Select Committee on European Scrutiny Twelfth Report


7 Procedural rights in criminal proceedings

(a)

(27919)

13116/06





(b)

(28407)

16874/06

(c)
(28349)

5119/07

(d)

(28350)

5872/07

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






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



Draft Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union

Legal base(a), (b) and (d) Article 31(1)(c) EU; consultation; unanimity; (c) —;—;
Deposited in Parliament(b) 28 February 2007

(c) and (d) 6 February 2007

DepartmentOffice for Criminal Justice Reform
Basis of considerationEM of 26 February 2007
Previous Committee Report(a) HC 34-xl (2005-06), para 7 (1 November 2006); and 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)

(b), (c) and (d) None

To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decision(a) and (b) cleared; (c) and (d) Not cleared; further information requested

Background

7.1 When we considered an earlier version of the draft Framework Decision on procedural rights in criminal proceedings, we shared the doubts of the previous Committee (and 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,[33] 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. We were informed by the Attorney General (Lord Goldsmith) 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 considered that this conclusion fatally undermined any reliance on Article 31(1)(c) EU as the legal base for the proposal.

7.2 The Attorney General informed us that, at the JHA Council in June 2006, 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". 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. On the other hand, some Member States continued to hold out for a legally-binding instrument to be agreed in this area.

7.3 We considered a revised proposal (document (a)) on 1 November 2006. It consisted of a draft Framework Decision based on an informal proposal made during the Austrian Presidency and dealing with the right to information, to legal assistance, to interpretation and to translations of relevant documents. At the same time, the Council also agreed to consider a draft resolution based on a proposal by the United Kingdom, the Czech Republic, Ireland, Malta, Cyprus and Slovakia with a package of other practical measures to enhance compliance with the European Convention on Human Rights (ECHR). The question of whether to proceed by way of a binding Framework Decision or a non-binding resolution was to be left until later.

7.4 In his Explanatory Memorandum on document (a) the Attorney General explained that the UK's main high level concern was to avoid unnecessary duplication of the ECHR and the risk of legal uncertainty for citizens and Member States, and that the UK was not satisfied that the current proposal for a binding Framework Decision was worthwhile and believed that practical measures which could bring tangible benefits to the citizen should be pursued instead. The Attorney General noted a number of divergences from the principles of the ECHR in the text of the Framework Decision. By contrast, the draft resolution was 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.

7.5 We considered that the Attorney General's Explanatory Memorandum amply demonstrated the dangers of devising at EU level a system of rules in an area which has long been occupied by the ECHR. In our view, the draft Framework Decision appeared to us to achieve little which was not already provided for by Articles 5 and 6 ECHR, but did so in a way which was likely to create confusion and conflict with the ECHR. We therefore strongly supported the efforts by the Government to promote a resolution instead of a draft Framework Decision.

The revised proposals

7.6 Document (b) is a revised version of the draft Framework Decision, and is the subject of a further revision produced by the German Presidency (document (d)). In response to this latter proposal, the UK, Cyprus, the Czech Republic, Ireland, Malta and Slovakia have submitted a proposal for a non-binding resolution (document (c)).

THE REVISED FRAMEWORK DECISION

7.7 The revised text of the Framework Decision produced by the German Presidency (document (d)) continues to make provision for rights to information, to contact a legal representative and to interpretation and translation, but a number of amendments have been made.

7.8 Article 1 (which concerns the subject-matter and scope of the proposal) has been amended so as to include an express reference to Article 31 EU in stating that the proposal is intended to facilitate judicial cooperation in criminal matters, and in particular the mutual recognition of judicial decisions. Article 1 also now states that it "extends" the rights it establishes to proceedings for the execution of a European Arrest Warrant (EAW) or for the "extradition or surrender of an arrested person to an international criminal court".[34] Article 1 also provides that the expressions "charged with a criminal offence" and "arrested" are to be interpreted in accordance with the case law of the European Court of Human Rights relating to Articles 5(1)(c) and 6 of the ECHR. Article 1(4) similarly provides that the meaning of those provisions of Articles 2 to 5 of the Framework Decision which "correspond" to the rights guaranteed by the ECHR "shall be the same" as those laid down by the Convention and the case law of the European Court of Human Rights. Article 1(5) provides that the reservations made by Member States under Article 57 ECHR "shall also apply" with regard to those provisions of the Framework Decision which "correspond" to the relevant provisions of the ECHR.

7.9 Article 2 provides for a right to information, both at the time of arrest and of any charge being laid. At the time of arrest, the person is to be informed of the reasons for the arrest and of relevant procedural rights which may be exercised at that stage. Where the person is charged, the information to be given corresponds to that referred to in Article 6(3)(a) ECHR (i.e. "the nature and cause of the accusation").

7.10 Article 3(1) provides for a right to contact a legal representative on arrest and to have such a representative present during questioning, to have the opportunity of consulting such a representative privately and to obtain legal assistance of his own choosing and, when the interests of justice so require, to be given such assistance free of charge. Where a person has been charged, Article 3(2) provides for rights similar to those under Article 6(3)(b),(c) and (d) ECHR relating to the preparation of the defence,[35] legal assistance and the examination of witnesses.

7.11 Article 4 requires Member States to ensure that a person who is arrested or charged is provided with the free assistance of an interpreter if he does not understand or speak the language used in court.[36] Article 5 similarly requires Member States to ensure that a person who is arrested or charged receives, free of charge, a translation of the documents "necessary to ensure a fair trial", if the person concerned does not understand the language in which those documents are drawn up. In the case of an arrest, at least those documents which are "essential in order to review its legality" are to be translated.

7.12 An annex to the draft Framework Decision sets out "practical action" which Member States "will take"[37] to ensure compliance with the fundamental rights established in the Framework Decision and in the ECHR. These include providing information on ECHR judgments, the provision of a "letter concerning rights" in all the languages of the EU and listing the "essential rights" of the person concerned, to provide lists in police stations of available lawyers and to develop standards for interpretation.

THE REVISED DRAFT RESOLUTION

7.13 A covering note to the draft Resolution (document (c)) recalls that JHA Ministers have decided that the Council working group should consider binding and non-binding approaches in parallel, and that a proposal to consider only the draft Framework Decision was considered at the December JHA Council, but was opposed by several Member States. The note calls for "full and fair" consideration to be given to the views of those Member States which consider that a non-binding approach in this area is most likely to benefit the Union at this stage of its development.

7.14 The draft Resolution reiterates the commitment of Member States to the ECHR and encourages Member States to promote compliance with Articles 5 and 6 ECHR, to ensure the dissemination of ECHR case law, to consider a number of "action points" to enhance compliance with minimum standards in relation to the provision of information, legal aid and the assistance of interpreters and translators and to consider extending and participating in peer evaluation mechanisms.

7.15 The "action points" take the form of a list of questions on access to information, legal assistance and interpreters. The questions also refer to a number of recommendations by the Council of Europe on enhancing compliance with the ECHR. A final section lists action for which the Commission might provide support and financial assistance, including support for the introduction of facilities to record proceedings which are conducted through an interpreter.

The Government's view

7.16 In a detailed and helpful Explanatory Memorandum of 26 February 2007, the Attorney General (Lord Goldsmith) explains that previous texts of the proposed Framework Decision failed because of difficulties in agreeing common standards at EU level which added value to the ECHR, but which respected national and constitutional and other differences and that "these are difficult and sensitive areas and divergences of view remain". The Attorney General adds that six Member States, including the UK, proposed that progress might best be made by a non-binding Resolution, based on practical measures, and that it was agreed at the JHA Council in June 2006 that the Council working group should consider binding and non-binding approaches in parallel.

7.17 The Attorney General notes that the proposed Framework Decision is based on Article 31 EU, but that the UK has reserved its position on the adequacy of the legal base and will review the matter afresh when a final text is presented and its necessity and value can be better judged. The Attorney General also states that the UK is not satisfied that the position regarding subsidiarity is acceptable and that the UK will review the matter in the light of a final proposal.

7.18 The Attorney General states that the UK's main high-level concern is to avoid unnecessary duplication of the ECHR and the risk of legal confusion and costs for citizens and Member States. The Attorney General notes that the Framework Decision would create a jurisdiction on procedural rights for the ECJ, which would adopt a purposive approach which might lead to the setting out of general principles to be applied by the national courts. The Attorney General goes on to make this comment:

"The more detailed the provisions of the FD [Framework Decision], and the less closely aligned those provisions are to the ECHR, the higher the risk that an ECJ ruling could determine meaning for Member States. We are not satisfied that the current proposal for binding EU law is worthwhile, in an area already well covered by the ECHR and overseen by the European Court of Human Rights, as well as the domestic courts. We recognise that the ECHR may not be well implemented right across the EU but believe that the answer is not new laws and jurisdiction for procedural rights, but rather practical, funded measures which can bring tangible benefits to the citizen."

7.19 In his detailed analysis of the draft Framework Decision, the Attorney General draws our attention to the poor drafting of the recitals and to the statement in the fourth recital that the Framework Decision is intended to create and confer new rights over and above those under the ECHR. These imply an extension of the rights under Article 6 ECHR to proceedings for extradition (including under an EAW), whereas the European Court of Human Rights has consistently held that the Article 6 ECHR rights do not apply to proceedings, such as those for extradition, which do not themselves determine a criminal charge against a fugitive. The Attorney General also notes that, in other respects, the draft Framework Decision is intended to conform with the ECHR "but the text does not clarify precisely which provisions are intended to correspond to the ECHR as regards meaning and scope and it is not possible to deduce the answer, even when the rights are dealt with in terms which correspond with the ECHR provisions".

7.20 The Attorney General makes a number of detailed comments on the earlier version of the draft Framework Decision (document (b)) and notes that the revised version (document (c)) provides some welcome clarification of Article 2 but that the Government's principal concerns remain.

Conclusion

7.21 We thank the Attorney General for another helpful and informative Explanatory Memorandum. The points made underline, in our view, the lack of wisdom of proceeding with a binding instrument, such as a Framework Decision, in a field which has long been occupied by the ECHR.

7.22 We therefore repeat our strong support for a resolution, rather than a Framework Decision, as we believe this will minimise the risk of conflict with the ECHR and do more to promote the adoption of practical measures of benefit to the citizen.

7.23 We look forward to a further account, in due course, of developments with these proposals. We clear documents (a) and (b) on the grounds they have been superseded, but we shall hold documents (c) and (d) under scrutiny pending the Minister's reply.





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   This formulation seems to exclude cases where a person is extradited to a third State. Back

35   Whereas Article 6(3)(b) ECHR refers to 'adequate time and facilities' for the preparation of his defence, Article 3(2) of the Framework Decision refers to 'adequate time and opportunity'. It is not clear if any difference is intended. Back

36   Cf. Article 6(3)(e) ECHR. Back

37   However, the operative parts of the annex require Member States merely to 'endeavour' to carry out the specified action. Back


 
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