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"Protecting the travelling citizen" - Fair Trials Abroad

28 March 2012

12 September 2000

Mutual Recognition of final decisions in criminal matters

RESPONSE TO THE COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT, dated: 26.7.00 Ref: COM(2000) 495 final

Executive Summary

The Communication recalled that the Tampere European Council stated that enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights.

As stated then, we remain of the view that although much reliance is given to the European Convention on Human Rights (ECHR), the principles under Articles 5 & 6 are applied to different standards and at different stages in proceedings, throughout the criminal justice systems of member states.

(i) State funded Legal representation

In some EU states, state funded legal advice and representation will be provided if the person detained is unable to pay a lawyer. In many EU member states there is only an underfunded, ill-administered scheme which rarely provides the service as set out in legislation concerned with fair trials.

(ii) Interpretation and translation these services are generally ad hoc and ill administered, resulting in poorly prepared or un-skilled interpreters performing the crucial task of being the communication link.

(iii) Trials in Absentia:

We cannot understand arguments for the continued existence of trials in absentia involving European Union citizens within the European Union. Currently most EU member states do not permit trials in absentia unless the trials have at least commenced in the presence of the accused.

Conclusion

Whilst Fair Trials Abroad fully supports the initiative taken at Tampere to review current justice systems and create simpler and more effective procedures to assist in the fight against burgeoning cross-border crime, we must point to the risks inherent in current planning. The Post Tampere process is currently perpetuating and increasing the imbalance between "Security" matters of prosecution and crime prevention on the one hand, and "Freedom" matters of defence and the protection of civil liberties on the other. The very fabric of Justice is at stake We would urge both national and European Parliamentarians to oppose any increase in International law enforcement powers, under whatever guise they appear, until visible progress is made in safeguarding Citizens rights.

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RESPONSE TO THE COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

INTRODUCTION

The Communication recalled that the Tampere European Council stated that enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights. It went on to state Mutual recognition should thus ensure not only that sentences are enforced, but also that they will be served in a way that protects individual rights. For example, enforcement in another Member State should also be sought when it permits a better social reintegration of the offender.

As a European human rights NGO we were invited to a consultative meeting of experts prior to the drawing up this Communication.

As stated then, we remain of the view that although much reliance is given to the European Convention on Human Rights (ECHR), the principles under Articles 5 & 6 are applied to different standards and at different stages in proceedings, throughout the criminal justice systems of member states. The impact of measures arising out of the Tampere proposals is therefore likely to differ between countries.

Our concern continues to be that by treating the issue of mutual recognition as a series of administrative problems on the evaluation and service of sentences, a number of vital and basic individual rights are bypassed or taken for granted.

This paper aims therefore to draw attention to the risks inherent in current proposals and the implications for civil liberties of all EU citizens.

Commentary

In our evidence to the Convention on the Charter for Fundamental Freedoms in January 2000, we stated that the proposed developments on mutual recognition without appropriate counter measures pose unparalleled and unacceptable risks to civil liberties and fundamental rights. We called for a "twin-track" approach to ensure equal weight is given to the fight against crime and protection the civil liberties of the individual.

Fair Trials Abroad is concerned about major defects in the observance of the ECHR within the Union. There is a large body of case law and research findings which give substance to the proposition that in many countries of the Union the individual facing serious criminal charges is unlikely to receive a fair trial. Fundamental rights such as adequate interpretation, so that he can understand and be understood, or access to a competent lawyer to defend him if he cannot afford to pay are simply not made available.

Crucially, there is as yet, no recognised, authoritative standard of good practice which is considered adequate for the provision of these services anywhere in the Union.

Modern "best practice" was codified in a resolution adopted by General assembly of the United Nations in 1988, A body of principles for the protection of all persons, under any form of detention or imprisonment, was adopted without a vote. These principles build on the experience of previous regional and international Treaties and go into far more detail on protection than, for example, the International Convention on Civil and Political Rights (ICCPR.)

1. Under Principle 15, communication with counsel cannot be denied under any circumstances for more than a matter of days. The defendant shall be entitled to have the assistance of counsel promptly after arrest (Principle 17} and have legal counsel assigned to him if he does not have means to pay.

2. Under Principle 14, a person, who does not adequately understand or speak the language used by the authorities in question, is entitled to receive promptly, in a language he understands, all information required under the principles and to have the assistance, free of charge, of an interpreter in connection with legal proceedings subsequent to his arrest.

It is also to be noted that the draft articles of the Corpus Juris, a recent initiative to provide a criminal code and procedure for the Community, gave the following rights to the accused :-

"Article 29: Rights of the accused:

In any proceedings brought for an offence as set out above(Articles 1-8), the accused enjoys the rights of the defence guaranteed by Article 6 of the European Convention on Human Rights and Article 10 of the UN International Covenant on Civil and Political Rights.

From the time of his first questioning, the accused has the right to know the content of the charges against him, the right to be assisted by a defence lawyer of his choice, and, if necessary, an interpreter."

It is our view that if existing principles and conventions could be systematically enforced thereby protecting the individual's rights as set out, an adequate balance would be struck between the needs of the prosecution and those of the defence.

Threats to Safeguards:

(i) State funded Legal representation

Almost all Union states provide that when a citizen is detained for questioning, the citizen has, in general, the right to demand a lawyer of his choice be contacted and to refuse to answer questions until he has received legal advice. In some EU states, state funded legal advice and representation will be provided if the person detained is unable to pay a lawyer. In many EU member states there is only an underfunded, ill-administered scheme which rarely provides the service as set out in legislation concerned with fair trials.

(ii) Interpretation and translation

Although most EU member states attempt to comply the legislation concerned with fair trials in this respect, these services are generally ad hoc and ill administered, resulting in poorly prepared or un-skilled interpreters performing the crucial task of being the communication link. Few criminal justice systems provide for full interpretation and translation of everything that a native speaker would automatically have. It is not sufficient for an accused to have verbal interpretation only of the indictment. If there is any risk of the accused being put at a disadvantage he must be provided with a written translation of the indictment in a language which he understands and all statements, in both languages, should be tape recorded allowing for verification of the translation in case of doubt.

(iii) Trials in Absentia:

We cannot understand arguments for the continued existence of trials in absentia involving European Union citizens within the European Union. With the development of fast track extradition, the procedure - which in practice almost inevitably involves abuse of ECHR - becomes an annacronism. Currently most EU member states do not permit trials in absentia unless the trials have at least commenced in the presence of the accused.

CONCLUSION

By holding meetings of experts to discuss the issues, and giving grants for research into such aspects of mutual recognition of decisions as disqualification and sentencing, the Commission has made clear its desire to facilitate and accelerate cooperation between competent ministries and judicial or equivalent authorities of Member States in relation to the enforcement of decisions.

Whilst Fair Trials Abroad fully supports the initiative taken at Tampere to review current justice systems and create simpler and more effective procedures to assist in the fight against burgeoning cross-border crime, we must point to the risks inherent in current planning. It is apparent to us , there is a failure to recognise the need for balance between prosecution objectives and the civil and legal rights of the individual. We ask how the recommendations, for example, that contained in para 10 that some specific aspects of procedural law could nevertheless be spelled out in more detail, will actually be put into effect? By what deadline? At whose instigation? And with what assurance of standard compliance across all member states?

The Post Tampere process is currently perpetuating and increasing the imbalance between "Security" matters of prosecution and crime prevention on the one hand, and "Freedom" matters of defence and the protection of civil liberties on the other.

The very fabric of Justice is at stake We would urge both national and European Parliamentarians to oppose any increase in International law enforcement powers, under whatever guise they appear, until visible progress is made in safeguarding Citizens rights.

Fair Trials Abroad

September 2000

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