What is happening?
Since we last mentioned procedural safeguards in edition 9 (Spring 2009), where we outlined the need for protection of suspects’ rights in criminal matters, and informed that the Swedish Presidency would bring the issue back to the EU agenda, much work in this area has taken place. The Swedish Roadmap was adopted by the Justice and Home Affairs Council in November 2009 and paved the way for action on individual rights over the course of the next five years.
Which rights will be protected and how?
The right by right approach in the Roadmap aims to protect the right to, in turn, (1) interpretation and translation, (2) information on rights and information about charges (3) legal advice and legal aid, (4) communication with relatives, employers and consular authorities, (5) special safeguards for vulnerable people. The Roadmap also provides for the presentation by the Commission of a green paper on pre-trial detention, which will seek to address amongst other issues, length of pre-trial detention.
The rights will all be adopted through directives, which is the mechanism now available following the Lisbon Treaty coming into force. This is very similar to framework decisions, which were used for the European Arrest Warrant and previous instruments in this area. The nature and purpose of the instrument must be transposed into national law, but each member state is free to choose the mechanism by which to do so. Regulations are also available in this area following the Lisbon Treaty, but because these have direct effect as written, they are unlikely to be favoured by the member states. The main change post Lisbon Treaty is the Commission has enforcement powers where the instrument is not adopted in accordance with the intentions of the EU, and can take a member state to the Court of Justice of the European Union (ECJ) for not complying. Equally, if the implemented law is relevant to national litigation, the national court can make a preliminary reference to the ECJ for guidance on interpreting the law.
What progress has been made?
In October the very first EU instrument protecting safeguards for defendants was adopted on the right to interpretation and translation. The instrument requires these services to be available in the preferred language of the suspect, or where not available initially, in a language they can understand, as from the moment of arrest, until the final appeal has concluded. They must also cover conferences with legal representation and if the suspect does not have the means to pay, legal aid must be provided for the services. Member states have until October 2013 to give effect to the rights contained in the directive, so proper communication is still a long way off. Whilst it is a memorable occasion that the EU has adopted its first instrument protecting rights of defendants, with cuts across Europe to public spending, it is difficult to be optimistic.
The EU has now moved on to the second measure on the right to information. Having been proposed last summer by the EU Commission and the EU Justice and Home Affairs Council working party looking at it in detail for the past six months, the European Parliament now has an opportunity to make its views known on the instrument and will propose amendments once the appointed rapporteur has suggested the way forward. This instrument is important because it will let suspects know what they are entitled to in police detention. In England and Wales suspects receive a booklet on their rights when they arrive at the police station. This has been used by an EU Commission study to suggest how member states might phrase their ‘letter of rights’. This is important as in some countries there is no obligation upon the police to inform suspects of their right to silence. What police do in practice also differs widely.
In JUSTICE’s view the instrument needs to ensure suspects and defendants know their rights all the way through the criminal process, not just at the police station. It cannot always be assumed that a person will be given legal assistance following this first stage. There are also complex issues about affording disclosure, the rules for which vary across the member states. In some countries a defendant’s representative is allowed access to the case file and can make notes about the contents. In common law jurisdictions, like ours, a disclosure officer will review the prosecution file and decide what needs to be disclosed. Unsurprisingly, member states find each other’s systems objectionable! The current compromise is to ensure that the case law of the European Court of Human Rights is given effect to, which requires all evidence in favour of or against the accused to be disclosed. How this might be given effect to in practice will no doubt receive a lot of attention by the European Parliament.
The next proposal is to focus on the right to legal representation. This is a controversial issue such that the conjoined right to legal aid has been removed from the proposal and will not be presented until the following year, when the Commission has had the chance to conduct an impact assessment. The assessment will attempt to set out the cost of providing effective legal aid. This is not popular in a time of budget cuts. Naturally, JUSTICE is concerned that in order to be effective, the right to legal representation must be accompanied by a right to legal aid. We will consider the proposal when it is presented in the summer with interest and make sure that legal aid remains in the forefront of the discussions about this measure.
The Commission is due to consult shortly about rights in detention. This will be a difficult area to propose changes to since conditions largely reflect the criminal justice system of the member state concerned and as such it is very difficult to consider pre-trial detention in isolation. Much work has been done in this area by the Council of Europe’s Committee on the Prevention of Torture and it would be unfortunate if the EU did not capitalise on this existing resource. However, JUSTICE does think that there is a role for the EU in this area. By creating binding rules across the EU, member states will have to implement them at a domestic level. Clearly, guidelines and recommendations have had little impact upon detention conditions within the EU thus far.
It is positive that the Roadmap has remained on the agenda of the Justice and Home Affairs Council. The Commission continues to present proposals which are given practical and meaningful consideration by the member states. No doubt research carried out by organisations like JUSTICE has shown the need for change. We hope that the momentum will continue as progression is made through the measures. We anticipate that the right to legal aid will be the most controversial for the member states to agree. For the EU to add value in this area, it must make sure that its measures are effective in practice for the protection of suspects’ rights.