APPENDIX 2
Memorandum submitted by Mr Stephen Jakobi,
Fair Trials Abroad
REFLECTIONS ON THE FINAL REPORT OF THE WORKING
GROUP
NB When direct reference is made to the Group
report titles of sections are printed in bold: textual quotes
are printed in italics.
INTRODUCTION
Fair Trials Abroad welcomes the opportunity
to comment on the conclusions of the Convention working party
Freedom, security and Justice as provided by this House of Commons
enquiry.
FTA is a non-governmental organisation working
on behalf of the individual to ensure access to justice via a
fair trial. In particular, FTA works on behalf of the individual's
rights to justice when outside their own country. The basis of
these rights are set out in the European Convention of Human Rights
and the International Covenant on Civil and Political Rights where
applicable.
As an organisation utilising international treaty
law on the administration of criminal justice our observations
are applicable to our sphere of competence. The only direct mission
interest we have in the working party is its observations and
conclusions regarding Co-Operation in Criminal matters (areas
covered by the present "Third Pillar"). However we have
long been concerned with a lack of democratic accountability and
other factors in the ongoing construction of the European Legal
space resulting in the neglect of the citizen's fundamental rights
to due process and fair trial when he is accused of crime outside
his native country. [1]We
therefore regard the preparatory work for the Intergovernmental
Conference scheduled in 2004 of which the working party and the
Convention are integral parts as vital to the general success
or failure of our mission within the confines of the European
Legal Space (the mission is global) and the opportunity to comment
on the general tenure of the report commensurately important.
BASIC ISSUES
Since FTA works on behalf of the individual's
rights to justice when outside their own country, the consideration
of that individual's fundamental right is our primary concern.
We consider that answers to the following questions are required.
1. Is our primary concern shared by the
working party?
2. In any event how does the working party
envisage the safeguarding of these rights within the Union?
3. What power will the citizens elected
representatives, whether MP or MEP, have to control the situation
and prevent the executive (the European Council) abusing these
rights?
4. Will there be effective resort to courts
by the abused individual at European level to enforce fundamental
rights?
1. THE PRIMARY
CONCERN: GETTING
THE BALANCE
RIGHT
If the citizen is to be adequately protected
against injustice in the European legal space the elements of
Freedom, Security and Justice need to be correctly placed in balance
in a manner consistent with fundamental rights to due process
and fair trial that a citizen of a western democracy has the right
to demand.
In European democratic society freedom, the
individual's rights to due process enshrined in the European Convention
of Human Rights, takes precedence over security, the power of
the state to punish the individual for transgressions. The presumption
of innocence in criminal trials is recognition of that precedence:
the state must prove its case against the individual. The opposite
proposition that the individual must prove he is not guilty of
any charge brought against him is considered a characteristic
of police states and was a common feature of the late Soviet Empire.
Justice, in this context, can best be regarded as the product
of a fair system that operates to ensure that the competing elements
of freedom (defence) and security (Prosecution) are taken into
account in each case and the individual appropriately released
or dealt with as a result.
The Group Proposals
We are informed of the principle philosophy
of the Working party in the second paragraph of the introduction
"Since the entry into force of the Amsterdam
Treaty, the establishment of a coherent area of freedom, security
and justice has formed one of the key objectives of the European
Union, . . . In this context, it is important to make clear that
the three components—freedom, security and justice—go
hand-in-hand and are of equal importance. This principle should
guide the Union policy, in this area. [2]"
Observations
This is a bizarre proposition for a democratic
group of nations. We would reiterate that freedom and security
are not of equal importance in criminal justice systems observing
the European Convention of Human rights: freedom is of greater
importance. Further how can Freedom and security, the raw materials
be of equal importance to Justice the finished product?
2. SAFEGUARDING
FREEDOM
Human Rights in the field of justice are procedural
rights. Rights to the services of a lawyer, rights to interpretation
when necessary, even the presumption of innocence are matters
that relate to procedure and not to substantive criminal law.
Unless this is realised it is hard to piece together the Groups
proposals for protecting the citizen against injustice. They can
be gleaned with difficulty by collating references to procedural
Criminal law.
The Groups proposals
The first reference of note is to be found in
consideration of the reform of legal instruments in the section
on Regulations, directives and decisions.
"The normal rules governing these instruments
should in future apply, even if this may require adaptation of
legal systems in some member states. This should include the possibility
of direct effect of such directives conferring rights on individuals.
[3]"
In the section Clearer identification of the
scope of union legislation is to be found a recommendation on
enshrinement of fundamental rights:
"The Group recommends that this principle
of mutual recognition of judicial decisions should be formally
enshrined in the Treaty. The Group also recognises that some approximation
of certain elements of criminal procedure and of specific areas
of substantive criminal law, respecting the different European
legal traditions—as well as the provisions of the ECHR as
reflected in the Charter in particular concerning the presumption
of innocence—, may prove necessary in order to facilitate
mutual recognition. Some members have stressed the link between
enshrining the principle of mutual recognition into the Treaty
and facilitating the adoption of legislation on the approximation
of substantive and procedural criminal law. [4]"
However, the main recommendations are discussed
under the title Approximation of elements of criminal procedure.
"The experts have demonstrated that the
need for approximation of certain elements of criminal procedure
is widely recognised by practitioners and perhaps more urgent
than approximation of substantive criminal law. The Group recognises
that such procedural approximation both facilitates the collaboration
between law-enforcement agencies of the Member States (and the
Union bodies acting in the field), and the application of the
principle of mutual recognition, as it strengthens mutual confidence.
At present, Article 31 TEU does not reflect sufficiently this
point and is too vague on concrete possibilities for such approximation.
"Therefore, the Group recommends the
creation of a legal basis permitting the adoption of common rules
on specific elements of criminal procedure to the extent that
such rules relate to procedures with transnational implications
and are needed to ensure the full application of mutual recognition
of judicial decisions or to guarantee the effectiveness of common
tools for police and judicial cooperation created by the Union.
The Treaty legal basis could specify as—one domain of action
common minimum rules on the admissibility of evidence throughout
the Union. The Council could subsequently by unanimity identify
all elements of procedure on which minimum rules are required
to facilitate mutual recognition.
"This legal base could also provide for
the setting of common minimum standards for the protection of
the rights of individuals in criminal procedure, building on the
standards enshrined in the European Convention of Human Rights
as reflected in the Charter of Fundamental Rights and respecting
different European legal traditions. [5]"
Observations
The presentation of these conclusions and in
particular the delegation of the protection of the rights of the
individual as secondary to both Mutual recognition and "the
necessity to guarantee the effectiveness of common tools for police
and Judicial cooperation" would appear to relegate freedom
to an inferior position to security derogating from the bizarre
stance on the relationship between these elements of the legal
space already noted.
3. DEMOCRATIC
CONTROL OF
THE LEGAL
SPACE
The Introduction to the final report states
". it is important that the citizens feel that a proper
sense of `European public order' (`ordre public european') has
taken shape and is actually visible today in their daily lives.
In this respect, the principles of transparency and democratic
control are of utmost importance. The establishment of a European
Area of Freedom, Security and Justice is also closely linked with
respect of the rights of citizens and the principle of non-discrimination
(Articles 12 and 13 TEC)."
We are particularly concerned about proposals
for the mechanisms of democratic control in the light of the history
of the third pillar. The monopoly control of Justice and Home
affairs by the European council was established by the treaty
of Maastricht. Whilst the council consists of government representatives
formally answerable for their individual decisions to their own
legislatures the democratic control implied is in reality non-existent.
The power of collective action by individual Legislatures is currently
fatally handicapped by lack of a secretariat at EU level to service
their needs for information on the doings of the council and ensure
continuous liaison between them: since they lack the means to
hang together they are forced to hang separately.
In contradistinction the European parliament
is a collective body serviced by an appropriate secretariat. If
it had been granted some competence in the third pillar by the
treaty there might have been some element of democratic control
but it was not.
The consequences of this lack of democratic
control has been perhaps the biggest blow to European civil rights
in Peacetime. A reckless disregard of the practical diminution
of Citizens fundamental rights effected by the principal of mutual
recognition and the creation of the European arrest Warrant.
The Groups proposals
A. NATIONAL PARLIAMENT
These proposals are to be found under the heading
Involvement of national parliaments: the relevant proposals are:
— Involvement of national parliaments
in the definition by the European Council (or the Council at the
level of Heads of State or Government) of the strategic guidelines
and priorities for European criminal justice policy. Such involvement
will only be meaningful if there are substantive debates in national
parliaments about the options to be considered at the European
Council well in advance of the latter taking place;
— Regular inter-parliamentary conferences
on the Union's policies in this area (in particular by joint meetings
of the responsible committees on Justice and Home Affairs of national
parliaments, as suggested by WG IV);
— Use of the "subsidiarity
early warning mechanism" (devised by WG I) in particular
for the specific aspects of subsidiarity in criminal law matters,
in ie where it is questionable that a crime has actually a "cross-border
dimension" and is of a serious nature;
— Recognising the continuing role
for national legislation through exclusive use of directives in
approximation of substantive criminal law;
— Involving national parliaments
in the mutual evaluation mechanism ("peer review").
B. THE EUROPEAN
PARLIAMENT
The European Parliament powers were not discussed
but were referred to in the course of the conclusions.
It is proposed that The European parliament
is to have the same codetermination powers in the legislation
surrounding the present third pillar as it has with current first
pillar matters.
Observations
We commend the approach of the working party
to the involvement of national parliaments and the measures proposed
are reasonable so far as they go. However we consider there will
still not be practical and effective democratic control without
such measures as the establishment of a secretariat[6]
and the appointment of a standing committee of Parliamentarians
to supervise the secretariat and report to the envisaged interparliamentary
conferences.
What appears to be emerging is a crude approximation
of a two-chamber system of democratic control. The first chamber
being the collective will of National Parliaments, however expressed,
and the second chamber the European parliament. It is to be noted
that it is envisaged that the two "chambers" will have
different means and mechanisms for the exercise of their power
over the executive and liaison, perhaps through a joint committee,
will need to be carefully considered. It should be noted that
the Civil Liberties Committee of the European Parliament hosts
an annual conference with representative members of the Interparliamentary
Union and NGOs with appropriate expertise, including FTA, are
invited to address it.
4. EMPOWERING
THE EUROPEAN
COURT OF
JUSTICE
Without effective mechanisms for adjudicating
citizens grievances and supplying appropriate remedies the enforcement
of individual Fundamental rights becomes "illusory and theoretical
rather than practical and effective[7]".
Fair trials abroad has argued for some years that the European
Court of Human Rights suffers from shortcomings of procedural
and enforcement mechanisms. [8]It
is for these reasons that citizen must be allowed direct access
to the European court of Justice.
The Groups Proposals
At present the jurisdiction of the Court
of Justice regarding (third Pillar Matters) is limited. According
to Article 35, paragraph 1 TUE, the Court has jurisdiction to
give preliminary rulings only if the Member States accept formally
this jurisdiction (this has led to a complex "variable geography");
in addition the Court has no jurisdiction to review acts of police
forces or other law enforcement services . . .
The Working Group takes the view that the
limited jurisdiction of the Court is no longer acceptable concerning
acts adopted in areas (eg police co-operation, judicial co-operation
in criminal matters), which directly affect fundamental rights
of the individuals . . . The Working Group considers. . . . That
the general system of jurisdiction of the Court of Justice should
be extended to the area of freedom, security and justice.
To the extent that this recommendation would
imply an increase in the workload of the ECJ, the provisions provided
for in the Nice Treaty on reform of the Court would allow the
Court to cope with it.
Observations
We unreservedly welcome the working groups proposals.
CONCLUSIONS
The final report of the working group X is,
as regards the fundamental rights of citizens to justice, a very
disappointing and confused document. The working party by its
failure to recognise the priority of citizen's rights in the European
legal space apparently positions itself in favour of the creation
of a police superstate. That this is in fact not the case is illustrated
by its robust defence of the rule of law in its consideration
of the powers of the European Court of Justice.
The fundamental problem presented to all in
the creation of the European legal space on the basis of mutual
recognition of judgments remains. Mutual recognition rests on
mutual respect for the fairness of trial leading to those judgments,
not by governments but by ordinary citizens. This respect thus
cannot be conferred by governmental or working group legitimacy
but can be earned by each nation state's judicial reputation amongst
the European public as a whole. To take but one recent example.
The ludicrous handling of the British and Dutch planespotters
espionage case by the Junior Greek Judiciary early last year not
only invoked general public derision of the Greek Justice system
throughout Europe, it led to public clamor against the imminent
operation of the European arrest warrant and its abiding deep
unpopularity with the public.
This underlying problem was certainly not grasped
by the Group: it is extraordinary that there is no direct reference
in the Groups conclusions to the work of the Commission under
Commissioner Vitorino in establishing procedural safeguards for
the citizen since that project was in development throughout the
period of the Groups deliberations and has recently reached the
stage of a green paper. [9]In
our opinion the Commission paper was imbued with characteristics
sadly lacking in the Groups report: human rights orientation,
practicality and relevancy to the real needs of the ordinary citizen.
February 2003
1 See eg evidence to Scrutiny Committee inquiry
"Democracy and accountability in the EU and the role of national
parliaments" October 2001 (HC 152-xxxiii-II (2001-02)). FTA
paper 2003: Protecting the European citizen from injustice essential
Reforms within the European Institutions: Justice & Home
Affairs. Back
2
Final report of Working Group X "Freedom, Security and Justice"
INTRODUCTION. Back
3
Final report page 7. Back
4
Ibid page 8. Back
5
Final report page 11. Back
6
See evidence of FTA presented to this Committee's inquiry
"Democracy and accountability in the EU and the role of national
parliaments" June 2002. Back
7
See Artico Judgement 1980ECHR. Back
8
See Evidence to House Of Lords European communities committee
Sub-Committee "e" The Charter of fundamental Rights
and freedoms Jan 2000. Back
9
Procedural safeguards for suspects and defendants in Criminal
proceedings throughout the European Union: Green paper COM (2003)
75f. Back
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