Member States should ensure that the right to be presumed innocent applies equally to all defendants, irrespective of their personal characteristics or personal history. Member States should put in place effective measures to ensure that criminal justice officials, as well as lay judges and jurors, are not biased or prejudiced against defendants for reasons such as their ethnic or social background and status, gender or other factors. In particular, existing legal provisions and supporting codes of ethics and conduct prohibiting biased or prejudicial behaviour based on such grounds should be fully complied with in practice. Other efforts should focus on ensuring proper, basic and continuous further training for officials to prevent such bias. Formal statistics and indicators to evaluate and address such phenomena should be developed and applied in a systematic manner.

To reduce potential prejudice and bias, Member States should encourage and promote diversity among judges, prosecutors and criminal justice officials so that they are representative of all cultural, social and ethnic backgrounds of a given society, including with respect to gender.

While respecting freedom of the press, Member States should establish precise rules on public authorities communicating with the media about ongoing criminal cases with respect to the presumption of innocence. In particular, only press officers or case-processing officers should inform the media about ongoing cases. The information should not include any personal data or details about the private lives of defendants. Law enforcement officers, lawyers and other participants in criminal proceedings, such as witnesses and victims, should be subject to strict rules prohibiting information leaks about ongoing investigations. Member States should ensure that breach of these rules results in proportionate and dissuasive sanctions.

Member States should consider developing guidance and materials to sensitise and provide guidelines to the media about the importance of the manner in which a suspect or accused person is presented in the media, highlighting the ways in which different practices can increase or decrease perceptions of guilt. When doing so, Member States should consider engaging with relevant national associations of journalists that have practical experience in reporting on criminal cases.

Member States should ensure that restraints or other security measures, such as handcuffs and glass boxes in court, are applied to defendants only after an individual assessment of security risks. The least strict measures that are effective and appropriate should be applied.

In this context, Member States should ensure that judicial authorities discourage the public presentation of defendants under restraining measures and discourage the taking of photographs of restrained persons, while allowing photographs to be taken when defendants are not restrained, to respect the freedom of the press. Moreover, law enforcement authorities should refrain from publishing footage of their operations containing photographs of restrained defendants. The application of these safeguards should be ensured with effective and persuasive sanctions, which authorities should rigidly enforce to ensure the right to the presumption of innocence. Member States should also explore opportunities for raising awareness among law enforcement officers, through training or other means, about the damaging effects of such images.

Member States should examine the possibility of allowing restrained defendants to use side entrances to courtrooms and separate waiting rooms to protect them from public view.

Defendants should be allowed to have their faces covered while being transported into and out of court. Prison or police regulations should be reviewed and, if needed, revised by relevant national authorities to include these requirements.

Authorities should make all necessary arrangements to allow defendants to select appropriate clothes when appearing in court. If necessary, authorities should provide defendants with clean and appropriate clothing.

Member States should ensure that, during trial proceedings, with due respect for each Member State’s procedural autonomy and traditions, both defence and prosecution essentially have the same rights with regard to their procedural powers to examine, question, adduce and request evidence.

In view of the inherent inequality between the capacity of defendants, on the one hand, and that of the prosecuting and investigating authorities, on the other, to seek and acquire evidence during pre-trial criminal proceedings, Member States should ensure that the defence can request investigating and prosecuting authorities, when justified, to investigate specific circumstances and search for crucial evidence on its behalf. Such requests may be justified, in particular, when it is not feasible for the defence to acquire such evidence.

Member States should ensure that legitimate presumptions of law or facts that reverse the burden of proof are limited to the extent necessary to ensure the effectiveness of criminal proceedings, and are always possible to rebut.

FRA reiterates its opinion from the report Rights in practice: Access to a lawyer and procedural rights in criminal and European arrest warrant proceedings that Member States should ensure that suspects are not treated as witnesses and any questioning of suspects or accused persons by the police is carried out only after they have been properly informed of their right to remain silent and to not incriminate themselves.

The examination of defendants and the provision of information about their rights should be recorded and any confessions or other testimony they make outside the strict procedural framework should be excluded from evidence. Hearsay testimony from police officers on what a defendant said or confessed to them before their formal questioning should be excluded from evidence. When in doubt about whether or not defendants were properly informed of their rights before incriminating themselves, their testimony should be excluded from evidence.

The police should operate according to strict guidelines on how to examine suspects and accused persons without infringing their right to remain silent and not incriminate themselves. Oversight and judicial authorities should reinforce their efforts to assess systematically how the police examine suspects and accused persons.

Indirect methods used to pressure defendants to provide incriminating evidence – such as the promise of milder treatment, reduced sentences or shorter proceedings – should never be used. Member States should provide systematic guidance and training to ensure that police officers always explain to defendants their rights, including the consequences of remaining silent, of a confession or of providing evidence or information that incriminates them. In sum, defendants should not be pressured by being told that exercising their right to remain silent could have negative consequences.

Member States should ensure that courts make reasonable efforts to locate defendants whose whereabouts are unknown. They should respect data protection and protection from arbitrary surveillance when doing so, but also use all available means provided by law, especially electronic databases from private and public entities.

Systems that presume that defendants have been notified by a summons served at their address should take additional steps to ensure that the right of defendants to be present at trial is respected. In particular, these systems should be promptly updated to take account of circumstances in which defendants are in state custody rather than at their last known address.