Title VI Justice provides a procedural guarantee regarding the enforcement of rights under EU law. It is similar to the guarantees in the European Convention on Human Rights. It provides for an important right to fair proceedings. The right is broader than the corresponding right under the European Convention on Human Rights.
The title also provides for the right to legal aid and the right to the more lenient penalty in the event of a change of law. It provides an EU rule against double jeopardy.
Article 47 – Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Article 47 is addressed to the European Union and member states. Article 47 reaffirms the well-established general principle of EU law recognising the right to an effective judicial remedy.
Title VI gives effect to the rule of law which is a basic principle and value of the European Union. The right to an effective judicial remedy was recognised by the Court of Justice as a general principle of EU law both in relation to acts of the European Union states and member states while implementing EU law.
European Union rights require and confirm that the beneficiaries thereof have the right to a judicial remedy against the decision of a national authority refusing the benefit in question in order to secure the effective protection of that right. The principle of an effective remedy is also provided for under the European Convention on Human Rights.
The right to a fair hearing under the Charter is wider than that under the European Convention on Human Rights, in some respects. The European Court of Justice has recognised that the right to an effective judicial remedy and protection applies in the area of administrative law when the matter is within the scope of EU law.
There is a right to an effective remedy before a tribunal. Article 267 of the Treaty on the Functioning of the European Union provides for references to the European courts for preliminary rulings by national courts and tribunals.
- The right to an effective remedy implies fair procedures.
- There is a guarantee of the right of defence.
- The right to an effective remedy requires that EU measures and measures of member states acting to give effect to European Union law are correctly applied and given effect.
- There is a right to legal aid for the purpose of enabling persons to access justice, so that they may obtain an effective remedy.
Article 6 of the European Convention on Human Rights is limited to the determination of civil rights and obligations and criminal charges. It has been interpreted to exclude public law proceedings, including taxation. Article 47 is not subject to this limitation.
Unlike Article 6 of the European Convention on Human Rights, there is no distinction between criminal civil or administrative law measures and matters under the Charter. Insofar as Article 47 corresponds to Article 6 of the European Convention on Human Rights, Article 52 (3) provides that its meaning and scope are to be interpreted in the same way as the ECHR.
EU law must be applied by courts and tribunals in member states. EU law can be challenged under the EU Treaties. Persons may request the court or tribunal to refer questions to the European courts. Parties may raise the inconsistency of directives and other secondary legislation European Union with the charter as well as with the EU Treaties themselves.
The overriding principle is that courts and tribunals in member states are to disapply national law which is inconsistent with EU law. Where issues of the validity of EU law having regard to the Charter and treaties arise, they should refer the matter they may refer the matter to the European courts.
There is a requirement for standing under Article 263 (4) of the TFEU. Persons must be directly and individually concerned by the act. They must be affected by reason of certain attributes which are peculiar to them by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually.
Member states’ institutions, courts and tribunals must comply with Article 47 of the Charter when implementing European Union law. This applies to administrative and judicial bodies as well as courts. They must ensure an effective remedy.
National rules in relation to judicial review time limits and standing/interest have been held to be compatible with Article 47. However, if they are unduly restrictive and the time limits are short, then they may not be compatible.
Article 47 (2) guarantees the right to fair procedures. This embodies the principle of equality of arms and procedural equality as expounded under the European Convention on Human Rights. Each party must be given the opportunity to present his case in a way that does not disadvantage him/ her, relative to the other party.
The right to fair procedures implies certain key elements, in particular,
- the right to a fair and public hearing
- the right of defence
- the duty to give reasons.
- certain further aspects.
Generally, a hearing will take place before a judicial or other equivalent decision maker. In some cases, preliminary decisions can be made in a unilateral application. This is where it is necessary in the interests of the effectiveness of the proceedings themselves, such as where their disclosure would prejudice the objective of the proceedings themselves.
The Article 47 guarantee may require that interim pre-trial measures be granted if otherwise the applicant, would suffer irreparable harm. This is the case provided that damage is foreseeable with a reasonable degree of probability. If the national court does not afford effective interim measures, then its provisions may need to be amended so as to create an effective remedy.
The Hearing & Decision
Article 47(2) generally requires that the hearing be in public. There should be a public hearing to which the public has access. An oral hearing will often be required. Justice must be done and must be seen to be done. There are a number of exceptions in accordance with Article 6 of the European Convention on Human Rights. They apply in accordance with Article 52(3).
Article 6.1 ECHR provides Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The hearing should place within a reasonable time. This is to avoid delays which might jeopardise its effectiveness and credibility. What is reasonable depends on the context. Where an EU court fails to determine the matter within a reasonable time there is a right of action for damages in accordance with TFEU Article 268
Access to a remedy implies a decision on the matter within a reasonable time. The European Court of Justice has held that the sanction for breach by an EU Court of the obligation of the EU court to determine cases within a reasonable time is an action for damages brought before the general court. An equivalent provision is required at the national level under the Charter or the ECHR.
Rights of Defence
The right to a fair trial implies certain procedural rights. The European courts have emphasised that where proceedings are initiated that may culminate in a matter which adversely affects the person concerned, respect for the person’s rights of defence is a fundamental principle of EU law which must be guaranteed. This is the case even in the absence of any rules that govern the proceedings concerned.
Persons to whom decisions are addressed, which affect their interests in a significant way, must be enabled to effectively make known their views on the evidence, on which the disputed matter is to be decided.
Effective judicial protection guaranteed by Article 47 includes the right of defence and especially the right to have access to the file by the authorities. Article 47 can be invoked not only in relation to court proceedings but also to administrative proceedings. A breach of the right of access to the file during the administrative procedure is not remedied by the mere fact that access to the file was made possible during the judicial proceedings.
The duty to give reasons is implicit in Article 47. It is an aspect of the right to a fair hearing. It requires that judgements be reasoned so that the basis of the determination can be considered. If a judicial review is to be meaningful it must be possible to determine the reasons upon which the decision is made. This does not apply to default judgement and proceedings.
Article 47 is not absolute. There may be circumstances where there is a justification for not giving reasons, such as where issues of national security arise. Even in this case procedural fairness requires that there be an appropriate balance between the requirements of state security and the right to effective judicial protection. Any interference with the exercise of that right must be limited to the extent to which it is strictly necessary.
The right to fair proceedings implies a right to appear in person in most cases. This may be waived. Where the location of a person cannot be ascertained it is permissible in principle for proceedings be initiated by appropriate substitute notice.
There may be a right to legal aid in the circumstances for those who do not have the resources to effectively give expression to their right. This may include assistance by a lawyer paid for at public expense or whose costs are deferred in some cases.
The national court should consider whether not granting legal aid would constitute a limitation of access to court and undermine the effectiveness of the protected rights. It should consider issues of proportionality. The national court may take account of the costs of proceedings and consider whether they represent an insurmountable obstacle to an effective remedy.
It should consider.
- the subject matter of the litigation
- whether the applicant has a reasonable prospect of success
- the importance of what is at stake for the applicant in the proceedings.
- the complexity of the applicable law and procedure
- the applicant’s capacity to represent himself effectively.
- the extent to which advance payment is required.
Scope /Relationship with Other Law
Article 51 by its terms state that does not extend the boundaries of EU laws. There have been cases saying that the Charter is not to be understood and applied in a way that absolutely any connection of the subject matter to a merely abstract scope of EU law or merely incidental effects on EU law, would be sufficient for the Charter to apply. There must be EU laws imposing specific obligation on the member states in the area governing the national rules.
The Charter interacts in different ways with different EU state laws. In some EU states, it is part of the domestic law of the state which is not the case in Ireland. In other cases, the principles of the Charter cases inform and reinforce national human rights standards. This is probably the most that could be said in Ireland outside of its application to strictly EU law areas.
The Charter has been used as a source of inspiration in tandem with national constitutional guarantees and ECHR guarantees. There have been many cases in EU states in which the Charter is used in tandem with the ECHR and the state’s own constitution. Several EU states have developed their own constitutional law explicitly in line with Charter decisions.
Presumption of Innocence
Article 48 – Presumption of innocence and right of defence
- Everyone who has been charged shall be presumed innocent until proven guilty according to law.
- Respect for the rights of the defence of anyone who has been charged shall be guaranteed.
Article 48 provides that everyone who has been charged shall be presumed innocent until proven guilty according to law. Respect for the rights of defence of anyone who has been charged shall be guaranteed.
The guarantee reflects Articles 6.2 and 6.3 of the European Convention on Human Rights. Accordingly, by article 52 (3) the meaning and scope of the Charter is to be given effect in the same way.
The presumption of innocence is a fundamental part of criminal proceedings in most countries. The privileged right against self-incrimination is a key aspect of the presumption of innocence. It is found in many legal systems including the US constitution Irish Constitution and has been implied into Article 6 of the European Convention on Human Rights.
Legal professional privilege is an aspect of the right of defence. Communications made for the purpose of and in the interests of the client with an independent lawyer admitted in a member state qualify for legal professional privilege. The purpose is to encourage free communication between the client and the lawyer.
An -inhouse lawyer has been found to be insufficiently independent.
Legality & Proportionality
Article 49 – Principles of legality and proportionality of criminal offences and penalties
- No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If subsequent to the commission of a criminal offence, the law provides for a lighter penalty that shall be applicable.
- This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.
- The severity of penalties must not be disproportionate to the criminal offence.
Article 49 guarantees the principle of legality in the context of criminal law. It corresponds with Article 7 of the European Convention on Human Rights. Accordingly, by article 52 (3) of the Charter, it is subject to the same scope and limitations as the Article 7 right.
Crimes and penalties must be prescribed by law, and contravention must be foreseeable. This implies that criminal legislation should be precise and that it should be narrowly interpreted.
Penalties should be proportionate to the offence. Article 49
Article 50 – Right not to be tried or punished twice in criminal proceedings for the same criminal offence.
No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
Article 50 provides restates the rule against double jeopardy, sometimes called non bis in idem (not twice in the same thing). This is found in the European Convention on human rights and in many state constitutions.
Article 50 extends the principle so that a person is not liable to be tried or punished again in criminal proceedings for an offence for which he or she has been finally tried, acquitted or convicted within the European Union in accordance with the law. This supports the free movement of persons who have been acquitted or have already been sanctioned. They should not be deterred from EU crossing borders.