14 Procedural rights in criminal proceedings
| (27268)
15432/05
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| Draft 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 23 March 2006
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| Previous Committee Report | HC 34-xxi (2005-06), para 18 (8 March 2006) and see HC 34-vi (2005-06), para 14 (19 October 2005), 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 | Not cleared; further information awaited
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Background
14.1 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.
14.2 We shared the doubts of the previous Committee
as to whether the proposal was properly based on Article 31(1)(c)
EU[33] since it would
have applied also to purely internal cases involving only nationals
of the Member State of trial and in cases where no question of
recognition and enforcement in another jurisdiction could arise.
We were aware that Ireland had opposed the approach set out in
the Commission's Green Paper (and on which the present proposals
were based) on grounds of subsidiarity and lack of legal base
(concerns which we and the previous Committee shared). The then
Minister confirmed in her oral evidence to us on 26 October 2005[34]
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 and that there were some other
Member States which were sympathetic to this view.
14.3 We also regretted the deletion of provisions
which would have required audio and video recording of interviews
of persons conducted through interpreters or where the person
was entitled to specific attention by reason of a mental or physical
infirmity. In our view, such measures would have given a degree
of reassurance about the fairness of criminal proceedings and
their deletion made the instrument of considerably reduced value.
14.4 The Attorney General (Lord Goldsmith QC) informed
us on 8 February 2006 that the European Council had noted in December
2005 that it had not proved possible to agree the proposal by
the Hague Programme deadline because of "fundamental differences
of view between Member States, in particular over the validity
of the proposed legal base and other serious issues arising from
the detailed provisions". The Attorney General added that
the Austrian Presidency had canvassed a "new approach"
which would involve suspending work on the proposal for the time
being and future handling would be for the European Council to
decide.
14.5 When we considered the revised proposal on 8
March 2006 we observed that the proposal was over-ambitious in
its scope and purpose and repeated our concern that it sought
to cover the generality of criminal procedure, whether or not
the case had any cross-border element or other feature relevant
to the international judicial cooperation envisaged in the EU
Treaty and Article 31(1)(c) in particular. We also considered
that, with the abandonment of recordings of interviews, the proposal
now provided no benefit which was not already provided for, and
more widely and more effectively, by the European Convention on
Human Rights.
14.6 In relation to the consideration of a new approach,
we suggested that it might be more realistic and appropriate (having
regard to Article 31(1) EU) to consider measures more closely
linked to the mutual recognition of judicial decisions, such that
a judicial decision would not be recognised and enforced in another
jurisdiction unless it satisfied certain minimum standards of
fairness, but without seeking to regulate the generality of criminal
proceedings across the Member States.
14.7 We asked the Attorney General for his comments
on these points and for further information on the outcome of
discussions on the future of this proposal.
The Attorney General's reply
14.8 The Attorney General (Lord Goldsmith QC) replies
to these comments in his letter of 23 March 2006. The Attorney
General informs us that the Austrian Presidency did not refer
the matter to the Justice and Home Affairs Council in February
as had been expected, but instead had referred the matter to the
Council Working Group so as to clarify what operational need,
if any, lay behind the proposal.
14.9 The Attorney General reports 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 adds that some Member States nevertheless
continued to hold out for a legally binding instrument to be agreed
in this area, despite the deep divisions which were described
in his Explanatory Memorandum, and that in the absence of consensus
on the way forward it had been decided that the measure "would
require further political guidance".
14.10 The Attorney General comments that in view
of this apparent impasse, there may now be a need to consider
non-legislative alternatives to a Framework Decision such as a
political declaration and some EU-funded schemes to improve the
provision of legal advice and interpreters.
14.11 In relation to our suggestion that consideration
should be given to measures more closely linked to the mutual
recognition of judicial decisions, so that a decision would not
be recognised unless it met certain minimum standards of fairness,
the Attorney General comments that he has "serious doubts
as to whether there would be any mileage in promoting this"
and that "no Member State appears to believe it practicable
or desirable to confine the Framework Decision to cross-border
cases". The Attorney General adds that as all Member States
are already signatories to the European Convention on Human Rights,
which guarantees the right to a fair trial (Article 6 ECHR) and
to an effective remedy (Article 13) against miscarriages of justice,
and because all EU Member States are democracies based on the
rule of law, "there is already a sufficient basis for mutual
confidence in the quality of judicial decisions".
14.12 The Attorney General observes that it is already
possible for a judge in an executing State to examine whether
there has been an infringement of fundamental rights in a specific
case before taking the decision to recognise and execute a foreign
order, and that this would seem to meet the our point. The Attorney
General adds that he understands that in the context of judicial
co-operation there have already been cases in which defendants
have sought to challenge the recognition and enforcement of orders
on grounds of breach of fundamental rights, but that these arguments
have not been accepted, the judges generally presuming in favour
of Member States' application of the ECHR.
Conclusion
14.13 We are grateful for this further information
from the Attorney General. We find it striking that Member States
should now agree that there is no evidence that the proposed Framework
Decision is required to facilitate judicial co-operation. In our
view, this must fatally undermine any reliance on Article 31(1)(c)
EU as the legal base for the proposal.
14.14 We look forward to further information in
due course from the Attorney General as to what will now become
of the proposal, which remains under scrutiny.
33 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
34
HC 614-i (2005-06), 26 October 2005. Back
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