EU: Mutual recognition of judicial decisions
01 June 2000
The EU is to draw up a range of legislation to speed up judicial cooperation in criminal matters and integrate national criminal justice systems. The cornerstone of the "European Judicial Space" (a term spun out of the Amsterdam Treaty by-line an "Area of Freedom, Security and Justice") will be the principle of "mutual recognition". 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"
Mutual recognition can apply to all aspects of the judicial process, from pre-trial orders - including search and arrest warrants, witness summonses and the seizure of evidence - to final judgments (such as fines, sentences and asset seizure). Where applied, the member states will be obliged act upon each other's judicial orders and certain types of final judgment will be valid and enforceable across the EU.
The mutual recognition principle is well established in EC law and applies in a range of policy areas, particularly within the single market. In Justice and Home Affairs (JHA) matters, the principle is used 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 eases, 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.
A fair trial abroad?
The mutual recognition approach is described as "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". This "basis of mutual confidence", however, is likely to be a little thin on the ground in some countries.
Fair Trials Abroad (FTA) is a UK legal rights group concerned with the fair treatment of people in alien jurisdictions. FTA's primary concern is over the judicial standards in some countries, particularly since the mutual recognition proposals will ultimately allow courts in one country to issue highly coercive judicial orders for direct enforcement in another. FTA cites a number of miscarriages of justice involving UK citizens tried in foreign jurisdictions, including the infamous Bridget Seisay case (see Statewatch vol 9 no 3 & 4). The countries with the judicial standards that they are most concerned about are Greece, Portugal, Spain and Belgium, although they suggest that there is a Europe-wide problem of discrimination against non-nationals by judicial authorities.
An EU programme of measures
Following a political agreement by EU governments at the Tampere summit, EU working parties have drawn up a draft "programme of measures to implement the principle of mutual recognition". The document is scheduled for adoption at the JHA Council in November. The proposals in the programme will require new legislation and the updating of existing international
agreements. Initially, mutual recognition will be limited to certain offences and procedures.
Pre-trial orders and Eurowarrants
At present, judicial cooperation takes place through formal requests for mutual legal assistance. These requests are then subject to judicial authorisation in the requested state. In the UK the Home Office Mutual Legal Assistance (MLA) Section checks all requests ("letters rogatory") and submits them for endorsement to the relevant judicial authority. This is to ensure that requests for legal assistance comply with both UK and international law. The process is considered laborious and time consuming by the authorities -the European Commission describes it as "slow, cumbersome and uncertain" - so the longterm aim of the mutual recognition programme is to remove both administrative and judicial supervision by replacing reques