Procedural safeguards in the EU

What are procedural safeguards?

The term ‘procedural safeguards’ refers to the protections afforded to a defendant in the course of criminal proceedings. The European Commission Green Paper and Proposal for a Council Framework Decision on procedural safeguards adopted the phrase to refer to this aspect of criminal procedure in the area of police and judicial co-operation in criminal matters, for which legislative activity is enacted pursuant to the Third Pillar of EU Treaty Law. The 5 key protections identified in the Proposal were the right to legal representation and legal aid, the right to interpretation and translation, notification of rights, assistance for vulnerable defendants, and consular assistance.

Why is action necessary?

As set out in the Green Paper and Proposal, protections for defendants during the course of criminal proceedings are required to ensure that a fair trial takes place. The Council of the European Union (Consisting of the Heads of State of each Member State) agreed at Tampere in 1999 in the Presidency Conclusions that action was necessary in this area. In 2004, the Hague Programme confirmed that defence rights must be protected when enacting legislation on criminal matters. There are now multiple legal instruments either in force in the Member States or being adopted at EU level which aim to allow mutual cooperation between prosecuting and judicial agencies in the detection and prosecution of crime. These instruments focus on how the cross border criminal process can be made more efficient without considering the interests of the defendant. Whilst all Member States are signatories to the European Convention on Human Rights and Fundamental Freedoms, all Member States continue to infringe Convention Rights. Numerous recent studies have shown that there are wide ranging differences in protection of defendants during the criminal process as between the Member States. The Strasbourg Court can only consider a case post infringement and has a 100,000 caseload backlog. Nor are its decisions effectively enforceable to ensure a regime change in the Member States. The benefit of a Council framework decision in this area is that it is binding upon the Member States and must be implemented by way of national legislation.

Why are there no procedural safeguards already?

The Justice and Home Affairs (JHA) Council, which consists of the Ministers of Justice and their equivalents from the 27 Member States, debated the practicalities of adopting the Proposed Framework Decision, reducing it in its scope substantially over a three year period. Eventually in the summer of 2007 the Proposal was shelved. Six member States refused to accept the Proposal: the UK, Ireland, Czech Republic, Slovakia, Malta and Cyprus. The justification given was predominantly related to whether there was competence to act in this area, either at all or limiting effect to cross border cases. The UK also commented that the proposal was so limited that it would simply reflect Convention rights and there was therefore no point in enacting the legislation in that form.

So how are these safeguards to be protected?

Sweden will hold the next EU Presidency from July to December. They have announced an intention to revive the efforts in the area of procedural safeguards by way of a road map which will set out the rights to be considered. This will be followed up by proposals for Council framework decisions from the Commission on each right separately rather than collectively. What is not yet clear is which rights will be included, over what period of time, and how this road map will bind future EU Presidencies to continue to act in this area. The Commission is expected to communicate a Proposal for a Council Framework Decision in the area of interpretation and translation on the 1st July.

What is JUSTICE’s view?

JUSTICE has a supported action on procedural safeguards since the outset of the debate. Indeed, we proposed action in this area prior to the Commission Green paper in 2003. We continue to be involved along with a number of other NGOs. Whilst our original stance is maintained, in that if any action in the area of judicial and police cooperation in criminal matters is to be successful, in terms of mutual trust and recognition, the prosecution measures must be balanced with defence protections, we accept that the previous attempt failed to be adopted by the JHA Council and a new approach may be required. We will, however, strongly advocate to the Swedish Presidency and other Member States, the need for the proposed road map to clearly spell out the rights it aims to protect and how this will be achieved and that the instrument must be such as to bind future JHA Councils. We will be active over the next few months in raising awareness of the importance of these rights to all EU Member States. Whilst the UK has a strong system of defence protection through the Police and Criminal Evidence Act 1984, the same is not true of other Member States. The British public must be aware that should they travel abroad on holiday or make use of their freedom of movement within the EU, the guarantees available to them at home (the right to a phone call, to have a lawyer present prior to and in interview, to have an interpreter, and to be given disclosure of the case against you amongst others) may not exist in the country they travel to. In the era of the European Arrest Warrant, a simple speeding ticket, mistaken identity in a mobile phone theft or pub brawl could lead to individuals being surrendered to their holiday destination, but without the comfortable hotel accommodation and return flight, and frequently without the legal assistance they would expect to receive at home.