15 Procedural rights in criminal proceedings
| (27268)
15432/05
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| Draft Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
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| Legal base | Article 31(1)(c) EU; consultation; unanimity
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| Department | Office for Criminal Justice Reform
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| Basis of consideration | Minister's letter of 20 June 2006
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| Previous Committee Report | HC 34-xxvi (2005-06), para 14 (26 April 2006); HC 34-xxi (2005-06), para 18 (8 March 2006) and see (26715) HC 34-vi (2005-06), para 14 (19 October 2005); (25637) HC 42-xxxii (2003-04), para 16 (13 October 2004); HC 42-xxx (2003-04), para 7 (9 September 2004); HC 42-xxvi (2003-04), para 4 (7 July 2004); HC 42-xxii (2003-04), para 15 (9 June 2004)
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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 | Cleared
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Background
15.1 This proposal for a Framework Decision is concerned with
establishing common minimum standards concerning certain aspects
of criminal procedure, notably the right to legal advice, to interpretation
and translation, to have medical attention and to seek consular
assistance. We shared the doubts of the previous Committee as
to whether the proposal was properly based on Article 31(1)(c)
EU,[49] since it would
have applied also to purely internal cases where no question of
judicial co-operation or of recognition and enforcement in another
jurisdiction could arise.
15.2 We were aware that Ireland, along with Austria,
the Czech Republic, Denmark, Malta and Slovakia had entered a
formal reservation about the legal base of the current proposal
(because of its effect on purely internal cases) and that there
were some other Member States which were sympathetic to this view.
The Attorney General (Lord Goldsmith QC) informed us that the
European Council had noted that it had not proved possible to
agree the proposal by the Hague Programme deadline at least partly
because of fundamental differences of view between Member States
over the validity of the proposed legal base. The Attorney General
informed us on 23 March 2006 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 Framework Decision
was in fact required to facilitate co-operation. The Attorney
General pointed out that some Member States nevertheless continued
to hold out for a legally binding instrument to be agreed in this
area, despite the deep divisions between them. The Attorney General
added that in view of this apparent impasse, 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.
15.3 We found it striking that the Council working
group should have agreed that there was no evidence that the proposed
Framework Decision was required to facilitate judicial co-operation,
and considered that this fatally undermined any reliance on Article
31(1)(c) EU as the legal base for the proposal. We asked the Attorney
General for further information in due course as to what was to
become of the proposal.
The Attorney General's letter
15.4 In his letter of 20 June 2006 the Attorney General
informs us that "it is now clear that the Commission's original
draft Framework Decision on procedural rights has been shelved
because of divisions between Member States over legal base, and
over the question of exceptions regarding safeguards in cases
of terrorism and serious crime".
15.5 The Attorney General reports that the Austrian
Presidency circulated an alternative, more general, text as a
"non-paper"[50]
which was discussed at informal working group meetings in April
and May and at the June JHA Council. The Attorney General informs
us that the Council has decided to remit the document for further
consideration in the relevant working group and that he expects
it to be circulated as an official text in due course (when it
will become the subject of an Explanatory Memorandum).
15.6 The Austrian "non-paper" seeks to
set out a number of minimum standards to be followed in criminal
proceedings which reflect the case-law of the European Court of
Human Rights, notably in relation to Article 6 of the ECHR (which
guarantees the fairness of trials). The document requires the
minimum standards set out, and the concepts of "criminal
proceedings" and "charged with a criminal offence",
to be interpreted in accordance with the ECHR (and Article 6 in
particular). Article 2 of the draft provides for information to
be given to a person who is subject to criminal proceedings and
Article 3 a right to legal assistance of a person's own choosing.
Article 4 provides for the circumstances when such assistance
is to be provided free of charge. Article 5 provides for a right
to interpretation, and Article 6 a right to free translation of
relevant documents to the extent necessary to ensure the effectiveness
of the right of the defence.
15.7 The Attorney General also reports on the discussion
of the matter at the JHA Council in June, noting that despite
the "weaker content of the Presidency text, 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 adds 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 draws attention to the serious concerns which
had been expressed in this regard by the Council of Europe to
the Austrian Presidency.
15.8 The Attorney General informs us that he advised
the Council of the Government's "clear preference for a political
resolution with a package of practical measures and funding streams
to enhance compliance with the ECHR" and notes that there
was agreement in the Council that such a Resolution should be
discussed and developed in the working group alongside the Presidency
text. The Attorney General adds that the UK "has made clear
all along that its support for this project is conditional on
the tests of necessity, proportionality and subsidiarity being
met" and that in his view "the most important political
test is the value added for the citizen over and above the ECHR".
Conclusion
15.9 We are grateful to the Attorney General for
keeping us informed of further discussion of this proposal. We
share the views expressed by a number of Member States, notably
Ireland, that this proposal is not properly based on Article 31(1)(c)
EU and we therefore welcome the fact that the Commission's proposal
is effectively "shelved".
15.10 We also share the concerns expressed by
the Government about the dangers of devising, at EU level, a system
of rules which duplicates and overlaps with those of the ECHR.
We look forward to considering the latest Presidency text when
it is officially submitted, but we observe that the draft we have
seen appears to achieve little which is not already provided for
under Article 6 ECHR, and we doubt the utility of proceeding with
it. The practical measures mentioned by the Attorney General seem
more likely to provide an added benefit to the citizen, without
compromising the role of the ECHR institutions.
15.11 As we infer that the Commission's proposal
is now abandoned, we are content to clear the document, given
the Attorney General's undertaking to inform us of any new formal
proposal.
49 Article 34(1) provides for common action on judicial
co-operation 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
50
I.e a paper which does not constitute a formal proposal. Back
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