at a.pivaty[at]maastrichtuniversity[dot]nl outlining the reasons for your interest.