Towards a European Right to Claim Innocence?

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Table of Contents: I. EU law and revision. – II. The nature of revision and (Western) European grounds. – II.1. The nature of revision: striking a balance between legal certainty and justice. – II.2. Different approaches on the grounds for revision in (Western) Europe. – III. Harmonisation of criminal revision procedure law. – III.1. Competence for harmonisation in general. – III.2. Criminal matters having a cross-border dimension. – III.3. Improving mutual recognition. – III.4. The principle of subsidiarity. – IV. Conclusion.

Abstract: Although there is a European right to fair trial, a presumption of innocence, and a right to appeal, there is no European human rights norm that obligates Member States to allow former suspects to contest their convictions. In a time of growing harmonisation and comparison of criminal procedure approaches between European countries, and in a time in which new scientific options to gather and analyse evidence were developed, the question rises whether there should also be an EU right to claim innocence. And if so, what should it entail? A common European (Union) right to claim innocence could further strengthen the faith Member States have in each other’s legal system and therefore have a positive influence on mutual cooperation in criminal matters. This Article explores the justification for an EU directive on this topic. It is concluded that an EU procedural right to overturn wrongful convictions could be justified (by the EU legislator), but further research on the various differences and (in)adequacy in practice of the existing mechanisms across the Member States is needed to substantiate the necessity of such an EU instrument.

Keywords: revision – claim of innocence – miscarriages of justice – mutual recognition – mutual trust – minimum rights.

European Papers, Vol. 5, 2020, No 3, pp. 1325-1340
2499-8249 - doi: 10.15166/2499-8249/428

* Associate Professor of Criminal (Procedural) Law, Erasmus School of Law, Erasmus University Rotterdam,
** Assistant Professor of Criminal (Procedural) Law, Radboud University Nijmegen,


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