APPENDIX 3
Memorandum from JUSTICE
JUSTICE RESPONSE TO THE EUROPEAN SCRUTINY
COMMITTEE'S INQUIRY INTO THE EU's CONSTITUTIONAL TREATY[1]
1. JUSTICE is an independent all party law
reform and human rights organisation whose purpose is to advance
justice, human rights and the rule of law through law reform and
policy work, publications and training. It is the British section
of the International Commission of Jurists.
2. JUSTICE has monitored the development
of the EU constitutional treaty and made submissions, notably
on the JHA provisions, to the forum for the Convention on the
Future of Europe (2002), the European Scrutiny Committee (March
2003) and the IGC (October 2003). It has also responded to the
Government's White Paper on the Draft EU Constitution (October
2003). This present submission continues to reflect the focus
of JUSTICE's EU work on criminal justice, in particular judicial
co-operation in criminal matters, as well as its work on the EU
Charter.
3. JUSTICE welcomes the European Scrutiny
Committee's inquiry into the EU's Constitutional Treaty as an
important initiative that will contribute to public debate in
the run up to a referendum on the new treaty. Many of the aspects
examined by the Committee in this inquiry are indeed open-ended
and warrant further examination. The compromises reached at the
IGC do not achieve legal certainty in respect of many important
provisions. JUSTICE's responses are necessarily speculative in
some parts.
4. In summary:
— The practical effects that the values
and objectives in articles I-2 and I-3 of the new treaty may have,
beyond those set out in articles I-57 and I-58, is difficult to
predict. There may be concerns with regard to their ability to
expand EU competences. There is also a risk of their being used
to mask illiberal EU practices.
— JUSTICE approves further integration
of JHA policies subject to the development of adequate EU-wide
safeguards, notably in respect of the rights of the defence.
— It welcomes the treaty bases for
EU approximation of criminal procedure and stresses that these
minimum rules should build upon the protections in the ECHR and
be enforceable in the national courts and ultimately through the
ECJ.
— The general extension of QMV and
co-decision with the European Parliament to criminal procedural
law is a pragmatic move that will facilitate the development of
urgently needed minimum rules of criminal procedure across the
EU. Concerns remain about democratic accountability where member
states are outvoted in the Council. These are only partially answered
by the full involvement of national parliaments at the implementing
stages.
— The emergency brake will allow any
member state to refrain from participating in framework laws that
approximate criminal procedure, the definition of criminal offences
or sanctions where it considers they would affect fundamental
aspects of its criminal justice system. The degree of transparency
of European Council decisions will be vital in preventing governments
taking politically expedient decisions that nonetheless affect
fundamental aspects of its criminal justice system without parliamentary
accountability.
— Enhanced co-operation represents
a practical compromise that will allow groups of member states
to pursue greater co-operation where the agreement of all 25 member
states is not possible. JUSTICE would prefer to see such enhanced
co-operation take place within the framework of the treaty than
through unaccountable "pioneer groups". There are, however,
concerns about the degree of involvement by national parliaments
in the decision to proceed with enhanced co-operation, including
by QMV.
— JUSTICE welcomes the general extension
of ECJ jurisdiction to many parts of JHA but remains concerned
that the exception may be used to restrict ECJ jurisdiction in
relation to future EU legislation on criminal procedural law.
— JUSTICE welcomes the treaty provisions
that strengthen the role of national parliaments in the EU, notably
on access to documents, openness and transparency. The opportunities
to side-step ordinary legislative process should be precisely
and narrowly defined to avoid abuse of "urgent procedures".
It regrets that the provisions on evaluation and monitoring of
Europol and Eurojust stop short of ensuring full engagement of
national parliaments. Further, JUSTICE is concerned that monitoring
continues to focus on efficiency at the expense of compliance
with individual rights.
What are the practical consequences of the new
references (in Articles 2 and 3) to the Union's values and Objectives?
The Union's Values
5. Article I-2 sets out the Union's "values".
The terminology is new but the concept and wording are based substantially
upon the founding "principles" of the EU in article
6(1) TEU. Article I-2 declares the EU to be founded on respect
for human dignity (new), liberty, democracy, equality (new), the
rule of law and respect for human rights, including the rights
of persons belonging to minorities (new). These values are stated
to be common to member states "in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between men and women
prevail".
6. In terms of practical effect, article
I-2 has two explicit consequences. First, under article I-1 and
I-57, any European state wishing to accede to the European Union
must respect these values and be committed to promoting them jointly
in order to be eligible for EU membership. Secondly, in accordance
with the procedure laid down under article I-58, any existing
member state found to be in "serious and persistent breach"
of the values in article I-2 may see the rights it derives from
membership of the Union, including its voting rights, suspended.
7. It is not clear what the implications
of the second sentence of article I-2 are, and whether the qualities
it lists fall into the same category as the explicitly labelled
"values". If so, why are they distinguished at all and
separated from the values grouped together in the first sentence?
The draft version of article I-2 distinguished between values
in the first sentence and the aim of the EU in the second, stated
to be "a society at peace, through the practice of tolerance,
justice and solidarity". The final version of the article
adds to these latter three values, "pluralism", "non-discrimination"
and "equality between men and women" but removes the
statement that these are "aims". The promotion of "peace"
is relegated to article I-3 on the Union's objectives and is clearly
identified as an "aim" of the Union. In terms of practical
effect, articles I-57 and I-58 do not distinguish between the
first and second sentences of article I-2. A strong argument could
therefore be made that "pluralism, non-discrimination, tolerance,
justice, solidarity and equality between men and women" are
also fundamental values of the Union, common to the societies
of all member states. Furthermore, they are sufficiently legally
watertight to ensure that member states can deduce the legal obligations
to which they give rise, notably under article I-58.
8. The values of the Union also have links
with other provisions in the new treaty, notably the objectives
in article I-3, article II-7 on fundamental rights, the Charter
of Fundamental Rights in Part II, and Title VI on "the democratic
life of the Union". This may introduce confusion in the practical
application of the Union's values—is, for example, a Charter
right such as human dignity more fundamental if inserted into
article I-2? Moreover, by placing these values in article I-2,
they will be justiciable as interpretive aids to the rest of the
constitutional treaty and all legislative acts of the Union. As
such, the UK government's efforts to restrict the scope of the
EU Charter may have been in vain, particularly since respect for
human dignity could be said to underpin all national[2]
and international[3]
texts on the protection of fundamental rights. An activist ECJ
could make use of such a provision to undermine the distinction
in the EU Charter between rights and principles, notably where
such principles resemble social and economic rights.
9. Finally, JUSTICE is concerned that the
inclusion of these values in the new treaty may allow member states
to adopt legislation that breaches international human rights
law whilst claiming it is in conformity because article I-2 of
the treaty states that the Union is founded on these values that
are common to all member states. This would create a self-reaffirming
system that permits the member states to justify their illiberal
practices on the basis of the liberal values of the constitution.
This is precisely what has happened in the asylum part of JHA—the
member states have adopted legislation that the UNHCR himself
considers publicly to be in contravention of the Geneva Convention
while the EU claims its legislation is in compliance because that
is what it says in the treaty. There is a subsequent risk that
the EU will drag down international standards applicable to these
values by their illiberal practices.
The Union's Objectives
10. Article I-3 sets out the general objectives
of the Union. It combines the objectives of article 2 TEU with
those of article 2 TEC and introduces new objectives to better
reflect the balance between the economic and social values of
the Union. New additions include: "to promote peace, its
values and the well-being of its peoples", "to offer
its citizens an area of freedom, security and justice without
internal frontiers. . .", full employment, the promotion
of scientific and technological advance, solidarity between generations
and the protection of children's rights, cultural and linguistic
diversity and the safeguarding and enhancing of Europe's cultural
heritage.
11. As stated above, article 1-3 sets out
the Union's general objectives only. The specific objectives of
each policy area are defined in greater detail in Part III of
the treaty. Article 1-3 will nonetheless assist in the definition
and implementation of Union policies as well as in any eventual
review by the ECJ of the legality of European legislation or acts
of Union institutions, bodies, offices or agencies under article
III-270 and in the ECJ's preliminary rulings jurisdiction under
article III-274. As general objectives, they will apply to all
areas of Union competence but are not intended to expand the Union's
competences, as underscored by article I-3(5). Whether they will
remain confined in this way in practice remains to be seen.
Does the treaty make "enhanced co-operation"
more likely?
12. The mechanisms enabling different degrees
of integration and co-operation between groups of states were
"constitutionalized" and "legitimated" by
the Treaty of Amsterdam and the amendments to it by the Nice Treaty.
[4]The
aim of these changes was to minimise the need for states wishing
to advance co-operation to negotiate outside the framework of
the treaties when faced with political deadlock, as occurred in
relation to the Schengen Agreement, the Social Protocol and the
EMU opt-outs. The enhanced co-operation provisions in the new
treaty have barely changed since Nice. The only material change
is that a minimum of nine rather than eight member states will
be necessary in order to proceed with enhanced co-operation under
the new constitution. It will therefore be primarily due to changes
introduced by the Nice Treaty if the EU begins to experience more
examples of enhanced co-operation.
13. JUSTICE is not, in principle, opposed
to enhanced co-operation. It offers a pragmatic solution to groups
of member states that are willing and able to proceed when others
are not. JUSTICE does, however, have some specific concerns that
relate to democratic accountability where the passarelle clause
is used to take decisions by QMV rather than unanimity in highly
sensitive areas of criminal justice policy, and when member states
act outside the treaty provisions on enhanced co-operation and
establish so-called "pioneer groups".
14. Where all 25 member states are unable
to reach agreement on a draft European law or framework law, two
provisions of the EU constitution facilitate enhanced co-operation
between smaller groups of member states: the emergency brake and
the passarelle. In JHA, the emergency brake procedure allows a
member state that considers a draft framework law (a) on criminal
procedure; or (b) on the definition of criminal offences and sanctions
would "affect fundamental aspects of its criminal justice
system" to prevent its adoption by QMV by referring it to
the European Council (article III-171(3) and (4) and article III-172(3)
and (4)). This referral triggers a suspension of the usual legislative
procedure. The European Council must decide within four months
to either resume the usual legislative procedure or request a
new draft law. Where no action is taken in that four-month period
or no framework law has been adopted within 12 months of the submission
of the new draft, "enhanced co-operation" may be established
if at least one third (nine) of all member states so wish. The
general treaty provisions on enhanced co-operation then apply
(article I-43 and III-322-III-329). The UK would therefore retain
an emergency veto over the application of EU legislation on criminal
procedure in the UK.
15. The most important factors that argue
in favour of an increase in differential co-operation are political
and pragmatic. For instance, as a result of the recent enlargement
to 25 member states, the sheer size of the new European Union
may make enhanced co-operation between groups of states that have
established greater trust between themselves more likely. There
may also be examples where the existence of common technical capabilities
or the compatibility of computer systems between member states
is crucial for greater integration, and/or the existence of common
legal rules such as data privacy legislation.
16. The requirement that at least 9 member
states wish to go ahead before enhanced co-operation can proceed
remains relatively high and JHA policy is notoriously sensitive.
It should not be forgotten that, initially, only five out of 15
member states agreed to co-operate (outside the Community structure)
in the 1985 Schengen Agreement and the 1990 Schengen Implementing
Convention. Moreover, the Amsterdam provisions on closer co-operation
were never in fact used. The enhanced co-operation provisions
are explicitly stated to be a recourse of last resort and, particularly
in JHA where efficiency will often depend on co-operation between
all member states, co-operation at 25 is very much the main goal.
17. Where member states do decide to proceed
with enhanced co-operation, the passarelle clause (article III-328)
enables those member states to take decisions by QMV, even where
the unanimity rule would usually apply to the policy area in question.
These include the creation of a European public prosecutor, an
extension of the areas in which minimum rules of criminal procedure
can be established, and the drafting of the conditions in which
the competent authorities (including police, customs and other
specialised law enforcement services) may operate in the territory
of another member state. The decision to pass from unanimity to
QMV is taken by a unanimous vote in the Council of Ministers of
those states participating in enhanced co-operation only. Legislation
agreed in this manner could therefore only apply to the UK where
it had agreed to participate in enhanced co-operation and then
subsequently to proceed by QMV.
18. JUSTICE is also concerned that groups
of member states may continue to establish "pioneer groups",
such as the G3 (France, Germany and Spain) that has agreed to
exchange criminal records in the absence of a proposal from the
European Commission. It considers that such pioneer groups present
greater cause for concern than the enhanced co-operation under
the Part III provisions of the new treaty. These groups make agreements
outside the scope of the treaty structures and so beyond the reach
of the built-in accountability mechanisms and potential human
rights safeguards that may be established under the new article
III-171. It should be noted that many JHA policies originated
in this fashion (via Dublin, Schengen etc) and were ultimately
adopted by the EU as virtually acquis, without adequate opportunity
to debate them. The implicit danger in the development of closer
co-operation by this method is the reduction in democratic accountability
it entails.
19. Furthermore, this type of co-operation
may not make use of EU institutions, procedures and mechanisms,
resulting in systems that are even more complicated, cumbersome
and time-consuming. This, in turn, is likely to hinder effective
police and judicial co-operation against serious crime.
20. Finally, such groups may diminish the
political will of the larger member states to compromise with
their newer or smaller counterparts rather than pioneering efforts
to achieve greater integration and so result in less rather than
more co-operation in the long term.
To what extent has the UK Government held its
red lines over QMV relating to criminal procedural law?
21. JUSTICE welcomes the general extension
of QMV and co-decision with the European Parliament to this area
of JHA, subject to the emergency brake procedure. The default
position of QMV and co-decision means that the government's "red
line" has not entirely been secured but a satisfactory compromise
position has been achieved by the inclusion of the "emergency
brake" where a draft framework law would affect fundamental
aspects of a member state's criminal justice system.
22. Recent developments that implement the
principle of mutual recognition, such as the European arrest warrant,
will allow prosecutors in one member state to request coercive
actions to be taken in another member state with relative ease.
Such developments mean that it is no longer satisfactory merely
to defer to national criminal procedural law where crime and prosecutions
cross geographic borders. The approximation of certain aspects
of criminal procedural law is key to the legitimacy of the EU's
mutual recognition programme, as well as to its success. The extension
of QMV to this area of law will ease decision-making in the newly
enlarged Union of 25 members and facilitate the adoption of minimum
rules on the admissibility of evidence between member states;
the rights of individuals in criminal procedure; the rights of
victims of crime; and any other specific aspects of criminal procedure
agreed unanimously by the European Council with the consent of
the European Parliament. [5]
23. However, where coercive actions by a
state are envisaged QMV must be tempered to ensure legitimacy
through full democratic accountability. The emergency brake procedure
ensures a member state that considers a draft framework law would
"affect fundamental aspects of its criminal justice system"
can suspend the legislative procedure by referring the matter
to the European Council. Within four months of this referral,
the European Council must either refer the draft back to the Council
and resume the ordinary legislative procedure, or request the
Commission or the group of member states that proposed the draft
framework law to submit a new draft. If the European Council has
not taken any action at all within the four-month deadline, or
if within 12 months of the submission of the new draft framework
law no European framework law has been adopted, "enhanced
co-operation" may be established between those member states
that still wish to go ahead, provided at least a third of all
member states agree to participate. The member state(s) that objected
to the draft law would not be bound by the enhanced co-operation.
24. Where the emergency brake is not used
and minimum rules of criminal procedure are adopted on the basis
of QMV and co-decision, concerns about democratic accountability
persist. These concerns are only partially answered by the fact
that these procedures will only apply to "European framework
laws"—which require implementation by national parliaments,
and not "European laws"—which do not require implementation
and take direct effect in the member states. This is an important
distinction that will ensure the involvement of all national parliaments
even where their governments have been outvoted in the Council.
However, parliaments in such a position may be reduced to "rubber
stamping" implementing legislation where the framework law
leaves little room for manoeuvre. Both Houses of the UK parliament
have demonstrated their willingness to insert international and
domestic human rights protections into implementing legislation,
even where such safeguards were not on the face of the European
framework law. A recent example is the inclusion at clause 21
of the Extradition Act 2003, which implemented the European arrest
warrant, of an explicit human rights clause.
How effective are the emergency brakes in criminal
justice?
25. The emergency brake mechanism represents
a compromise aimed at allowing member states to preserve national
sovereignty in an area of law that can differ substantially between
member states, without hampering progress between member states
that share the same problems, capacities and/or trust to proceed.
26. The increased role foreseen by the treaty
protocol on national parliaments—notably with regard to
timely access to Council agendas, minutes of Council meetings,
Commission consultation documents and draft legislative acts—will
facilitate effective scrutiny and alert governments to draft framework
laws that may affect fundamental aspects of their criminal justice
systems early on in the legislative process.
27. The mechanics of the emergency brake
procedure are outlined in paragraph 14. Referral of a draft framework
decision that would affect the fundamental aspects of a member
state's criminal justice system to the European Council is appropriate
given the highly sensitive and necessarily political nature of
the decision on how to proceed.
28. An important factor in the operation
of the emergency brake will be the degree of transparency of European
Council discussions. In accordance with articles I-49 and III-305
of the constitutional treaty on openness and transparency, the
European Council should meet in public under articles III-171(3)
and III-172(3), and its documents should be made publicly available—without
concealing member states' policy positions. Given that a government
may take a politically expedient decision that will nonetheless
affect the "fundamental aspects of its criminal justice system",
civil society and national parliaments must be kept informed of
the progress and content of discussions. This will assist parliamentary
scrutiny and inform public debate whether a decision to resume
the usual legislative procedure is taken, or a new draft framework
law is submitted.
29. However, if the emergency brake provisions
are to be justiciable in cases brought before the ECJ, this may,
in the hands of an activist court, diminish the value of the emergency
brake mechanism in the interests of legal certainty. The Committee
may wish to consider this eventuality further.
What is the effect of the horizontal clauses that
govern the application of the Charter of Fundamental Rights?
30. JUSTICE welcomes the inclusion of the
Charter in the constitutional treaty. The Charter of Fundamental
Rights is addressed to the EU institutions, agencies and bodies
and to the member states only when implementing EU law and is
intended to ensure compliance with the rights and principles enshrined
in the Charter in all the activities of the Union. The increasing
capacity of EU institutions to affect individual rights makes
a binding catalogue of fundamental rights an indispensable part
of the constitutional structure of the Union.
31. The effect of the horizontal clauses
which govern the application of the Charter is difficult to predict,
due on large part to the uncertainty as to the weight that will
be given to the Legal Explanations to the Charter by the courts.
32. The Legal Explanations refer to the
European treaties, international human rights instruments and
judgments and restrict the courts' room for manoeuvre in their
interpretation of the Charter.
33. Paragraph 7 of Article 52 during the
final stages of negotiations stresses the importance that should
be given to the Legal Explanations in the interpretation of the
Charter.
34. However, the wording of "due regard"
used in Article 52(7) and the 5th paragraph of the preamble might
nonetheless allow a proactive court some latitude in interpreting
and applying the Charter. JUSTICE would encourage the courts to
interpret the Charter in a progressive and meaningful way without
excessively confining themselves to the Legal Explanations. This
would facilitate the development of fundamental rights in the
EU and increase the Charter's longevity in the same way as the
ECtHR has done for the ECHR in its treatment of the ECHR as a
"living instrument".
35. The Charter has become an important
reference document since its proclamation in December 2000 and
will continue to be once it has full legal effect. It has been
extensively referred to by the Advocates General of the European
Court of Justice (ECJ), by the Court of First Instance (CFI) and
by the European Court of Human Rights (ECtHR) National courts,
including those in the UK, have also cited or relied on the provisions
in the Charter.
36. The Charter is not in itself a source
of competences or a legal basis that will enable the Union to
pass legislative measures. It bears closer resemblance to a source
of reference for the values that must be present in all EU policies
and legislation.
37. During the IGC negotiations changes
were made to the horizontal clauses to ensure that no new rights
were created and that no new powers were given to the EU Institutions,
agencies and bodies. Article II-51, on the scope of the Charter,
clearly specifies in paragraph 2 that the Charter does not extend
beyond the powers of the Union or establish any new powers or
task for the Union, nor does it modify powers and tasks defined
by the other parts of the constitution. Article II-52, which addresses
the scope and interpretation of rights and principles, establishes
in paragraphs 3 and 4 that any rights which correspond to the
ECHR or result from the constitutional traditions common to the
member states should be interpreted in line with the ECHR and
in harmony with the constitutional traditions. Article II-52 paragraph
5 makes a distinction between rights and principles. This distinction
specifies that such principles become significant for the Courts
only when acts implementing the principles are interpreted or
reviewed. JUSTICE welcomes such inclusion but feels that that
the distinction between rights and principles is too vague and
would support an annexe to the Constitution specifying those provisions
of the Charter that require subsequent implementation in order
to confer legal rights. Finally, paragraph 6 of Article 52 directs
that full account should also be taken of national laws and practices.
These provisions underline that courts will always need to consider
the ECHR, constitutional or national traditions when applying
and interpreting the articles of the Charter.
38. These additions to the horizontal clauses
and the legal status and contents of the Explanations to the Charter
help clarify the legal meaning and scope of the Charter provisions.
It nonetheless remains to be seen if the courts will stick to
the Legal Explanations or will go beyond and interpret the provisions
of the Charter with greater autonomy.
THE TREATY'S
CRIMINAL JUSTICE
PROVISIONS (FOLLOWING
UP THE
COMMITTEE'S
REPORT OF
JULY 2003 ON
THE CONVENTION'S
PROPOSALS ON
CRIMINAL JUSTICE
HC 63-XXVI 2002-03)
Role of national parliaments
Legislative Process
39. JUSTICE welcomes a fortified role in
the EU for national parliaments as a way to improve democratic
legitimacy and bring the EU closer to its citizens. The treaty
provisions on openness and transparency in article I-41 and III-305,
in particular the requirement that Council meetings and European
Council meetings be held in public, with transparency of member
states' policy positions, when legislating will significantly
assist legislative scrutiny by national parliaments.
40. The protocol on the role of national
parliaments in the EU is a welcome appendage to the new treaty.
It sets out their entitlement to receive Commission consultation
documents and draft legislative acts, as well as agendas and outcomes
of Council meetings, and (apart from in exceptional cases) requires
a period of six weeks to elapse before the adoption of the draft
act. JUSTICE regrets that national parliaments do not, however,
have the right to request other information that could further
assist their scrutiny responsibilities.
41. JUSTICE also has concerns in relation
to article 4 of the protocol that would reduce the time allocated
to the national parliaments for scrutiny of draft legislation
in "cases of urgency". Cases of urgency may be defined
by political interests and often in precisely the type of cases
that require more rather than less democratic scrutiny. In the
aftermath of 11 September, for example, highly sensitive and politically
controversial legislative measures such as the EAW were adopted
under an exceptional "urgent procedure". In its Minority
Opinion on the Commission proposal for a EAW, the European Parliament
emphasised that the accelerated negotiations requested by the
Extraordinary Council did not "allow scope for anything approaching
serious consideration of the proposal and a measured assessment
of its particularly wide ranging implications for the rules of
criminal procedure". The requirement in article 4 for the
Council to supply reasons in such cases will not provide ample
protection against abuse of the exceptional procedure. The reason
given for use of the urgent procedure in relation to the EAW was
the 11 September attack on the United States. However, the EAW
has a much broader scope than counter-terrorism and extends to
all extradition offences.
QMV and criminal procedural law
42. See JUSTICE response at paragraphs 17,
24 and 28.
Subsidiarity
43. JUSTICE welcomes the inclusion in the
treaty of a formal scrutiny procedure by national parliaments
of draft legislation for compliance with the subsidiarity principle.
National parliaments are entitled to submit reasoned opinions
to the Presidents of the European Parliament, the Council and
the Commission on whether a draft legislative act complies with
the principle of subsidiarity. These opinions must be taken into
account by the institution or group of member states that drafted
the legislative act and, where at least one third of all national
parliament votes find the draft act infringes the principle of
subsidiarity, it must be reviewed (each national parliament has
two votes). Following such review, the institution or group of
member states that drafted the act may decide to maintain, amend
or withdraw the draft, giving reasons for the decision. The requirement
on the institution or group of member states that drafted the
act to give reasons for their decision will assist transparency
and facilitate any eventual review by the ECJ.
44. This provision gives a third of national
parliaments acting together a "yellow card" rather than
the "red card" sought by the UK that would have given
national parliaments a veto over draft legislation that does not
comply with the subsidiarity principle. JUSTICE regrets that human
rights concerns were not also included as an explicit ground for
national parliaments to lodge reasoned objections.
Evaluation and monitoring
45. Provision has been made for the national
and European parliaments to be "involved" in the political
monitoring of Europol and the evaluation of Eurojust's activities.
JUSTICE is disappointed at the vague wording of these provisions
that will not necessarily ensure the full and active engagement
of the parliaments.
46. The final treaty also lacks a direct
authorisation for the parliaments to monitor the activities of
Europol and Eurojust for human rights compliance rather than simply
efficiency.
47. Finally, national parliaments can participate
in the evaluation of member states' implementation of EU policies,
"in particular in order to facilitate full application of
the principle of mutual recognition". JUSTICE regrets that
this monitoring continues to focus on efficiency and does not
also reflect the importance of monitoring human rights compliance.
48. The evaluations themselves are to be
conducted in an "objective and impartial" manner by
member states and the Commission. In its submissions to the drafting
Conventions and the UK Government, JUSTICE argued that member
states should not be responsible for evaluating their own legislation
and practice and that such evaluations would be better undertaken
by independent groups of experts from the member states, with
active input from national and European parliamentarians. The
new treaty and its protocol will nonetheless contribute towards
greater accountability of EU legislative action.
APPROXIMATION OF
CRIMINAL PROCEDURE
(SEE ALSO
PARAGRAPH 21)
49. JUSTICE welcomes the insertion into
article III-171 of the treaty of legal bases for the approximation
of certain aspects of criminal procedural law (mutual admissibility
of evidence between member states; the rights of individuals in
criminal procedure; the rights of victims of crime; and any other
specific aspects of criminal procedure agreed unanimously by the
European Council with the consent of the European Parliament).
The rapid pace at which the EU's mutual recognition programme
for police and judicial co-operation in criminal matters is developing
requires minimum EU-wide safeguards beyond those of the ECHR to
be developed urgently. This programme has been expounded on the
basis that the criminal justice systems of all 25 member states
contain comparable protections for those who find themselves subject
to coercive measures under EU mutual recognition instruments,
such as the European arrest warrant. The Commission has frequently
acknowledged that this is not the case at present—most recently
through the publication of a proposal on minimum safeguards for
suspects and defendants in criminal proceedings across the EU—and
that specific action will need to be taken by member states, both
to guarantee defence rights and facilitate the mutual recognition
programme.
50. The areas of criminal procedure in which
minimum rules are envisaged by the treaty are crucial at this
stage of EU co-operation. Their scope is explicitly tied to developments
in police and judicial co-operation in criminal matters: they
can only be established "to the extent necessary to facilitate
mutual recognition of judgments and judicial decisions and police
and judicial co-operation in criminal matters having a cross-border
dimension". The areas in which minimum rules can be established
are clearly enumerated and can only be extended and bind all member
states by a unanimous vote in the European Council, with the consent
of the European Parliament
51. Minimum European standards in this field
will reduce the likelihood of double standards being applied between
member states in this area of law where rules vary widely. Increased
cross-border co-operation on the basis of mutual recognition will
reinforce these anomalies. Common standards should also diminish
the chances of "forum shopping" by prosecuting authorities
in cross-border cases.
52. In order therefore to facilitate the
development of such minimum rules on rights for the individual,
JUSTICE supports the adoption of European framework laws in the
areas of criminal procedure listed in article III-171 by QMV,
subject to the emergency brake procedure (outlined in our response
to question 5). Such framework laws presently need to be implemented
in the member states by national parliaments and will not have
direct effect. [6]
53. JUSTICE is however concerned that the
wording of Article III-171(2) [7]would
allow common European standards to take a "lowest common
denominator" approach that would not extend defence rights
beyond the scope of the ECHR. This is certainly the case in relation
to the Commission proposal of safeguards for suspects and defendants
in criminal proceedings across the EU. JUSTICE regrets the omission
of a non-regression clause.
HARMONISATION OF
SUBSTANTIVE CRIMINAL
LAW
54. Article III-172(1) establishes a legal
base for the creation of minimum rules by QMV and co-decision
on the definition of criminal offences and sanctions for certain
"areas of particularly serious crime with cross-border dimensions
resulting from the nature or impact of such offences or from a
special need to combat them on a common basis". These areas
of crime are listed in that article. The list may be extended—subject
to the same criteria—by unanimity in the Council and with
the consent of the European Parliament.
55. Approximation is also permitted where
it "proves essential to ensure the effective implementation
of a Union policy in an area which has been subject to harmonisation
measures". In this case, adoption will be subject to the
same legislative procedure as was followed for the adoption of
the harmonisation measure in question. An emergency brake is incorporated
into article III-172 that would prevent the application of framework
laws to member states that consider such laws would affect fundamental
aspects of their criminal justice systems. Enhanced co-operation
may proceed under the same conditions outlined above.
56. The approximation of criminal offences
and sanctions in the circumstances foreseen by Article III-172
will help to ensure that serious cross-border crime is addressed
in all member states and attracts sufficient penalties. It will
also consolidate the mutual recognition basis of EU judicial co-operation
in criminal matters by ensuring greater consistency between those
offences across the EU in respect of which judicial authorities
can co-operate, and by increasing legal certainty. This is particularly
important where the double criminality requirement is abolished
and application of the mutual recognition principle gives effect
to the criminal laws of one member state in all others. As a minimum
definition, however, it will not prevent member states adopting
more extensive definitions or sanctions which will then be given
effect in all other member states where measures such as the EAW
are used. This is the case, for instance, with the European framework
decision on terrorism that establishes a common EU definition
of terrorism when compared to the far more extensive UK definition
in the Terrorism Act 2000. Where the UK makes a judicial request
to another member state in relation to terrorist offences under
the EAW it is the UK definition of terrorism that will be applied
and not the EU definition.
ECJ JURISDICTION
57. The new treaty not only extends QMV
and co-decision with the European Parliament to much of justice
and home affairs, it also expands the jurisdiction of the ECJ
into this realm. It abolishes the complex system of "opt
outs" from the ECJ's preliminary rulings jurisdiction so
that any national court will now be able to request such a ruling
concerning the interpretation of the treaty or the validity and
interpretation of acts of the EU institutions, its bodies, offices
and agencies. The only distinct provision on ECJ jurisdiction
in JHA that remains is an exception for operations carried out
by member states' police or other law enforcement services or
where member states take action to maintain law and order and
safeguard national security.
58. JUSTICE welcomes this general extension
of ECJ jurisdiction that will, in particular, subject the activities
of Europol and Eurojust to judicial scrutiny. It does however
remain concerned that the exception may be used to restrict ECJ
jurisdiction in relation to future EU legislation on criminal
procedural law, including minimum standards in procedural safeguards
for suspects and defendants.
EUROPEAN PUBLIC
PROSECUTOR (EPP)
59. Article III-175 introduces a legal base
for the creation of an EPP within Eurojust by the Council acting
unanimously with the consent of the European Parliament. The proposed
model would entitle the EPP to exercise "the functions of
prosecutor in the competent courts of the Member States"
in relation to offences against the financial interests of the
Union. Paragraph 4 would allow the European Council acting unanimously,
with the consent of the European Parliament and after consulting
the Commission, to extend the powers of the EPP to include serious
crime having a cross-border dimension. The draft text initially
proposed that the EPP be granted such extensive powers from the
start so this is an important revision.
60. In its previous submission to the House
of Commons European Scrutiny Committee on the European Convention
for the Future of Europe, JUSTICE expressed its concerns about
the possibility of "forum shopping" between member states
in order to take advantage of varying standards in burden of proof,
mode of trial, sentencing and admissibility of evidence across
the EU. Furthermore, specific rules of procedure and judicial
review applicable only to the EPP would result in an unnecessarily
complex system of European and national criminal law and procedures.
Such a system would not only be unworkable but could also entail
a reduction in existing procedural safeguards.
61. At present, JUSTICE maintains that the
need for a EPP has not yet been sufficiently demonstrated. If
one is ever established, it must be subject to judicial review
by a European court and accompanied by the simultaneous development
of a robust set of EU criminal procedural rules that safeguard
the rights of the defence and that the EPP.
26 August 2004
1 The numbering used to refer to articles of the EU
constitutional treaty are those in the final version of the treaty
which may be found at http://ue.eu.int/igcpdf/en/04/cg00/cg00087.en04.pdf. Back
2
Article 20 of the Angolan Constitution, http://www.angola.org/referenc/constitution/con3.htm;
Article 23 of the Belgian Constitution, http://www.oefre.unibe.ch/law/icl/be00000-.html;
Articles 1, 170 and 230 of the Brazilian Constitution, http://www.senado.gov.br/bdtextual/const88/const88i.pdf,
Article 6 of the Bulgarian Constitution, http://www.online.bg/law/const/const1.htm,
Section 1 of the Finnish Constitution, http://jurist.law.pitt.edu/world/fincor1.htm. Back
3
UN Charter, http://www.un.org/aboutun/charter/. Back
4
Paul Craig and Grainne de Burca, EU Law, Texts, Cases and Materials,
Third Edition, Oxford University Press, 2003. Back
5
Article III-171(2). Back
6
It should however be noted that any European Union Act which comes
into being to implement the new treaty could permit framework
decisions on criminal law and policing measures to be adopted
by delegated legislation. This would be a thoroughly unacceptable
limitation of parliamentary accountability in such a fundamental
and sensitive area of policy. Back
7
Article III-171(2) states that the adoption of minimum rules "shall
not prevent member states from maintaining or introducing a higher
level of protection for individuals". Back
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