FAIR TRIALS ABROAD

September 2001

"FREEDOM" AND "SECURITY" IN THE EUROPEAN LEGAL SPACE
REFLECTIONS ON CURRENT TRENDS IN THE IMPLEMENTATION OF THE TAMPERE PROGRAMME.

INTRODUCTION

The Treaty of Amsterdam (June 1997) states that the European Union will maintain and develop an area of Freedom, Security and Justice. "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States" (Art.F.l).

The European Council, the Union's supreme governing body dedicated its meeting at Tampere(October 1999) to the principles behind a programme to create this area, now generally described as the European Legal Area. The Tampere Conclusions set out,inter alia, two complementary stratagies in the field of Criminal Justice.

For "Freedom" a Charter of Fundamental Rights was to be created

The Council appointed a convention made up of government and parliamentary representatives from each of the member states together with European parliamentarians to produce a charter. For "Security" the Council called for an action plan for such measures as a European prosecutors organisation, fast track extradition and mutual enforcement of national court orders and judgements. Both initiatives were to be submitted by the European Commission at the Nice summit in December 2000.

What emerged at Nice was a charter that was a pious declaration of principles which was found to be unenforceable and thus without legal effect. In terms of the rights of the defence, it did little more than confirm what is already stated in the 50-year-old European Convention on Human Rights(ECHR). Regarding Security, a detailed programme was adopted setting out grades of priority attached to 24 measures proposed concerning Mutual Recognition.

In view of the successful creation of such mechanism as Europol, OLAF and Eurojust, it would seem that there has been a violent tilt towards the prosecution of crime without the balance required by the scales of justice.

Against this depressing background Fair Trials Abroad conceived of a way forward utilizing the Commission programme. This has been set out in earlier papers and is reflected upon below.

THE IMMEDIATE BACKGROUND

As a result of Tampere, a body called Eurojust was designed to facilitate interstate prosecution by sharing of information and cooperation between the public prosecutors and police chiefs of the 15 member states. By April 2001 individuals were seconded from their national services and established in Brussels. As a way of ensuring the principle of equality of arms, FTA wrote an open letter to European institutions proposing the setting up of a similar body with a panel of defence lawyers to ensure that defendants' rights were respected .

This letter initiated a correspondance between FTA,Graham Watson MEP, Chair of the civil liberties committee of the European Parliament, and Adrian Fortescue, Director General of Justice and Home Affairs at the European Commission. It culminated in a letter from Commissioner Antonio Vitorino, JHA to Graham Watson dated 27th July 2001. The contents of this letter must be assumed to contain the current views of the Commission on the development of the European Legal Space and the balance between Freedom, Security and Justice. As such, it deserves to be analysed with care.

The text of the letter has been reproduced and is attached.

REFLECTIONS ON THE LETTER.

The numbering below follows that inserted by us into the aforementioned letter.

(1) The Twin Track approach

The Conclusions of the Tampere Summit 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. Just how this was to be achieved was neither explained nor dealt with. In his letter Commissioner Vitorino reaffirms his belief, shared by us and the European Parliament, that what is needed is a twin track approach to the creation of a European Legal space in which the accused or the defendant is protected from injustice. He must therefore tackle the "Freedom" problems of defence simultaneously with the "Security" problems of prosecution.

(2)The European Court of Human Rights as protection.

Underpinning this passage in the letter are two assumptions: that the standards set by the European Court in Strasbourg are being implemented in practice throughout the Union and that a high level of democratic involvement and respect for the rule of law exists uniformly throughout all MS.

We know from our casework and the information arising from our surveys into the distance between what is stated in law (national as well as international fair trials law) and what happens on a daily basis that reality is far removed from the above aspiration. Many senior judges will openly admit that rulings from Strasbourg are either ignored, or even remain completely unknown.

It should be noted too that the European Convention on Human Rights is now over 50 years old. Although standards of justice expected by societies have moved on, the ECHR remains silent on, for example, judicial standards. In 1998 a monitoring exercise carried out for the Council of Europe into compliance with existing legislation revealed practices that were sufficiently shocking for the report never to have been published. In a summary of its conclusions given to FTA, it appeared that political interference with judicial appointments and judicial activity, systematic bias towards the prosecution and an unbalanced disinclination to acquit were only some of the concerns raised. Thus Strasbourg is not sufficient by itself to ensure compliance with the principle of parity of arms.

The democratic procedures offered to the individual citizen in accessing justice are costly, time consuming and, in some member states, virtually inaccessible. Fair Trials Abroad stands virtually alone in its work towards achieving effective access to justice for EU citizens.

(3) Mutual respect precedes mutual recognition.

Reciprocal confidence is doubtless an essential ingredient for mutual recognition yet, in the absence of nationally, or internationally recognised standards of professional competence, it is difficult to see how mutual recognition can be achieved without a thorough, prior assessment and evaluation of current practices. It is interesting to note that just such a study has been carried out to assess the viability of candidate nations' justice systems

Criminal procedures differ sometimes widely between MS e.g. the acceptance of trials in absentia in Italy and France but believed to be unacceptable in most circumstances in the remaining MS, or the fast track procedure introduced by Belgium in 2000 for crowd control, now seen to be ineffective. Only one person was charged and later found guilty in spite of the widespread damage to of many city centres; it is widely held that this case will be thrown out by the Court in Strasbourg on the grounds of improper legal procedure and the abuse of standard defendants' rights due to the limitations of the procedure itself.

Training for lawyers and judges also vary widely. Until some mechanisms are put in place to evaluate current protection and thus to develop mutual confidence, mutual recognition will pose unacceptable risks.

"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficial. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding"

(4) The Charter of Fundamental Freedoms

The Charter provides much the same protection as is found in ECHR. However, it missed the perfect opportunity for a more detailed protection of defendant's rights, for example, the rights of suspects during pre-trial stages. This document may have been adopted at Nice in December 2000 but is currently unenforceable. Its future and its legal status are still unclear. If moral persuasion is to be the guarantee of freedom, why was it not deemed to be sufficient for the requirements of improved security?

(5)The Abolition of extradition requirements and the European arrest warrant.

FTA is in agreement with Commissioner Vitorino that the European arrest warrant is a wholly desirable objective provided adequate safeguards against discrimination and abuse of fundamental rights are in place when the concept is implemented.

It should be noted that Corpus Juris recommends greater protection for the accused than currently exists. Art 25(2) recommends the following:

"An arrested person is brought without delay to the judge of freedoms of the state where he is being held. The judge of freedoms checks that the warrant concerns the arrested person, that the arrested person has been arrested according to a regular procedure and that his rights have been respected, in accordance with the procedure laid down in the Corpus Juris and in national law in accordance with the principle of complementarity found in Article 35 of the Corpus. The arrested person has the right to ask the judge of freedoms of the place where he is being held to be bailed until transferred".

It is not clear from Mr Vitorino's letter what the "increased legal security that will be brought about" actually refers to, nor which is the mechanism envisaged. In the absence of greater clarification on this vital issue, we can but be deeply concerned by the hasty implementation of vague proposals.

(6) The Defence Scoreboard

In the conclusions of Tampere it was stated that:

"The European Council is determined to develop the Union as an area of freedom, security and justice... The European Council sends a strong political message to reaffirm the importance of this objective and has agreed on a number of policy orientations and priorities which will speedily make this area a reality…. It will keep under constant review progress made towards implementing the necessary measures. The Commission is invited to make a proposal for an appropriate scoreboard to that end."

A detailed programme on Mutual Recognition giving grades of priority attached to the 24 measures proposed was adopted by the Nice Council.Fast track extradition and recognition of each others criminal judgements were to be part of the immediate timetable where "it is desirable that substantial progress be made in implementing (it)before the end of 2002".

We note the Commissioners intent: "the Commission will work towards formulating at the level of the Union common minimum procedural standards. Such standards should further reinforce the protection of individual rights within the Union."

We presume that this statement is a precursor to a detailed programme on the protection of individual rights incorporating an appropriate scoreboard and priorities. Again this is a wholly welcome new development. In this connection we would recommend a study of our proposals published in the aftermath of Tampere .

(7) The Candidate Nations

We share the concern of the Commissioner as to the current position and its relevance to mutual recognition of judgements. However we would stress the need to put our own house in order in this regard before proceeding further.

GENERAL COMMENTS

Although we have been critical of some aspects of the European Commission's position, we are delighted in particular at the recognition that such developments as the European Arrest Warrant must be accompanied by, and dependent upon, the strengthening of the citizen's rights in practical terms and the proposal for the creation of a programme for the defence of the citizen's rights. We share with the Commissioner his belief that such proposals, implemented with determination and in a practical manner, would redress the balance of Justice in The European Legal Space.

Fair Trials Abroad is working on a number of concepts, in particular that of an Ombudsman with powers to report directly on interstate administration of justice problems to the parliamentary assemblies of all the member states. It would be good to confer.

Our main concern is that of timing. It is proposed that European Arrest Warrants and Mutual Recognition are due to be in place by the end of 2002, but the programme for protection of the citizen has yet to be finalised let alone implemented. Whilst ensuring adequate legal representation is purely a matter of administrative and financial planning, a European-wide professional standard for interpreters and translators properly monitored by the new profession is many years away. We have fears that a dark decade of repressive law enforcement stretches ahead of the community before solutions to the underlying problem can be put in place. One such problem is the lack of collective democratic control over the Council of Ministers' decisions in Justice and Home Affairs.

The events of September 11th terrible though they all were, have changed nothing. Essential safeguards must be put in place. To quote Benjamin Franklin, one of the great founding fathers of the USA:

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety"

Appendix

Dear Graham,

Thank you for your letter of 26 June 2001. You take up the concerns of Mr Jakobi of Fair Trials Abroad about the direction in which legislation on justice for EU citizens arrested in Member States other than their own is moving.

(1)I agree with your view that the creation of an area of freedom, security and justice within the European Union cannot be achieved unless we ensure that the civil liberties of every person within the Union are well protected at the same time as we increase the effectiveness of cooperation in the fight against crime. It is indeed necessary to pursue both objectives simultaneously.

(2)The Member States of the Union share the requirement for a high level of democracy and respect for the rule of law. It is because of this high level, together with the fact that all Member States are subject to the European Court of Human Rights, that the criminal justice systems of the different Member States should progressively develop confidence in each other. (3) That reciprocal confidence is the basis of any process of mutual recognition.

(4)At the level of the Union, an important step has been taken with the adoption of the Charter of Fundamental Rights, which sets out and supplements the fundamental rights recognised by the European Convention on Human Rights. The Charter and the rights which it contains should increasingly inspire all areas of our work in creating a European legal space.

(5)This will appear clearly in the Commission's forthcoming proposal for a European arrest warrant. My aim is to replace extradition procedures between Member States with a process based on the mutual recognition of judicial decisions. It should allow for a significant speeding up of procedures within the Union and a better respect for the requirement of reasonable time limits that has time and again been repeated by the Strasbourg court.
The proposal for a European arrest warrant will provide for rights of defence, including the right to legal counsel. The mechanism we envisage should, because of the increased legal security that it will bring about, help prevent the need for defendants to be taken into custody before any conviction, even if they do not live in the country where the proceedings take place. Finally, we will propose that the need for offenders to be rehabilitated after serving their sentence should be taken into account by requiring that any sentence should normally be served in the Member State where an offender is most likely to be rehabilitated.

(6)More generally, the Commission will work towards formulating at the level of the Union common minimum procedural standards. Such standards should, whilst respecting the identity and coherence of the various legal traditions of the Member States, further reinforce the protection of individual rights within the Union. Matters such as the right to legal assistance, the right to interpretation, the admissibility of evidence in criminal proceedings, and pre-trial custody could be examined in this context.

(7)Finally, I would like to stress that in the enlargement negotiations the Commission will be paying increasing attention to evaluating the quality of the legal systems of the applicant countries. The adoption in the applicant countries of the Community acquis could be put in jeopardy by inadequate legal systems. Furthermore, the process of mutual recognition of judicial decisions - which should, as has often been repeated, be the cornerstone of the creation of a European, legal space - would be threatened if the applicant countries were not able to ensure that their judicial systems were fit to be fully trusted.

These specific examples illustrate the way in which the Commission is taking the balanced approach that we both favour. It goes without saying that I would be happy to discuss these matters further with you.

Yours sincerely,
ANTONIO"

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