The mutual recognition of criminal judgments in the EU: will the free movement of prosecutions create barriers to genuine criminal justice?

Introduction

Justice and Home Affairs (JHA) officials are currently considering how to implement the principle of EU-wide "mutual recognition" of criminal court orders and rulings. This will ultimately oblige member states to act on each other's pre-trial orders - including arrest warrants, witness summons and evidence seizure - and final judgments. The work forms part of a package of forthcoming EU measures aimed at simplifying and expediting international judicial cooperation. Discussions to date have raised questions as to whether the need to facilitate cross-border prosecutions will be matched by compensatory measures for the defence.

The mutual recognition principle

Frustrated by slow and often ineffective provisions for judicial cooperation, the 1997 Amsterdam treaty paved the way for deeper integration - now termed the creation of a "European legal space". Mutual recognition, applicable to both civil and criminal judgments, is seen as its cornerstone, binding judiciary and process across the EU. UK officials describe the principle as:

decisions taken in one member state should be accepted as valid in any other member state and put into effect on a reciprocal basis.

This approach is seen as the least contentious of three possibilities for renewed integration in criminal law matters. "Harmonisation" involves imposing common, substantive criminal laws, a task many suggest is impossible due to the wide disparity in legal systems. "Approximation" requires agreement on identical or similar definitions of certain criminal offences and procedural rules. The UK - one of the countries pressing hardest for mutual recognition - suggests that the approach is based on:

tolerance of diversity on the basis of mutual confidence and trust in each others' legal systems, as opposed to insistence of uniformity for its own sake.

Where applied, the principle will remove the "dual [or double] criminality" rule where member states can insist that before acting on a request for assistance from another country (through current "mutual legal assistance" or extradition agreements) the matter must also constitute an offence by their own definitions of criminality.

A UK discussion paper drawn up for the EU's K.4 committee in March 1999 formed a basis for the formal political agreement on mutual recognition that was reached last October at the special JHA summit in Tampere (background). The document proposed that:

Judicial decisions which could in principle be brought within the scope of mutual recognition include arrest warrants, summonses to witnesses and defendants, warrants for search and seizure, orders for the production of evidence (such as bank records) and orders for provisional freezing of assets or evidence, eg electronic evidence, especially where speed is critical to preventing the dissipation or destruction of the assets or evidence.

Achieving mutual recognition

Full mutual recognition of judicial decisions is a distant if not inconceivable prospect. The principle is already established in a number of international agreements and mechanisms (examples include the recent convention on community-wide enforcement of driving bans, agreements on the seizure of assets in international fraud and corruption cases, and a resolution on the mutual enforcement of stadium bans given to football hooligans). The 1968 Brussels Convention provides for the enforcement of judgments in civil or commercial matters in another (contracting) state. To widen the scope for mutual recognition in criminal matters, the EU will initially develop arrangements for certain judicial decisions or judgments to be endorsed by the judicial authority in a requested member state, with a presumption in favour of endorsement and limited grounds for refusal. At the same time some of the existing agreements and conventions providing for mutual recognition will be re-evaluated. In the longer term, the EU will aim to progressively make certain decisions or judgments directly enforceable (removing the requirement of judicial endorsement in foreign jurisdictions) across the union.

The Tampere summit set a deadline of December 2000, for the adoption of a "programme of measures to implement the principle of mutual recognition". However, rather than draft legal instruments, JHA ministers in France will be asked to agree on policy guidelines and recommendations (probably in the form of an action plan). EU working parties are currently considering the initial scope for mutual recognition (the offences and procedures that it will apply to) and the protocol for enforcement (direct, automatic recognition or indirect, fast-track procedures involving EU networks or bodies such the "European Judicial Network" or proposed prosecutions unit "Eurojust"). Work will then proceed in four broad areas:

(i) The enforcement of foreign criminal sanctions (sentences and punitive measures);
(ii) "mutual legal assistance" (pre-trial orders and the seizure of evidence and assets);
(iii) extradition (the development of fast-track procedures and the removal of the various exceptions - "political offences", dual criminality and "own nationals");
(iv) "eurowarrants" (EU-wide enforcement orders).

In addition, the EU will press for the approximation of certain criminal offences to facilitate the implementation of mutual recognition.

A fair trial abroad?

Fair Trials Abroad (FTA) is a legal rights group concerned with fair treatment of people in alien jurisdictions. Director Stephen Jakobi recently described the discussions on a European legal space as representing "the greatest threat to civil liberties in the last 50 years". A primary concern of FTA is the quality of judicial standards in some jurisdictions, and that under the new proposals their decisions will be enforceable across the EU. Various cases can be cited in support of FTA's fears, including Bridget Seisay, a black British woman who spent eight months in a Belgian jail on a count of trafficking in human beings. She was returning from a visit to her partner's cousin (the Sierra Leonese ambassador) in Germany with a woman she had met at his home. On boarding the Eurostar in Brussels it transpired that her companion was travelling on a false passport and Ms Seisay was arrested on trafficking charges (see Statewatch vol 9 no 3 & 4). Although she had no prior knowledge of her new friend's status or the fake document, six different Belgian judges failed to recognise the weakness of the evidence against her. Following her acquittal Stephen Jakobi commented: "It is difficult to believe that a white woman supported by a white ambassador would not have been released very quickly".

Those EU countries with judicial standards that FTA are most concerned about are Greece, Portugal, Spain and Belgium. However, they suggest that discrimination against non-nationals by judicial authorities is a Europe-wide problem. There are vastly disproportionate numbers of foreign prisoners on remand in EU countries and in 1995 FTA suggested that up to half of them would not be imprisoned in their own countries. Case examples included a complex smuggling operation centred on the UK in which 16 people of French, German and UK nationality were arrested. While awaiting trial, all the British defendants were bailed, and all the rest remanded in custody.

Enforcing unsound judgments

A recent ruling at the European Court of Justice (ECJ) on the interpretation of the provisions in the Brussels Convention for the enforcement of civil judgements highlights the potential problems that mutual recognition agreements may bring. The case, C-7/98 Krombach, concerned the death of a 14 year-old French girl in Germany. Following their investigation, French authorities initiated criminal proceedings against a German man, Deiter Krombach. The girl's father (also from France) brought a simultaneous civil claim for damages. Notices were served on Mr. Krombach in Germany by the Court D'Assises, Paris, but he failed to appear at the hearing in person. Contempt proceedings were then applied and in compliance with French law, under which no defence counsel may appear on behalf of a person in contempt, the court tried Krombach without hearing from the lawyers that he had instructed. In his absence, Krombach was sentenced to 15 years imprisonment after being found guilty of violence resulting in involuntary manslaughter and ordered to pay the victim's father 350,000 francs compensation (£35,000) in respect of the civil claim. The father then sought the enforcement of the civil judgment in Germany under the terms of the Brussels Convention and a regional German court declared the ruling enforceable. Following the dismissal of an appeal by a higher regional court, Krombach appealed against the enforcement of the fine to the Bundesgerichtshof (German High Court) on the grounds that he had effectively been unable to offer a defence to the French court - something which would have been unconstitutional in Germany.

The Brussels Convention does not permit any review as to the substance of a foreign judgment by a contracting state - such as whether the trial was fair - but does allow a state not to recognise the ruling if it contravenes their own "public policy". The ECJ, deciding on the interpretation of this clause, ruled that the German courts were entitled not to recognise the French judgment on the grounds that:

the legislation in the state of origin and in the [Brussels] Convention itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself ... as recognised by the ECHR.

Safeguards and minimum standards

In seeking agreements that provide for the direct enforcement of foreign orders (with minimal grounds for refusal), the mutual recognition of criminal judgments (including pre-trial orders) clearly poses the threat that unsound rulings will be endorsed by foreign courts which are powerless to review their substance. Such problems, the EU suggests, will be off-set by compensatory measures in the form of minimum standards in respect to the rights and treatment of suspects and defendants. However, as yet these fundamental questions have barely appeared in the EU's discussions (in contrast to the lengthy consideration of the law enforcement aspects). A UK report of February this year proposing a work programme for mutual recognition referred to "safeguards" including:

the possibility of appeal against enforcement... (perhaps) developing a common minimum threshold for the use of coercive pre-trial orders (eg. reasonable suspicion)... rules on liability for faulty decisions... certain minimum requirements on the treatment of suspects (eg. availability of legal advice and interpretation... compliance with basic constitutional safeguards in each Member State... (Emphasis added)

A classic "race to the bottom"

Criticism is levelled against minimum standards because they are just that: the union's lowest common denominator. In his analysis of EU-law, Steve Peers describes the process as a "race to the bottom", where:

"the risk is that defendants will fall subject to the member state with the lowest standards of rights for the accused."

Following Tampere, FTA made a number of recommendations it considered crucial to protecting the rights of suspects. As yet, EU officials have not addressed the following critical demands:

- legal aid ("free or low cost competent legal representation");
- improvement of judicial standards (in 1998 the Council of Europe identified the following problems in national justice systems: political interference in the administration of justice, corruption, a shortage of resources, delays, prosecution too close to the judiciary, racism and xenophobia);
- provisional liberty (where "eurobail" should balance procedures for fast-track extradition and eurowarrants for arrest).

The 1998 EU Action Plan on an "Area of Freedom, Security and Justice" (also known as the Vienna Plan) argued that the European Convention on Human Rights, which becomes part of UK law in October this year (see Statewatch, vol 10 no 2), is largely sufficient in protecting the rights of suspects:

"In principle, this function of adequate and comparable procedural guarantees is already achieved by the safeguards of the ECHR and their dynamic interpretation by the European Court of Human Rights, in particular regarding the rights of the defence in criminal proceedings."

The ECHR does provide for some basic rights for suspects (such as the presumption of innocence and the right to a fair trial including the availability of competent interpreters and translation). However, the ECHR certainly doesn't meet the demands of FTA and is itself a set of minimum standards - higher levels of protection exist in some national legal systems. Moreover, as concerns over judicial standards in certain EU countries demonstrate, the mere existence of the ECHR does not (and can not) prevent miscarriages of justice. As regards the European Courts, while they have ruled favourably on certain defence rights, there is a great deal of uncharted territory in respect to the implementation of mutual recognition. Recourse to the European Courts is also massively limited, expensive and very, very slow.

The EU has also pre-empted some concern through two other Tampere initiatives. A "Charter of fundamental rights" is currently being drawn up and may be agreed in a Treaty of Nice under the French presidency in December. Its content is not yet clear, but some countries have made it clear that they oppose any enhancement of the rights in the ECHR. Media reports to date have focused largely on possible social and economic guarantees.

Also on the table is the Area of Freedom, Security and Justice scoreboard - a "living document", maintained by the Commission, to monitor progress on the implementation of the Amsterdam provisions, the Vienna Plan and the Tampere summit conclusions. Before its publication, JHA Commissioner Vittorino assured the European Parliament that the justice aspects of the scoreboard would include effective, public scrutiny in safeguarding the rights of the citizens. However, the only "access to justice" component worthy of the name is the reference to "minimum standards of legal aid" - the only related report currently on the table is a European Commission green-paper on legal aid in civil matters.

"A genuine area of European justice"?

In several respects the scoreboard sums up the ideology behind the EU's approach to judicial cooperation. It is reflective of a broad desire to manage concerns rather than attempt to address them; to garner support from the public rather than provide genuine accountability to it. As the first UK report on mutual recognition noted:

"Public opinion is not yet always ready to accept that the judicial authorities and procedures of other Member States are equivalent to their domestic courts, especially where their own nationals are involved. Progress towards mutual recognition is therefore likely to require a greater public understanding and acceptance of the judicial procedures in each other's countries. Governments will have to inform and educate public opinion."

The scoreboard also espouses neo-conservative definitions of freedom and justice as relating almost entirely to security. "A genuine area of European justice" is one in which:

"Justice must be seen as facilitating the day-to-day life of people and bringing to justice those who threaten the freedom and security of individuals and society."

And this has been the overriding feature of JHA cooperation to date. While the proposals on the mutual recognition of criminal judgments and the creation of a European legal space may well represent "the greatest threat to civil liberties for fifty years", they merely take forward the EU's underlying approach to matters of criminal justice. One should not be surprised - this approach was enshrined in the last treaty:

"The [Amsterdam] Treaty sets the Union's third pillar [JHA cooperation] a singular 'objective' of providing 'citizens with a high level of safety' by 'preventing and combating crime', with no explicit mention of any other value or principle beyond ensuring the free movement of prosecutions and investigations. The opportunity to agree a broader model, ensuring the free movement of criminal justice, has been tragically missed." (Emphasis in original) - Steve Peers, "EU Justice and Home Affairs Law", 2000.


Sources

Background

1. The European Council in Cardiff called upon the EU Council to "identify the scope for greater mutual recognition of decisions of each others courts". (Paragraph 39, Presidency Conclusions, European Council, 15-16 June 1998).

2. The Action Plan on the Creation of a European Area of a European Area of Freedom, Security and Justice then called upon the Council to "Initiate a process with a view to facilitating mutual recognition of decisions and enforcement of judgments in criminal matters" within two years of the Amsterdam Treaty. (Paragraph 42(f), ACTION PLAN of the COUNCIL and the COMMISSION on how to best implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (adopted 7.12.98), OJ C 19, 23.1.1999).

3. The Tampere European Council then endorsed "the principle of mutual recognition which, its in view, should become a cornerstone of judicial cooperation in both civil and criminal matters within the Union" (paragraph 33) and set a deadline of December 2000, for the adoption of a "programme of measures to implement the principle of mutual recognition" (paragraph 37). (Presidency conclusions, European Council, 15-16 October 1999).