The title of this paper suggests, foremost, a preliminary question. Why is it necessary to reflect, today, on EU legislation regulating the right to information in criminal proceedings?

It is in fact well known that this is a fundamental aspect of the general principle of the right to a fair trial, traditionally provided under the covenants and conventions on human rights.

We are used to referring to the procedural rights of individuals involved in criminal proceedings, starting with the general right to a trial,¹ within the scope of the regional conventions on human rights and, especially in Europe, of the European convention on human rights, signed in Rome in 1950.² We are also used to the topic of procedural rights in the area of the constitutional Charters of our countries.³

But the “post-Lisbon era” we now live in has brought with it a new perspective on EU legislation.⁴ The reference to the post-Lisbon era is not only due to the new legislative framework, which has abolished the third-pillar system, introducing standard legislative tools into the AFSJ. Of course, as we will see below, the adoption of directives and the “other measures” mentioned in article 82(2) and (1) of the standing TFEU will have important consequences. Alongside these developments, furthermore, the particular significance of the post-Lisbon era may seem to derive—as extensive scholarship suggests⁵—from the implementation of the Tampere program, which led to the introduction of instruments mostly aimed at improving the fight against crime. As has been noted,⁶ the major aim—not the only one, of course—of EU legislation in the first decade of the 2000s was to speed up police and judicial cooperation.

Probably because the coming into force of the Lisbon Treaty gave binding legal force to the EU FRCh—whose article 47 provides for the right to a fair trial—a new cohesion on the issues of procedural safeguards has finally been achieved among the EU Member States.

Of course, we have to remember that an important initiative by the EU Commission was launched in 2004, aimed at a Council framework decision “on certain procedural rights.”⁷ This proposal referred to the right to legal assistance (including legal aid), the right to free interpretation and translation, the right to communicate with other persons and to receive consular assistance and the right to information.⁸

One could thus argue that this is not such a novelty, but this brings us on to the central issue being dealt with in this paper. When the proposal in question was submitted, one of the most frequent arguments against it was that laying down rules on procedural rights would be useless, since these were already set out and established by the ECHR. It was the general opinion that the European system had already strengthened that set of rules through Strasbourg case law.

Since the second half of the first decade of the 2000s, a growing consciousness emerged. Some studies, requested by the EU Commission,⁹ reported an unsatisfactory level of effectiveness in the Strasbourg system. The main reason for this turned out to be, foremost, the increasing number of Member States to the Council of Europe, which led to a backlog of cases. As a consequence, the number of “repetitive cases” grew enormously, i.e., cases in which the Court had to decide on matters that had already been dealt with.¹⁰ This was due to the fact that ECtHR judgments are often not properly executed by the States.¹¹ In fact, only in a few cases did the Court require national countries to modify their legal systems, which are rarely declared as incompatible with the Convention itself.

This has created a vicious circle, in that the Strasbourg system does not seem to be able to adequately enforce “practical and effective rights.”

This does not mean that the ECtHR has been insensitive to the effectiveness of the Convention rights, especially with regard to the topic of the present study. Even if the Convention provides “core rights”—i.e., the guarantee of a fair trial—Strasbourg case law also gives attention to the tools that can help implement these rights, such as the right to be informed about them. For example, in the cases of Mattoccia v. Italy ¹² and Salduz v. Turkey,¹³ the Court (the Grand Chamber, in the latter case) underlined that the Convention does not acknowledge rights that are “theoretical or illusory but rights that are practical and effective,” as had already been stated in the case of Artico v. Italy.¹⁴

Since the 2004 general initiative failed, the new post-Lisbon approach to procedural rights was conduced step by step.¹⁵ In 2009, the Roadmap, first, and the Stockholm Program, second, focused on several steps to be taken to further implement the enormous impact that the ECHR system had already produced in the field of procedural rights.

Measures from A to F of the Roadmap pointed out six topics on which the EU bodies will submit normative proposals. Among them, measure A dealt with translation and interpretation,¹⁶ while measure B dealt with information on rights and information on charges.

The Commission proposal on measure B—under article 82(2) TFEU and considering articles 47 and 48 of the Charter—was submitted in 2010¹⁷ and finally approved in 2012. During this somewhat long period, some fundamental changes were made to the original text.

As far as the 2012/13 directive is concerned, it would be superfluous here to set forth its contents, as they are well known. Rather, we should analyze it from the point of view that was adopted at the very beginning of this study: how and to what extent can this new legislative tool effectively implement the rights already enshrined in the ECHR system?

To begin, it must be stressed that, although the original draft proposal only concerned transborder procedures, the solution adopted in the directive concerns all types of criminal proceedings, regardless of the legal status, citizenship, or nationality of the accused person, as written in recital no. 16.

The aim of the directive is multiple: