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Participatory Rights in Comparative Criminal Justice. Similarities and Divergences Within the Framework of the European Law

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Personal Participation in Criminal Proceedings

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Abstract

This chapter is devoted to comparing the results of the national reports on the basis of the Attachment. The comparison aims to cast light on similarities, if existing, and divergences between the different domestic jurisdictions. The comparative process moves from a hypothesis to be assessed: whether it is possible to argue that the ECHR and the EU legislation have shaped a common core of rules, regulating the participatory rights in criminal proceedings regardless the different legal traditions. To respond to this question, the chapter highlights the most relevant differences between the selected member states, with regard to the specific topics that have been addressed by the study, which is based on a multidisciplinary pattern and encompasses also specific EU law-, ECHR-, constitutional law- and criminal law-based analysis of participatory rights.

As the reader has seen in the first part of this Section, each national summary approached the Attachment with a different attitude, based on the individuals’ legal tradition and personal sensitivity. Thus, some remarks are not ‘universal’, but try to highlight, at least, ‘common trends’.

In fact, the identification of ‘common trends’ is the major result of this comparative study. However, a great number of divergences also emerged, demonstrating that, even though the ECtHR case-law and the recent ‘ABC directives’ of the EU had a strong impact on the national orders, some major differences still exist in the inner concept of what in absentia trial is and how it must be regulated, in compliance with fundamental rights. Nevertheless, it stems from this comparison that the values underpinning the parties’ personal contribution to the proceedings are facing a general crisis. In particular, the defendant’s non-participation, for different reasons and in various manners, is a growing phenomenon, now affecting even jurisdictions that have historically emphasized the importance of such personal participation.

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Notes

  1. 1.

    The main inspiration for this work is based on what still remains the most ambitious project in European comparative criminal procedure, M. Delmas-Marty’s Procédures pénales d’Europe. However, the basis and the means of this study are narrower. The main tool of the comparative section was the form that the reader can find in the Attachment. There were no round ups, but almost individual discussions to clarify some specific aspects. If the goal of that pioneer research was to compare rules, systems, tools and practices, our main focus was the rules regulating participatory rights. Of course, the national rapporteurs enriched their reports with references to the systems and to the most popular trends in domestic practice.

  2. 2.

    Fletcher (1998), p. 691.

  3. 3.

    For an historical overview of the extensive debate on the meaning of ‘comparative law’ and its methods, see Ancel (1971), esp. pp. 30 ff.

  4. 4.

    Fletcher (1998), p. 694.

  5. 5.

    Grande (2013), p. 192. According to this Author, comparison in criminal law and procedure for a long time simply meant to learn from a distance a good or bad example of a foreign law, if not passively to accept the hegemony of a foreign legal system.

  6. 6.

    Grande (2013), p. 193 f.

  7. 7.

    Legrand (1997), p. 124.

  8. 8.

    Zweigert and Kötz (1998), p. 40.

  9. 9.

    Sacco (1991), p. 25.

  10. 10.

    Grande (2003), p. 147.

  11. 11.

    Zweigert and Kötz (1998), p. 33: “all one can do is to take a method as a hypothesis and test its usefulness and practicability”.

  12. 12.

    The topic of participatory rights will be expressly analysed from the point of view of constitutional law in another part of this work. In particular see Pollicino and Bassino, in this volume.

  13. 13.

    Sperduti (1977), pp. 31 ff.

  14. 14.

    See Costa Ramos and Churro, in this volume, Sect. 1; Villamarin López, in this volume, Sect. 1.

  15. 15.

    Interestingly enough, it seems that the Austrian system incorporated the ECHR by transforming the violations of the Convention into infringements on domestic procedural law: the party, whose participatory right (directly granted by the Convention) has been infringed upon, must promptly challenge it, in order not to be prevented by a time limit from doing so. The issue of transforming conventional violations into domestic procedural violations was discussed in Italy as well: see Kostoris (2011), pp. 474 ff.

  16. 16.

    Leader, in this volume, Sect. 1.

  17. 17.

    Petrova, in this volume, Sect. 1.

  18. 18.

    Although Directive 2012/29/EU directly aimed at granting victims a wider and clearer role in criminal proceedings then the one they usually have, the national rule-makers were not bound to confer victims the role of a party in the criminal trials.

  19. 19.

    As to private prosecution in the different jurisdiction, it is worth highlighting that the role of individuals in such a context significantly varies from State to State. The relationship with the public prosecution can be tailored in several different ways, sometimes leading to a kind of complete ‘independence’ of the private accusation from the prosecutor’s decisions (like in Portugal, provided that an investigative judge approves it, or in Bulgaria, with the “privately actionable cases”), sometimes dispatching the private action under the control of the CPS (England and Wales).

  20. 20.

    With the exception of private crimes, where the assistant can lodge a private accusation that will move directly to trial if the pre-trial judicial stage is not requested by the accused. On the contrary in public and semi-private crimes, the investigative judge must confirm the ‘private prosecution’ (which is the application to open the pre-trial judicial stage; application in which it is up for the assistant to outline the facts that will build the basis of the possible ‘judicial indictment’).

  21. 21.

    In Italy, for instance, an insurance company can be held responsible for the damages caused by the defendant in negligent road injuries cases; an employer must pay the criminal fine instead of her employee, if the latter is insolvent and it is demonstrated that she perpetrated the crime in the interest (even putative) of the employer.

  22. 22.

    Art. 97 CCP-Italy sets forth a system of ex officio appointment (by the judge or by the prosecutor) for any act of the procedure to which the lawyer must assist. Lawyers willing to be appointed ex officio enter a system run by each Bar Order: based on an annual calendar they will serve periods of availability. They cannot refuse the ex officio appointment (with the exception of some special cases). Ex officio appointment, in Italy, is not related, in any way, to the defendant’s means. The system of legal aid is completely separated from the ex officio appointment. A less well-off defendant should first apply for legal aid; if she meets the means test, she will be granted legal aid and she will be allowed to appoint a lawyer of her choice. If, for any reason, she does not appoint one, there will be an ex officio assignment.

  23. 23.

    Petrova, in this volume, Sect. 2.

  24. 24.

    Golser, in this volume, Sect. 2.

  25. 25.

    Vogel, in this volume, Sect. 2.

  26. 26.

    ECtHR, Salduz v. Turkey, judgment of 27 November 2008, Appl. No. 36391/02. See France, with the ‘garde à vue saga’ and Luxembourg, where the Salduz case, even if not binding for that State, inspired main amendments.

  27. 27.

    Billis and Gkaniatsos, in this volume, Sect. 2.

  28. 28.

    Gácsi et al., in this volume, Sect. 2.

  29. 29.

    Drevet, in this volume, Sect. 2.

  30. 30.

    See fn. 27.

  31. 31.

    Art. 187 CCP-Luxembourg.

  32. 32.

    See Quattrocolo and Ruggeri in Part I of this volume, Sect. 2.1.

  33. 33.

    The leading case is, still, ECtHR, Marcello Viola v. Italy, judgment of 5 October 2006, Appl. No. 45106/04.

  34. 34.

    See Sect. 3.2.

  35. 35.

    See England and Wales (Leader, in this volume, Sect. 3.1) and Spain, with regard to abbreviated proceedings and non-serious offences (Villamarin López, in this volume, Sect. 3.1).

  36. 36.

    Signorato (2017), p. 5 f.; Daniele (2017b), p. 2.

  37. 37.

    Leader, in this volume, Sect. 3.1.

  38. 38.

    As to Italy, the regulation of witnesses’ interview during the investigation has been often amended, with special regard to vulnerable people (see, e.g. art. 351 co. 1-ter CCP); however, amendments never encompassed the form of confrontation with the suspect.

  39. 39.

    Or her lawyer, e.g., in Greece.

  40. 40.

    But, in Austria, the appeal against a coercive measure is decided by the court without a hearing. Golser, in this volume, Sect. 3.1.

  41. 41.

    Leader, in this volume, Sect. 3.1.

  42. 42.

    However one of the very first study made in the US by Terry and Surette (1986), p. 34 showed a high satisfaction between defendants with their appearance with videoconference.

  43. 43.

    See also Vogler (2012), p. 89.

  44. 44.

    ECtHR, Schiesser v. Switzerland, judgment of 4 December 1979, Appl. No. 7710/76.

  45. 45.

    ECtHR, Colozza v. Italy, judgment of 12 February 1985, Appl. No. 9024/80, para. 27.

  46. 46.

    ECtHR, Marcello Viola v. Italy (fn. 32), para. 74.

  47. 47.

    Chiavario (2008), p. 235.

  48. 48.

    ECtHR, Gennadiy Medvedev v. Russia, judgment of 14 April 2012, Appl. No. 34184/03.

  49. 49.

    See Van der Vils (2012), pp. 13 ff. about the European E-justice Action Plan 2009–2013 and other EU regulation focusing on video-link participation of witnesses and experts but also defendants, if personally agreed.

  50. 50.

    See the definition in IATE (InterActive Terminology for Europe, www.iate.europa.eu).

  51. 51.

    Ruggeri, in Part V of this volume, Sect. 2.3.

  52. 52.

    Gácsi et al., in this volume, Sect. 3.3.

  53. 53.

    Vogel, in this volume, Sect. 3.3.

  54. 54.

    See below.

  55. 55.

    Leader, in this volume, Sect. 3.2.

  56. 56.

    In particular, see under Sect. 3.4, the defendant’s choice for a diversion proceeding may depend on the fact that she prefers an in camera proceeding, avoiding strepitus fori.

  57. 57.

    Even though settlement of dispute was a common feature of early medieval process, both on the continent and in England: Damaška (2004), p. 1020.

  58. 58.

    Pradel (1995), p. 537; Maffei (2004), p. 1050.

  59. 59.

    Damaška (2004), p. 1019: “the full adjudicative process is in decline everywhere”.

  60. 60.

    Ibid., p. 1023.

  61. 61.

    Ost (2002), p. 24.

  62. 62.

    Pursuant the definition by Tulkens (2002), p. 643.

  63. 63.

    Damaška (2004), p. 1019.

  64. 64.

    See Pradel (1995), p. 539.

  65. 65.

    Langer (2004), p. 51; Maffei (2004), p. 1061.

  66. 66.

    Art. 41-1-1 CCP-France. See, however, the recent repeal by the Conseil d’Etat: Drevet, in this volume, Sect. 3.4.

  67. 67.

    Art. 464-bis CCP-Italy.

  68. 68.

    Gàcsi et al., in this volume, Sect. 3.4.2.

  69. 69.

    However, Directive 2012/29/EU sets forth a very wide definition of ‘restorative justice’, which is considered to be the paradigm of mediation: in fact, Article 2(1)(d) stipulates that “restorative justice’ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party”. See Mannozzi (2016), pp. 1517 ff.

  70. 70.

    Or, e.g. in Italy, the defendant can challenge it and request another ‘special proceeding, such as patteggiamento, giudizio abbreviato, messa alla prova.

  71. 71.

    Ruggeri (2017), p. 350.

  72. 72.

    Art. 459 CCP-Italy.

  73. 73.

    Ruggeri (2008), in particular pp. 155 ff.

  74. 74.

    CConst. 2003/32.

  75. 75.

    See Villamarin López, in this volume, Sect. 3.3.3.

  76. 76.

    See infra Sect. 5.3.

  77. 77.

    In light of the right ‘to make one’s voice heard’, see Ruggeri, in Part V of this volume, Sect. 4.3 and in Part VI of this volume, Sect. 4.2.4.

  78. 78.

    Art. 118(2) CPP-Hungary.

  79. 79.

    Vogel, in this volume, Sect. 3.5.2.

  80. 80.

    Chiavario (2001), p. 198.

  81. 81.

    ECtHR, John Murray v. UK, judgment of 8 February 1996, Appl. No. 18731/91, para. 47

  82. 82.

    Drevet, in this volume, Sect. 3.5.

  83. 83.

    However, there are divergent opinions in the literature: some authors (Orlandi 1990, p. 506 f.; Mazza 2008, p. 214; Patané 2006, pp. 216 ff.) disagree about the power of the judge to draw inference from the defendant’s silence. For the mainstream opinion, reported in the text, Lavarini (2012), p. 37.

  84. 84.

    Covolo, in this volume, Sect. 3.4. The questionnaire did not expressly focus on the defense’s investigation (that in some country is extensively admitted: see art. 391-bis ff. CCP-Italy) and the reports did not provide general information about the topic, that, however, would be very interesting for a comparison.

  85. 85.

    Vogel, in this volume, Sect. 3.5.1.

  86. 86.

    It is worth noting that the defendant must cover personally (in advance) all the expenses incurred by the witness or expert.

  87. 87.

    For some interesting overviews on the Italian reform, Langer (2004), pp. 47 ff.; Illuminati (2005), pp. 567 ff.

  88. 88.

    See Art. 507 CCP-Italy, even though, in reality, courts tend to be much more activist with regard to the gathering of evidence. Cf. Belluta (2006), pp. 143 ff.

  89. 89.

    Though, some study argued that the last word in court may hinder the defendant’s position: Englich et al. (2005), pp. 705 ff.

  90. 90.

    Which is, according to the ECtHR, “a matter for regulation under national law” (Al Khawaja and Taheri v. UK, judgment of 15 December 2011, Appl. nos. 26766/05, 22228/06, para. 126).

  91. 91.

    Ruggeri, in Part V of this volume, Sect. 2.3.

  92. 92.

    Ibid., Sect. 2.4.

  93. 93.

    ECtHR, Ekbatani v. Sweden, judgment of 26 May 1988, App. No. 10563/83, para. 27–33.

  94. 94.

    Ibid., para 31. See also ECtHR, Fejde v. Sweden, judgement of 29 January 1991, App. No. 12631/87, para. 67–69; Kremzow v. Austria, judgement of 21 September 1993, App. No. 12350/86, para. 65–69; Botten v. Norway, judgment of 19 February 1996, App. No. 16206/90, para. 39.

  95. 95.

    Art. 443 CCP-Italy.

  96. 96.

    The Tribunal de cassation was created in 1790, to take over the task originally performed by the Conseil des parties, abolished during the French Revolution. The Tribunal de cassation was ancillary to the lawmaker, a warden of respect and compliance with the law. Every year, it had to report to the Parliament about the number of quashed judgments (cassations): see Vincent et al. (2005), p. 395.

  97. 97.

    Pursuant to a recent reform (law 103/2007), the Court of appeal can hold an in camera hearing (art. 599-bis CCP-Italy) when the parties find an agreement on the requests submitted to the court (the agreement covers some of the requests, which will be accepted by the court, while the other requests are waived).

  98. 98.

    Mangiaracina, in this volume, Sect. 3.6.

  99. 99.

    Vogel, in this volume, Sect. 3.6.

  100. 100.

    It is a diversion proceeding, in which the defendant waives her right to be adjudicated on the basis of evidence taken in court, within an adversarial procedure. As a rule, a single judge—namely, the competent judge for the pre-trial inquiry—rules upon the investigations file.

  101. 101.

    See Petrova, in this volume, Sect. 3.6.

  102. 102.

    Arts. 45-bis; 146-bis; 147-bis CCP-Italy.

  103. 103.

    See the long list of limitations in Mangiaracina, in this volume, Sect. 3.7.

  104. 104.

    Ruggeri, in Part V of this volume, Sect. 3.2.

  105. 105.

    Billis and Gkaniatsos, in this volume, Sect. 4.

  106. 106.

    Cass. crim. 4th February 2015, no. 01-85559, Bull. 131.

  107. 107.

    Mauro (2015), p. 146.

  108. 108.

    Figures are cited by Magendie (2004). Mr. Magendie used to be the President of the Tribunal de Grande Instance, Paris. He was repeatedly asked by the Ministry of Justice to monitor the situation of courts, either of first instance and appeal.

  109. 109.

    Mauro (2015), p. 148.

  110. 110.

    Petrova, in this volume, Sect. 4.

  111. 111.

    See ECtHR, Doorson v. The Netherlands, judgement of 26 March 1996, Appl. no. 20524/92, para. 70: “it is true that Article 6 (art. 6) does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 (art. 8) of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify”. For a general human rights-oriented overview of this case-law, see Ruggeri, in Part VI of this volume, Sect. 4.3.

  112. 112.

    For a comprehensive overview of the path that brought to Directive 2012/29/EU see Morillo and Bellander Todino (2017), pp. 3–14.

  113. 113.

    In some jurisdictions, the victim has the right to give final statements before the court adjudicates the case (England and Wales, Hungary, Greece), even though she is not a party and such power does not always match with the chance to lodge an appeal of the decision. Where the victim is a party, she is automatically entitled to draw arguments.

  114. 114.

    ECtHR, Somogyi v. Italy, Judgment of 18 May 2004, Appl. No. 67972/01, para. 71. For a general overview of the ECtHR case-law on in absentia trials within this research, see Ruggeri, in Part V of this volume, Sect. 3.1.1.2, as well as Bachmaier, in this volume, Sect. 2.4.

  115. 115.

    Ruggeri, in Part V of this volume, Sect. 3.1.1.

  116. 116.

    From a human rights viewpoint, it is doubtful that legal assistance and personal presence in court can be considered as alternative: Ruggeri, in Part VI of this volume, Sect. 4.2.3.

  117. 117.

    About Greece, see Billis and Gkaniatsos, in this volume, Sect. 5.

  118. 118.

    ECtHR, Grand Chamber, Sejdovic v. Italy, judgment of 1 March 2006, Appl. no. 56581/00, para. 101.

  119. 119.

    See below, Sect. 5.1.

  120. 120.

    Ruggeri, in Part V of this volume, Sects. 2.1 and 4.1 ECtHR, Grand Chamber, Pélissier and Sassi v. France, judgment of 25 March 1999, Appl. no. 25444/94, para. 52.

  121. 121.

    See Costa Ramos and Churro, in this volume, Sect. 5.1.

  122. 122.

    ECtHR, Mariani v. France, 31 March 2005, Appl. No. 43640/98, para. 40 and, previously, Van Pelt v. France, 23 May 2000, Appl. No. 31070/96. Cf. Ruggeri, in Part V of this volume, Sect. 4.2.

  123. 123.

    ECtHR, Daud v. Portugal, judgement of 21 April 1998, Appl. no. 22600/93, para. 38.

  124. 124.

    For a similar reference, see also Vogel, in this volume, Sect. 5.1.

  125. 125.

    Mangiaracina, in this volume, Sect. 5.1.

  126. 126.

    For a human rights-oriented critique of what can be considered a viable waiver of the defendant’ right to be involved in the proceedings, Ruggeri, in Part VI of this volume, Sect. 3.2.2.

  127. 127.

    Section 37.11 Criminal Procedural Rules (England and Wales).

  128. 128.

    Hungary, Italy until 2014 and Romania, according to the ‘indulgent’ interpretation of “official notification” endorsed by the judicial practice: see Ciopec and Roibu, in this volume, Sect. 5.1.

  129. 129.

    Bulgaria, with a discretionary decision by the judge, if she deems it contrary to the aim of discovering the truth to go on without the defendant’s presence; France, before the Cour d’Assize; Italy; apparently Greece, for felonies; Spain, although with two exceptions.

  130. 130.

    Ruggeri, in Part V of this volume, Sect. 3.1.2.

  131. 131.

    Bachmaier, in this volume, Sect. 2.2.

  132. 132.

    See also Greece, Italy, Romania. These national reports refer to non-explicit—but hopefully, unequivocal—waiver of the defendant’s participatory right.

  133. 133.

    See below, Sect. 5.2.

  134. 134.

    See also Italy. There is a huge case-law in Italy about the requirements of medical certificates excusing absence. Cf. Varraso (2017), pp. 3017 f.

  135. 135.

    Although there are doubts about compliance of the new regulation with the Convention, especially because it puts on the defendant’s shoulders the burden of proving the she had no culpability in having been absent. See Quattrocolo (2014), pp. 105 f.

  136. 136.

    “The resources available under domestic law must be shown to be effective where a person charged with a criminal offense has neither waived his right to appear and to defend himself nor sought to escape trial”: ECtHR, Somogyi v. Italy (fn. 105), para. 67.

  137. 137.

    ECtHR, Colozza v. Italy (fn. 42), para. 29; ECtHR, Einhorn c. France, decision of 16 October 2001, Appl. No. 71555/01, para. 33; ECtHR, Krombach v. France, judgment of 13 February 2001, Appl. No. 29731/96, para. 85; ECtHR, Battisti v. France, decision of 12 December 2006, Appl. No. 28796/05.

  138. 138.

    Bachmaier, in this volume, Sect. 2.4.

  139. 139.

    It is doubtful whether Cour d’Assize proceedings comply with the ECHR. In fact, the defendant cannot challenge a conviction held in absentia. The only way for the convicted person to have the decision quashed is to be arrested or surrendered to the competent authority, as annulment is the automatic consequence of the arrest or surrender. However, the ECtHR set fort doubts about the surrender being a fair condition to impose on the defendant, in order to get the chance to be retried at her presence: see ECtHR, Krombach v. France, para. 87; and even earlier, ECtHR, Khalfaoui v. France, judgement of 14 December 1999, Appl. No. 34791/97, para. 42–45.

  140. 140.

    Ciopec and Roibu, in this volume, Sect. 5.2 highlight the fact that, formally, the remedy can only be lodged against final convictions and not also against final acquittals. This deprives the absent defendant of the right to seek for a more favourable acquittal.

  141. 141.

    It was noted that such guarantees may not be sufficient to restore the defendant’s right to a fair trial. In fact, if the remedy is not tailored to the model of retrial, the defendant may definitively loose some strategic chance (e.g. bargaining a plea with the prosecutor, to reduce the sentence; asking for taking evidence). Cf. Ruggeri (2016), p. 47. See also Bachmaier Winter, in this volume, Sect. 4.3.

  142. 142.

    See Golser, in this volume, Sect. 5.2.

  143. 143.

    Courts may extend the time allowed.

  144. 144.

    ECtHR, Sejdovic v. Italy (fn. 108), para. 103.

  145. 145.

    In that case, the remedy in force in Italy at the time was a bare extension of the deadline to lodge an ordinary appeal against the default decision, having become final.

  146. 146.

    Ruggeri (2016), p. 42, and hereinafter, in Part VI this volume, Sect. 3.3.

  147. 147.

    C-216/14, para. 60.

  148. 148.

    Ruggeri (2016), p. 44.

  149. 149.

    Ibid., p. 42.

  150. 150.

    As to Spain, see Villamarin López, in this volume, Sect. 3.3.

  151. 151.

    As to Italy, the fine can be the punishment provided for the offence by the penal code or the result of the conversion of a short-term punishment into a fine.

  152. 152.

    The general limit is that the fast track procedure cannot be applied for offenses punished in abstracto with more than 5 years of imprisonment.

  153. 153.

    Vogel, in this volume, Sect. 5.3, emphasizes that for a penal order to be issued, the judge does not need to be sure of the defendant’s guilt beyond any reasonable doubt. In cases of doubts, however, the judge can always divert from the inaudito reo model and open a main hearing. Moreover, the penal order can be issued as a form of diversion from the main hearing, in petty or medium seriousness offenses.

  154. 154.

    The general limit is that the offense must not be punished, in abstracto, with more than 3 years of imprisonment.

  155. 155.

    Villamárin López, in this volume, Sect. 3.3.3.

  156. 156.

    ECtHR, Gray v. Germany, judgment of 22 May 2014, Appl. No. 49278/09.

  157. 157.

    Ruggeri (2016), p. 49.

  158. 158.

    In the case of Covaci (CJEU, judgment of 15 October 2015, C-216/14), the CJEU seems to be aware of the risk of discrimination, represented by the German limit of 15 days, especially when the defendant does not reside within the jurisdiction: Ruggeri (2016), p. 45.

  159. 159.

    As the Greek one, the Luxembourgish regulation stipulates that, once the penal order has become final, it can be challenged by the ordinary means of appeal.

  160. 160.

    CJEU, Covaci (fn. 145); CJEU, Tranca, Reiter and Opria, judgment of 22 March 2017, joined cases C-124/16, C-188/16 and C-213/16; Sleutjes, judgment of 12 October 2017, C-278/16.

  161. 161.

    Though this was criticized some scholars. Cf. Ruggeri (2016), p. 48.

  162. 162.

    With the exception of the Bulgarian case, where the remedy provided covers only matters of law and not of fact.

  163. 163.

    Klip (2015), p. 394.

  164. 164.

    The defendant having not been personally summoned or informed about the place and time of the hearing could be surrendered at the condition of reopening the proceedings or having a new trial.

  165. 165.

    In the m.l.a. tradition, ‘passive’ identifies the process of executing a EAW issued by a foreign authority; ‘active’ is related to the issuing of the EAW.

  166. 166.

    For some new interesting trend in case-law, see Costa Ramos and Churro, in this volume, Sect. 6.2.

  167. 167.

    See Golser, in this volume, Sect. 6.1.1.

  168. 168.

    See Drevet, in this volume, Sect. 6.1.1.

  169. 169.

    See Petrova, in this volume, Sect. 6.1.2.

  170. 170.

    Ruggeri, in Part VI of this volume, Sect. 2.1.

  171. 171.

    The ‘Melloni case’ has been compared with recent affaire of C-42/17, apparently concluding the so-called ‘Taricco case’ (CJEU, Grand Chamber, 5 December 2017, M.A.S. and M.B., C-42/17, and previously CJEU, 15 September 2015, Taricco, C-105/14). In a similar situation, the Italian Constitutional Court lodged a preliminary ruling based of the national standard of protection of the principle of legality, in relation with the statute of limitation for offenses punishing the VAT avoidance. In such case, however, the Luxembourg Court concluded by recognising that national courts are bound to set aside national legislation in contradiction with the EU, “unless that disapplication entails a breach of the principle that offences and penalties must be defined by law because of the lack of precision of the applicable law or because of the retroactive application of legislation imposing conditions of criminal liability stricter than those in force at the time the infringement was committed”. About the ‘Taricco case’ see Pollicino and Bassini (2017). As a consequence of the CJEU decision delivered in the case C-42/17, the Italian Constitutional Court recently (10 April 2018) ruled that the Italian judges and courts are not bound to apply the CJEU decision of 15 September 2015, C-105/14, which concluded for setting aside arts. 160 and 161 CCP-Italy.

  172. 172.

    Hopefully, the Additional Protocols amended such rule, allowing the requesting authority to proactively participate in the taking of investigative acts and evidence. Cf. Chiavario (2017), p. 1104.

  173. 173.

    This is also often the case in Portugal, unless by the nature of the acts the person has to be informed (a search of the house of the accused for example).

  174. 174.

    In 2016, Italy also implemented the Convention was already binding for most EU countries since a long (moreover, in 2004, Island and Norway had already signed an agreement for the application of some parts of such convention in the MLA relationships with EU member states: 22004A0129(01).

  175. 175.

    For the exceptions foreseen by Romania, see Ciopec and Roibu, in this volume, Sect. 6.2.

  176. 176.

    Mangiaracina, in this volume, Sect. 6.2; Covolo, in this volume, Sect. 6.2; Costa Ramos and Churro, in this volume, Sect. 6.2.

  177. 177.

    For a general overview of this Italian legislation, see Daniele (2017a), pp. 108 ff.

  178. 178.

    See Quattrocolo and Ruggeri, in Part VI of this volume.

  179. 179.

    For more details, see Quattrocolo and Ruggeri, in Part VI of this volume.

  180. 180.

    Drevet, in this volume, Sect. 8.

  181. 181.

    Vogel, in this volume, Sect. 8.

  182. 182.

    Gácsi et al., in this volume, Sect. 8.

  183. 183.

    Petrova, in this volume, Sect. 8.

  184. 184.

    Though Ruggeri remarks that, in the case of Mariani v. France, the ECtHR displayed a similar attitude, proving satisfied with the bare availability of an effective remedy against in absentia decisions. Cf. Ruggeri, in Part VI of this volume, Sect. 2.2.

  185. 185.

    Mangiaracina, in this volume, Sect. 8.

Abbreviations

AFSJ:

Area of Freedom Security and Justice

CCP:

Code of Criminal Procedure

CJEU:

Court of Justice of the European Union

CoE:

Council of Europe

Const.:

Constitution

CPS:

Crown Prosecution Service

EAW:

European Arrest Warrant

ECHR:

European Convention on Human Rights

ECtHR:

European Court of Human Rights

EIO:

European Investigation Order

EU:

European Union

FD:

Framework Decision

ICC:

International Criminal Court

ICCPR:

International Covenant on Civil and Political Rights

JHA:

Justice and Home Affaires

MLA:

Mutual Legal Assistance

MS:

Member State of the EU

PACE:

Police and Criminal Evidence Act

TFEU:

Treaty on the Functioning of the European Union

US:

United States of America

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  1. Department of Law, and Political, Economic and Social Sciences, University of Piemonte Orientale, Alessandria, Italy

    Serena Quattrocolo

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  1. Department of Law, and Political, Economic and Social Sciences, University of Piemonte Orientale, Alessandria, Italy

    Serena Quattrocolo

  2. Law Department, University of Messina, Messina, Italy

    Stefano Ruggeri

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Quattrocolo, S. (2019). Participatory Rights in Comparative Criminal Justice. Similarities and Divergences Within the Framework of the European Law. In: Quattrocolo, S., Ruggeri, S. (eds) Personal Participation in Criminal Proceedings. Legal Studies in International, European and Comparative Criminal Law, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-030-01186-4_14

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