7 Procedural rights in criminal proceedings
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13116/06
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| Draft Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
Draft Resolution of the Member States meeting within the Council on practical action to promote fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter
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| Legal base | Article 31(1)(c) EU; consultation; unanimity
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| Deposited in Parliament | 23 October 2006
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| Department | Office for Criminal Justice Reform
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| Basis of consideration | EM of 19 October 2006
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| Previous Committee Report | None; but see (27268) 15432/06 HC 34 xxxiv (2005-06) para 15 (5 July 2006); HC 34-xxvi (2005-06) para 14 (26 April 2006); HC 34-xxi (2005-06), para 18 (8 March 2006)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
7.1 An earlier version of this proposal for a Framework Decision
on certain aspects of criminal procedure was considered by us
on 8 March, 26 April and 5 July 2006. We shared the doubts of
the previous Committee, and we understand also of Austria, the
Czech Republic, Denmark, Ireland, Malta and Slovakia, as to whether
the proposal was properly based on Article 31(1)(c) EU,[21]
since it would have applied also to purely internal cases where
no question of judicial cooperation or of recognition and enforcement
in another jurisdiction could arise.
7.2 The Attorney General (Lord Goldsmith) informed us that at
the Council Working Group meeting on 6 March 2006, Member States
agreed that there was no evidence, having regard to actual cases,
that the draft Framework Decision was in fact required to facilitate
cooperation. We found this conclusion striking and considered
that it fatally undermined any reliance on Article 31(1)(c) EU
as the legal base for the proposal. The Attorney General also
reported that some Member States nevertheless continued to hold
out for a legally-binding instrument to be agreed in this area,
and that there might be a need to consider non-legislative alternatives
to a Framework Decision, such as a political declaration with
EU-funded schemes to improve the provision of legal advice and
interpreters.
7.3 The Attorney General subsequently informed us that the Commission's
original draft Framework Decision had been "shelved",
but that the Austrian Presidency had circulated an alternative,
more general, text as a "non-paper"[22]
which was discussed at informal working group meetings in April
and May and at the June Justice and Home Affairs (JHA) Council.
This "non-paper" set out a number of minimum standards
to be followed in criminal proceedings, relating to such matters
as access to information, translation and interpretation, and
were intended to reflect the case-law of the European Court of
Human Rights, notably in relation to Article 6 of the European
Convention on Human Rights (which guarantees the fairness of trials).
7.4 The Attorney General informed us that, at the JHA Council
in June, a number of Member States continued to object on principle
that there was no basis in the treaties for "such intrusion
into wholly domestic situations". The Attorney General added
that several Member States, including the UK, also expressed concern
about the justification for, and dangers of, creating parallel
and overlapping European jurisdictions on human rights and drew
attention to the serious concerns which had been expressed in
this regard by the Council of Europe to the Austrian Presidency.
The UK also expressed a clear preference for a resolution (as
opposed to a Framework Decision) with a package of other practical
measures to enhance compliance with the ECHR. The Attorney General
reported that there was agreement in the Council that such a Resolution
should be discussed and developed in the working group alongside
the Presidency text.
7.5 We cleared the original proposal from scrutiny in the light
of the Attorney General's explanations and his undertaking to
inform us of any new formal proposal.
The revised proposal
7.6 The document contains a formal proposal for a Framework Decision
based on the earlier Austrian Presidency "non-paper",
together with a proposal by the United Kingdom, the Czech Republic,
Ireland, Malta, Cyprus and Slovakia for a resolution of the Member
States meeting within the Council . The introduction to the document
explains that it is the intention of the Presidency to discuss
both the draft Framework Decision and the draft resolution "in
parallel", leaving until later the question of whether to
proceed by way of a binding Framework Decision or a non-binding
resolution.
7.7 The revised draft Framework Decision largely follows the text
of the earlier Presidency "non-paper" and deals with
the right to information, to legal assistance, to interpretation
and to translations of relevant documents.
7.8 According to Article 1, the aim of the proposal is to establish
minimum standards to be respected by Member States throughout
the European Union concerning the rights of persons subject to
criminal proceedings. These minimum standards are to be interpreted
"in full compliance" with Articles 5 and 6 of the European
Convention on Human Rights (ECHR) and with the case law of the
European Court of Human Rights. The terms "criminal proceedings"
and "charged with a criminal offence" are also to be
interpreted "in accordance with national law while respecting"
Article 6 ECHR.
7.9 Article 2 requires Member States to ensure that any person
subject to criminal proceedings, or subject to a European Arrest
Warrant or extradition or other surrender procedure, is provided
promptly with "effective information", in a language
which he understands, of the reasons for his arrest and for any
charge, the "nature and cause of the accusation" and
his procedural rights including the right to legal assistance
and to free interpretation and translation.
7.10 Article 3 is concerned with the right to legal assistance
and requires Member States to ensure that every person charged
with an offence has the right to legal assistance of his own choosing,
together with "adequate opportunities, time and facilities"
to communicate and consult with a legal adviser. In the case of
persons held in custody pending trial, Article 3(3) requires Member
States to ensure that such a person has the right to legal assistance
in order to safeguard the fairness of proceedings "taking
into account the special features of each national legal system,
the legal relevance attached to such proceedings within the overall
procedure, and, in particular for serious offences, the need to
protect investigations".
7.11 Article 4 requires Member States to meet, in whole or in
part, the costs of legal assistance of a person subject to criminal
proceedings where he is partly or wholly unable to meet such costs
as a result of his "economic situation" and "when
the interests of justice so require".
7.12 Article 5 requires Member States to ensure that a person
subject to criminal proceedings, or to a European Arrest Warrant
or other extradition proceedings is provided with the free assistance
of an interpreter when a "procedural act requiring the person's
participation" takes place. Article 6 makes similar provision
in relation to translations, with Member States being required
to ensure that persons are "entitled to get free translation"
of the documents, or "interpretation relevant for the proceedings",
to the extent necessary to ensure the effectiveness of the rights
of the defence.
7.13 The draft resolution calls on Member States to reiterate
their commitment to the ECHR and to encourage one another to promote
full compliance with Article 5 and 6 ECHR as developed in the
case law of the European Court of Human Rights, to ensure the
dissemination of the case law of the ECHR, to consider a list
of "Action Points" in relation to interpretation and
translation and to consider participating and extending peer review
mechanisms to safeguard key procedural rights in criminal proceedings.
7.14 The draft resolution has an attached list of "Action
Points" which consist of a series of practical measures which
might be taken to improve compliance with the requirements of
Article 6 ECHR. Member States are accordingly invited to consider
if systems are in place to enable persons subject to criminal
proceedings to be informed of their rights and entitlements and
to be given specific practical information on access to legal
representation and interpreters. Member States are also invited
to consider if the legal contribution to the prosecution process
is provided early enough, and if mental health assessments of
suspects are made by appropriately qualified personnel wherever
there are doubts as to a suspect's mental health.
7.15 The "Action Points" also invite Member States to
consider a range of measures relating to legal assistance, including
whether police stations hold a list of lawyers available to offer
speedy legal advice to a person following his arrest, whether
police stations and prisons provide suitable facilities for a
person to consult his legal adviser without being overheard, and
whether modern technology is being used as much as possible to
facilitate a person's access to a lawyer and if material is being
disclosed in electronic format wherever possible.
7.16 The "Action Points" similarly invite Member States
to consider whether more could be done to improve facilities for
interpreting, whether there are appropriate national standards
for interpreting, whether training courses are available, whether
national standards on interpreting include a code of ethics, and
whether training is provided to help judges, magistrates and advocates
make the best use of interpreters.
7.17 In a second part of the paper, the Commission is invited
to consider providing support and financial assistance to help
meet the "Action Points" and to develop programmes,
in cooperation with the Member States, to improve the supply and
quality of interpreters and translators and to develop and evaluate
new interpreting methods such as remote interpreting by means
of video conferencing or telephone to overcome shortages in specific
languages or locations within the EU.
The Government's view
7.18 In his Explanatory Memorandum of 19 October 2006 the Attorney
General (Lord Goldsmith) describes the course of negotiations
within the Council and its working groups and the agreement to
consider a draft Framework Decision in parallel with a draft political
resolution at future meetings. The Attorney General explains that
the UK's main high level concern is to avoid unnecessary duplication
of the ECHR and the risk of legal uncertainty for citizens and
Member States. The Attorney General adds that the Government is
not satisfied that the current proposal for a binding Framework
Decision is worthwhile and that it believes that "practical
measures which can bring tangible benefits to the citizen should
now be pursued". The Attorney General also comments that
the Government is not satisfied that the position regarding subsidiarity
is acceptable and that it will "review the matter in the
light of the final proposal, if one is submitted".
7.19 In his detailed comments on the draft Framework Decision
the Attorney General notes a number of divergences from the principles
of the ECHR. Article 1 contains a reference to the need on the
one hand to interpret the Framework Decision with respect for
the different legal systems and traditions of the Member States,
but on the other to the need for interpretation in full compliance
with the ECHR, as developed by the case law of the European Court
of Human Rights. The Attorney General comments that "there
appears to be scope for confusion here at EU level, because these
concepts plainly involve considerable national differences".
The Attorney General also notes that Article 1 does not attempt
to define criminal proceedings either in content or duration but
provides that this term is to be interpreted "in accordance
with national laws and with respect to the ECHR jurisprudence",
and further notes that this does not explain whether administrative
proceedings or military discipline proceedings would be covered
by the Framework Decision. The Attorney General also remarks that
how "respect for the ECHR jurisprudence" relates to
the margin of appreciation afforded to Member States of the Council
of Europe or to the reservations which individual Member States
have made is "unknown".
7.20 With respect to Article 3, the Attorney General explains
that it applies to persons charged with a criminal offence, rather
than persons subject to criminal proceedings, which narrows the
scope of the provision and that it does not amount to an entitlement
to the presence of a lawyer. Instead, it prescribes "adequate
opportunities, time and facilities to communicate with a lawyer"
and leaves it to Member States to define in their national law
how the right to legal advice should be exercised.
7.21 On the provisions of Article 4 (which provide for the costs
of legal assistance to be borne in whole or in part by the Member
State where a person is unable to meet such costs as a result
of his economic situation and where the interests of justice so
require), the Attorney General comments that the phrase "economic
situation" is unsatisfactory and that the Government considers
that the drafting "needs to be tightened to reflect the current
ECHR tests and avoid opening up legal uncertainties and unnecessary
litigation".
7.22 The Attorney General also notes that the drafting of Articles
5 (right to interpretation) and 6 (right to translation) appears
to differ from that of equivalent provisions in the ECHR. In relation
to Article 6, the Attorney General notes that there is no longer
any reference to obtaining an oral translation of a written document
and comments that the Government would wish to "guard against
the long-term risk of being required to translate a greater volume
of documentary evidence than is currently necessary in our largely
oral criminal proceedings".
7.23 The Attorney General describes the draft resolution as being
designed to encourage Member States to take practical measures
based on recognised good practice (often deriving from ECHR case
law) to improve compliance with the basic criminal procedural
standards which are set out in Article 6 ECHR and which apply
in all the Member States of the European Union.
Conclusion
7.24 We thank the Attorney General for his helpful Explanatory
Memorandum. In our view, this amply demonstrates the dangers of
devising at EU level a system of rules in an area which has long
been occupied by the ECHR.
7.25 The draft Framework Decision appears to us to achieve
little which is not already provided for by Articles 5 and 6 ECHR
and its case law, but does so in a way which is likely to create
confusion and conflict with the ECHR. We therefore strongly support
the efforts by the Government to promote a resolution instead
of a draft Framework Decision. This approach seems to us to be
more likely to be of practical help to the citizen, and we shall
look forward, in due course, to a further account from the Attorney
General of any progress towards this end.
7.26 In the meantime, we shall hold the document under scrutiny.
21 Article 34(1) provides for common action on judicial
cooperation in criminal matters, which may include (Article 34(1)(c))
"ensuring compatibility in rules applicable in the Member
States, as may be necessary to improve such cooperation". Back
22
i.e. a paper which does not constitute a formal proposal. Back
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