FAIR TRIAL INTERNATIONAL’S submission on the Future EU Justice Programme for 2010 - 2014

 Fair Trials International’s response to the public consultation on the Future of Freedom, Security and Justice in the European Union:

“Area of Freedom, Security and Justice: what will be the future?”

December 2008

About Fair Trials International
Fair Trials International (FTI) is a UK-based NGO that works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own.

FTI pursues its mission by providing individual legal assistance through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities.

Although FTI usually works on behalf of people facing criminal trials outside of their own country, we have a keen interest in criminal justice and fair trial rights issues more generally. We are active in the field of EU Criminal Justice policy, and, through our expert casework practice we are uniquely placed to provide evidence on how policy initiatives affect defendants throughout the EU.

For further information, please contact
Jago Russell - Chief Executive
T: 020 7762 6400
.(JavaScript must be enabled to view this email address)

Introduction

FTI welcomes the decision of the European Commission to conduct an enquiry into the future EU Justice and Home Affairs Programme beginning in 2010, and welcomes the opportunity to contribute to an assessment of the first formulation of the next five-year agenda. We understand that this new Programme will be based on the Proposed Solutions for the Future EU Justice Programme as outlined by the High-Level Advisory Group on the Future of European Justice Policy in June 2008.

The scope of this submission will reflect FTI’s areas of specialisation: criminal law and more specifically defence rights. FTI will not respond to the detailed questions set out in the consultation document, but will rather highlight the key issues and principles that need to form the basis of the EU Justice Programme 2010-2014.

FTI believes that the creation of an area of freedom, security and justice is a laudable aim and welcomes the considerable efforts taken by the EU to enhance judicial cooperation across member states. In particular, we agree that states should cooperate in bringing to justice those guilty of committing offences. In 1999, the Tampere European Council decided that the principle of mutual recognition should become the cornerstone of judicial cooperation in both civil and criminal matters within the Union.

FTI believes that enhanced mutual recognition must absolutely be built on mutual trust. Mutual trust will not exist unless basic standards of rights are in place across Europe to ensure that citizens’ rights are protected. Sadly, it seems that during the course of the Hague Programme, prosecution and police cooperation has significantly progressed while basic standard of rights failed to be adopted.

We wish to take this opportunity to congratulate the Future Group for their preparatory work and for their proposed solutions for the EU Justice Programme, as it seems that they are calling for the adoption of such standards of rights across Europe.

Summary

Fair Trials International would like to draw attention to the serious and urgent need to improve some existing legislation in the area of Justice, Freedom and Security (JFS) and to outline what we consider to be the priorities for the 2010-2014 Justice Programme.

Existing legislation needing to be improved

FTI is deeply concerned that the below mentioned measures have been adopted in the absence of minimum procedural rights and data protection standards and stresses that it is urgent to ensure that such standards are quickly put in place.

European Arrest Warrant: FTI has identified important flaws in the implementation of the EAW. The definitions of the 32 offences to which the dual criminality requirement does not apply must be clearer. The principle of proportionality must be more systematically applied, for instance when deciding what kind of offences the EAW is applied to. Legislation must be amended to incorporate human rights risks as a ground for refusal to execute an EAW. All of those involved in the implementation of the EAW need also to access adequate training.

Trials in absentia: FTI welcomes the progress made to strengthen notification procedures. FTI calls for an approximation of domestic laws to ensure that timeframes to appeal against a decision rendered in absentia are consistent throughout Europe. The right to an appeal or a new hearing following a judgment rendered in absentia, while welcome in principle, may not in practice be an adequate safeguard.

ECRIS: When information extracted from criminal records is exchanged, this information must be properly and accurately explained so that the foreign authorities can fully understand the nature of the offence and the way in which the information transferred should be taken into account.

Priorities for the 2010–2014 programme

Minimum standards of procedural rights must be adopted and implemented in each EU member state and should, at least, include the right to legal representation, the right to translation and interpretation, the right to receive information about their case and basic rights and, when applicable, the right to receive consular assistance.

Data protection must be enhanced via the adoption of new data protection rules applying in the frame of criminal proceedings. The accuracy and security of the information detained and processed must be guaranteed and mechanisms must be in place to correct or delete inaccurate information. The use of such information must be clearly limited by law and proportionate.

Efforts should be made to enhance defence rights, especially in cross-border cases. Balance should be restored between prosecution and defence rights and access to translation, interpretation and legal aid (in more than one country if needed) should be made available to all defendants who need it.

Efforts to address discrimination against foreign national defendants and prisoners should be increased especially with regard to bail and parole applications from non-nationals.

More detailed information can be found in FTI’s detailed submission and in FTI case studies and previous submissions on these topics, which are attached to this submission.

1. Existing legislation in the area of Freedom, Security and Justice must be improved

FTI draws attention to a number of serious flaws in existing Justice and Home Affairs legislation (including legislation already in force and proposals on which EU Justice Ministers have reached agreement), including:
• the European Arrest Warrant (EAW)
• the proposals on the enforcement of decisions rendered in absentia
• the proposals on the European Criminal Records Information System (ECRIS)

1.1 The European Arrest Warrant

FTI recognises the importance of the implementation, across Europe, of fair, proportionate and workable extradition procedures. FTI is, however, deeply concerned that the EU has not made the adoption and implementation of minimum standards of procedural rights across Europe a pre-condition to the adoption of the Framework Decision (FD) on the EAW. The adoption of such minimum standards must be adopted as an absolute priority for the 2010- 2014 Programme.

FTI acknowledges that the introduction of the European Arrest Warrant has speeded up the extradition procedure, thus reducing detention pending extradition for defendants. While this is welcome progress, FTI has identified several flaws in the implementation of the EAW:

• Issuing authorities often fail to apply a proportionality test at the stage of issuing the warrant, which results in EAWs being issued in relation to low-level crimes. Executing authorities should be able to refuse extradition when the principle of proportionality has not been applied.

• FTI has serious concerns about the abolition of the dual criminality requirement for 32 listed offences. The absence of clear definitions of the elements of these offences results in an unacceptable lack of legal certainty. In addition, some member states have decided to opt out of the requirement of dual criminality, which makes it even more difficult for the defendant to find out whether or not he can be surrendered for a given offence. The future Justice Programme should aim at providing clearer definitions of these 32 offences.

• The human rights of individuals subject to an EAW should be considered as a ground for refusal to execute an EAW. The implementation of the FD on the EAW has resulted in some member states passing legislation that removes the possibility of refusing extradition based on potential threats to the defendant’s human rights in the issuing country. The new Justice Programme should amend the EAW legislation to recognise valid fears of human rights abuses as a legitimate ground for refusal to execute an EAW.

• FTI is also concerned by the absence of a straightforward and coordinated system to ensure that EAWs are removed from the system (Europol – Interpol – SIS) following a decision made by an executing member state not to execute the warrant.

FTI believes that the Framework Decision establishing the EAW and national implementing laws should be amended in order to address the above mentioned points.

Moreover, FTI believes that some of these serious issues could also be tackled if appropriate training were made available to relevant prosecuting authorities and to practitioners. Even though EU funding streams have given birth to networks of practitioners that share a common interest in defence rights and exchange best practice , FTI believes that efforts should be make to enhance access to such trainings for all actors (practitioners, judges and prosecutors, national authorities if appropriate). All people involved in the execution of EAW would benefit from thorough training on the proper procedure and grounds for refusal. Issuing authorities should also receive proper training on the proportionality requirements of the EAW. In addition, mechanisms for identifying and sharing examples of good practice should be further developed.

One of the benefits of the EAW should have been a reduction in the number of trials in absentia by creating a straightforward system of extradition across the EU. It is very disappointing that this goal has not been reached and that the EAW is frequently being used to bring people back to a country where they have been sentenced in absentia, with a view to obtain the execution of a custodial sentence. FTI’s experience has shown that fears of human rights abuses and the lack of consistent and adequate legal aid across the EU is often at the origin of this failure to attend trial. The new JHA programme should take measures to understand and address the reasons why defendants do not attend trial.

1.2 The proposals on the enforcement of decisions rendered in absentia

Trials in absentia can clearly raise significant fair trial issues. They are however common practice in many European states. FTI therefore welcome the efforts of the EU to harmonise rules on the enforcement of decisions rendered in absentia and to strengthen notification procedures. FTI is however concerned that the application of the principle of mutual recognition reduces the discretion of domestic judges to refuse extradition of a defendant who has been convicted in absentia, even if s/he is convinced that the defendant’s rights have been and/or will be violated. FTI strongly believes that mutual trust should be demonstrated and earned through clear and consistent application of a minimum set of procedural safeguards, and not simply assumed on the basis of EU membership. As long as such minimum procedural safeguards are not in place across Europe, there should be no general principle toward the enforcement of decisions rendered in absentia.

FTI welcomes the commitment to strengthening procedural safeguards in the draft proposals on trials in absentia, and acknowledges in particular the progress that has been made towards strengthening notification procedures. However, FTI remains concerned that the proposed measure alone does not go far enough in securing practical improvements in the application of fundamental procedural rights for suspects in criminal proceedings.

FTI remains especially concerned that the right to a retrial is not, in itself, an adequate safeguard following a decision rendered in absentia. Retrials can raise serious issues due to the elapse of time since commission of the alleged offence, such as the disappearance of evidence, difficulty in locating witnesses, and difficulty in witnesses accurately recalling facts. Moreover, the right to a retrial following judgements in absentia can be meaningless or ineffectual while the EU lacks harmonisation of basic procedural rights. For instance, in some countries, evidence is not in practice reconsidered at a re-trial. Without the necessary safeguards, retrials can become a parody of justice.

Further information can be found in FTI’s submission on trials in absentia, and in the related case studies, at Annex 1 and 2.

1.3 The ECRIS proposal

FTI acknowledges the importance of cross-border police cooperation in the conduct of criminal investigations and proceedings. We are, however, concerned about aspects of the current proposal to establish a European Criminal Records Information System (ECRIS). In particular, FTI believes that the proposed system of transmission of information is inadequate and, more generally, FTI calls for the adoption of proper safeguards for data protection before the new information system comes into force.

The court’s reliance on information extracted from a criminal record can have a severely detrimental effect on the outcome of the proceedings and it is therefore of paramount importance to ensure that the information released is accurate and self-explanatory, i.e. sufficiently detailed to be understood by a foreign judicial authority.

Inadequacy of the proposed system: risk of inaccuracies and lack of mutual understanding

The ECRIS proposals require member states to use standardised forms when transferring information extracted from criminal records. In the annex of the ECRIS proposals, there is a table with codes for all offences. When transferring information, member states must refer to those codes. With this system, the elements of the crimes will not be defined, even though they may have different definitions amongst member states. This could create confusion as to the exact nature of the offence, and fail to provide an accurate reflection of the charges and the sentence. It is vital that this information is properly and accurately understood if the foreign authorities are fully to understand the nature of the offence and the way in which the previous convictions should be taken into account. Moreover, domestic rules governing spent convictions should be explained where appropriate.

In addition to information allowing accurate identification of the individual, including the defendant’s full name and date of birth, the ECRIS form should therefore contain additional information, including:
• the exact nature of the charge(s)
• any mitigating or aggravating circumstances
• references to the national provisions that were violated and any penalties incurred by the defendant

As a prerequisite to the adoption of ECRIS, it is imperative to ensure that member states collect sufficient information on criminal charges and convictions in order to ensure a proper mutual understanding about the information contained in the criminal records across Europe.

In addition, the current proposal for the ECRIS and its “tick box” system are very likely to result in errors being made when compiling and transmitting data, as well as when translating the information. Providing further information in the ECRIS form about the nature of the charges and sentence, and a reference to the national laws, should reduce the risk of such errors.

Lack of proper safeguards on data protection:

As explained by the European Data Protection Supervisor (EDPS): "The processing of personal data relating to criminal convictions is of a sensitive nature, and the confidentiality and integrity of criminal records data sent to other Member States must be guaranteed. It is therefore paramount that high standards of data protection be applied to the functioning of the system, which should ensure a solid technical infrastructure, a high quality of information and an effective supervision."

No further steps should be taken to develop and facilitate the exchange of information extracted from criminal records until EU member states adopt a Framework Decision on data protection applying to criminal proceedings.

FTI acknowledges that there are some data protection provisions in the Council decision on the organisation and content of the exchange of information extracted from criminal records. These provisions limit the use of the information collected to the purpose for which it was originally requested.

However, the benefit of these provisions is severely undermined by an exception that allows a requesting state to use the information received outside the scope of the request in order to prevent an immediate and serious threat. Although perhaps necessary, exceptions should be very clearly defined and limited. The current exception is overly broad and may lead to an abuse of discretion and the unnecessary and inappropriate release of personal information to third parties.

Information extracted from criminal records should not be used for purposes other that those for which it was collected. Similarly, cross-reference to other database (such as the Schenghen Information System - SIS) should be banned until a coherent data protection system, which would apply to all these databases, is in place.

FTI is deeply concerned that these proposals are not accompanied by a presumption that, except in some tightly defined situations, individuals will be informed of all requests for information that concern them. Releasing criminal records without the defendant’s knowledge can be incredibly damaging in the case of inaccurate information. Where possible, defendants should be aware of the information that is being shared, and should have the opportunity to raise objections if it is inaccurate.

FTI welcomes the commitment of the members of the High-Level Advisory Group on the Future of European Justice Policy to strengthening data protection rights and calls on the Council to follow these suggestions when adopting the new Justice Programme.

2. Priority areas for 2010 – 2014

Before setting out our priorities for the JHA programme 2010-2014, FTI would like to make a preliminary remark regarding the danger of further extending the principle of mutual recognition in this area before effective measures to justify mutual trust are implemented.

To be consistent with the stated aim of defending freedom and human rights, the EU should not apply the principle of mutual recognition without counter-balancing it with measures to ensure that mutual trust is justified. This will require the adoption of consistent minimum safeguards to ensure the respect of fundamental rights, and adequate approximation of substantive law. The current application of the principle of mutual recognition allows the adoption of measures that undermine and erode citizens’ rights instead of enhancing them.

FTI urges the Commission and the JHA Council to ensure that the following actions are treated as an integral part of the Justice Programme for 2010 – 2014:

- to effectively and consistently protect minimum rights in every EU member state;
- to address discrimination against foreign national defendants and prisoners; and
- to enhance defence rights, especially in cross-border cases.

2.1 Practical and legislative actions to effectively and consistently protect minimum rights in every EU member states

To ensure that freedoms and rights are not undermined as a result of Justice and Home Affairs policies, based on the principle of mutual recognition, there is an urgent need for the EU to address the inconsistent application of procedural safeguards in criminal cases, to adopt minimum standards, and undertake adequate approximation of substantive law.

Minimum procedural rights

Due to large discrepancies in the level of safeguards in operation in the different EU member states, the citizens’ right to a fair trial are not guaranteed throughout Europe. This makes the implementation of the principle of mutual recognition highly problematic.

As outlined previously, when discussing the shortcomings of the EAW and the proposals on trials in absentia, FTI cannot stress enough the urgency of ensuring that minimum procedural safeguards are implemented across Europe.

Even the most basic defence rights (such as the right to legal representation, the right to information or the right to an interpreter) are frequently denied to defendants across Europe. Case law from the European Court of Human Rights demonstrates that Articles 5 and 6 of the ECHR are frequently violated by EU member states. Sadly, the existence of the European Convention on Human Rights and its Court has not guaranteed minimum fair trials standards across Europe. Decisions rendered by member states that do not comply with those rights are nevertheless recognised and executed across Europe, because of the principle of mutual recognition.

There is nothing intrinsic to the setting of common minimum standards that threatens the application of higher standards in individual member-states. The setting of minimum standards is a baseline, not a benchmark.

As our casework practice has shown (see case studies attached in Annex 3), the lack of any such common standards has allowed certain member states to deny basic fair trial rights to defendants.

FTI therefore calls for the adoption of minimum procedural rights in criminal proceedings as a matter of priority. Moreover, FTI insists that the principle of mutual recognition should not be used to justify further cooperation between member states in justice and home affairs matters before such minimum procedural rights become effective across Europe.

Minimum standards of data protection

In addition, minimum standards on data protection should be ensured prior to the adoption of any new legislation facilitating the exchange of information from criminal records.

FTI recommends that the EU adopts the following minimum principles regarding exchange of information in criminal cases.
• States must have an obligation to ensure the information they hold is accurate
• States have an obligation to ensure the security of this information
• The length of the period of retention of the information must be regulated
• Except in tightly defined situations, including where it would risk prejudicing an ongoing investigation, defendants should have the right to know what information is held about them by authorities, they should be informed when information from their criminal record is exchanged between member states and they should have a right to access that information
• Defendants should have the right to have erroneous information corrected or deleted
• Last, it is important that collection and exchange of personal data meets the proportionality criteria.

Approximation of substantive procedural laws

FTI acknowledges that a harmonisation of domestic legislation across Europe would be impossible in practice and undesirable in principle. However, some measures based on the principle of mutual recognition require at least some degree of approximation of domestic laws to work effectively and adequately to protect fundamental rights.

For instance, the proposal on recognition of judgments in absentia would only effectively strengthen citizens’ rights if it harmonises national timeframes to appeal against a decision rendered in absentia. References in the current draft to the domestic timeframes would not help to improve defence rights. If the harmonisation of domestic laws is impossible to achieve the EU should, as a minimum, seek to establish some common thresholds for matters like this.

2.2 Urgent actions to address discrimination against foreign national defendants and prisoners: access to alternatives to detention

As FTI has frequently observed, discrimination against non-nationals on the basis of nationality remains a problem in criminal proceedings in many member states of the European Union (EU). This discrimination can especially be observed in the propensity for courts to refuse bail or parole to non-nationals, where this would be granted to nationals in the same or very similar proceedings.

There are numerous advantages in limiting the time a person spends in prison (especially before trial): by allowing the suspect / defendant to reside in his normal environment, the right to liberty is reinforced and, in the case of bail, the presumption of innocence is enhanced. Moreover, the less time a person spends in prison, the easier that person’s rehabilitation into society. Last, maintaining family life and professional standing helps to reduce risks of re-offending.

FTI acknowledges that efforts have been made to address the issue of discrimination against foreigners and welcomes in principle the Framework Decision on the European supervision order and on the mutual recognition of alternatives to detention and suspended or conditional sentences across Europe .

However, FTI regrets that these proposals only address the situation of non-nationals who are not residents, while ignoring the situation of foreign residents and that their implementation might raise serious practical concerns.

Further information on the shortcomings of these two proposals can be found in FTI’s discussion paper (annex 4).

2.3 Urgent actions to enhance defence rights in cross-border cases

Restoring a balance between prosecution and defence rights

Throughout the duration of the Hague Programme, the trend in the development of European criminal justice has been to reinforce police and judicial cooperation, with a view to facilitating the smooth prosecution of suspects. Sadly, the necessary counterbalancing safeguards for defendants have failed to be adopted. Although some proposals have aimed at enhancing defence rights, this enduring imbalance remains and must be addressed as a priority in the 2010-2014 Justice Programme.

It is of paramount importance to ensure the respect of foreign suspects’ and defendants’ defence rights, including their right to legal aid, to translation and to interpretation.

Improving interpretation and translation services

Appropriate translation and interpretation is vital to foreign suspects and defendants. They have no chance of adequately defending themselves if they cannot understand the proceedings and if they cannot communicate with those involved in proceedings. Translation and interpretation should therefore be available free of charge, at all stages of the proceedings.

FTI shares the Law Society’s concerns regarding automated translations. The use of standardised dynamic forms with predetermined text and terminology must be avoided and translation of legal notions should be accompanied by a full explanation of the meaning of that notion.

Legal assistance in cross-border cases

Suspects and defendants, especially in cross-border cases, should have access to adequate legal representation and they should not be placed in a more difficult position because of the cross-border nature of the offence. This means that they should be given access to legal advice in more than one country if needed, and that they should be given sufficient means to be able to gather evidence and call witnesses and experts.

As outlined by the European Criminal Bar Association, there is currently no uniform access to legal aid in European cross-border cases for representation in all jurisdictions involved. As a result, many defendants do not have sufficient access to effective legal advice. This issue should be addressed as a matter of priority.

E-justice

FTI welcomes the creation of an online access point (portal) that would make available European and national information on the fundamental rights of the citizens across Europe (including their procedural and defence rights in criminal proceedings) and the rights of victims of crime. The implementation of these proposals should be carefully monitored and mechanisms should be put in place to ensure that the accuracy of all information is verified by a competent authority. Moreover, it is important to ensure that such information is understandable by a lay person; this should not of course prevent the E-justice portal from providing more comprehensive information for professionals.

FTI does, however, share the Law Society’s serious concerns regarding the adoption of the current proposals on E-justice. Indeed, this portal intends to provide access to different registers, and to forms used in the course of judicial proceedings, which might contain very sensitive personal data. FTI believes that such a portal should not be developed before proper data protection rules are adopted and implemented across Europe.

FTI would also like to bring to the attention of the Commission the dangers of developing video conferencing in criminal proceedings. We acknowledge that videoconferencing can be a cost effective alternative to court hearings in some very limited circumstances However, FTI believes that videoconferencing needs to be accompanied with very strong safeguards.

ANNEXES:

1. Fair Trials International’s Response to the Office for Criminal Justice Reform – Better Trials Unit Consultation on the proposed Framework Decision on new rules for cross-border cases where judgements are made in absentia

2. Case studies (illustrating the flaws of the EAW and of the enforcement of decisions rendered in absentia)

3. Case studies (to support the adoption of a Framework Decision on minimum procedural safeguards)

4. Discussion paper on discrimination on the ground of nationality or residence in the application of alternative measures to pre-trial detention and to detention and of suspended or conditional sentences