6 Procedural rights in criminal proceedings
(a)
(28349)
5119/07
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(b)
(28350)
5872/07
—
(c)
(28516)
7602/07
—
(d)
(28515)
7349/07
—
(e)
(28581)
8545/07
—
(f)
(28535)
8200/07
—
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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
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
Observations by the Council of Europe on a new version of the proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
|
| Legal base |
(a), (c) and (e) Article 31(1)(c) EU; consultation; unanimity; (b) and (d) |
| Deposited in Parliament |
(c) and (d) 3 April 2007 (e) 27 April 2007 (f) 12 April 2007 |
| Department |
Office for Criminal Justice Reform |
| Basis of consideration |
EM of 11 May 2007 |
| Previous Committee Report |
(a) and (b) HC 41-xii (2006-07), para 7 (7 March 2007) and see HC 34-xl (2005-06), para 7 (1 November 2006); (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)
(c) to (f) None |
| To be discussed in Council |
Justice and Home Affairs Council 12-13 June |
| Committee's assessment |
Legally and politically important |
| Committee's decision |
(a) — (c) and (f) cleared; (d) and (e) not cleared but agreement need not be withheld pending consideration |
Background
6.1 In our consideration of earlier versions 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,[13]
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. The Attorney General (Lord
Goldsmith QC) subsequently 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,
and 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".
6.2 The Attorney General informed us that, several
Member States, including the UK, also expressed concern (as we
had ourselves) 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.
6.3 In the course of 2006 the Council agreed to consider
a non-binding text in the form of 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.
6.4 We strongly supported the efforts by the Government
to promote a resolution instead of a draft Framework Decision.
We considered that the Explanatory Memorandum submitted by the
Attorney General on 26 February 2007 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 his Explanatory Memorandum
the Attorney General noted a number of divergences from the principles
of the ECHR in the text of the Framework Decision and explained
that, 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.
6.5 We held the documents under scrutiny pending
a further account from the Attorney General on developments. In
the meantime we noted that in her statement on the Justice and
Home Affairs Council on 19-20 April the Parliamentary Under-Secretary
of State at the Home Office (Joan Ryan) said that there had been
a "lengthy discussion" of the draft Framework Decision
and that the Government had argued strongly for limiting the scope
of the Framework Decision to European Arrest Warrant (EAW) cases
(i.e. those involving extradition to a Member States), with action
on wholly domestic cases to be pursued "via a package of
concrete practical measures, backed by a strong political resolution".
The Minister stated that the Presidency had put forward an oral
proposal along these lines, but including a review clause and
a commitment to examine whether there "could legally be a
formal opt-in allowing some Member States to apply the Framework
Decision to domestic cases" and also to "work to try
to define 'cross-border' more widely than the EAW". The Minister
added that the Presidency had set the June JHA as a deadline for
"agreeing the main principles".
The revised proposals
6.6 Further versions of the Resolution and Framework
Decision have been produced, the current version of the Resolution
being document (d) and of the Framework Decision being document
(e). Document (f) is a set of observations by the Council of Europe
on the relationship of the draft Framework Decision with provisions
of the European Convention on Human Rights (ECHR). The earlier
versions of the Framework Decision and Resolution (documents (a)
to (c)) have now been superseded.
THE REVISED DRAFT RESOLUTION
6.7 The revised draft Resolution (document (d)) is
a proposal by the United Kingdom, the Czech Republic, Ireland,
Malta, Cyprus and Slovakia for a resolution on practical action
to promote fairness for those arrested or charged in criminal
proceedings. The draft is in terms largely similar to those of
the version we have already considered, but its scope appears
to have been widened in that it now refers to "fairness for
those arrested or charged in criminal proceedings", whereas
the previous version referred to "fairness in criminal proceedings
with particular reference to access to free legal aid and to an
interpreter".
6.8 As before, the Resolution provides for promoting
full compliance with Articles 5 and 6 ECHR as developed in the
case law of the European Court of Human Rights, for disseminating
the ECHR case law, for a national action plan to enhance and verify
compliance with minimum standards in relation to the provision
of information, legal aid and the assistance of interpreters and
translators, and for extending and participating in peer evaluation
mechanisms to safeguard key procedural rights in criminal proceedings.
6.9 The revised draft invites the Commission to
provide support and financial assistance for the introduction
of facilities for the recording (by audio or video recording)
of police interviews with suspects. The recommendation is significantly
wider in scope than its predecessor, which referred only to the
tape-recording of proceedings conducted through an interpreter.
The recommendation would therefore apply to all cases where a
suspect is interviewed, irrespective of any requirement for an
interpreter.
THE REVISED DRAFT FRAMEWORK DECISION
6.10 The revised text of the Framework Decision
(document (e)) 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. The revised text is
preceded by a covering note to the Council (and which appears
to have been considered at the April JHA Council) setting out
a list of outstanding questions.
6.11 The covering note recalls that the fundamental
question of the scope of the Framework Decision "has not
yet been solved", and sets out two options proposed by the
Presidency. The first ('Option A') which is said to be "preferred
by a large majority of delegations" would involve adoption
of the Framework Decision together with the non-binding Resolution.
The second ('Option B') would involve limiting the scope of the
Framework Decision to cross-border cases, in particular EAW cases,
together with the Resolution. The covering note goes on to state:
"The Presidency notes, however, that the issue
of limitation to cross-border is a difficult one and does not
have the support of most delegations at the moment. In addition,
past attempts to find a workable definition for cross-border cases
have not been successful."[14]
6.12 The covering note also records doubts expressed
by the Commission on the compatibility of Article 3(1)(b) and
Article 5 of the Framework Decision with the provisions of the
ECHR.[15]
6.13 The revised text of the draft Framework Decision
is largely similar to the previous version which we have considered.
The material changes appears to be as follows. The fourth recital
appears to narrow the scope of the proposal since it no longer
refers to extradition or the transfer of an arrested person to
an international court. A new recital (6a) has been added to provide
that the right of a person to defend himself or to examine and
have examined witnesses against him may be "overridden"
where this is "necessary in the interests of justice".
A seventh recital provides that the Framework Decision sets minimum
standards and that nothing in it prevents Member States from adopting
measures further to enhance the rights of the individual in criminal
proceedings.
6.14 Article 1 (which concerns the subject-matter
and scope of the proposal) has been amended by the inclusion of
a definition of "criminal proceedings", these being
defined as "any proceedings which could lead to a criminal
penalty ordered by a criminal court". Article 1 also now
provides that the Framework Decision "extends" the rules
defining the rights it establishes to proceedings for the execution
of a European Arrest Warrant.
6.15 As before, Article 1(4) 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) excludes disciplinary and administrative proceedings form
the scope of the Framework Decision. The provision also excludes
proceedings for "military offences" or for offences
subject to military jurisdiction insofar as Member States have
made a reservation under "section" 57 of the ECHR.
6.16 Article 2(1) now refers expressly to a person
arrested in connection with a criminal offence, and provides that
he is to be informed of the reasons for the arrest and of relevant
procedural rights which may be exercised at that stage. Article
2(2) deals separately with the rights of the person who is charged
with a criminal offence. In such a case, 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"). Corresponding
provision is made in a new Article 2a for proceedings under a
European Arrest Warrant.
6.17 Article 3(1) and 3(2) now refer separately to
the rights of a person who is arrested and the rights of a person
who is charged. Article 3(1) accordingly provides for a right
to contact a legal representative on arrest and to have such a
representative present during questioning, 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. The right
to have the opportunity of consulting a representative privately
has now been qualified by a reference to the possibility of monitoring
if the "interests of justice so require". 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,[16]
legal assistance and the examination of witnesses. Corresponding
provision is now made separately for EAW cases in Article 3a.
6.18 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, and is in substantially the same terms
as the previous version. Again, separate provision is made in
a new Article 4a for EAW cases.
6.19 The rights to translation under Article 5 have
now been qualified. First, the provision no longer refers to translation
of those documents "necessary to ensure a fair trial"
but to the "detention order, the indictment and the judgment".
Secondly, provision is made allowing only an "oral summary"
of these documents "where compatible with the interests of
justice". Similar provision is made under a new Article 5a
in relation to EAW cases.
6.20 The remaining provisions of the Framework Decision
are substantially unchanged.
THE OBSERVATIONS BY THE COUNCIL OF EUROPE
6.21 Document (f) contains a series of critical observations
on the draft Framework Decision by the Council of Europe Secretariat.
The paper notes that the Council of Europe was asked by the General
Secretariat of the Council on 22 March to provide a written opinion
by 27 March on the new version of the Framework Decision. In our
view quite understandably, the Council of Europe regrets the "extremely
short deadline" it was given to prepare its observations.
6.22 The paper recalls that, throughout the period
of consultation, the Council of Europe Secretariat has emphasised
the importance of ensuring coherence and consistency between the
proposed Framework Decision and the ECHR, as interpreted by the
European Court of Human Rights. The Council of Europe formulated
three basic requirements. First, that the Framework Decision should
be based on the existing ECHR standards and should "follow
their wording as closely as possible", secondly that there
should be specific provisions ensuring consistency of interpretation
of the Framework Decision with the ECHR "the application
of which must never lead to a level of protection lower than that
guaranteed by the ECHR" and, thirdly, that where the Framework
Decision departs from the ECHR, it should be clearly stated whether
its provisions are intended to set a higher standard, or merely
to set out ways of complying with existing ECHR standards.
6.23 The Council of Europe states that compliance
with the first of these requirements has been reduced in the new
draft. In this connection, it points to the "qualifications
and restrictions" in Article 3(1)(b) and Article 5 "which
tend to move these rights away from the standards of the ECHR
and/or the Strasbourg court's case-law".
6.24 The Council of Europe states that the second
requirement "continues to be fulfilled in principle",
but that it would require more detailed examination to establish
whether the provisions on interpretation are still sufficient
to ensure coherence and consistency with the ECHR.
6.25 The Council of Europe also states that, in the
absence of a clear indication of the rights whose meaning and
scope is still intended to correspond to the ECHR, "it is
unfortunately no longer possible to conclude with certainty that
the current draft fully meets the third requirement".
6.26 The Council of Europe notes that the third recital
to the proposal states that no Member State may fail to meet the
standards of the ECHR and questions the benefit of trying to depart
from the ECHR wording and standards, knowing that in any event
a case adjudicated at the domestic level will be liable to be
made the subject of an application to the European Court of Human
Rights.
6.27 The Council of Europe concludes as follows:
"In the light of the rather substantial amendments
made to the draft Framework Decision, the lack of further information
about their intent and the impossibility to carry out a more detailed
examination within the very short deadline given, the Council
of Europe Secretariat is regrettably not in a position to state
that the present draft still contains sufficient safeguards to
ensure coherence and consistency with the ECHR."
The Government's view
6.28 In a detailed and helpful Explanatory Memorandum
of 11 May 2007, the Attorney General (Lord Goldsmith) informs
us that the JHA Council concluded that there was general agreement
for a non-binding political Resolution on practical measures and
for a Framework Decision limited to European Arrest Warrant cases,
and that there should be further consideration as to whether the
Framework Decision could apply to a wider category of cross-border
cases, and that "subject to legal advice, if some form of
option for covering domestic cases could be available for Member
States that wished it".
6.29 The Attorney General notes that the proposed
Framework Decision is based on Article 31(1)(c) EU which provides
for "ensuring compatibility in rules applicable in the Member
States as may be necessary to improve judicial co-operation in
criminal matters". The Attorney General informs us that the
UK has entered a formal reservation regarding the necessity, and
thus the legal base, for the Presidency text insofar as it covers
domestic cases. The Attorney General explains that the UK will
scrutinise the legal basis of any revised Framework Decision but
considers that the "necessity" issue differs if the
rules of the Framework Decision were to be limited to cases that
are strictly cross-border in nature, that is, cases in which a
European Arrest Warrant has been issued. The Attorney General
adds that the Government is still not satisfied that the current
version of the Framework Decision properly complies with the principle
of subsidiarity, but that this position would not necessarily
apply to a measure which was limited to cross-border cases, and
that the Government will review the issue in the light of the
final proposal.
6.30 The Attorney General makes a number of detailed
observations on the draft Framework Decision, pointing out that
the fundamental definition of criminal proceedings in Article
1 remains unsatisfactory, and refers to the criticisms made by
the Council of Europe in this regard. The Attorney General observes
that it is unsatisfactory that the Framework Decision should leave
this basic issue of scope to the ECJ.
6.31 In relation to the comment by the Presidency
that "past attempts to find a workable definition of cross-border
cases have not been successful" the Attorney General notes
that "this is precisely because previous drafts did not define
cross-border cases as EAW cases but sought a wider scope".
6.32 The Attorney General considers that Article
1(4) remains unsatisfactory. It aims to secure consistency with
the ECHR, but does not explain which provisions of the Framework
Decision "correspond" to ECHR rights and draws our attention
to the criticisms made in this regard by the Council of Europe.
The Attorney General also considers Article 1(5) to be problematic
for the UK since it only excludes military proceedings from the
scope of the Framework Decision where a reservation has been made
under Article 57 ECHR, and the UK made no such reservation when
it ratified the ECHR in 1951 and cannot do so retrospectively.
6.33 In relation to Article 2 the Attorney General
notes that a distinction is now made between those who are arrested
and those who are charged, and that this removes the confusion
that existed in the previous version on the operation of rights
under Articles 5 or 6 ECHR. Nevertheless, it is also pointed out
that there is a lack of certainty as to which rights are relevant
at this stage of the procedure. Article 5 ECHR only requires information
to be given on the reasons for the arrest. The Attorney General
points out that the UK gives information about continuing procedural
rights at the time of arrest but that "there remains a danger
that the lack of clarity in this article could lead to interpretations
by the ECJ and might cause costly changes to our arrangements".
As with similar problems concerning Articles 3, 4 and 5, the Attorney
General notes that these could be avoided if the provisions were
properly "tied back" to those of the ECHR.
6.34 In relation to the draft Resolution, the Attorney
General points out that the most significant change is to make
clear that the Commission should consider supporting States who
wish to introduce tape-recording of all police interviews, noting
that "practical experience shows that routine tape-recording
of police interviews provides effective protection to suspects
and to the police".
Conclusion
6.35 We thank the Attorney General for again providing
us with a helpful and informative Explanatory Memorandum. We agree
with the points he has made and we recall our previous comment
on 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.
6.36 This lack of wisdom is further demonstrated
by the views of the Council of Europe, which we trust will be
given proper consideration by the Council. We find it scarcely
credible that a body with such experience and authority in the
field of human rights should have been given a mere five days
by the Council Secretariat in which to present an opinion on the
compatibility of the proposal with the ECHR. We consider this
to be as discourteous as it is inefficient.
6.37 As for the substance of the comments by the
Council of Europe Secretariat, we respectfully concur with them,
and find it deeply troubling that "qualifications and restrictions"
should have been placed on ECHR rights by the present proposal.
Given the pre-existing duty of Member States to comply with the
ECHR, adoption of a conflicting Framework Decision will serve
no purpose other than to create confusion.
6.38 We therefore again 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.
6.39 We note that the Presidency appears to be
pressing for a political agreement on this proposal at the June
JHA Council. In our view, the proposal is not in a fit state for
adoption and we doubt it will be for some time.
6.40 We clear documents (a) to (c) and (f), but
shall hold documents (d) and (e) under scrutiny, but we indicate
to the Attorney General that he need not withhold agreement to
the Resolution in any event, and that agreement need not be withheld
to the Framework Decision if it is confined to European Arrest
Warrant cases (or other clearly cross-border cases) in the way
the Attorney General has suggested, and if the difficulties with
Article 1(4) and (5), and other divergences from the ECHR have
been resolved.
13 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
14
This is somewhat misleading. There do not appear to have been
any attempts, in this context, to devise a definition of 'cross-border
cases'. Such attempts have been made in the context of civil measures
under Article 65 EC, and appear to us to have been successful. Back
15
This appears to relate to the concern expressed by the Council
of Europe that the rights referred to have been qualified in the
Framework Decision e.g. by referring to the 'interest of justice'
and thus move away from the standards fixed by the European Court
of Human Rights. Back
16
The discrepancy we noted between Article 6(3)(b) ECHR (refers
to 'adequate time and facilities' for the preparation of his defence)
and Article 3(2) of the Framework Decision which referred to 'adequate
time and opportunity' has now been resolved by the adoption of
the language of Article 6(3)(b) ECHR. Back
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