Inaudito reo Proceedings, Defence Rights and Harmonisation Goals in the EU. Responses of the European Courts and New Perspectives of EU Law

The rapid developments that have occurred in EU law over the last few years in relation to defence rights in criminal proceedings has recently brought an unprecedented question to the surface, namely whether and to what extent a criminal law action can be instituted with a view to a summary conviction that excludes the involvement of the accused and any other interested party prior to the decision-making. In the Covaci case, the Luxembourg Court, ruling for the first time on the EU legislation on the right to linguistic assistance and information in criminal proceedings, renders a rather minimalist interpretation of EU law, which not only provides foreign defendants with scant guarantees but also leaves them alone with the delicate decision of whether to lodge an opposition to a penal order. The picture emerging from this judgment is that penal orders are only provisional decisions and, provided that the accused is given the abstract opportunity of a subsequent trial hearing, a procedure held inaudito reo is acceptable under EU law. This scenario suggests broadening the area of the analysis, requiring in-depth reflection on the subsequent remedies aimed at saving the lawfulness of criminal proceedings held against absent defendants, both when this result is ordinarily foreseen (inaudito reo procedures) and when it is an exception from the rule of the direct involvement of the defence (in absentia procedures). The present discussion takes on further relevance in light of the recent Directive on the presumption of innocence and the right to be present at trial, legislation that, while allowing EU countries to maintain special procedures held in writing and without a trial hearing, confirms the legitimacy of default proceedings, provided the accused persons are granted either a retrial or a remedy aimed at a full review of their conviction. A close examination of the constitutional law requirements of countries allowing inaudito reo procedures and a reflection on the Strasbourg case-law, both on in absentia and inaudito reo procedures, however, raise doubts as to whether this is the appropriate direction to be followed in a European area aimed at ensuring high standards of human rights protection.