APPENDIX 5
Memorandum from Fair Trials Abroad
TREATY ESTABLISHING A CONSTITUTION FOR EUROPE
OVERVIEW
Fair Trials Abroad welcomes the opportunity
to submit written evidence in connection with the House of Commons'
inquiry on the EU's constitutional treaty.
FTA is a non-governmental organisation working
on behalf of EU citizens to ensure access to justice by means
of a fair trial. In particular, FTA works on behalf of the individual's
rights to justice when he or she is in a foreign 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. As an organisation utilising international treaty law
on the administration of criminal justice our observations are
applicable to our sphere of competence.
We have long been concerned with a lack of democratic
accountability in the EU and the paucity of work on safeguards
to fundamental rights in the ongoing construction of the European
legal space of freedom, security and justice. This has resulted
in ongoing bad practice in terms of the citizen's access to justice
and due process, particularly in cross-border disputes. We therefore
regard the preparatory work for the Intergovernmental Conference's
Constitution to be signed in Rome in October 2004 as vital to
the general success or failure of our mission within the confines
of the European Legal Space.
The Constitution's greatest strength is that
it provides the European Parliament with co-legislative powers
with the European Council transforming the decisionmaking powers
in the EU. The number of areas where this pertains has grown to
80 domains, including Justice and Home Affairs (with the exception
of Family Law); it is also worth noting that the European Parliament
will have the power to elect the President of the European Commission.
These innovations make all procedures more transparent and inclusive
of the citizen. The Constitution further introduces a right of
popular initiative whereby European citizens may, subject to a
petition having a minimum of one million signatures, demand the
Commission to raise a legislative proposal in order to improve
implementation of the Constitution[8].
Regarding the protection of fundamental rights,
the adoption of the Charter of Fundamental Rights of the European
Union and its incorporation in the Constitution make sanctions
a reality which is a vital step forward in the protection of citizens'
rights.
ESC: INQUIRY INTO
THE EU'S
CONSTITUTIONAL TREATY
Item 1. The practical consequences of the new
references (Arts. 2 & 3) to the Union's values and objectives
Article 2—The Union's Values
The Union is founded on the values of respect
for human dignity, freedom, democracy, equality, the rule of law
and respect for human rights including the rights of persons belonging
to minorities. These values are common to the Member States in
a society in which pluralism, tolerance, justice, solidarity and
nondiscrimination and equality between women and men prevail.
Article 3(2) The Union's Objectives
The Union shall offer its citizens an area of
freedom, security and justice without internal frontiers, and
a single marker where competition is free and undistorted.
It is the view of FTA that in order for the
values of the European Union to have any practical meaning existing
rights of the individual must be safeguarded vigorously, particularly
in the current climate of fear arising from the threat, real or
imagined, of terrorism and war. A pluralist and tolerant society
with a strong desire for justice must ensure that the innocent
go free. Current procedural safeguards which are now the subject
of a Green Paper do little more than reconfirm what is already
established in the European Convention on Human Rights and the
Charter. It is our concern that the Convention, over 50 years
old, nor the Charter, go far enough. There are insufficient international
safeguards for people who are arrested under dubious circumstances,
suffer police brutality and are denied the services of an effective
lawyer. There is little protection in terms of double jeopardy[9]
and a worrying lacuna in terms of evidence, how it is identified,
employed by the courts and collected across borders. If the innocent
British citizen is to be protected as he travels abroad for business
or pleasure it is essential that these challenges are addressed.
The Constitution will make the process easier via the democratic
process, greater access to the European Court of Justice and the
application of sanctions. However, it is up to national governments,
already bound by the Principle of Mutual Recognition, to ensure
that all signatories to the Constitution uphold the values inscribed
therein; each time a national of a signatory Member State is the
victim of a miscarriage of justice in another Member State signatory
to the Constitution, the matter, with details of the procedural
flaws leading to the miscarriage of justice, must be raised at
the highest levels. Monitoring of implementation of the Constitution
as it applies, for example, to the new surrender arrangements
under the European Arrest Warrant, is central to the effectiveness
of the Constitution.
Item 8. The Treaty's criminal justice provisions
(following up the Committee's report of July
2003 on the Convention's proposals on criminal justice)
Subsidiarity and proportionality
National legal systems will, according to the
Constitution, continue to work independantly whilst uniformity
of law and procedure will not be required. Instead, the principle
of mutual recognition of judicial decisions will, it is hoped,
ensure that the guilty are sentenced wherever they are tried and
under whichever circumstance, and the innocent go free.
The harmonisation of rules of criminal procedures
has never been supported by the British government, but there
are areas where a degree of harmonisation is essential in order
to understand, and work with, criminal procedures in other jurisdictions[10].
For example, it is no good if the British police
pass on to foreign jurisdictions 10 year-old records of minor
convictions in the belief that the court will not regard them
as materially important, where in fact the jurisdiction concerned
regards all character evidence presented, whether evidence of
reputation, previous convictions or of past conduct, as material.
According to the guidelines from the Association of Chief Police
Officers, records of "recordable" offences (ie offences
which can be tried in the Crown Court, whether or not they are)
should be deleted after 10 years, unless they show that the offender
has three or more convictions for recordable offences (in which
case the record will be kept for 20 years); has been given custodial
sentences (in which case the record will be kept for life) and
so on. Individual Chief Constables are not bound by the ACPO guidelines
so policy and practice will even vary between police forces. Most
continental jurisdictions have a much shorter time for keeping
offences on record, thus spent offences would not appear in court.
In our experience, many British citizens have suffered because
the rules of evidence in other jurisdictions have not been understood
or even considered prior to sending information from the UK. The
handling of evidence is such a vast area that it does require
a specific study to look at the safeguards on fairness in the
gathering and handling of evidence as a start. The interpretation
of the presumption of innocence and the circumstances where the
burden of proof may be reversed are also crucial and the Commission
is to be commended for undertaking these tasks. This Scrutiny
Committee should consider that if British police are to arrest
British citizens under the European Arrest Warrant and British
courts are to send these citizens to foreign jurisdictions, there
must be an understanding of, and agreement with, the way evidence
is handled in both the requesting and the surrendering jurisdiction.
The cross-border dimension to any criminal justice
procedures cannot be limited to matters such as translation, interpretation
and consular access[11].
Mutual recognition of judicial decisions depends on a knowledge
of, and confidence in, the criminal procedures of the other country(ies)
involved. A greater degree of harmonisation in access to, and
availability of, Legal Aid would contribute to the raising of
standards of access to justice in Member States where the poor
receive an absolute minimum of usually ineffective legal assistance[12];
a degree of harmonisation in the delivery of bail would be to
the advantage of every foreign citizen held on remand and would
help to resolve the social problems created by the long detention
of citizens far from community and family ties.
For the Constitution to be effective, mutual
recognition must depend on trust, and trust can only arise where
there is an understanding of, and good communication with, other
EU jurisdictions.
We therefore support the Constitution's section
on Judicial Cooperation in Criminal Matters where it states:
"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, European framework laws may establish minimum rules.
Such rules shall take into account the differences between the
legal traditions and systems of the Member States. They shall
concern:
(a) mutual admissibility of evidence between
MS;
(b) the rights of individuals in criminal
procedure;
(d) any other specific aspects of criminal
procedure which the Council of Ministers has identified in advance
by a European decision. The Council of Ministers shall act unanimously
after obtaining the consent of the European Parliament.
Crucially, it goes on to state:
Adoption of the minimum rules referred to in
this paragraph shall not prevent MS from maintaining or introducing
a higher level of protection for individuals.
CONCLUSION
The Constitution will enable the citizen to
safeguard his interests, his democratic rights and bring the institutions
of the EU closer to the individual. Whilst it is hoped that Thucydides
words may be long remembered
"Our Constitution . . . is called a democracy
because power is in the hands not of a minority but of the greatest
number"
we might also wish to recall Emperor Justinian's
words
"Justitia est constans et perpetua voluntas
jus suum cuique tribuens"
Justice is the constant and perpetual wish to
render to every one his due. [13]
August 2004
8 Part 1,Title VI,Art.46(4). Back
9
It is worrying that the Constitution merely states "No-one
shall be liable to be tried or punished again in criminal proceedings
for an offence for which he or she has already been finally acquitted
or convicted within the Union in accordance with the law".
We have an ongoing case where a Kuwaiti organisation sued first
under civil procedure in the UK and subsequently under criminal
law in Spain, despite the fact that it had failed in the English
court to prove its case on the civil standard of proof. Back
10
ESC 28th Report 2003-04, Para 30. Back
11
ESC 3 July 2003 "Harmonisation of criminal procedure"
Para 45. Back
12
Constitution Treaty: "Legal Aid shall be made available
to those who lack sufficient resources insofar as such aid is
necessary to ensure effective access to justice" Title
VI JUSTICE, Art.II-47(107). Back
13
Institutiones, I, I, 1. Back
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