11 Procedural safeguards in criminal
proceedings
| (24282)
6781/03
COM (03) 75
| Commission Green Paper on procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union.
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| Legal base | — |
| Document originated | 19 February 2003
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| Deposited in Parliament | 20 February 2003
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| Department | Home Office |
| Basis of consideration | EM of 18 March 2003
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| Previous Committee Report | None
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| To be discussed in Council | No date fixed
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
Since the Tampere European Council in 1999 the European Union
has embarked on a series of measures to promote mutual recognition
of both criminal and civil orders and judgments. On that occasion,
the European Council endorsed the principle of mutual recognition
as "the cornerstone of judicial co-operation". On 15
January 2001 the Council adopted a Programme of Measures to implement
the Principle of Mutual Recognition of Decisions in Criminal Matters,
a programme which contains 24 such measures, including the European
Arrest Warrant. Such measures for mutual recognition depend on
the existence of mutual trust and confidence in the ability of
judicial systems to determine cases fairly and in a way which
respects the interests of those before the court, notably those
of the defendant. In this connection, the 2001 Programme contained
a number of 'parameters', one of which refers to the definition
of 'common minimum standards necessary to facilitate the application
of the principle of mutual recognition'.
All EU Member States are already party to the European
Convention on Human Rights (ECHR). Article 6 of that Convention
sets out a number of guarantees for the defendant in criminal
proceedings, and there are also guarantees in the International
Covenant on Civil and Political Rights. The existence of these
guarantees, notably those provided by the ECHR, may help to create
the mutual trust and confidence on which recognition must depend.
The Commission Green Paper
The Commission Green Paper takes the existence of
procedural guarantees under the ECHR and other international instruments,
such as the International Covenant on Civil and Political Rights,
as its starting point. The first part of the Green Paper seeks
to set out reasons why action at EU level is appropriate, as opposed
to leaving this matter to be addressed by the individual Member
States in accordance with their ECHR and other international obligations.
The Commission's argument is that a standard set
of procedural safeguards for suspects and defendants is necessary
in order to ensure mutual trust and confidence between Member
States' legal systems. In relation to the ECHR, the Commission
comments as follows:
"Differences in the way human rights are translated
into practice in national procedural rules do not necessarily
disclose violations of the ECHR. However, divergent practices
run the risk of hindering mutual trust and confidence which is
the basis of mutual recognition. This observation justifies the
EU taking action pursuant to Article 31(c) of the TEU. This should
not necessarily take the form of intrusive action obliging Member
States substantially to amend their codes of criminal procedure
but rather as 'European best practice' aimed at facilitating and
rendering more efficient and visible the practical operation of
these rights. It goes without saying that the outcome will in
no case reduce the level of protection currently offered in the
Member States."
The Green Paper identifies a number of rights which
it considers to be basic rights and which should be given priority.
These are the right to legal assistance and representation, the
right of access to interpretation and translation, and the right
of a suspect or defendant to be made aware of his fundamental
rights in a language which he understands. In this latter case,
the Green Paper suggests the adoption of a 'Letter of Rights'
by which a suspect would be given information about his basic
rights in a language which he understands and invites views on
whether an EU 'Letter of Rights' would be feasible and whether
the suspect should sign for its receipt. Finally, the Green Paper
identifies rights to consular assistance under the 1963 Vienna
Convention on Consular Relations as one of the basic rights of
a suspect or defendant.
The Green Paper refers to the right to bail and
the right to have evidence handled fairly, but indicates that
these may be the subject of separate communications. It also refers
to a proposal by Greece on double jeopardy. The Green Paper does
not consider that judgments given in the absence of the defendant
are among the first priorities for work on procedural safeguards,
and these have been postponed to a later date.
The Green Paper refers to the discussion on monitoring
of compliance with procedural standards which has taken place
within Working Group X ("Freedom, security and justice")
of the Convention on the Future of Europe. It notes the Commission's
view that it 'should play the major role in the evaluation and
monitoring process'. It also notes that Framework Decisions adopted
under the EU Treaty contain a provision which requires Member
States to notify the Commission of measures transposing the obligations
assumed into national law. The Commission argues that, since it
is under a duty to ensure that a Framework Decision is properly
implemented, 'it would therefore seem natural for the Commission
to extend its task of collecting information on the transposition
into national legislation of the EU obligations to a regular monitoring
exercise on compliance'.
The Green Paper suggests that evaluation 'should
cover compliance at all levels and stages of proceedings' and
that evaluation could be carried out by examining statistics from
the Member States on the number of proceedings and trials, the
percentage of defendants with legal representation, percentages
of cases where legal translators and interpreters were used, as
well as other similar indicators. The Green Paper also states
that 'there should be a mechanism for reporting and investigating
complaints of non-compliance' and suggests that audio and video
recordings of police interviews might provide 'a good tool for
evaluating compliance with the agreed minimum standards'.
The Green Paper concludes with a number of questions
relating to legal representation, provision of legal translators
and interpreters, the protection of vulnerable groups, consular
assistance, the Letter or Rights and evaluation and monitoring.
The Government's view
In his Explanatory Memorandum of 18 March the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
explains that in responding to the questions posed in the Green
Paper the Government will express its strong preference for measures
specifically aimed at ensuring equal treatment for persons from
another Member State, rather than wider measures directed at Member
States' procedural safeguards generally. The Minister adds that,
as far as possible and consistent with the principle of subsidiarity,
Member States should retain discretion to determine how they meet
their obligations under the ECHR and other treaties. The Minister
notes that the Government recognises that persons subject to criminal
proceedings away from their state of residence may require additional
protection in criminal proceedings, and that action at EU level
to ensure that the rights of such persons are properly protected
'may also help to support mutual recognition and reinforce the
specific safeguards, for example rights of appeal, which are included
in individual recognition measures, such as the EAW'.[18]
On the question of access to legal assistance and
representation, the Minister indicates that the Government recognises
the importance of suitably qualified legal assistance, which may
include the provision of free legal advice as appropriate, but
that it will wish to consider whether action in this area is appropriate
to ensure that EU citizens receive appropriate legal assistance
in another Member State. The Minister comments that the Government
considers that the provision of appropriate interpretation and
translation assistance is central to allowing EU citizens to understand
and exercise their rights when subject to criminal proceedings
in another Member State. As far as the protection of vulnerable
groups is concerned, the Government will wish to consider the
extent to which common minimum standards in this area would add
to the protection of EU citizens in another Member State.
As far as consular assistance is concerned, the Minister
notes that it is important that foreign detainees do receive appropriate
consular assistance and that this is reflected in existing practice
in the UK. On the 'Letter of Rights' the Government will wish
to consider the extent to which action at EU level will add to
the protection of EU citizens in another Member State. On the
question of monitoring and compliance, the Minister states that
the Government 'will give careful consideration to the need and
mechanism for monitoring compliance with agreed common minimum
standards'.
Conclusion
We entirely agree with the Minister that any measures
in the field of criminal procedure should be limited to cases
with a cross-border element so as to promote mutual recognition
and enforcement. We see no justification for wider measures aimed
at criminal procedure generally, and would regard any such measures
as likely to infringe the principle of subsidiarity.
In our view, adequate procedural safeguards
should be provided for in each case where a specific Framework
Decision or other measure is adopted in the field of mutual recognition
in the criminal law. We have commented on other occasions, notably
in relation to the mutual recognition of financial penalties,
that procedural safeguards were either non-existent or inadequate.
We believe that the proper place for EU action on criminal procedure
is in relation to such specific measures.
In relation to evaluation and monitoring,
we reject the idea of giving an EU institution a general roving
commission to examine a Member State's criminal justice system.
We are also conscious that the role envisaged by the Commission
for itself would tend to duplicate, and thereby undermine, the
role of the ECHR and other international institutions.
We ask the Minister to take account
of our concerns in his reply to the Green Paper, but we are content
to clear the document.
18 European Arrest Warrant. See
HC 152 -xvii (2001-02) (30 January 2002). Back
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