Trials in absentia: FTI submission to Ministry of Justice

April 17 2008

About Fair Trials International
1. 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.

2. 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.

3. FTI welcomes the opportunity to respond to the Ministry of Justice consultation paper on the draft Council Framework Decision on the enforcement of decisions rendered in absentia.

4. FTI has a keen interest in EU Justice and Home Affairs policy. Through our expert casework practice we are uniquely placed to provide evidence on how policy initiatives affect defendants throughout the EU. FTI has significant concerns about trials in absentia and extradition procedures following trials in absentia.

5. While FTI welcomes the commitment to strengthening procedural safeguards in the draft proposals, in particular the progress that has been made towards strengthening notification procedures, we are 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.

6. FTI remains concerned about the fairness of extradition procedures. Although the proposed measures to amend the Framework Decision on the European Arrest Warrant introduce some improvements, they do not address the core issue of concern: why people do not attend trial. Our experience suggests that violations of fair trial rights within the EU are a common cause of such non- appearance. To properly address the issue of non-attendance at trial, proposals to enhance basic procedural and defence rights across Europe are urgently needed.

Q1. Do you have any suggestions as to specific circumstances that should be excluded from the definition of trials in absentia?

1.1 FTI does not support adding further exclusions to the definition of trials in absentia. On the contrary, the current definition fails to recognise a range of circumstances that should be considered as rendering a judgement in absentia.

1.2 It is a fundamental right of the defendant in criminal proceedings to be present in court and to be able to instruct a lawyer of their choosing. It is imperative that the defendant has the opportunity to communicate with their lawyer throughout the proceedings. Therefore, when the defendant has been prevented from attending part of the hearing, the judgment should be considered as rendered in absentia. This requirement should apply throughout the entire trial as crucial issues may be determined or discussed at any time.

1.3 Moreover, it is of paramount importance that the defendant should have access to competent legal representation of a reasonable international standard prior to the trial and during the entire trial process. According to international standards, defence lawyers must act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession. Where necessary, the defendant should have access to free legal aid. When an accused is represented by assigned counsel, the authorities must ensure that the lawyer assigned has the experience and competence commensurate with the nature of the offence of which their client is accused .

1.4 Judgements should be considered as being rendered in absentia in cases where a defendant is not personally present in Court but is represented by a lawyer who has not been instructed by the client. This is a common problem when a lawyer is appointed by the court and has no chance to meet the client before the trial, or makes no effort to contact the defendant before the trial. For example, in one of FTI’s current cases a British man only found out that he had been charged, tried, and convicted of grievous bodily harm in Germany when he was subject to a security check by a new employer. The defence lawyer assigned to this case failed to obtain direct instructions from the accused, denying his client the opportunity to defend himself against the charges.

Q2. Are the requirements for certain information to be certified as having been given to the defendant in advance of the trial both fair to the defendant and workable in terms of cross-border enforcement of judgments?

2.1 It is preferable that trials in absentia be avoided as they deny the defendant the opportunity to interrogate the prosecution evidence and arguments. Great attention should therefore be turned to notification procedures.

2.2 The draft Framework Decision makes welcome and long overdue provisions for strengthening notification procedures and establishing inadequate notification of the original hearing as an optional ground for refusal to execute a European Arrest Warrant (EAW).

2.3 Under article 2.2) of the new proposals, an arrest warrant must state that “the person was summoned in person or in accordance with the national law of the issuing Member State through a competent representative and in due time, of the scheduled date and place of the hearing which led to the decision in absentia and informed about the fact that such a decision may be handed down in case the person does not appear for the trial”.

2.4 Such clarification should result in an improvement in notification procedures and reduce the number of trials in absentia that are held in violation of the defendant’s right to be present in court.

2.5 However, FTI is concerned that the proposals do not clearly state that the burden of proof of this information delivery has imperatively to lay on the authorities of the issuing state, and that such information must be delivered in a language that the defendant understands.

Burden of proof of information delivery
2.6 To have a measurably positive impact on defence rights the proposals should clarify that the responsibility for adequate notification must lie with the issuing state, which must be able to demonstrate not just that a notification of proceedings was sent, but that the defendant actually received the notification. In absence of such proof, the executing state should refuse to proceed to extradition.

Clarity of information delivery
2.7 It is also necessary to ensure that that notification is made in the defendant’s own language; otherwise the defendant might not understand the relevance and importance of the notification, or miss deadlines by losing valuable time having the notification translated. This would be especially problematic in fast-track proceedings where deadlines are extremely tight.

2.8 FTI is also concerned that the proposals do not adequately specify certain aspects of the notification procedure that must be included if notification is to be considered effective. These are discussed in more detail below.

“In accordance with the national law of the issuing state”
2.9 Inadequate notification procedures are a common problem that FTI deals with all too frequently. FTI is therefore concerned that the draft proposals permit notification “in accordance with the national laws of the issuing states”, when some Member States have less stringent rules which offer less protection to the suspect. Given that the aim of these proposals is to harmonise the rules for extradition following trials in absentia, it is disappointing that there has been no impact assessment exploring the necessity and possibility of harmonising national laws on notification procedures to remove these discrepancies.

“Summons in person or through a competent representative”
2.10 National laws on notification procedures vary from state to state. The notion of competent representative is open to interpretation and has the potential to jeopardise defence rights. FTI regrets that the proposals do not clarify this notion. Although it is proper to accommodate a range of circumstances, we believe that the proposals should provide for a closed list of possible “competent representatives”.

2.11 FTI has dealt with cases where, in accordance with domestic law, notice has been served on the defendant’s lawyer. FTI’s experience is that lawyers (especially Court-appointed lawyers) are unfortunately not always in contact with their clients. In those cases, this form of notification clearly does not conform to the spirit of these proposals, and undoubtedly violates the rights of the defendant.

2.12 Of even greater concern to FTI, in some Member States, notification can be served to a close relative of the defendant. But experience has shown that relatives sometimes fail to pass on the notification to the defendant in the hopes of “protecting” them from a possible conviction if they attend trial. While FTI does not condone this practice, we have serious concerns about a proposal that fails to address such defects in notification procedures in national laws.

2.13 When the notification is not served to the defendant himself, no trial should be held until proof has been made that the defendant has actually received the notification. For that purpose the defendant might for instance receive a copy of the notification by recorded delivery mail. Such safeguards exist in some EU Member States’ legal systems (for instance in France ) and should be used as example of good practice. FTI strongly recommends that Member States add such safeguards to these proposals.

“In due time”
2.14 FTI welcomes the acknowledgement in the proposed Framework Decision that defendants must be notified in due time. This is of paramount importance as one of the fundamental procedural rights of suspects in criminal cases is the right to prepare a defence. Practically, this means having adequate time to instruct a lawyer of the defendant’s choosing, time to prepare the case, gather evidence and locate witnesses. It is difficult to specify a precise period that constitutes ‘due time’ as this will vary from case to case, but if the proposals are adopted then this aspect will need to be carefully monitored to ensure that notification is carried out in due time to adequately safeguard the rights of the defence.

2.15 FTI cannot but stress the importance of strengthening the notification procedure in order to avoid judgments being rendered in absentia. The delivery of the above-mentioned information to the defendant, in advance of the trial, and in a language that he understands, must be a precondition of cross-border enforcement of judgments.

Q3. Do you agree that the EAW FD should be modified so as to enable MS to refuse to surrender a person who has been tried in her absence, without having been properly informed of the trial, unless either he had a right to retrial that he chose not to exercise; or he still has a right to retrial?

3.1 FTI agrees that the EAW should be modified so as to enable Member States to refuse to surrender a person who has been tried in her absence, without having been properly informed of the trial.

The right to retrial as a precondition of extradition
3.2 FTI has been active in calling for reform of the European Arrest Warrant, and we welcome the long overdue strengthening of the current provisions in the EAW regarding the right to a retrial following judgements in absentia. The draft framework decision makes it clear that the defendant must have the right to a retrial and the right to be present at that trial. If the proposals are adopted, each Member State would have to ensure that their national law reflects the obligation to grant a retrial after judgements given in absentia, if so requested.

3.3 This safeguard is stronger than in the current Framework Decision on the EAW, which allows extradition if the issuing state can give adequate assurances that the defendant will have the “opportunity to apply for a retrial”. However we would like to point that, at the time of drafting the framework decision on the EAW, the right to a retrial following extradition was already protected by Article 3 of the Second Additional Protocol of the European Convention on Extradition ( ). The new proposals thus merely bring the protection of fundamental rights in European Union legislation in line with the protections afforded by the Council of Europe, correcting an unfortunate and retrograde compromise made in the drafting of the EAW.

3.4 Renunciation of the right to retrial
The proposals authorise the executing state to extradite a defendant following a judgment in absentia in cases where the defendant chooses not to exercise his right to retrial. According to the draft decision, a defendant chooses not to exercise his right to a retrial if he expressly states that he does not contest the decision rendered in absentia or does not request a retrial in the applicable timeframe.

3.5 Given these conditions, FTI wishes to stress the importance of ensuring that notification of the trial and judgement is served in a language that the defendant understands, in order for him to be able to properly decide whether to exercise his right to a retrial. As stated previously, notification in a foreign language might result in the defendant not understanding the relevance and importance of the notification, or missing deadlines by losing valuable time having the notification translated. This is especially important when the applicable timeframe for requesting a re-trial is short. FTI is therefore disappointed that the proposals are not accompanied by an impact assessment that examines the varying timeframes for requesting a re-trial and considers whether defendants are able to be notified in due time and in an appropriate manner to be able to exercise their rights in an informed and effective manner.

Problems with the right to a retrial
3.7 According to the proposals, a person who has been properly informed of the trial but did not attend it can be extradited if this person has a right to a retrial. However, FTI remains concerned that the right to a retrial is not, in itself, an adequate safeguard. Retrials can raise serious issues such as the disappearance of evidence, difficulty in locating witnesses, and difficulty in witnesses accurately recalling facts due to elapse of time.

3.8 Moreover, FTI remains deeply concerned that the right to a retrial following judgements in absentia can be meaningless or ineffectual while the EU lacks harmonisation of basic procedural rights. The system of mutual recognition can only work if it is built on a solid foundation of mutual trust – and this must include assurances that minimum standards of basic defence rights will be applied in every case in every Member State. FTI has serious concerns about the fairness of proceedings during retrials in certain Member States.

3.9 In an explanatory memorandum to the new proposals ( ) a retrial is defined as: new proceedings on the same subject matter as the proceedings which took place in absentia; at which the defendant has the right to be present; the merits of the case will be (re)examined; and there is the possibility of reversing the original judgement. Although this clarifies that any retrial must be a substantive trial it does not provide any additional guarantees of basic procedural safeguards. Yet, these are all the more important in cases where the Court is aware of the defendant’s prior in absentia conviction, when there can be considerable pressure to legitimise the previous proceedings by upholding the conviction.

3.10 Importantly, in a retrial following an in absentia conviction, the defendant should be in the same position as someone being surrendered to stand trial for the first time. However, this level of protection is sometimes denied to people facing a retrial. In certain Member States, there is no right of appeal after a retrial, seemingly in violation of Article 2 of Protocol No. 7 to the European Convention on Human Rights (ECHR) and Article 14(5) of the ICCPR .

3.11 In addition, FTI cannot but stress the great discrepancies in criminal proceedings across Europe and the absence of minimum standards of protection. There are substantial differences in the way that human rights have been translated into practice through national legislation, resulting in unacceptable violations of basic defence rights in some Member States.

3.12 Access to legal representation is often denied to defendants during the pre-trial phase, although the investigation is one of the most crucial phases of the proceedings. Only 16 Member States allow defence lawyers to be present at police interviews, and in some circumstances lawyers are only allowed to attend part of the interview. Yet, legal representation is even more crucial where, as in some Member States, interviews are not recorded and defendants are often not informed of their rights nor provided with an interpreter.

3.13 Access to interpretation is unevenly provided across Europe. In Portugal for instance, interpreters are hired by the Court and only translate proceedings to the judge, making it impossible for the defendant to understand the proceedings. Far too often the defendants are asked to sign statements in a language that they do not understand. This obviously makes it impossible for them to check the accuracy of such vital documents.

3.14 When basic procedural rights cannot be guaranteed throughout the EU, the right to a retrial following judgements in absentia is an inadequate safeguard. Without these necessary safeguards, retrials can become a parody of justice (as highlighted for instance by the case study below).

Conclusion
3.15 Although the progress shown in these new proposals in harmonising the definition of trials in absentia and enhancing notification rights across the EU should not be overlooked, there is a pressing need to address more fundamental issues such as access to legal aid, and availability of adequate interpretation and translation assistance. In the absence of either EU legislation or practical action on the priority issues needed to improve defence rights within the EU, the safeguards contained within the draft framework decision are not adequate to ensure a fair retrial after a conviction in absentia.

3.16 Defendants should not have to fear attending trial because of concerns about poor levels of procedural safeguards and non-compliance with ECHR standards. To properly address the issue of non-attendance at trial, the EU must do more than improve notification procedures: it must also address the reasons why trials in absentia take place when the defendant has been properly notified. And this means taking practical action to address some of the common violations of fair trial rights within the EU that lead to defendants choosing not to attend trial.

For more information, please contact:

Amanda Cumberland, Head of Research and Campaigns
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Priscillia de Corson, Policy Officer
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Fair Trials International
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Annex 1 – CASE STUDY

The case below highlights some of the common problems with the provision of even basic procedural safeguards for trials in absentia and the grave problems with subsequent re-trials within the EU.

In July 2004 Mr X was on holiday in Romania when he was approached by a beggar. Mr X gave the young man a small amount of money. Shortly afterwards Mr X was arrested and charged with having had a sexual encounter with a minor. He was subsequently detained in difficult conditions for nearly three months. During this time a number of hearings took place, many of which were postponed because of missing files or because Mr X was taken to the wrong court. While Mr X was detained on remand the alleged victim could not be traced and did not appear at any of the court hearings. Mr X was released in November 2004. His lawyer advised him that the arrest had been illegal and that there was no evidence he had committed a crime.

A further hearing was postponed, and the Romanian authorities issued Mr X with an exit visa which required him to leave the country within five days. He returned to the UK leaving his full contact details with the Romanian authorities. In March 2007 Mr X received an email informing him that the British Embassy in Romania had established that the first instance trial had been held, and that he had been convicted to seven years imprisonment. He was also informed that an appeal had been submitted on his behalf by his lawyer, at which the sentence was reduced to four years. At a final appeal hearing the original 7 years sentenced had been reinstated. All this had taken place in his absence, without his knowledge, and without him instructing his lawyer.

Within days of hearing this news, while working in Tenerife, Mr X was arrested on a EAW issued by Romania. He was taken to Madrid, where he was held for two months pending an appeal against the extradition request. The lower Spanish courts granted the extradition request on the basis that Mr X had been legally represented at the court hearings in Romania. Mr X appealed his case all the way up to the Spanish Constitutional Court, which decided that he should not be extradited on the grounds that he had been tried, convicted and sentenced in absentia. However, the Spanish authorities did not wait until the decision of the Constitutional Court was published and extradited Mr X to Romania.

Within three days of arriving in Romania Mr X filed an appeal against his sentence. He was taken to court in July 2007 where a state appointed lawyer whom he had never met, and who could not speak English, represented him. There was no interpreter present and the only information that Mr X was able to understand was that there would be another court hearing the following month. At this point FTI was able to secure a lawyer to represent Mr X in his further hearings. The lawyer was successful in securing a re-trial for Mr X on the basis that he had not been given the opportunity to attend any of the previous hearings as the summons was sent to the wrong address. Although the details held by the Romanian authorities were correct, the wrong street name and postcode were used in the summons.

The re-trial took place in December 2007 and was attended by an FTI observer who judged that the trial was not conducted in a manner to ensure that Mr X could defend himself against the charges. The alleged victim, although summoned, did not attend. Mr X was prevented from speaking in his defence by the judge and the hearing was closed after less than one hour. Three days later the judge confirmed the original seven-year sentence. To date, no written judgement has been issued and under Romanian law there is no possibility of appeal against the sentence given in a re-trial.